Or. Admin. Code § 859-050-0055 - Burdens

(1) The standard of proof on all issues at hearings of the Board will be the preponderance of the evidence.

(2) The party with the burden of proof will also have the burden of going forward with the evidence (call and examine witnesses, propose conditions of release, etc.).

(3) The burden of proof will depend on the type of hearing, as follows:

(a) Initial 90-day hearing under ORS 161.341(6)(a): The state has the burden to show the person continues to be affected by a mental disease or defect and continues to be a substantial danger to others.

(b) Initial review hearing under ORS 161.327(10): The state has the burden of proving that the current court conditional release, modification of conditional release, or a proposed plan is appropriate.

(c) Revocation hearing under ORS 161.336(4)(c): The state has the burden to show that the revocation of conditional release was appropriate and that jurisdiction of the Board should continue.

(d) Conditionally released outpatient's request for modification of a conditional release or discharge under ORS 161.336(5)(a): The patient has the burden of proving his or her fitness for modification of a conditional release or discharge.

(e) Hospital patient's request for conditional release or discharge under ORS 161.341(3): The person has the burden of proving his or her fitness for conditional release or discharge unless it has been more than 2 years since the State had the burden of proof in which case the burden is on the State.

(f) Request for conditional release or discharge of the patient by the State Hospital under ORS 161.341(1): the state must prove the person is not appropriate for conditional release or discharge.

(g) Request for conditional release or discharge of the outpatient by an outpatient supervisor under ORS 161.336(5)(b): the State has the burden.

(h) At a status review hearing (5 year hearing) under ORS 161.336(6): The state has the burden of proving that the current conditional release, modification of conditional release, or a proposed plan is appropriate.

(i) If at any hearing the hospital staff agrees with the patient on the issue of mental disease or defect, dangerousness or fitness for conditional release but no advance notice is given to the Board that the hospital requests discharge or conditional release, the burden of proof remains with the patient.

(j) The testimony of hospital staff will be considered as evidence to assist the Board in deciding whether the patient has met his/her burden.

Notes

Or. Admin. Code § 859-050-0055

PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 1-1995, f. & cert. ef. 1-11-95; PSRB 5-2016, f. & cert. ef. 3/17/2016; PSRB 1-2022, amend filed 01/13/2022, effective 1/13/2022

Statutory/Other Authority: ORS 161.387

Statutes/Other Implemented: ORS 161.336, ORS 161.341, ORS 161.346 & ORS 161.327