438 June 13, 2024 No. 21

IN THE SUPREME COURT OF THE 

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ERIK JOHN MEISER,

Petitioner on Review.

(CC CR1201547) (CA A166534) (SC S070059)

On review from the Court of Appeals.*

Argued and submitted September 14, 2023.

Daniel J. Casey, Portland, argued the cause and filed the 

briefs for petitioner on review.

Joanna R. Hershey, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on 

review. Also on the brief were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

Before Flynn, Chief Justice, and Duncan, Garrett, 

Bushong, James and Masih, Justices, and Nakamoto, Senior 

Judge, Justice pro tempore.**

DUNCAN, J.

The decision of the Court of Appeals is reversed, and 

the case is remanded to the Court of Appeals for further 

proceedings.

Bushong, J., concurred and filed an opinion, in which 

Nakamoto, S.J., joined.

James, J., concurred and filed an opinion, in which 

Masih, J., joined.

______________

* Appeal from Clackamas County Circuit Court, Katherine E. Weber, 

Judge. 323 Or App 674, 524 P3d 130 (2023).

** DeHoog, J., did not participate in the consideration or decision of this case.
Cite as 372 Or 438 (2024) 439
440 State v. Meiser

DUNCAN, J.

This criminal case requires us to construe ORS 

161.295, which defines the “guilty except for insanity” (GEI) 

defense. Subsection (1) of ORS 161.295 provides that

“[a] person is guilty except for insanity if, as a result of 

mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to 

appreciate the criminality of the conduct or to conform the 

conduct to the requirements of law.”

By its terms, ORS 161.295(1) requires a connection between 

the person’s lack of capacity and the person’s mental disease or defect: The lack of capacity must be “a result of” the 

mental disease or defect. The issue in this case concerns the 

meaning of “as a result of.”

For the reasons explained below, we conclude that 

“as a result of” must be given its plain, natural, and ordinary meaning, and, therefore, to prove the GEI defense, 

a defendant must show that their lack of capacity was a 

“consequence” or “effect” of their mental disease or defect. 

The defendant’s mental disease or defect may combine with 

another condition to cause the lack of capacity, and the 

mental disease or defect need not be sufficient on its own 

to cause the lack of capacity. Because the Court of Appeals 

held otherwise, we reverse and remand.

I. BACKGROUND

This is the second time that this case is before this 

court. The historical facts of the case are recounted in the 

earlier decisions of both the Court of Appeals and this court. 

State v. Meiser, 308 Or App 570, 572-76, 481 P3d 375 (2021),

rev’d, 369 Or 347, 506 P3d 402 (2022) (Meiser I); State v. 

Meiser, 369 Or 347, 350-52, 506 P3d 402 (2022) (Meiser II);

State v. Meiser, 323 Or App 674, 676-77, 524 P3d 130 (2023) 

(Meiser III). For the purposes of this decision, a summary of 

the trial and appellate proceedings is sufficient.

A. Trial Court Proceedings

Based on an incident in 2012, defendant was 

charged with multiple crimes, including several counts of 
Cite as 372 Or 438 (2024) 441

aggravated murder and burglary. The aggravated murder 

charges were based on the killing of one person, FH.

The trial court repeatedly found defendant unfit to 

stand trial by reason of incapacity. See ORS 161.360 (providing that a defendant may be found incapacitated if unable 

to understand the nature of the proceedings, to assist and 

cooperate with defense counsel, or to participate in the 

defense). Defendant spent nearly four years confined at the 

Oregon State Hospital before the trial court found him fit to 

stand trial.

Defendant waived his right to a jury, and the case 

proceeded to a bench trial. Defendant did not dispute that 

he had committed the charged acts, but he raised a GEI 

defense. As mentioned, the GEI defense is defined by ORS 

161.295, which provides, in full:

“(1) A person is guilty except for insanity if, as a result 

of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to 

appreciate the criminality of the conduct or to conform the 

conduct to the requirements of law.

“(2) As used in chapter 743, Oregon Laws 1971, the 

terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise 

antisocial conduct, nor do they include any abnormality 

constituting solely a personality disorder.”

ORS 161.295 (2011), amended by Or Laws 2017, ch 634, § 3.1

1 Because the crimes charged in this case were committed in 2012, the 2011 

version of ORS 161.295 applies. All references to the statute in this opinion are to 

the 2011 version.

In ORS 161.295(2), the reference to “chapter 743, Oregon Laws 1971,” is to the 

Oregon Criminal Code of 1971, of which the GEI defense is a part. Or Laws 1971, 

ch 743, § 36.

In 2017, the legislature amended ORS 161.295 to replace the term “mental disease or defect” with the term “qualifying mental disorder,” a term that 

the legislature thought had fewer negative connotations. Or Laws 2017, ch 634, 

§ 3. In the preamble to the bill that made the change, the legislature explained 

that it did not intend to “mak[e] a substantive change” in the law and wanted 

to preserve “the validity of all previous court decisions interpreting” the prior 

wording. Id., preamble. Although we are mindful of the negative connotations of 

the phrase “mental disease or defect,” we use it in this opinion because it is the 

applicable statutory phrase.
442 State v. Meiser

The GEI defense is an affirmative defense. ORS 

161.305. A defendant bears the burden of proving the elements of the defense by a preponderance of the evidence. 

ORS 161.055(2). As ORS 161.295(1) provides, to prove the 

GEI defense, a defendant must prove three elements:

(1) they suffered from a mental disease or defect

(2) that resulted in

(3) a lack of substantial capacity either (a) to appreciate the criminality of their conduct or (b) to conform their 

conduct to the requirements of the law.

In addition, as ORS 161.295(2) provides, a mental disease 

or defect does not include two types of abnormalities, specifically, (1) those manifested only by repeated criminal or 

antisocial conduct and (2) those constituting solely a personality disorder.

At trial, defendant called four mental health professionals to testify in support of his GEI defense. As we 

recounted in our prior decision, defendant

“offered the testimony of a psychologist and three psychiatrists, all of whom opined that defendant was suffering from 

schizophrenia but recognized that he had a co-occurring 

diagnosis of antisocial personality disorder. One of the psychiatrists explained that, as a symptom of defendant’s schizophrenia, defendant experienced ‘command auditory hallucinations’—voices that defendant believed to be telepathic 

communications from unseen entities—although defendant 

did not experience ‘the kind of overwhelming command auditory hallucinations some other psychotic individuals have.’

“Two of the experts addressed the other elements of the 

GEI defense. Both testified that, at the time of the crimes, 

defendant lacked substantial capacity to conform his conduct to the requirements of the law. And both testified that, 

if not for the psychosis, defendant would not have committed the crimes. One of the experts specifically rejected 

the suggestion that defendant’s ‘conduct [was] a result of 

antisocial personality disorder rather than schizophrenia.’ 

The other opined that both of defendant’s conditions were 

‘active’ at the time of the murder but that defendant’s psychosis associated with his schizophrenia ‘was more the predominant driver of his behaviors.’”
Cite as 372 Or 438 (2024) 443

Meiser II, 369 Or at 351-52 (brackets in Meiser II). The 

state did not offer any contrary expert testimony; instead, 

it raised arguments about the applicable legal tests for the 

defense and the sufficiency of defendant’s evidence.

Sitting as the factfinder, the trial court found that 

defendant had proved the GEI defense for some counts, but 

not for the aggravated murder counts or for one of the burglary counts. On the aggravated murder counts, the trial 

court found defendant guilty of murder as a lesser-included 

offense and merged the guilty verdicts into a single conviction. On the burglary count, the trial court found defendant 

guilty of second-degree burglary as charged.

The trial court did not address either the parties’ 

disputes regarding what defendant was required to show 

to prove the elements of the GEI defense or their disputes 

regarding whether defendant’s evidence was sufficient to 

prove those elements. Instead, the trial court stated its verdicts without elaboration, as a jury does in the absence of a 

special verdict form.

B. Meiser I

Defendant appealed, raising several assignments of 

error, including one asserting that the trial court had erred 

by rejecting his GEI defense to the murder charge.2

 Because 

the trial court had not expressed the basis for its rejection of 

the defense, defendant addressed all three elements of the 

defense. The first element—that defendant suffered from a 

qualifying mental disease or defect at the time of the murder, specifically, schizophrenia—was not disputed. The second and third elements—whether, as a result of his schizophrenia, defendant lacked the requisite capacity either to 

appreciate the criminality of his conduct or to conform his 

conduct to the requirements of the law—were disputed. As 

to each of those elements, the parties disagreed about what 

a defendant must show to prove the element and whether 

defendant’s evidence compelled a finding that he had made 

that showing.

2 Defendant did not challenge the trial court’s rejection of his GEI defense on 

the burglary charge.
444 State v. Meiser

Regarding the second element—that a defendant’s 

lack of capacity must be “a result of” a mental disease or 

defect—defendant asserted that, as a legal matter, a defendant’s lack of capacity is “a result of” a mental disease or 

defect if the mental disease or defect is a cause of the lack 

of capacity, even if it combines with other causes. Therefore, 

if his schizophrenia was a cause of his lack of capacity, he 

could establish the second element, even if his personality 

disorder was also a cause of his lack of capacity. The state, 

on the other hand, argued that a defendant’s lack of capacity 

must be solely attributable to the defendant’s mental disease 

or defect. So, the state urged, if defendant’s schizophrenia 

combined with his personality disorder to cause his lack of 

capacity, defendant could not prove the second element. The 

Court of Appeals agreed with the state, ruling that, to prove 

the second element of the GEI defense, a defendant must 

show that their lack of capacity resulted solely from a mental disease or defect. Meiser I, 308 Or App at 582. Therefore, 

the court concluded, the GEI defense is not available to a 

defendant if the defendant’s lack of capacity resulted from a 

combination of a mental disease or defect and a personality 

disorder. Id.

The Court of Appeals then applied its understanding of the GEI defense to the evidence in the case. Id. at 582-

86. Because the GEI defense is an affirmative defense and 

the trial court had determined that defendant had failed 

to carry his burden in proving it, the question for the court 

was whether the evidence, viewed in the light most favorable to the state, compelled a conclusion that defendant had 

proved that his asserted lack of capacity at the time of the 

murder was solely attributable to his schizophrenia. Id. at 

572, 582 (describing standard of review). The court summarized defendant’s evidence and noted that he had presented 

expert testimony that his lack of capacity was caused by his 

schizophrenia. Id. at 585. But, based on the experts’ testimony and defendant’s statements about the crimes, the 

court concluded that a reasonable factfinder could find that 

any lack of capacity that defendant experienced was caused 

by a combination of his schizophrenia and his personality 

disorder. Id. That is, “the evidence permitted the factfinder 

to conclude, at the least, that defendant’s schizophrenia and 
Cite as 372 Or 438 (2024) 445

antisocial personality disorder were both active impairments.” Id. “Therefore, defendant did not establish, as a 

matter of law, the causation element of the GEI defense.” Id. 

at 585-86.3

C. Meiser II

On defendant’s petition, we allowed review of 

Meiser I to address the parties’ disagreement about the elements of the GEI defense, specifically, their disagreement 

“about whether ORS 161.295 requires proof that defendant 

experienced the requisite incapacity solely ‘as a result of’ 

his schizophrenia, and not in any part as a result of his 

co-occurring antisocial personality disorder.” Meiser II, 369 

3 The Court of Appeals noted, but did not resolve, the parties’ disputes about 

the third element of the GEI defense, specifically, their disputes about (1) what 

a defendant must show to prove that they lacked the requisite capacity to appreciate the criminality of their conduct, and (2) whether the evidence compelled 

either a conclusion that defendant lacked the requisite capacity to appreciate the 

criminality of his conduct or a conclusion that he lacked the requisite capacity 

to conform his conduct to the requirements of law. Id. at 586-87 (noting the parties’ dispute about whether a defendant’s ability to “appreciate the criminality” 

of their conduct depends on a “subjective moral standard” and explaining that 

it did not need to resolve that dispute because “the trial court’s rejection of the 

GEI defense is already justified by the facts that permit the trial court to have 

found that defendant’s asserted incapacity, in whatever form, is not the result of a 

mental disease or defect”); id. at 587-88 (noting that it did not need to determine 

whether the evidence compelled a finding that defendant had been unable to conform his conduct to the requirements of law because “[t]he evidence permitted 

the trial court, sitting as factfinder, to reject the GEI defense” on the ground that 

defendant had failed to prove that any incapacity he experienced at the time of 

the murder was solely attributable to his schizophrenia).

In addition, the Court of Appeals rejected defendant’s other assignments of 

error, including one asserting that the trial court had erred by declining to set 

out its conclusions of law regarding his GEI defense. Id. at 588-92. Defendant 

based that assignment of error on State v. Colby, 295 Or App 246, 433 P3d 447 

(2018). In Colby, the Court of Appeals held that the trial court had erred when, 

during a bench trial in which the parties disputed the required elements of a 

crime, it declined the defendant’s request that it identify its understanding of the 

elements. Id. at 251-53. Based on Colby, the Meiser I court noted that,

“in a bench trial, ‘there is no fixed procedural means of preserving a challenge to the trial court’s determinations as to the elements of a crime, nor 

is the trial court required to express its ruling in a particular way.’ Yet, a 

request may be appropriate, even if made unconventionally, as when pointing 

out in a bench trial a dispute that is reflected in conflicting jury instructions 

before the court.”

