Even ignoring the constitutional argument, a jury must unanimously reject an EED defense

by: Ryan Scott • July 26, 2026 • no comments

In Richards v. Brown, 345 Or. App. 321 (2025), the Court of Appeals held that a jury could only reject an extreme emotion disturbance (EED) defense to murder if at least ten of them rejected it. Prior to that decision, if nine jurors believed the defendant was operating under EED at the time, but three didn't, the defendant was guilty of murder.

"It bears emphasis that, even though EED is only a partial defense, it is still an affirmative defense. Proving it renders a defendant not guilty of second-degree murder and guilty, instead, of first-degree manslaughter. An EED finding quite literally precludes a guilty verdict on second-degree murder. Therefore, under ORS 136.450 (2019), just as ten jurors had to concur on the elements in order to render a guilty verdict for second-degree murder, ten jurors had to concur that petitioner had not proven her affirmative defense."

Richards, 345 Or App at ___.

Great opinion, but why does the headline of this post say it now has to be a unanimous rejection. Because the statute has changed. As the Richards court noted in fn 8:

"We recognize that, under the current version of ORS 136.450, it may be that a jury must unanimously reject the EED defense to arrive at a general guilty verdict in a second-degree murder case. ORS 136.450(1) ("(1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement.")."

Id. at ___.

By the way, even though EED is only a defense to murder 2, don't forget to argue that, under the Oregon Constitution, it justifies a lower sentence for attempted murder. https://libraryofdefense.ocdla.org/Blog:Main/Applying_EED_at_Sentencing_to_Attempted_Murder