308 Or App at 590 (quoting Colby, 295 Or App at 251 (internal citations omitted)). 

But the Meiser I court did not reach defendant’s argument regarding the trial 

court’s failure to set out its conclusions of law because defendant “did not adequately preserve [his] request for a ruling on a disputed point of law.” Id.
446 State v. Meiser

Or at 349 (emphasis in original). Applying our methodology 

for statutory interpretation, we examined the text and legislative history of ORS 161.295. Meiser II, 369 Or at 355-61.

We began by looking at ORS 161.295(2), which 

establishes exclusions to the term “mental disease or defect.” 

Meiser II, 369 Or at 356. Again, that subsection provides:

“As used in chapter 743, Oregon Laws 1971, the terms 

‘mental disease or defect’ do not include an abnormality 

manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.”

ORS 161.295(2). We explained that the exclusion of “‘an 

abnormality manifested only by repeated criminal or otherwise antisocial conduct’” has been a part of ORS 161.295 

since the statute’s enactment as a section of the Oregon 

Criminal Code of 1971. Meiser II, 369 Or at 360 (quoting 

Or Laws 1971, ch 743, § 36 (emphasis in Meiser II)). We further explained that the exclusion was intended to prevent 

the GEI defense from being used by “a category of offenders whom the drafters did not view as possessing ‘a mental disease or defect.’” Meiser II, 369 Or at 360. “[T]he category of concern was ‘psychopaths’ (or ‘sociopaths’),” and the 

legislature addressed that concern “by specifying that ‘the 

terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise 

antisocial conduct.’” Id. (quoting Or Laws 1971, ch 743, § 36 

(emphasis in Meiser II)). The purpose of the exclusion was 

“to prevent ‘recidivists’ from ‘qualify[ing] for the defense 

merely by being labeled psychopaths.’” Meiser II, 369 Or 

at 360 (quoting Commentary to Criminal Law Revision 

Commission Proposed Oregon Criminal Code, Final Draft 

and Report § 36, 35 (July 1970) (brackets in Meiser II)). 

Based on the text of the exclusion and its legislative history, 

we concluded that, although the legislature intended to preclude defendants from using the GEI defense based solely 

on having been labeled a psychopath or a sociopath, it did 

not intend to preclude defendants who suffered from both a 

mental disease or defect and another condition from using 

the defense. Id. We explained that,
Cite as 372 Or 438 (2024) 447

“[b]y structuring the statute to exclude those who were 

‘merely’ labeled as ‘psychopaths,’ (or those demonstrating 

‘an abnormality manifested only by repeated criminal or 

otherwise antisocial conduct,’) the legislature left open the 

possibility that the defense could be available to offenders 

who suffered from ‘a mental disease or defect’ in addition 

to whatever label attached to their repeated criminal or 

antisocial conduct. And we understand the legislature to 

have intentionally struck that balance.”

Id. (emphasis in original; internal citations omitted).

We also examined the other exclusion in ORS 

161.295(2), that is, the exclusion of “any abnormality constituting solely a personality disorder.” Meiser II, 369 Or at 

358. We explained that the legislature added that exclusion 

in 1983, and the legislative history regarding the exclusion 

showed that the legislature intended to remove “the category of disorders characterized only as personality disorders 

from the larger group of ‘mental disease or defect’ that can be 

relied on for use of the insanity plea under ORS 161.295(1).”

Meiser II, 369 Or at 358-59 (internal quotation marks omitted). We noted that the legislative history also showed that 

the legislature’s choice to use the term “only” was intended 

“to indicate that a person who has ‘a personality disorder 

plus a psychosis * ** may still qualify’” for the defense. 

Id. at 357 (quoting Tape Recording, House Committee on 

Judiciary, HB 2075, May 13, 1983, Tape 324, Side A (statement of Jeffrey Rogers) (ellipses in Meiser II)). Based on its 

text and legislative history, we concluded that the exclusion

“specifies certain mental conditions that are not included 

within the broader terms ‘mental disease or defect,’ and in 

doing so, narrows access to the defense set out in subsection (1). But it does not make the defense so narrow as to 

require that a person who can demonstrate the requisite 

lack of substantial capacity ‘as a result of mental disease or 

defect’ also prove that a co-occurring personality disorder 

in no part contributed to the incapacity.”

Meiser II, 369 Or at 360-61. Therefore, we concluded that 

the Court of Appeals had erred in holding that “defendant 

could prevail on his GEI defense only if he proved that his 

co-occurring personality disorder played no part in causing 

the requisite lack of substantial capacity.” Id. at 361 (emphasis 
448 State v. Meiser

in original). Because the Court of Appeals “did not consider—

except under the ‘sole cause’ test * * *—whether the evidence 

compelled a finding that defendant proved that he had experienced any qualifying incapacity ‘as a result of mental disease 

or defect,’” we remanded the case to the Court of Appeals. Id. 

We noted that, to determine whether defendant had proved 

the required connection, the Court of Appeals might have to 

determine whether the legislature intended to require that a 

mental disease or defect be “sufficient, on its own,” to bring 

about the requisite lack of capacity, or whether it intended a 

“lesser degree of causal contribution.” Id.

4

D. Meiser III

On remand, the Court of Appeals asked the parties 

to submit supplemental briefs regarding the nature of the 

required connection between a defendant’s mental disease or 

defect and the requisite lack of capacity, and the parties did.

Based on the text and context of the phrase “as a 

result of,” defendant argued that “result” should be given its 

plain, natural, and ordinary meaning, that is, “something 

that proceeds or arises as a consequence, effect, or conclusion of something else.” Applying that meaning, defendant 

further argued that the evidence that he had presented 

compelled the conclusion that, at the time of the murder, he 

was incapacitated “as a consequence or effect proceeding or 

arising from his schizophrenia.”

The state, on the other hand, argued that the phrase 

“as a result of” should be construed to impose a “standard 

of independent sufficiency.” Therefore, the state argued, if a 

defendant raising a GEI defense has both a mental disease 

or defect and a personality disorder, the defendant must 

show that the mental disease or defect would have brought 

about the requisite lack of capacity on its own. Applying 

that standard, the state argued that defendant’s evidence 

did not compel a conclusion that defendant’s schizophrenia 

was sufficient, on its own, to bring about the requisite lack 

of capacity.

4 We also noted that the issue of whether defendant’s evidence compelled a 

conclusion that he had proved the third element of the defense—that he lacked 

the requisite capacity—was still an open one, because the Court of Appeals had 

not needed to address it in Meiser I. Meiser II, 369 Or at 361.
Cite as 372 Or 438 (2024) 449

The Court of Appeals agreed with the state, ruling that, in order for a defendant to prove that their lack 

of capacity was “a result of” their mental disease or defect, 

the defendant must show that, “standing alone,” the mental 

disease or defect “was sufficient, at the time of the criminal conduct, to bring about the incapacity.” Meiser III, 323 

Or App at 683; see also id. at 685 (the required causal connection is “one of independent sufficiency” (internal quotation marks omitted)).

Applying that standard, the Court of Appeals held 

that the record did not show that defendant had proved the 

causation element of his GEI defense as a matter of law. Id. at 

686. That is, the record—viewed in the light most favorable 

to the state as it had to be, see Meiser I, 308 Or App at 572 

(setting out standard of review)—did not compel a finding 

that, at the time of the murder, defendant’s schizophrenia 

was sufficient, by itself, to bring about the requisite lack of 

capacity. Meiser III, 323 Or App at 686. The court acknowledged that both a psychologist, Beaver, and a psychiatrist, 

Choi, had testified that defendant “was experiencing command-auditory hallucinations, a hallmark of schizophrenia, on the day of the murder.” Id. It also acknowledged that 

Beaver had testified that, at the time of the murder, defendant was “floridly psychotic” and would not have committed 

the crimes if not for his “active psychosis,” and that Choi 

had testified that, during and after the murder, defendant 

was “highly psychotic,” and without the psychosis “would 

not have committed the crimes.” Id. at 687. The experts’ testimony was corroborated by evidence that defendant “was 

suffering from hallucinations and delusions at the time of 

his crimes,” including that

“he had been ‘deleted’ from society; that he was being ‘systematically persecuted by *** a large portion of American 

society,’ as well as the police, who would only protect people 

of a certain class; that he needed a condo to get a ‘toehold 

into society’ as a property owner so that police would protect him and his family; that his daughter would be turned 

into a cannibal by the voices he heard; and that his son was 

being poisoned and would also be harmed by the entities 

represented by the voices.”
450 State v. Meiser

Id. at 687 (ellipses in original). The Court of Appeals concluded that the evidence “would certainly permit a finding” 

that “defendant’s asserted lack of substantial capacity * * * 

was ‘the result of’ his schizophrenia under [an] independent 

sufficiency measure.” Id. at 688 (emphasis in original). But 

the court went on to say that that was “not the only finding that could reasonably be derived from [the] record.” Id. 

Pointing to Choi’s testimony that defendant’s schizophrenia 

and personality disorder “both were active” and defendant’s 

statement that he had “lashed out” in anger when he killed 

FH, the court concluded that a factfinder could find that 

defendant’s schizophrenia was not sufficient, on its own, to 

bring about his lack of capacity:

“[E]ven accepting Choi’s opinion that defendant’s schizophrenia ‘played a major role in’ and ‘was more the predominant driver of’ defendant’s criminal conduct in killing 

FH—and that, if not for that psychosis, defendant would 

not have committed the act—a reasonable trier of fact 

would not be required to find that defendant’s schizophrenia was sufficient—independent of his antisocial personality disorder—to bring about his lack of substantial capacity 

at the time of the act.”

Id. at 689-90 (emphasis in original). Consequently, the Court 

of Appeals affirmed the trial court’s judgment. Id. at 690.

On defendant’s petition, we allowed review to 

determine the connection that a defendant must establish 

between their mental disease or defect and their lack of 

capacity in order to prove the GEI defense.

II. ANALYSIS

The issue on review presents a question of statutory 

interpretation, to which we apply the methodology set out 

in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). 

Our goal is to ascertain the intent of the legislature that 

enacted the provision at issue. SAIF v. Ward, 369 Or 384, 

394, 506 P3d 386 (2022). To do so, we look first to the text 

of the provision, in context, which is the best evidence of 

the legislature’s intent. Gaines, 346 Or at 171. We may then 

look to the legislative history of the provision, giving it the 

weight we deem appropriate. Id. at 172.
Cite as 372 Or 438 (2024) 451

A. Text

We begin with the text of ORS 161.295, which we 

set out again:

“(1) A person is guilty except for insanity if, as a result 

of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to 

appreciate the criminality of the conduct or to conform the 

conduct to the requirements of law.

“(2) As used in chapter 743, Oregon Laws 1971, the 

terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise 

antisocial conduct, nor do they include any abnormality 

constituting solely a personality disorder.”

As discussed, to prove the GEI defense, a defendant 

must show that, “as a result of” a mental disease or defect, 

they lacked the substantial capacity to appreciate the criminality of their conduct or to conform their conduct to the 

requirements of the law. Thus, the defendant must show a 

connection between their mental disease or defect and their 

lack of capacity. The key term in the legislature’s expression 

of the required connection is “result.” The legislature did not 

define that term, and it is a term of common usage. “When 

the legislature has not specially defined a term of common 

usage, we generally assume that the legislature intended to 

use the term in a manner consistent with its ‘plain, natural, 

and ordinary meaning,’ and we often consult dictionaries for 

guidance in determining what the legislature would have 

understood a term to mean.” Kinzua Resources v. DEQ, 366 

Or 674, 681, 468 P3d 410 (2020).

The term “result,” when used as a noun, as it is 

in ORS 161.295(1), is defined as “something that results as 

a consequence, effect, issue, or conclusion.” Webster’s Third 

New Int’l Dictionary 1937 (unabridged ed 2002). That definition uses the verb form of “result,” which means “to proceed, spring, or arise as a consequence, effect, or conclusion.” Id. Neither definition indicates that a “result” must 

be attributable to a single cause or an independently sufficient cause.
452 State v. Meiser

The definitions of “result” as a noun and a verb 

use several terms, and, of those terms, “consequence” and 

“effect” fit best in the context of the GEI defense. See Jenkins 

v. Board of Parole, 356 Or 186, 194, 335 P3d 828 (2014) (relying on context to determine which, among multiple dictionary definitions, the legislature intended); State v. Fries, 

344 Or 541, 546, 185 P3d 453 (2008) (same). Although it is 

possible to say that a person’s lack of capacity “issued from” 

or was “a conclusion of” their mental disease or defect, it is 

more natural to say that their lack of capacity was “a consequence of” or an “effect of” their mental disease or defect.

The definitions of “consequence” and “effect” support 

the view that a “result” may have multiple causes. The term 

“consequence” is defined as “something that is produced by a 

cause or follows from a form of necessary connection or from 

a set of conditions,” as in the phrase “this refined taste is the 

[result] of education and habit.” Webster’s at 482. Similarly, 

the term “effect” is defined as “something that is produced 

by an agent or cause : something that follows immediately 

from an antecedent : a resultant condition,” as in the example “low mortality, the [result] of excellent social services 

available in every village.” Id. at 724. Thus, the fact that 

“result” is defined as a “consequence” or “effect” indicates 

that a “result” may flow from “a set of conditions.” Id. at 482.

To summarize, the legislature’s use of the term 

“result”—a term of common usage—indicates that the GEI 

defense applies if a defendant proves that they lacked the 

requisite capacity as a “consequence” or “effect” of their mental disease or defect. Id. at 1937. It further indicates that the 

lack of capacity need not be solely attributable to the mental 

disease or defect; a “set of conditions” can combine to result 

in the lack of capacity. Id. at 482.5

5 Because “result” is a word of common usage and there is no indication that 

the legislature intended it to have a specialized meaning, we look to its common 

meaning. But, even if we were to assume that the legislature intended “result” 

to have a legal meaning, the meaning would be the same, because the common 

meaning of the term, as set out in Webster’s, tracks the legal meaning, as set out 

in Black’s Law Dictionary. When the Oregon Criminal Code was enacted, Black’s 

defined the noun “result” to mean “[t]hat which results, the conclusion or end to 

which any course or condition of thing leads, or which is obtained by any process or operation; consequence or effect.” Black’s Law Dictionary 1478 (rev 4th ed 

1968). Similarly, it defined the verb version of “result” as “[t]o proceed, to spring, 

or arise, as a consequence, effect, or conclusion ***.” Id.
Cite as 372 Or 438 (2024) 453

B. Context

Those indications are supported by the immediate 

context of the phrase “as a result of.” Notably, the legislature did not modify “result.” ORS 161.295(1) simply provides 

that “[a] person is guilty except for insanity if, as a result 

of mental disease or defect at the time of engaging in criminal conduct,” the person lacked the requisite capacity. The 

statute does not say, for example, that “a person is guilty 

except for insanity if, solely as a result of mental disease or 

defect ***.” Nor does it say that “a person is guilty except for 

insanity if, primarily as a result of mental disease or defect 

***.” Nothing in the text of ORS 161.295(1) suggests that a 

defendant’s lack of capacity can be “a result of” the defendant’s mental disease or defect only if the mental disease or 

defect rises to a certain degree or amount or accounts for a 

certain portion of the defendant’s lack of capacity. The provision does not require, for example, that a defendant’s mental 

disease or defect must be a major cause or an independently 

sufficient cause of the defendant’s lack of capacity.

The fact that, in ORS 161.295(1), the legislature did 

not modify “result” with a quantitative descriptor is significant on its own. But its significance is heightened because 

another subsection of the same statute, ORS 161.295(2), 

shows that, when the legislature first enacted the GEI statute in 1971 and when it later amended it in 1983, it was 

aware that a person’s mental condition can result from a combination of causes. PGE v. Bureau of Labor and Industries, 

317 Or 606, 610-11, 859 P2d 1143 (1993) (a statutory term’s 

context includes other sections of the same statute).

As we explained in Meiser II, when ORS 161.295 

was originally enacted in 1971, subsection (2) of the statute limited the definition of “mental disease or defect” by 

providing that “the terms ‘mental disease or defect’ do not 

include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Or Laws 1971, ch 743, 

§ 36 (emphasis added). The purpose of that exclusion was 

“to prevent ‘recidivists’ from ‘qualify[ing] for the defense 

merely by being labeled psychopaths.’” Meiser II, 369 Or at 

360 (quoting Commentary § 36 at 35 (brackets in Meiser II; 

emphasis added)). In 1983, the legislature amended ORS 
454 State v. Meiser

161.295(2) to add an exclusion for “any abnormality constituting solely a personality disorder.” Or Laws 1983, ch 800, 

§ 1 (emphasis added). The exclusions in ORS 161.295(2) show 

that, in both 1971 and 1983, the legislature was alert to the 

fact that an “abnormality” can result from a combination of 

conditions. They also show that the legislature intended to 

prevent abnormalities resulting “only” or “solely” from certain conditions—specifically, psychopathy and personality 

disorders—from being the basis for a GEI defense. They do 

not, however, show that the legislature intended to prevent 

abnormalities resulting from a combination of conditions 

from being the basis of a GEI defense. If the legislature 

had intended to limit the availability of the GEI defense to 

situations where a defendant’s lack of capacity was “only” 

or “solely” the result of the defendant’s mental disease or 

defect, it could have. Likewise, if it had wanted to limit the 

availability of the defense to situations where the defendant’s lack of capacity was an “independent” result of the 

defendant’s mental disease or defect, it could have.

The broader context of ORS 161.295 further indicates that “result” should be given its plain, natural, and 

ordinary meaning and that a “result” may flow from a combination of conditions. As mentioned, ORS 161.295 was 

enacted as part of the Oregon Criminal Code. Or Laws 

1971, ch 743, § 36. As we will explain, this court has already 

construed similar causation requirements in other statutes 

enacted as part of the code and held both that the term 

“cause” should be given its plain, natural, and ordinary 

meaning and that, in situations where multiple acts combine to bring about a result, each act is a “cause.” We did so 

first in State v. Murray, 343 Or 48, 162 P3d 255 (2007), and 

then in State v. Turnidge (S059155), 359 Or 364, 374 P3d 

853 (2016).

In Murray, we construed ORS 163.165, which provides that a person commits third-degree assault if the person “[r]ecklessly causes serious physical injury to another by 

means of a deadly or dangerous weapon.” (Emphasis added.) 

The parties disputed the meaning of “cause.” Murray, 343 

Or at 51. We noted that the legislature had not defined the 
Cite as 372 Or 438 (2024) 455

term and that it was a term of common usage, and we looked 

to the term’s dictionary definition:

“The word ‘cause’ is not defined in the criminal statutes. 

It is, however, a word of common usage, which we presume 

the legislature intended to be given its plain, natural, and 

ordinary meaning. The dictionary defines the verb ‘cause’ 

as follows: ‘1: to serve as a cause or occasion of : bring into 

existence: MAKE (careless driving * * * accidents) * * * 2: to 

effect by command, authority or force.’ Webster’s [at 356].”

Id. at 52 (first citation omitted; second ellipses in Murray). 

Accordingly, we ruled that a person “causes” serious physical injury to another if the person “brings about, makes, or 

effects by force the serious injury of another person.” Id.

We applied that rule to the facts of the case. In 

Murray, the defendant had been charged with third-degree 

assault for injuring the victim in a car crash. Id. at 51. The 

defendant owned an automobile shop that converted conventional cars into race cars, and the victim was his employee. 

Id. at 50. The car crash occurred while the defendant was 

test driving a race car and the victim was voluntarily riding 

with him. Id. At trial, the defendant moved for a judgment 

of acquittal on the third-degree assault charge, asserting 

that he was not criminally responsible for the victim’s injuries because the victim was a voluntary participant in the 

reckless activity that led to his injuries. Id. at 51. This court 

rejected that argument, ruling that a person commits thirddegree assault if the person recklessly causes serious physical injury to another person, “no matter the role of the other 

person in the reckless conduct.” Id. at 52.

This court followed Murray in Turnidge. In that 

case, we construed the criminal homicide statute, ORS 

163.005(1), which applies when a person “causes the death 

of another.” We reviewed the text, context, and legislative 

history of the homicide statute, and we concluded that the 

term “cause” should be given its plain, natural, and ordinary meaning. Turnidge, 359 Or at 483. As in Murray, we 

derived that meaning from the term’s dictionary definition. 

Id. at 474-77. We then applied that meaning to the facts of 

the case and again concluded that a result may follow from 

a combination of conditions. Id. at 483.
456 State v. Meiser

In Turnidge, the defendant was charged with multiple crimes, including aggravated murder, attempted aggravated murder, and assault. Id. at 380. The charges were 

based on an incident during which a bomb was found outside 

a bank and then brought inside the bank, where it exploded 

when law enforcement officers attempted to disarm it. Id.

at 367-69. The explosion killed two persons and injured two 

others. Id. at 369. The state’s theory was that the defendant 

had helped build and place the bomb. Id. at 481-82. The 

state did not contend that the defendant had detonated the 

bomb; its evidence suggested that the bomb was detonated 

as a result of how it was handled after it was found or as 

a result of a stray radio signal. Id. at 458-59. The defendant moved for a judgment of acquittal on the ground that 

the state’s evidence was insufficient to prove that he had 

caused the deaths and injuries. Id. at 454-55. On review, 

we rejected that argument, holding that the state’s evidence 

of the defendant’s conduct provided an ample basis for the 

jury to find that he had caused the deaths and injuries, and 

we noted that the defendant’s role “did not have to be the 

last link in the chain, or the only one, for the jury to make 

that determination.” Id. at 482. Later, when discussing jury 

instructions on causation, we stated that “a defendant’s conduct ‘causes’ a result if it brings about, makes, or effects by 

force that result, ‘no matter the role’ of another person and 

regardless of [the] other person’s reckless participation.” Id. 

at 483 (quoting Murray, 343 Or at 52); see also id. (explaining that, for the purposes of the criminal statutes at issue, 

causation does not “depend on a comparison of a defendant’s 

causal role with that of the victim or some third party”).

To summarize, the context of the phrase “as a 

result of” in ORS 161.295(1) indicates that “result” should 

be given its plain, natural, and ordinary meaning. It shows 

that the legislature was alert to the fact that conditions can 

combine to cause a lack of capacity and that it knew how to 

use quantitative descriptors to address situations involving 

a single condition. The fact that the drafters did not use a 

quantitative descriptor to modify “result” indicates that the 

legislature did not intend to impose a quantitative requirement on the connection between a defendant’s mental disease or defect and their lack of capacity. In addition, the GEI 
Cite as 372 Or 438 (2024) 457

defense is part of the Oregon Criminal Code, and Murray

and Turnidge show that, when construing statutes in the 

code, this court has given a similar term, “cause,” its plain, 

natural, and ordinary meaning. Murray and Turnidge also 

illustrate that multiple factors may combine to bring about 

a result, and, if they do, each of the factors is a “cause.” 

Murray, 343 Or at 52; Turnidge, 359 Or at 482-83. And they 

illustrate that whether a factor is a “cause” does not depend 

on its relative contribution to bringing about the result. 

Murray, 343 Or at 52; Turnidge, 359 Or at 483.

C. Legislative History

The legislative history does not indicate otherwise. 

The commentary to the final draft of the Oregon Criminal 

Code states that section 36 of the final draft, which became 

ORS 161.295, was based on section 4.01 of the Model Penal 

Code (MPC). Commentary § 36 at 34. The parties have not 

identified, and we have not found, anything in the legislative history of either the Oregon Criminal Code or the MPC 

that indicates that the drafters of either code intended 

“result” to have anything but its plain, natural, and ordinary meaning. They have not identified, and we have not 

found, any discussions of the nature of the connection that 

must exist between a defendant’s mental disease or defect 

and their lack of capacity in order for the GEI defense to 

apply. Nothing in the legislative history indicates that the 

legislature intended to make the GEI defense available only 

if a defendant’s mental disease or defect rose to a certain 

degree or amount or accounted for a certain portion of their 

lack of capacity. In other words, nothing in the legislative 

history indicates that the legislature intended to attach a 

quantitative requirement to the connection between a defendant’s mental disease or defect and their lack of capacity. If 

we were to attach one, we would be adding words to the statute and wholly speculating about what the degree, amount, 

or portion should be.

It is true, of course, in both 1971 and 1983, the legislature intended to put some limits on the GEI defense. 

They did so through ORS 161.295(2), which narrows the 

definition of “mental disease or defect.” But, as we explained 

in Meiser II, the legislative history from 1971 shows that 
458 State v. Meiser

the legislature did not intend to preclude defendants who 

suffered from both a mental disease or defect and another 

condition from being able to use the defense. Meiser II,

369 Or at 360. As we further explained, the 1983 legislature “intended to retain that balanced approach when it 

amended subsection (2) to also exclude ‘personality disorders’ from the definition of ‘mental disease or defect.’” Id. 

That additional exclusion narrowed the availability of the 

GEI defense, but it did not make the defense “so narrow as 

to require that a person who can demonstrate the requisite 

lack of substantial capacity ‘as a result of mental disease or 

defect’ also prove that a co-occurring personality disorder in 

no part contributed to the incapacity.” Id. at 360-61.

Just as we have not found anything in the legislative history of ORS 161.295 to indicate that the legislature 

intended a defendant’s mental disease or defect to be the 

sole cause of their lack of capacity, we have not found anything in the legislative history to indicate that the legislature intended a defendant’s mental disease or defect to be 

an independently sufficient cause of their lack of capacity. 

Thus, nothing in the legislative history leads to a conclusion 

other than the one that follows from the plain text and context of ORS 161.295. To the contrary, the legislative history 

reinforces the idea that, in both 1971 and 1983, the legislature was aware that conditions can combine to result in a 

lack of capacity and that, contrary to the Court of Appeals’ 

conclusion in Meiser III, it did not intend to limit the availability of the GEI defense to situations where a defendant’s 

mental disease or defect, “standing alone,” was sufficient to 

bring about the requisite lack of capacity.

D. Summary and Conclusion

As we have explained, the plain text of ORS 

161.295(1) states that a person is “guilty except for insanity” if, “as a result of” their mental disease or defect, the 

person “lacks substantial capacity either to appreciate the 

criminality of the conduct or to conform the conduct to the 

requirements of law.” To determine the meaning of “as a 

result of,” we have applied our established method of statutory interpretation and examined the text, context, and legislative history of ORS 161.295(1). Gaines, 346 Or at 171-72. 
Cite as 372 Or 438 (2024) 459

Each of those indicators of legislative intent support giving 

“result” its plain, natural, and ordinary meaning: “consequence” or “effect.”

First, the text. The legislature did not define 

“result,” and it is a term of common usage that means, as 

relevant here, “consequence” or “effect.” Webster’s at 1937. 

And a “consequence” or “effect” may flow from a “set of conditions.” Id. at 482.

Multiple aspects of the context of ORS 161.295(1) 

support giving “result” its plain, natural, and ordinary 

meaning. The legislature did not modify the term “result” 

in ORS 161.295(1); it did not include any quantitative limitations on the term. The legislature’s failure to do so is significant on its own, but its significance is heightened because 

the legislature used such limitations—specifically, “only” 

and “solely”—in ORS 161.295(2). Altogether, ORS 161.295 

shows that the legislature intended the GEI defense to be 

available if a defendant’s lack of capacity was a consequence 

or effect of the defendant’s mental disease or defect, even if 

it was also the consequence or effect of another condition. 

In addition, giving “result” its plain, natural, and ordinary 

meaning and recognizing that a result may flow from a combination of conditions is consistent with what this court did 

in Murray and Turnidge when construing a similar term 

in criminal statutes that were also enacted as part of the 

Oregon Criminal Code. In those cases, this court used the 

dictionary definition of “cause” and held that multiple factors may combine to bring about a result, and that each is a 

“cause,” regardless of the relative contribution of each factor. 

Murray, 343 Or at 52; Turnidge, 359 Or at 482-83.

The legislative history is consistent with the text 

and context. It indicates that the legislature intended to 

impose some limits on the availability of the GEI defense 

but that it did not intend to impose a quantitative requirement on the connection between a defendant’s mental disease or defect and their lack of capacity.

Consequently, we reject the Court of Appeals’ conclusion that a defendant’s mental disease or defect must be “sufficient by itself” to bring about the requisite lack of capacity.
460 State v. Meiser

E. Response to Justice Bushong’s Concurrence

We now address Justice Bushong’s concurrence, in 

which he argues that (1) we could have resolved the meaning 

of “as a result of” in Meiser II; (2) our conclusion that “result” 

should be given its plain, natural, and ordinary meaning 

fails to provide sufficient guidance to mental health experts 

and trial courts; and (3) we should interpret “as a result of” 

to require application of a “substantial factor” causation 

standard he draws from civil negligence cases decided in the 

1960s and 1970s. ___ Or at ___, ___, ___ (Bushong, J., concurring) (slip op at 4:8 - 5:5, 6:6 - 7:2, 12:13 - 13:7).6

 As we will 

explain, (1) in Meiser II, we did not address the issue that 

we resolve in this opinion because the Court of Appeals had 

not addressed it and the parties had not briefed it; (2) giving 

“result” its plain, natural, and ordinary meaning is not confusing and is consistent with what we have done when construing required causal connections in other criminal cases; 

and (3) we should not import the concurrence’s “substantial 

factor” causation standard because (a) this court has already 

stated that civil negligence standards of causation are an 

“uneasy fit in the criminal law context,” Turnidge, 359 Or 

at 472 n 62; (b) the concurrence’s assertion that, when the 

legislature adopted the Oregon Criminal Code, it intended 

to import a “substantial factor” causation standard from 

civil negligence law and reject a “but for” causation standard 

is not supported by the legislative history that the concurrence relies on; and (c) the concurrence’s “substantial factor” 

causation standard (i) would cause uncertainty and confusion because the term “substantial factor” is not defined and 

has been understood in different ways, at different times and 

in different contexts, and (ii) could be misleading because it 

could suggest a quantitative requirement or a comparison of 

the relative contributions of different factors, which—as the 

6 We note that no party has advocated for use of a “substantial factor” test 

in this case. The state has argued for an “independently sufficient” test: “[T]o 

qualify for the GEI defense, a defendant must prove that his mental disease or 

defect was independently sufficient to bring about the requisite lack of substantial capacity.” Defendant has argued that we give “result” its dictionary definition: Based on the “plain-meaning/ordinary-usage definition of ‘result,’” the 

legislature “intended merely that the substantial incapacity be a consequence, 

effect, issue, or conclusion proceeding or arising from mental disease or defect.”
Cite as 372 Or 438 (2024) 461

text, context, and legislative history just discussed show—

the legislature did not intend.

1. The Meiser II remand was appropriate.

The concurrence appears to argue that we should 

have resolved the meaning of “result” in Meiser II. ___ Or 

at ___ (Bushong, J., concurring) (slip op at 4:8 - 5:5). We disagree. In Meiser II, the issue on review was whether the Court 

of Appeals had erred in ruling that the GEI defense is not 

available if a defendant’s lack of capacity resulted from both 

a mental disease or defect and a personality disorder. Meiser 

II, 369 Or at 349-50 (identifying issue on review); id. at 361 

(same). Accordingly, the parties’ briefs focused on whether 

the legislature intended to allow “combined causation” at 

all. They did not address whether, if the legislature intended 

to allow “combined causation,” it also intended to require 

a certain degree of causal contribution from a defendant’s 

mental disease or defect. We resolved the issue presented by 

the Court of Appeals opinion and the parties’ briefing, holding that the Court of Appeals had “erred in concluding that 

defendant could prevail on his GEI defense only if he proved 

that his co-occurring personality disorder played no part in 

causing the requisite lack of substantial capacity.” Meiser II, 

369 Or at 361 (emphasis in original).

We then explained that “[t]hat conclusion answers 

the question that this court allowed review to address, but 

it does not fully resolve whether defendant was entitled to 

prevail on his GEI defense.” Id. That was, in part, because 

the Court of Appeals had not considered—“except under the 

‘sole cause’ test” that we rejected—“whether the evidence 

compelled a finding that defendant proved that he had experienced any qualifying incapacity ‘as a result of mental disease or defect.’” Id. We observed that,

“[a]s the state emphasizes, any answer to [that] question 

may turn on whether the phrase ‘as a result of’ in ORS 

161.295(1) means that the qualifying ‘mental disease or 

defect’ must be sufficient, on its own, to bring about the 

requisite incapacity, or whether the legislature intended to 

require some lesser degree of causal contribution from the 

qualifying ‘mental disease or defect.’”
462 State v. Meiser

Id. We also observed that defendant had not argued for a 

specific standard of causation and that the amicus curiae

had argued for a “but for” standard of causation, that is, 

“but for” the mental disease or defect the incapacity would 

not have occurred. Id. at 361 n 10. We took no position on the 

issue, and we remanded the case to the Court of Appeals, so 

that the parties and the Court of Appeals could address it, 

id. at 361-62, which they did.

On remand, the parties submitted supplemental 

briefing. Based on that briefing, the Court of Appeals issued 

Meiser III, in which it ruled that, in order to prove the GEI 

defense, a defendant must show that their mental disease or 

defect was an independently sufficient cause of their lack of 

capacity. 323 Or App at 683. We allowed review to address 

that new ruling, and we have done so in this opinion.

The concurrence comments that, “if the dictionary 

definition alone is sufficient,” we could have just said so in 

Meiser II. ___ Or at ___ (Bushong, J., concurring) (slip op 

at 4:18 - 5:2). To the extent that that comment is critical of 

our reliance on the dictionary definition, we note that, when 

construing a statutory term of common usage, “we generally assume that the legislature intended to use the term in 

a manner consistent with its ‘plain, natural, and ordinary 

meaning,’ and we often consult dictionaries for guidance in 

determining what the legislature would have understood a 

term to mean.” Kinzua Resources, 366 Or at 681. Of course, 

“[i]n construing statutes, we do not simply consult dictionaries and interpret words in a vacuum. Dictionaries, after 

all, do not tell us what words mean, only what words can

mean, depending on their context and the particular manner in which they are used.” State v. Cloutier, 351 Or 68, 96, 

261 P3d 1234 (2011) (emphasis in original). Accordingly, we 

apply our method of statutory construction and look beyond 

the text at issue to its context and legislative history. Id. at 

96, 101; Gaines, 346 Or at 171-72. We have done that here, 

and our conclusion regarding the meaning of “result” is supported by those sources.

The concurrence asserts that, in Meiser II, we 

implicitly suggested that “result” should not be given its dictionary definition. ___ Or at ___ (Bushong, J., concurring) 
Cite as 372 Or 438 (2024) 463

(slip op at 5:6-8). We disagree with that reading. Nothing in 

Meiser II was intended to prejudge issues that the parties 

and the Court of Appeals had not yet addressed.

The concurrence points out that, in Meiser II, we 

quoted the definition of “result.” ___ Or at ___ (Bushong, 

J., concurring) (slip op at 5:2-5). That is true. We did so in 

the context of explaining that the definition of “result” did 

not support the Court of Appeals’ conclusion that a defendant’s mental disease or defect had to be the sole cause of 

the defendant’s lack of capacity. We stated:

“In ordinary usage, the term ‘result’ is not limited to the 

concept of sole causation. See Webster’s at 1937 (defining 

noun ‘result,’ most pertinently, as ‘something that results 

as a consequence, effect, issue, or conclusion’).”

Meiser II, 369 Or at 359-60. That was the full extent of our 

reference to the dictionary definition of “result.” We used 

the definition in our analysis of the statutory construction 

issue presented in Meiser II. We were not addressing any 

other statutory construction issue. In fact, we explicitly 

stated that, although, as a matter of judicial efficiency, “this 

court sometimes resolves issues beyond those as to which 

we allowed review, rather than remanding to the Court of 

Appeals to resolve remaining issues,” we were declining to 

do so because “the remaining statutory construction issue 

would benefit from consideration in the first instance by 

the Court of Appeals.” Id. at 361-62. Thus, contrary to the 

concurrence’s assertion, our reference to the dictionary definition of “result” was not an implicit suggestion that the 

term should not be given its plain, natural, and ordinary 

meaning. We used that meaning in our Gaines analysis of 

the question presented then, just as we have used it in our 

Gaines analysis of the question presented now.

2. The plain meaning of “result” is clear and using it is 

consistent with case law.

The concurrence’s second argument is that our 

opinion does not clearly identify the test that the legislature 

intended and does not provide adequate guidance to mental 

health experts and trial courts. ___ Or at ___ (Bushong, J., 

concurring) (slip op at 6:6 - 7:2). We disagree. We are giving 
464 State v. Meiser

the term “result” its plain, natural, and ordinary meaning, 

taken from its dictionary definition. We do not think that 

that meaning is unclear. It is straightforward, and factfinders—whether judges or juries—will be able to apply it. 

Moreover, using the dictionary definition is consistent with 

our case law. As recounted above, ___ Or at ___ (slip op at 

19:2 - 21:19), we did the same thing with “cause” in both 

Murray and Turnidge. Murray, 343 Or at 52 (applying dictionary definition of “cause”); Turnidge, 359 Or at 482-83 

(same).

3. It is not appropriate to import the concurrence’s “substantial factor” causation standard into the GEI 

statute.

Instead of giving “result” its plain, natural, and 

ordinary meaning, the concurrence would hold that, to determine whether a defendant’s lack of capacity was “a result of” 

their mental disease or defect, a court must apply a “substantial factor” test for causation. ___ Or at ___ (Bushong, 

J., concurring) (slip op at 3:5-8). More specifically, it appears 

that the concurrence would hold that a court must apply the 

“substantial factor” test used in civil tort cases decided in 

the 1960s and 1970s. ___ Or at ___ (Bushong, J., concurring) 

(slip op at 12:13 - 13:7). We do not believe it is appropriate 

to import the concurrence’s “substantial factor” causation 

standard into the GEI statute for three reasons.

a. This court has cautioned against importing 

civil law tort principles into criminal law.

First, in Turnidge, we cautioned against importing civil law tort principles into criminal law. 359 Or at 472 

n 62. We noted that “long-standing observations” by scholars 

“point out that civil law tort principles of causation are an 

uneasy fit in the criminal law context,” both because tort and 

criminal law involve different policy objectives and because 

tort law issues are generally governed by common law, while 

criminal law issues are generally governed by statute. Id.

Those observations predate the legislature’s enactment 

of the Oregon Criminal Code. See id. (citing Paul K. Ryu, 

Causation in Criminal Law, 106 U Pa L Rev 773, 773, 803 

(1958) for the proposition that “causation has received ‘scant 
Cite as 372 Or 438 (2024) 465

attention’ in area of criminal law, as opposed to civil tort 

law; in criminal law field, courts have not applied a uniform 

law of causation, and principles should not necessarily track 

civil law principles, because the policy objectives of tort and 

criminal law are not the same”).

b. The concurrence’s “substantial factor” test is 

not supported by legislative history.

Second, the legislative history of ORS 161.295 does 

not support the concurrence’s claim that the legislature 

intended to adopt a “substantial factor” causation standard. 

As noted, nothing in the legislative history of either the 

Oregon Criminal Code or the MPC indicates the nature of 

the connection that must exist between a defendant’s mental disease or defect and their lack of capacity. And, the term 

“substantial factor” does not appear anywhere in the legislative history of the GEI provision to the Oregon Criminal 

Code. In fact, the term does not appear anywhere in the 

commentary to the Oregon Criminal Code. Nothing in the 

legislative history of the GEI statute indicates that the legislature intended to import a “substantial factor” causation 

standard from civil negligence law into the GEI statute.

To support its position, the concurrence relies on 

the fact that the drafters of both the MPC and the Oregon 

Criminal Code disfavored the rule regarding insanity set 

out in Durham v. United States, 214 F2d 862, 874-75 (DC 

Cir 1954), abrogated by United States v. Brawner, 471 F2d 

969 (DC Cir 1972). But, as we will explain, Durham did not 

concern the standard of causation.

As we have explained, the GEI statute was based 

on section 4.01 of the MPC. Commentary § 36 at 34. The 

commentary to that section of the Oregon Criminal Code 

explains that both the MPC and Oregon drafters declined 

to adopt the Durham rule.

The Durham rule was that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.” Durham, 214 F2d at 874-75 (emphasis 

added). Thus, under the Durham rule, whether a defendant 

was criminally responsible turned on whether their mental 

disease or defect caused their conduct, not whether it caused 
466 State v. Meiser

a lack of capacity. That was a problem because, under the 

rule, a defendant was not criminally responsible if their 

conduct was a product of their mental disease or defect, 

regardless of whether they had the capacity to appreciate 

the criminality of their conduct or conform their conduct to 

the requirements of the law.

To illustrate the problem, the MPC drafters provided a hypothetical: a situation where a person murders 

a wealthy relative because, as a result of a mental disease 

or defect, the person believes that they will inherit a large 

amount of money. Model Penal Code § 4.01 comment 3 at 173 

n 24 (Official Draft and Revised Comments 1985). Under 

the Durham rule, the person could raise a defense based 

on their mental disease or defect because there would be a 

causal connection between the mental disease or defect and 

their criminal conduct, even if they had been fully capable 

of understanding the criminal nature of their conduct and 

conforming their conduct to the requirements of the law. 

The MPC and Oregon drafters rejected the Durham rule 

because of that problem. Model Penal Code § 4.01 comment 

5 at 159 (Tentative Draft No. 4 1955); Commentary § 36 at 

35-36. They wanted to make sure that there was a causal 

connection between a person’s mental disease or defect and 

the requisite lack of capacity, and they did that by providing that a person is GEI when, as a result of a mental disease or defect, the person lacks the requisite capacity. Model 

Penal Code § 4.01(1) (Proposed Official Draft 1962); ORS 

161.295(1). Thus, the drafters’ rejection of the Durham rule 

says nothing about the requisite standard of causation. The 

rule did not set out any standard of causation, and the drafters’ rejection of it does not provide any support for the concurrence’s conclusion that the drafters intended to adopt a 

“substantial factor” causation standard.

The concurrence also mentions United States 

v. Currens, 290 F2d 751, 774 (3rd Cir 1961), to which the 

Oregon drafters referred. ___ Or at ___ n 13, ___, ___ n 16 

(Bushong, J., concurring) (slip op at 19:5 n 13, 21:7, 21:7 

n 16). In Currens, the court stated that “[t]he jury must be 

satisfied that at the time of committing the prohibited act 

the defendant, as a result of mental disease or defect, lacked 
Cite as 372 Or 438 (2024) 467

substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.” 290 

F2d at 774. That rule is essentially the same as the rule in 

ORS 161.295. It simply provides that the defendant’s lack of 

capacity must result from the defendant’s mental disease or 

defect. And, like ORS 161.295, it does not specify an amount 

of causation. It does not say, for example, that the lack of 

capacity must result solely from, primarily from, or substantially from the mental disease or defect.

The Currens court explained that its rule allows for 

consideration of the “total mental condition.” 290 F2d at 774. 

That supports our interpretation of “result” as meaning a 

“consequence” or “effect.” Giving “result” its plain, natural, 

and ordinary meaning allows for consideration of a defendant’s “total mental condition,” because, as discussed above, 

a “result” may flow from “a set of conditions.” Webster’s

at 482. Therefore, a defendant raising a GEI defense can 

show the required connection between their mental disease 

or defect and their lack of capacity by showing that their 

mental disease or defect was a condition that contributed to 

their lack of the requisite capacity.

c. The concurrence’s test is unclear, would 

cause uncertainty and confusion, and could be 

misleading.

Third, although the concurrence asserts that using 

the “substantial factor” causation standard would provide 

clarity, ___ Or at ___, ___, ___ (Bushong, J., concurring) 

(slip op at 1:18-19, 7:3-6, 17:2-9), it is difficult to see how that 

would be the case because the concurrence does not define 

“substantial factor” causation. This court had not defined 

the term before 1971, nor had Black’s Law Dictionary. In 

fact, this court has still not defined the term. The concurrence notes that the term has been used in civil negligence 

cases and employment discrimination cases. ___ Or at ___ 

(Bushong, J., concurring) (slip op at 9:1 - 12:2). In both of those 

contexts, the commentaries to the uniform jury instructions 

relating to the term state that this court has not defined 

“substantial factor.” The comment to the Uniform Civil Jury 

Instruction on substantial factor causation in the negligence 

context, UCJI 23.02, states that “the UCJI Committee could 
468 State v. Meiser

find no Oregon case defining substantial factor in this context.” Comment to UCJI 23.02, Oregon State Bar Committee 

on Uniform Civil Jury Instructions (Dec 2014) (emphasis in 

original). Likewise, the comment to the “substantial factor” 

instruction in the employment discrimination context, UCJI 

59A.03, states that “[t]he Oregon Supreme Court has established the ‘substantial factor’ standard but has not defined 

precisely what substantial factor means.” Comment to UCJI 

59A.03, Oregon State Bar Committee on Uniform Civil Jury 

Instructions (Dec 2011) (emphasis in original).

Not only is the term “substantial factor” undefined, 

it also has been used in different ways at different times and 

in different contexts. See Burrage v. United States, 571 US 

204, 217, 134 S Ct 881, 187 L Ed 2d 715 (2014) (“The judicial 

authorities invoking a ‘substantial’ or ‘contributing’ factor 

test in criminal cases differ widely in their application of 

it.”); see also Restatement (Third) of Torts § 26 comment j 

(2010) (“The ‘substantial factor’ rubric is employed alternately to impose a more rigorous standard for factual cause 

or to provide a more lenient standard.”).

The concurrence relies heavily on civil negligence 

cases from the 1960s and 1970s. ___ Or at ___ (Bushong, 

J., concurring) (slip op at 9:1 - 10:13). It asserts that “a substantial factor test was widely used” in those cases, and it 

further asserts that the legislature intended to import that 

causation standard into the GEI statute when it enacted the 

Oregon Criminal Code in 1971. ___ Or at ___, ___ (Bushong, 

J., concurring) (slip op at 12:13 - 13:1, 18:3 - 21:13). But, as 

discussed above, nothing in the legislative history indicates 

that the legislature intended to do so. And there is reason 

to believe that they did not, given that they were creating a 

statutory code, as opposed to relying on common law, and 

given the different policy objectives of civil negligence and 

criminal law. See Turnidge, 359 Or at 472 n 62. Moreover, 

even assuming for the sake of argument that the legislature 

intended to import “substantial factor” causation, it is not 

clear what they would have understood “substantial factor” 

to mean because, as we will explain, that term was used 

in different ways during that time period, including in the 

authorities cited by the concurrence.
Cite as 372 Or 438 (2024) 469

It is important to understand that in the 1960s, 

civil negligence law was evolving. Commentators and courts 

were trying to disentangle factual causation, which asks 

whether the defendant’s conduct was a cause of the plaintiff’s 

injury, from the other policy limits on the scope of liability 

that had been included within the element of proximate or 

legal cause. See Turnidge, 359 Or at 471 (“Legal or proximate cause * ** expresses a policy judgment as to whether 

conduct that factually caused harm should result in liability 

or responsibility. The idea generally is that some conduct, 

although an actual cause of harm, nevertheless should not 

result in liability or responsibility for that harm.” (Emphasis 

in original.)); see also Stoneburner v. Greyhound Corp. et al, 

232 Or 567, 572, 375 P2d 812 (1962) (“‘Legal cause,’ or, ‘proximate cause,’ in its larger aspect, covers, in general, all of 

the limitations placed by the law upon the responsibility of 

a person for his negligent conduct.” (Citing W. Page Keeton 

et al, Prosser and Keeton on The Law of Torts § 9, 252 (2d ed 

1955).)).

The concurrence asserts that the term “substantial factor” was used to refer to factual causation. ___ Or 

at ___, ___, ___ (Bushong, J., concurring) (slip op at 9:3, 

9:10, 12:14). But that was not how it was always used in 

the 1960s and 1970s. At times, this court used it to capture legal or proximate cause and concepts of relativity. For 

example, in Sworden v. Gross, 243 Or 83, 86, 409 P2d 897 

(1966), this court stated that whether “proximate cause” 

existed depended on whether a defendant’s negligence was 

“a substantial factor in bringing about the injury or damage 

in question.” Similarly, in Hills v. McGillvrey, 240 Or 476, 

482, 402 P2d 722 (1965), this court equated “substantial” 

and “proximate” cause. See also Furrer v. Talent Irrigation 

District, 258 Or 494, 511, 466 P2d 605 (1970) (stating that 

“[t]he term ‘substantial factor’ expresses a concept of relativity which is difficult to reduce to further definiteness”).

Moreover, even when the term “substantial factor” 

was used in connection with factual causation, it was understood in different ways, as the authorities cited by the concurrence illustrate. Some of the authorities regarded “but 

for” causation as overinclusive and preferred “substantial 
470 State v. Meiser

factor” causation as an alternative that excluded some causes 

that would satisfy the “but for” test. ___ Or at ___ (Bushong, 

J., concurring) (quoting Restatement (Second) of Torts § 431 

comment a (1965)) (slip op at 12:8-12). But other authorities 

did not view the “substantial factor” test as excluding any 

“but for” causes and viewed the “substantial factor” test as 

an improvement in rare situations where conduct should 

satisfy the causation element but would fail the “but for” 

test, such as when there were two independently sufficient 

causes. ___ Or at ___ (Bushong, J., concurring) (citing Haas 

v. Estate of Mark Steven Carter, 370 Or 742, 750, 525 P3d 

451 (2023)) (slip op at 8:8-13). Thus, even assuming that we 

should look to authorities from the 1960s and 1970s, those 

authorities used the term “substantial factor” in different 

ways. That fact would have been a reason for the legislature 

not to import the term into the criminal law.

The concurrence also cites post-1971 cases to support its view that the GEI statute requires “substantial factor” causation. ___ Or at ___, ___, ___ (Bushong, J., concurring) (slip op at 8:8 - 9:8, 10:14 - 12:2, 16:9 - 17:9). Of course, 

those cases cannot inform our understanding of what the 

1971 legislature meant. The concurrence uses them to say 

that juries have been able to apply “substantial factor” 

causation. But those cases apply different versions of “substantial factor” causation. If “substantial factor” causation 

states different standards, then it is not a clear statement of 

any standard.

For example, sometimes “substantial factor” 

causation is understood as “but for” causation. See, e.g., UCJI 

59A.03 (“A substantial factor is one that made a difference 

in an employment decision; that is, the decision would not 

have been made without it. It need not be the only factor.”); 

Comment to UCJI 59A.03 (noting that the Court of Appeals 

has described the standard as a “but for” test). Sometimes it 

is understood to exclude remote or trivial but-for causes. See, 

e.g., California Civil Jury Instructions, CACI No. 430 (2024) 

(defining “substantial factor” as a cause that is “more than 

a remote or trivial factor”). And sometimes it is understood 

to supplement “but for” causation to capture conduct that 

should satisfy the causation element but would fail the “but 
Cite as 372 Or 438 (2024) 471

for” test. See, e.g., Turnidge, 359 Or at 470 n 61 (the “substantial factor” test applies in those circumstances where 

the “but for” test “provides an inadequate test of cause-infact” (citing W. Page Keeton et al, Prosser and Keeton on The 

Law of Torts § 41, 266 (5th ed 1984))); Haas, 370 Or at 750-51 

(same).

In addition, experience with “substantial factor” 

causation has led commentators and courts, including this 

one, to recommend tests and jury instructions that more 

directly address causation issues. Restatement (Third)

§ 27 comment b; Haas, 370 at 754 n 8, 757 n 9; see David 

W. Robertson, The Common Sense of Cause in Fact, 75 Tex 

L Rev 1765, 1776, 1780 (1997) (“[C]ourts seem to feel that 

it is appropriate to shift to the substantial factor vocabulary whenever the but-for test is proving difficult to work 

with for whatever reason. *** When courts begin turning 

to the substantial factor vocabulary in a broader range of 

cases [beyond multiple sufficient causes], valuable precision 

of analysis is lost and nothing is gained.”). For example, in 

Haas, we noted that “a substantial factor instruction may 

not be the best way to instruct a jury on factual causation 

because of the ambiguity that it can create.” 370 Or at 757 

n 9 (citing Keeton, Prosser and Keeton on The Law of Torts

§ 41 at 268 (recommending directly instructing the jury on 

multiple sufficient causes rather than using substantial 

factor instruction) and Restatement (Third) § 27 comment 

b); see also Haas, 370 at 754 n 8 (noting that, in situations 

where a “substantial factor” test has been used to capture 

causes that would fail the “but for” test, such as a “multiple-sufficient-causal-set situation,” it may be appropriate “to 

use an instruction that is specific to that situation rather 

than a typical but-for or substantial factor instruction.”).

Finally, “a substantial factor instruction that 

informs a jury that, to find factual causation, it must find 

that a defendant’s negligence was a ‘substantial’ or ‘important’ factor in causing the plaintiff’s injury may be misleading.” Haas, 370 Or at 755. Such an instruction

“can lead a jury erroneously to believe that it must search for 

a most significant causal factor, when that is not required. 

This court has made it plain that, in considering the 
472 State v. Meiser

factual cause element of a negligence claim, the jury is not 

to examine whether one defendant’s causal role was relatively more important than that of another defendant.”

Id. at 755 (emphasis added).

Thus, the concurrence’s “substantial factor” test 

would not provide the guidance that the concurrence says 

is needed. To the contrary, because “substantial factor” is 

undefined and can mean different things to different factfinders, and because it may cause factfinders to believe that 

they must quantify and compare relative contributions of 

different causes, the “substantial factor” test could cause 

uncertainty and confusion, and it could cause factfinders to 

believe—contrary to what the legislature intended, as evidenced by the text, context, and legislative history of the 

GEI statute—that the GEI defense does not apply unless 

a defendant proves that their mental disease or defect 

accounted for a specific (but unspecified) amount or portion 

of their lack of capacity.

III. CONCLUSION

Because the Court of Appeals erred in its conclusion regarding what a defendant must show to prove the 

required connection between their mental disease or defect 

and their lack of capacity, we again remand the case to the 

Court of Appeals.

The decision of the Court of Appeals is reversed, 

and the case is remanded to the Court of Appeals for further 

proceedings.

BUSHONG, J., concurring.

The majority opinion concludes that the Court of 

Appeals erred in interpreting ORS 161.295, which required 

defendant to prove that his requisite lack of capacity occurred 

“as a result of “ a mental disease or defect to establish his 

“guilty except for insanity” (GEI) defense. I agree with the 

majority opinion that the “sufficient by itself” test adopted 

by the Court of Appeals to establish that causal link was not 

what the legislature intended, and I agree with the majority 

opinion that, to establish a GEI defense, a defendant’s mental 

disease or defect may combine with other conditions to cause 
Cite as 372 Or 438 (2024) 473

the required lack of capacity. I also agree that the appropriate 

disposition is to reverse and remand for further proceedings.

I write separately because, in my view, the majority 

opinion’s conclusion that the dictionary definition of the word 

“result” is sufficient to define the causal link, neither reflects 

what the legislature intended nor provides enough guidance 

to mental health experts and trial courts when confronting the causation element of a GEI defense. Rather, when 

the legislature adopted ORS 161.295 as part of Oregon’s 

Criminal Code in 1971, I conclude that it intended for courts 

to use substantial factor causation—which was widely used 

by Oregon courts at that time—as the causal link required 

to establish the GEI defense. In my view, that interpretation 

provides appropriate guidance to mental health experts and 

trial courts in resolving this complex factual issue.

The majority opinion declines to adopt substantial factor causation, concluding that (1) the absence of a 

“quantitative descriptor” in ORS 161.295(1) shows that 

the legislature did not intend to adopt substantial factor 

causation; (2) substantial factor causation is taken from 

civil negligence law, and we have cautioned against using 

civil negligence standards in the criminal law context; and 

(3) unlike the dictionary definition adopted by the majority opinion, substantial factor causation is unclear, would 

cause uncertainty and confusion, and could be misleading 

to juries. But the majority opinion reads too much into the 

absence of a “quantitative descriptor” in the statute, and 

not enough from the fact that substantial factor causation 

was widely used in civil negligence and other cases in the 

1960s and 1970s. That fact alone suggests that the legislature intended to adopt substantial factor causation when it 

enacted ORS 161.295(1) in 1971. Many juries have applied 

substantial factor causation, suggesting that it is not as 

unclear, uncertain, confusing, or misleading as the majority 

opinion states. Those criticisms fairly apply to the majority opinion’s approach because, although it defines the term 

“result,” it declines to endorse any established legal test for 

the causation element of the GEI defense.

Ultimately, although the difference between 

our approaches boils down to the word “substantial,” the 
474 State v. Meiser

distance between them is relatively short. Under the majority opinion’s decision, a defendant asserting a GEI defense 

could establish the defense if the factfinder concludes that 

their lack of capacity was “a result” or “a consequence” or 

“an effect” of a mental disease or defect. That appears to be 

just another way of saying that the mental disease or defect 

must be a factor in causing the requisite lack of capacity. 

Under the approach set forth below, to establish the GEI 

defense, a defendant’s mental disease or defect must be a 

substantial factor in causing the requisite lack of capacity.

As I will explain, “substantial factor” is no less clear 

than the dictionary definition of “result” adopted by the 

majority opinion, and it is more likely what the legislature 

intended when it enacted ORS 161.295(1) in 1971 against 

the backdrop of well-established Oregon law at that time. 

The test is also demonstrably well-suited to juries evaluating the factual complexity of co-occurring mental conditions. Accordingly, I would conclude that, to prevail on a GEI 

defense, a defendant must prove that, when they committed 

the offense at issue, their mental disease or defect was a 

substantial factor in bringing about their lack of substantial capacity to appreciate the criminality of their conduct 

or to conform their conduct to the requirements of law. And 

I would remand this case to the Court of Appeals to decide 

whether the evidentiary record compelled a finding that 

defendant was GEI under that standard.

I begin with a brief explanation of why the majority 

opinion’s dictionary definition provides no more clarity than 

substantial factor causation before turning to why substantial factor causation is what the legislature likely intended 

when it adopted the GEI statute.

THE MAJORITY OPINION’S DICTIONARY 

DEFINITION

The first time we addressed this case, we determined that the Court of Appeals had erred in State v. Meiser, 

308 Or App 570, 481 P3d 375 (2021) (Meiser I), when it concluded that “defendant could prevail on his GEI defense 

only if he proved that his co-occurring personality disorder 

played no part in causing the requisite lack of substantial 
Cite as 372 Or 438 (2024) 475

capacity.” State v. Meiser, 369 Or 347, 361, 506 P3d 402 (2022) 

(Meiser II) (emphasis in original). We remanded to the Court 

of Appeals to address two unresolved questions: whether the 

evidence in the record compelled findings that (1) defendant 

lacked the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the law; 

and (2) defendant lacked that requisite capacity “as a result 

of” a mental disease or defect. Id. We indicated that resolution of the second question “may turn on whether the phrase 

‘as a result of’ in ORS 161.295(1) means that the qualifying 

‘mental disease or defect’ must be sufficient, on its own, to 

bring about the requisite incapacity, or whether the legislature intended to require some lesser degree of causal contribution from the qualifying ‘mental disease or defect.’” Id.

Thus, in Meiser II, we identified—but did not 

decide—another specific statutory interpretation issue 

regarding the GEI statute, directed the Court of Appeals 

to interpret that provision, and indicated that one interpretation that it could consider was the “sufficient by itself” 

standard that the Court of Appeals ultimately adopted. Now 

we reverse, indicating that the Court of Appeals erred in 

adopting an interpretation that we had suggested it could 

consider, and concluding that the dictionary definition of 

“result” is sufficient to define the necessary causal link.1

I do not see the point in allowing review twice in 

this case to interpret ORS 161.295(1) without clearly deciding what causal link the legislature intended. Nor do I think 

that a dictionary definition of the term “result” provides 

mental health experts and trial courts adequate guidance 

when they are confronted with a GEI defense. If the dictionary definition alone is sufficient, we could have just said so 

in our discussion of that definition when we first addressed 

the statutory interpretation question. See Meiser II, 369 Or

at 360 (noting that the dictionary defines “result,” when used 

as a noun, to mean “something that results as a consequence, 

1 In Meiser II, we explained that, to prove the affirmative defense of GEI 

under this statute, a defendant must establish that three elements existed at the 

time of engaging in criminal conduct: (1) a mental disease or defect; (2) a lack of 

substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law; and (3) “a causal link between the 

two.” 369 Or at 354. 
476 State v. Meiser

effect, issue, or conclusion” (citing Webster’s Third New Int’l 

Dictionary 1937 (unabridged ed 2002) (emphasis added))).

The fact that we did not decide the issue when we 

cited the dictionary definition in Meiser II implicitly suggests that the definition of the term “result” does not resolve 

the issue.2

 Moreover, “we have cautioned against relying 

solely on dictionary definitions to determine the meaning of 

statutory terms ‘without critically examining how the definition fits into the context of the statute itself.’” Marshall v. 

Pricewaterhouse Coopers, LLP, 371 Or 536, 543, 539 P3d 766 

(2023) (quoting State v. Gonzalez-Valenzuela, 358 Or 451, 461, 

365 P3d 116 (2015)). That is because “[d]ictionary definitions 

lack context and often fail to capture the nuanced connotations conveyed by the normal use of a term in a particular 

context.” Gonzalez-Valenzuela, 358 Or at 461. “Dictionaries, 

after all, do not tell us what words mean, only what words 

can mean, depending on their context and the particular 

manner in which they are used.” State v. Cloutier, 351 Or 68, 

96, 261 P3d 1234 (2011) (emphasis in original). And where, 

as here, a statute uses an ordinary word that has a specific 

legal significance, we typically do not rely solely on a dictionary definition. See Kinzua Resources v. DEQ, 366 Or 674, 

681, 468 P3d 410 (2020) (“[C]onsulting a dictionary does not 

help us to resolve what the legislature intended the term 

‘controlling’ to mean.”).

If the dictionary definition of the word “result” 

alone provided the clarity to which the majority opinion 

aspires, then perhaps it would suffice to adopt that standard, notwithstanding our implicit suggestion in Meiser II 

that simply defining that term does not resolve the issue. 

But characterizing that definition as “plain, natural, and 

ordinary” does not make its meaning any clearer or more 

precise. A factfinder deciding whether a defendant’s lack of 

substantial capacity at the time of the charged offense was a 

2 The majority opinion indicates we could not have resolved the meaning of 

“as a result of” in Meiser II because that would have “prejudged” an issue that 

the parties and the Court of Appeals had not yet addressed. ___ Or at ___ (slip 

op at 26: 8-10). But interpreting the statute is a legal question and we could have 

decided that question if we thought that a dictionary definition resolved the issue. 

My point is that our decision to remand in Meiser II after citing the dictionary 

definition of “result” suggests that we did not consider the dictionary definition of 

the statutory term to have provided an adequate and dispositive resolution.
Cite as 372 Or 438 (2024) 477

“result,” “consequence,” or “effect” of the defendant’s mental 

disease or defect in the context of a co-occurring personality 

disorder must still make a difficult assessment of the complex interactions of overlapping disorders that have challenged mental health experts for decades.3

 I do not see why 

the majority opinion believes that telling jurors to apply the 

dictionary definition of “result” will leave them any more 

certain or less confused than telling them to assess whether 

the defendant’s mental disease or defect was a “substantial 

factor” in causing the requisite lack of capacity.

As I will explain, juries in Oregon and nationwide 

have decided cases using substantial factor causation in various contexts for many decades, demonstrating that substantial factor causation has not caused as much uncertainty or 

confusion as the majority opinion suggests. In my view, when 

the legislature adopted ORS 161.295(1) in 1971,4

 it intended 

to place this difficult decision in the hands of juries by applying an accepted legal test that was preferred by this court at 

the time. Additionally, a fair reading of the legislative history 

of the statute provides some support for the conclusion that 

the prevailing causation principle strikes the balance that 

the legislature intended when it enacted the GEI statute.

I summarize this court’s case law applying substantial factor causation before turning to the legislative history 

of ORS 161.295. 

SUBSTANTIAL FACTOR CAUSATION

Our case law analyzing causation in civil and criminal cases has generally addressed two different tests, “but 

for” and “substantial factor” causation. In most cases, as we 

have recognized, the two tests lead to the same result, and 

3 As one commentator explained, “[t]he clinical ability to reliably distinguish the functional impact of impairments arising from personality disorders 

from those of other co-occurring mental disorders * ** is simply not supported in 

clinical literature and experience.” Robert Kinscherff, Proposition: A Personality 

Disorder May Nullify Responsibility for a Criminal Act, 38 J L Med & Ethics 745, 

750 (2010); see also Natalie Abrams, Definitions of Mental Illness and the Insanity 

Defense, 7 J Psychiatry & L 441, 448-50, 453 (1979) (describing the difficulty in 

“show[ing] a causal connection between a ‘mental illness’ and a criminal act”).

4 We noted in Meiser II that the causation test—”’as a result of mental disease or defect at the time of engaging in criminal conduct’”—was included in the 

original statute that was enacted as part of the comprehensive Oregon Criminal 

Code of 1971. Meiser II, 369 Or at 356 (quoting Or Laws 1971, ch 743, § 36). 
478 State v. Meiser

we have often used a but-for test to establish causation under 

both criminal and civil law. State v. Turnidge (S059155), 359 

Or 364, 470 n 61, 374 P3d 853 (2016) (noting that “[t]he two 

tests, in all but rare circumstances, lead to the same conclusion”); Joshi v. Providence Health System, 342 Or 152, 162, 

149 P3d 1164 (2006) (pointing out that “the two standards 

produce the same result in most cases”). We recently stated, 

in Haas v. Estate of Mark Steven Carter, 370 Or 742, 751, 525 

P3d 451 (2023), that “the substantial factor standard ‘has 

not supplanted’ the but-for standard of causation; rather, 

‘the two standards apply to different types of negligence 

cases.’” (Quoting Joshi, 342 Or at 162).

But we also recognized that there is “at least one 

situation in which a but-for instruction will not work.” Haas, 

370 Or at 749. We explained that substantial factor causation 

was developed “primarily for that circumstance—the situation in which the concurrent conduct of two or more causes 

combine to create an injury, and either one of those causes, 

operating alone, would have been sufficient to produce the 

same result.” Id. at 750. We made the same observation in 

Turnidge, 359 Or at 470 n 61, and in Joshi, 342 Or at 161.

In Joshi we explained that substantial factor 

causation “is an improvement over the ‘but for’ rule for [that] 

special class of cases” and for “two other types of situations 

which have proved troublesome” for but-for causation. Id. 

(quoting W. Page Keeton, Prosser and Keeton on The Law of 

Torts 267-68 (5th ed 1984)). One situation is where “a similar, but not identical result would have followed without the 

defendant’s act.” Id. The other is where “one defendant has 

made a clearly proved but quite insignificant contribution to 

the result, as where he throws a lighted match into a forest 

fire.” Id.

In those situations, we continue to apply substantial 

factor causation. In addition, substantial factor causation 

was routinely used in Oregon and nationwide during the 

1960s and 1970s to establish factual causation in civil negligence cases. See Elk Creek Management Co. v. Gilbert, 353 Or 

565, 584, 303 P3d 929 (2013) (noting that, when the Oregon 

Residential Landlord and Tenant Act was enacted in 1973, 

“this court used the ‘substantial factor’ test to determine the 
Cite as 372 Or 438 (2024) 479

‘cause in fact’ of a plaintiff’s injuries”); Restatement (Second) 

of Torts § 431 (1965) (stating that a person’s conduct causes 

harm to another if “his conduct is a substantial factor in 

bringing about the harm”).5

Before 1971, Oregon juries regularly used substantial factor causation to decide factual causation under 

the common law. Dewey v. A. F. Klaveness & Co., 233 Or 

515, 541, 379 P2d 560 (1963) (O’Connell, J., concurring) 

(explaining the causation standard as “a substantial factor 

in physically producing the injury”); Babler Bros. v. Pac. 

Intermountain, 244 Or 459, 464-65, 415 P2d 735 (1966) 

(adopting the views of the concurring opinion in Dewey and 

holding that “it is for the trier of fact to say whether (a) the 

conduct complained of was a substantial cause of the harm, 

and (b) whether the conduct in question was negligent”); 

Stewart v. Jefferson Plywood Co., 255 Or 603, 606, 469 P2d 

783 (1970) (describing “[t]he scope of the liability of an actor 

whose conduct is a substantial factor in causing an injury”); 

Furrer v. Talent Irrigation District, 258 Or 494, 511, 466 P2d 

605 (1970) (approving substantial factor jury instruction 

but noting that “[t]he term ‘substantial factor’ expresses a 

concept of relativity which is difficult to reduce to further 

definiteness”).

In Furrer, we made it clear that “[t]he proper use of 

the substantial factor test” as adopted in the 1948 revision of 

the Restatement “has limited its application very definitely 

to the fact of causation alone.” Id. at 510-11 (quoting Prosser 

on Torts § 49, 297 (3d ed 1964)). And in Babler Bros., this 

court overruled prior precedent to make it clear that using 

substantial factor causation to establish factual causation 

“will, in most cases, avoid the conceptual debate about 

5 Substantial factor causation is a factual question to be decided by juries. 

See Restatement (Second) § 434(2)(a). That distinguishes it from the Restatement’s 

concepts of “legal” or “proximate” causation. Under the Restatement’s approach, 

legal or proximate cause presented a legal question that would be decided by 

courts as a matter of law. Restatement (Second) §§ 431, 453 (explaining that “legal 

cause” requires a court to decide whether there is any rule of law that relieves a 

negligent actor from liability “because of the manner in which his negligence has 

resulted in the harm” even if a jury could find that the actor’s negligence was a 

substantial factor in causing the harm); see also Hills v. McGillvrey, 240 Or 476, 

482, 402 P2d 722 (1965) (noting that the “difficulty” with the 1934 Restatement’s 

discussion of proximate cause “is that it assumes that it is the function of the 

court rather than of the jury” to determine proximate cause).
480 State v. Meiser

‘proximate’ cause, and will focus upon the proper function of 

the jury.” 244 Or at 464-65.6

We have also applied the substantial factor standard 

to determine factual causation in two different types of medical malpractice cases. In McEwen v. Ortho Pharmaceutical, 

270 Or 375, 528 P2d 522 (1974), the plaintiff alleged that she 

was harmed after using oral contraceptives that had been 

manufactured by two different pharmaceutical companies. 

This court held that “[t]he respective liability of multiple 

defendants depends upon whether the negligence of each 

was a substantial factor in producing the complained of 

harm.” Id. at 418. In that context, we explained, the plaintiff 

need not show that each defendant’s negligence was “sufficient to bring about the plaintiff’s harm by itself;” rather, it 

was enough that each defendant “substantially contributed 

to the injuries eventually suffered by [the plaintiff].” Id.

In the other medical malpractice case, Simpson 

v. Sisters of Charity of Providence, 284 Or 547, 588 P2d 4 

(1978), this court held that the trial court did not err in 

instructing the jury on substantial factor causation to determine whether plaintiff’s injuries were caused by a hospital’s 

negligent failure to take adequate x-rays of his spine. We 

explained that “[w]e have approved the use of the substantial factor formula in numerous cases” and concluded that, 

“‘as applied to the fact of causation alone, no better test has 

been devised.’” Id. at 560 (quoting W. Prosser, Law of Torts 

240, § 41 (4th ed 1971)).

Although substantial factor causation is no longer used as widely in civil negligence cases, as we noted in 

Haas, Oregon courts still routinely use substantial factor 

causation in employment discrimination cases. See Holien 

v. Sears, Roebuck and Co., 298 Or 76, 90 n 5, 689 P2d 1292 

6 The majority opinion states that civil negligence law was “evolving” during 

the 1960s, and that substantial factor causation was used in different ways, with 

the court at times using the term to include the concepts of legal or proximate 

cause. ___ Or at ___ (slip op at 37:6-10). That was true during the 1950s and 

1960s. But using “substantial factor” causation to include legal or proximate 

cause—which are matters that would be decided by the court—was the reason 

that this court in Babler Bros. overruled an earlier case that had misapplied the 

causation analysis. 244 Or at 464. And by 1970, when we decided Furrer, we made 

it clear that the proper use of substantial factor causation was limited to factual 

causation. 258 Or at 510-11.
Cite as 372 Or 438 (2024) 481

(1984) (stating that “[a] common law or statutory cause of 

action for wrongful discharge emanating from sex discrimination is restricted to cases when sex is for no legitimate 

reason a substantial factor in the discrimination”); Seitz 

v. State, 100 Or App 665, 675, 788 P2d 1004 (1990) (“We 

use the ‘substantial factor’ test to determine whether [the] 

plaintiff’s protected activities were the cause of [the] defendant’s adverse [employment] actions.”).7

Substantial factor causation was preferred in the 

1960s and 1970s in part because, intuitively, it made sense 

in a way that was easy to understand. See Leon Green, The 

Causal Relation Issue in Negligence Law, 60 Mich L Rev 543 

(1962) (arguing for widespread use of the substantial factor 

test because it avoids the hypothetical thinking required 

under the but-for test and directly applies the kind of judgments implicit in causal decision-making, thus yielding a 

lower rate of error)8

; Restatement (Second) § 431 comment a 

(substantial factor test captures the common-sense understanding of causation, rather than the “philosophic sense” 

of causation represented by the but-for test, which could 

include events “so insignificant that no ordinary mind would 

think of them as causes”).

In summary, our case law recognizes that a substantial factor test was widely used in civil negligence 

cases to establish factual causation during the 1960s and 

1970s—contemporaneous with Oregon’s enactment of ORS 

161.295(1).9

 Additionally, that test is still used to determine 

7 A uniform jury instruction used in employment discrimination cases states 

that “[a] substantial factor is one that made a difference in an employment decision; that is, the decision would not have been made without it. It need not be the 

only factor.” UCJI 59A.03.

8 Leon Green’s article was cited favorably by the concurring opinion in 

Dewey, 233 Or at 544 (O’Connell, J., concurring) (stating that “the work of Leon 

Green most closely relates to the position which I have taken”). As noted above, 

this court later adopted the views expressed by Justice O’Connell in his Dewey

concurrence. See Babler Bros., 244 Or at 464-65 (citing concurring opinion in 

Dewey and adopting that approach because it avoids “the conceptual debate about 

‘proximate’ cause and *** focus[es] upon the proper function of the jury”). 

9 The majority opinion states that cases decided after the 1971 enactment of 

ORS 161.295(1) are irrelevant to determining the legislature’s intent. I agree, but 

those cases are relevant to my point, which is that substantial factor causation 

has been applied by juries for decades, and that, as a test of factual causation, 

it is not as uncertain or confusing as the majority opinions suggests. In fact, 
482 State v. Meiser

factual causation in employment discrimination and some 

civil tort cases because we have recognized that, in those 

situations, substantial factor causation is an improvement 

over but-for causation. As I will explain, analyzing whether 

a criminal defendant’s lack of capacity was “a result of” a 

mental disease or defect in the context of co-occurring mental conditions presents another situation where substantial 

factor is the better test for factual causation.

The more common test, but-for causation, is typically applied when assessing the effects of discrete, readily 

separable links in a causal chain. Turnidge, 359 Or at 471 

(conduct occurring “early in the chain of causation *** may 

be a ‘but-for’ cause by resulting in a series of forces or events 

that follow to cause the injury, each of which is also a link 

in the causal chain without which the injury would not have 

resulted”). We concluded in Turnidge that, for purposes of 

criminal responsibility in general, “[t]he test of causation 

for most circumstances is whether, ‘but for’ the defendant’s 

conduct, the event would not have occurred.” 359 Or at 481. 

Where the specified result follows from such a chain of 

events, we explained, the defendant’s role does “not have to 

be the last link in the chain, or the only one, for the jury to 

make that determination.” Id. at 482.

Similarly, in the civil tort cases that use a but-for 

test, a jury is often asked to determine whether a defendant’s 

conduct, or something else within a sequence of events, 

caused a plaintiff’s injury, as in Haas and Joshi. But where 

a jury is called on to assess an individual’s motivation, as in 

employment discrimination cases, we have consistently used 

substantial factor as the test for causation. See, e.g., Ossanna 

v. Nike, Inc., 365 Or 196, 214, 445 P3d 281 (2019) (applying 

substantial factor causation). Assessing a criminal defendant’s mental condition to determine whether their lack of 

capacity was a result of a mental disease or defect is like 

evaluating an employer’s motivation for an employment decision. Both circumstances require evaluating mental states 

that exist concurrently in a person’s mind—which are neither discrete links in a causal chain, nor readily separable 

by 1978, when we decided Simpson, we thought that “no better test has been 

devised.” 284 Or at 560.
Cite as 372 Or 438 (2024) 483

events or conditions. Analytically, that context is different 

from assessing whether one event in a chain caused a particular result, as is common in many criminal and civil cases. 

That is why, in my view, assessing a criminal defendant’s 

co-occurring mental disorders is another situation where 

substantial factor causation is the superior standard.

The majority opinion declines to adopt substantial 

factor causation, noting that the legislature did not include 

a “quantitative descriptor” in the statute and the legislative 

history does not mention “substantial factor” causation at 

all.10 Those observations are correct, and I do not dispute 

that they could mean that the legislature intended to reject 

substantial factor causation. But that is not the only interpretation, nor is it necessarily the most natural. Where, as 

here, the legislature uses the phrase—”as a result of”—to 

describe a causal link without defining the word “result” or 

discussing in the legislative history what it was intended to 

mean, we search for the intended meaning of the term in 

the context of the statute. The absence of any specific mention of “substantial factor” causation in the text or legislative history of the statute might mean that the legislature 

intended to reject it, as the majority opinion suggests. But 

it could also mean that the legislature did not consider or 

discuss the issue, or that it assumed that courts would apply 

the causation standard that was prevailing at the time.

The majority opinion also states that allowing 

juries to decide whether a criminal defendant is GEI using 

substantial factor causation would import civil tort law 

principles into the criminal law, contrary to our cautionary note in Turnidge. However, our cautionary note in that 

case primarily addressed the “difficulty with extending the 

10 The majority opinion notes that no party has advocated for using substantial factor causation for a GEI defense and suggests that defendant argued in 

favor of a dictionary definition. ___ Or at ___ n 6 (slip op at 26 n 6). Defendant 

argued that the Court of Appeals misapplied the dictionary definition but advocated for a “lesser degree” of causation than the “independent sufficiency” test 

adopted by the Court of Appeals. Defendant did not take a position on what that 

“lesser degree” should be, concluding that defining the causal link is not necessary because the record in this case shows that defendant’s schizophrenia was 

“the predominant driver” of his behaviors. Thus, while it is true that no party 

advocated for using substantial factor causation, it is also true that no party 

contended that the dictionary definition alone should be used to define the causal 

link.
484 State v. Meiser

common-law doctrine of proximate cause in the criminal 

law context[.]” 359 Or at 472 n 62. I am not suggesting that 

we do that. But with due respect to our own admonition, we 

should import a civil tort principle into criminal law if we 

conclude that that is what the legislature intended.

The majority opinion further observes that, as we 

stated in Haas, instructing a jury on substantial factor 

causation can be misleading: “As the Restatement (Third) of 

Torts section 26 comment j (2010) points out, a substantial 

factor instruction may cause confusion because it can lead 

a jury erroneously to believe that it must search for a most 

significant causal factor, when that is not required.” Haas, 

370 Or at 755. But juries have been applying substantial factor causation in employment discrimination and certain civil 

negligence cases for decades. See, e.g., Lasley v. Combined 

Transport, Inc., 351 Or 1, 11, 261 P3d 1215 (2011) (jury determined whether defendant’s spilling of glass panes onto the 

freeway was a substantial factor in causing the decedent’s 

death); Crosbie v. Asante, 322 Or App 250, 255-56, 519 P3d 

551 (2022) (noting that, to prevail on an employment discrimination or retaliation claim, a plaintiff must establish that a 

protected trait or activity “was a ‘substantial factor’” in an 

adverse employment decision). Other courts have not found 

substantial factor causation to be too confusing. See Mitchell 

v. Gonzales, 54 Cal 3d 1041, 1052, 819 P2d 872 (1991) (describing substantial factor causation as “‘sufficiently intelligible 

to any layman to furnish an adequate guide to the jury’” 

(quoting Prosser, Proximate Cause in California, 38 Cal L 

Rev 369, 379 (1950))). Any potential confusion in the context 

of a GEI defense can be avoided by instructing the jury that 

“substantial factor” causation does not mean that the jury 

is to compare the relative importance of multiple causes or 

search for the most significant causal factor.11

11 Uniform Civil Jury Instruction 23.02 clarifies how juries are to apply the 

standard: 

“Many factors may operate either independently or together to cause harm. 

In such a case, each may be a cause of the harm even though the others by 

themselves would have been sufficient to cause the same harm. If you find 

that defendant’s act or omission was a substantial factor in causing the harm 

to the plaintiff, you may find that the defendant’s conduct caused the harm 

even though it was not the only cause. A substantial factor is an important 

factor and not one that is insignificant.”
Cite as 372 Or 438 (2024) 485

The majority opinion suggests that substantial 

factor causation is unclear because the law does not define 

it. But as noted above, one of the reasons the law favored 

substantial factor causation at the time was the fact that it 

reflected a common-sense understanding that juries could 

apply without further definition. As we stated in Simpson, 

“as applied to the fact of causation alone, no better test has 

been devised.” 284 Or at 560 (citing W. Prosser, Law of Torts

§ 41, 240 (4th ed 1971)). The fact that juries have been able 

to apply it without difficulty in many civil negligence and 

employment discrimination cases sufficiently demonstrates 

that no further definition is needed.

Ultimately, the majority opinion’s dictionary definition of “result” and its misgivings about applying substantial factor causation in this context do not foreclose applying 

that standard to give effect to the legislature’s intent when 

it enacted ORS 161.295(1) in 1971. And, as I will explain 

next, although the legislative history is not clear, its silence 

more likely indicates that the legislature intended for juries 

to use substantial factor causation in determining whether 

a criminal defendant was GEI when the defendant committed the charged offense.

LEGISLATIVE HISTORY OF ORS 161.295

We explained in Meiser II that the “causal link” 

included in subsection (1) of ORS 161.295 was enacted in 

1971 and was left unchanged by the 1983 amendment to 

subsection (2) of the statute. 369 Or at 359. The statute’s 

context and legislative history shed some additional light 

on what the legislature intended in 1971 when it used “as a 

result of” to describe the causal link between a defendant’s 

mental disease or defect and the requisite lack of capacity. 

We noted in Turnidge that Oregon had adopted the 1971 

Criminal Code—including the GEI statute—”against the 

backdrop” of developments in the common law, including 

specifically Oregon’s rejection of the concept of “proximate 

cause.” Turnidge, 359 Or at 480. And, as noted above, that 

common law “backdrop” included the routine use of substantial factor causation to determine cause-in-fact.
486 State v. Meiser

It reasonably follows that the legislature would have 

intended to use the same causation standard that was widely 

used in 1971—substantial factor causation—as the causal 

link for the GEI defense. The legislative history of that statute does not clearly explain what causal link the legislature 

intended, as the majority opinion acknowledges. However, in 

my view, that history provides some support for concluding 

that substantial factor was the intended causal test.

The commentary to the 1971 Criminal Code revisions explains that ORS 161.295(1) was taken from section 

4.01 of the Model Penal Code with a few minor changes 

in wording.12 See Commentary to Criminal Law Revision 

Commission Proposed Oregon Criminal Code, Final Draft 

and Report § 36, 34 (July 1970). That commentary and the 

commentary to section 4.01 of the Model Penal Code both 

use the phrase “as a result of” repeatedly to describe the 

causal connection without clearly explaining what that 

phrase was intended to mean.13 However, the commentary 

to section 4.01 also suggests that the drafters of the Model 

Penal Code were concerned, generally, about adopting a rule 

that allowed juries to apply the insanity defense too broadly.

That commentary explains why the drafters of 

the Model Penal Code declined to adopt the “Durham

12 Section 4.01 of the Model Penal Code provides:

“(1) A person is not responsible for criminal conduct if at the time of such 

conduct as a result of mental disease or defect he lacks substantial capacity 

either to appreciate the criminality of his conduct or to conform his conduct 

to the requirements of law.

“(2) As used in this Article, the terms ‘mental disease or defect’ do not 

include an abnormality manifested only by repeated criminal or otherwise 

antisocial conduct.” 

13 The commentary to section 4.01 of the Model Penal Code reveals that the 

drafters focused on the “substantial capacity” standard, not whether a lack of 

substantial capacity was “as a result of” a mental disease or defect. See Model 

Penal Code § 4.01 comment 3 at 172 (stating that the adoption of the substantial 

capacity standard “may well be the Code’s most significant alteration of the prevailing tests[,]” acknowledging that “substantial” is “an open ended concept[,]” 

but concluding that it would be “sufficiently precise for purposes of practical 

administration”). The “substantial capacity” standard proposed in the Model 

Penal Code was partially adopted in United States v. Currens, 290 F2d 751, 774 

(3d Cir 1961) (“The jury must be satisfied that at the time of committing the 

prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he 

is alleged to have violated.”).
Cite as 372 Or 438 (2024) 487

rule”—based on Durham v. United States, 214 F2d 862 

(DC Cir 1954)—even though that rule had been “warmly 

supported by psychiatrists at the time.” Model Penal Code 

§ 4.01 comment 3 at 173-74 (Official Draft and Revised 

Comments 1985). Under the Durham rule, “an accused is 

not criminally responsible if [their] conduct was the product 

of mental disease or defect.” 214 F2d at 874-75 (emphasis 

added).14 As they explain, the drafters of the Model Penal 

Code were concerned that using “the product of” to describe 

the causal link between a mental disease or defect and illegal conduct could be interpreted to mean “that the crime 

would not have been committed but for the presence of the 

mental disease or defect.” Model Penal Code § 4.01 comment 

3 at 173. In their view, “[that] interpretation [was] too broad” 

because it would capture motivations for criminal activity 

inspired by delusional beliefs or attitudes, even if the person’s capacity to appreciate the criminality or wrongfulness 

of their conduct was not substantially impaired. Id.15 Thus, 

the drafters of the Model Penal Code wanted to be clear that 

a defendant’s lack of substantial capacity—not the illegal 

conduct itself—must occur “as a result of” the defendant’s 

mental disease or defect.

Unfortunately, the drafters of the Model Penal 

Code did not elaborate on what “as a result of” was intended 

to mean, and the commentary to Oregon’s revised Criminal 

Code does not explain what that phrase was intended to 

mean either. That commentary reveals only that Oregon, 

like the Model Penal Code, rejected the Durham rule in 

part because of the “troublesome causal questions” raised 

by its application. See Commentary § 36 at 36 (“Like the 

14 The DC Circuit later overruled Durham and adopted a rule based on section 4.01 of the Model Penal Code. United States v. Brawner, 471 F2d 969, 994-95 

(DC Cir 1972).

15 The Model Penal Code commentary offered an example. If a person murders a wealthy relative believing, as a result of a mental disease or defect, that 

they will inherit a large amount of money upon the relative’s death, the murderer 

would be relieved of responsibility under a but-for test. But the murderer should 

still be held responsible, the commentary explains, if their capacity for understanding and control were not otherwise impaired by mental illness, because 

that situation would be morally indistinguishable from someone who does not 

have a mental illness and commits a murder to receive an inheritance. Model 

Penal Code § 4.01 comment 3 at 173 n 24. 
488 State v. Meiser

Model Penal Code § 4.01, the Currens test[16] recognizes 

variations in degree and allows wide scope for expert testimony without the troublesome causal questions raised by 

Durham.”). Rejecting the Durham rule and its potentially 

sweeping application suggests that the drafters of both the 

Model Penal Code and the Oregon statute were generally 

concerned about adopting a standard that permitted too 

broad an interpretation of the causal link between a mental 

disease or defect and a defendant’s illegal conduct.

The majority opinion’s dictionary definition would 

allow juries to find that a defendant was GEI at the time 

of the offense if the defendant’s lack of substantial capacity 

was a “result” or “consequence” or “effect” of a mental disease or defect. In my view, because the legislature was concerned, generally, about an overbroad application of the GEI 

defense, it more likely intended that the mental disease or 

defect must be a substantial factor in causing a defendant’s 

lack of capacity—not just a factor—consistent with the prevailing causation standard at the time.17

Because I agree with the majority opinion’s disposition of this case, but disagree with some of its reasoning, I 

respectfully concur.

Nakamoto, S.J., joins in this concurring opinion.

JAMES, J., concurring.

I join fully in the majority opinion except as to section E(3)(c).

Masih, J., joins in this concurring opinion.

16 See Currens, 290 F2d at 774 (stating that “[t]he jury must be satisfied that 

at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the 

requirements of the law which he is alleged to have violated”). Like the commentary to the Model Penal Code and Oregon’s 1971 revised Criminal Code, the 

Currens court did not discuss what it meant when it used the term “as a result of” 

to describe the required causal link. 

17 The fact that the majority opinion and this concurrence disagree about the 

causation analysis that should be used to establish a GEI defense suggests that 

further legislation clarifying the intended approach might be warranted.