CO Code § 16-8-103 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8 - Insanity - Release|Part 1 - General Provisions|§ 16-8-103. Pleading Insanity as a Defense

     The defense of insanity may only be raised by a specific plea entered at the time of arraignment; except that the court, for good cause shown, may permit the plea to be entered at any time prior to trial. The form of the plea shall be: “Not guilty by reason of insanity”; and it must be pleaded orally either by the defendant or by the defendant's counsel. A defendant who does not raise the defense as provided in this section shall not be permitted to rely upon insanity as a defense to the crime charged but, when charged with a crime requiring a specific intent as an element thereof, may introduce evidence of the defendant's mental condition as bearing upon his or her capacity to form the required specific intent. The plea of not guilty by reason of insanity includes the plea of not guilty.    This subsection (1) shall apply only to offenses committed before July 1, 1995. (1.5)   The defense of insanity may only be raised by a specific plea entered at the time of arraignment; except that the court, for good cause shown, may permit the plea to be entered at any time prior to trial. The form of the plea shall be: “Not guilty by reason of insanity”; and it must be pleaded orally either by the defendant or by the defendant's counsel. The plea of not guilty by reason of insanity includes the plea of not guilty.    This subsection (1.5) shall apply to offenses committed on or after July 1, 1995.          If counsel for the defendant believes that a plea of not guilty by reason of insanity should be entered on behalf of the defendant but the defendant refuses to permit the entry of the plea, counsel may so inform the court. The court shall then conduct such investigation as it deems proper, which may include the appointment of psychiatrists or forensic psychologists to assist in examining the defendant and advising the court. After its investigation the court shall conduct a hearing to determine whether the plea should be entered. If the court finds that the entry of a plea of not guilty by reason of insanity is necessary for a just determination of the charge against the defendant, it shall enter the plea on behalf of the defendant, and the plea so entered shall have the same effect as though it had been voluntarily entered by the defendant himself or herself.    If there has been no grand jury indictment or preliminary hearing prior to the entry of the plea of not guilty by reason of insanity, the court shall hold a preliminary hearing prior to the trial of the insanity issue. If probable cause is not established, the case shall be dismissed, but the court may order the district attorney to institute civil proceedings pursuant to article 65 of title 27, C.R.S., if it appears that the protection of the public or the accused requires it.    Before accepting a plea of not guilty by reason of insanity, the court shall advise the defendant of the effect and consequences of the plea.      History. Source: L. 72: R&RE, p. 226, § 1. C.R.S. 1963: § 39-8-103 . L. 75: (3) amended, p. 926, § 26, effective July 1. L. 95: (1) amended and (1.5) added, p. 73, § 4, effective July 1. L. 2010: (3) amended,(SB 10-175), ch. 188, p. 783, § 21, effective April 29. L. 2013: (2) amended,(SB 13-116), ch. 115, p. 393, § 2, effective August 7.    ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. RAISING INSANITY ISSUES.   A. Under Plea of Not Guilty by Reason of Insanity.    B. Under Plea of Not Guilty.        I. GENERAL CONSIDERATION.   Law reviews. For article, “The Mental State of Defendants in Criminal Trials -- A Comparison of Some Colorado and Massachusetts Procedures”, see 14 Rocky Mt. L. Rev. 21 (1941). For article, “Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement”, see 22 Rocky Mt. L. Rev. 221 (1950). For note, “Trial Procedure in Colorado Under the 1951 Amendment Relating to Insanity in Criminal Cases”, see 24 Rocky Mt. L. Rev. 223 (1952). For article, “Highlights of the 1955 Legislative Session -- Criminal Law and Procedure”, see 28 Rocky Mt. L. Rev. 69 (1955). For note, “Procedural Aspects of the Colorado Criminal Insanity Statutes”, see 31 Rocky Mt. L. Rev. 90 (1958). For article, “A Review of the 1959 Constitutional and Administrative Law Decisions”, see 37 Dicta 81 (1960). For article, “One Year Review of Criminal Law and Procedure”, see 38 Dicta 65 (1961). For article, “One Year Review of Criminal Law and Procedure”, see 40 Den. L. Ctr. J. 89 (1963). For article, “Medical-Legal Liaison: A Need for Dialogue in the Criminal Law”, see 37 U. Colo. L. Rev. 169 (1965). For article, “Self Incrimination and the Insanity Plea: Out of the Mouths of Babes”, see 66 Den. U. L. Rev. 81 (1988).   Annotator's note. Since § 16-8-103 is similar to repealed § 39-8-1 , C.R.S. 1963, § 39-8-1 , CRS 53, CSA, C. 48, § 507, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   The affirmative defense of impaired mental condition is separate and distinct from the defense of insanity; its sole effect is to negate the existence of an element of the crime charged. However, if a defendant intends to raise the defense of impaired mental condition at trial, he must also specially plead the defense at arraignment. People v. Bolton, 859 P.2d 311 (Colo. App. 1993).   The purpose of this section is to require the defense of insanity to be tried only under a special plea, to require this plea to be interposed at the time of arraignment, and to require a special verdict on this issue. This defense cannot now be introduced under the plea of “not guilty”, as it formerly could be. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933); Mundy v. People, 105 Colo. 547 , 100 P.2d 584 (1940).   Notwithstanding this section, based upon a criminal defendant's constitutional right to due process, the defendant's “mental slowness” may be considered as factual evidence to support the argument that he or she lacked the required culpable mental state. People v. Vanrees, 125 P.3d 403 (Colo. 2005).   Constitutionality. The constitutional provision concerning the inviolability of jury trials does not prohibit the general assembly from changing the method of raising the question of insanity. Nor does the requirement that in order to raise the question of insanity, the defendant must plead it in the specified manner, offend against the due process clause of the constitution. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).   A statute which requires a special plea to be entered in cases where insanity is relied on as a defense does not deny due process of law. Leick v. People, 131 Colo. 353 , 281 P.2d 806 (1955).   The requirement that a special plea as to insanity be entered to be followed by a period of observation does not deny to a defendant any constitutional right. Robbins v. People, 142 Colo. 254 , 350 P.2d 818 (1960).   Subsection (2) not unconstitutional. Subsection (2), which provides for the determination of the issue of defendant's sanity in advance of trial, is not facially unconstitutional. Les v. Meredith, 193 Colo. 3 , 561 P.2d 1256 (1977).   Subsection (2) does not offend traditional notions of fair play and substantial justice. Public safety and welfare considerations override the reasons assigned by the trial court for its declaration of unconstitutionality, i.e., that in violation of §§ 16 and 25 of art. II, Colo. Const., defendant had lost his right to confront witnesses against him, the right to appear and defend against the charges made, the right to assert all available defenses, and the right to a public trial upon the merits of the charges. Les v. Meredith, 193 Colo. 3 , 561 P.2d 1256 (1977).   The administration of justice is improved if, upon having reason to do so and after holding a hearing, a trial judge can enter a plea of not guilty by reason of insanity on behalf of the defendant, irrespective of the defendant's wishes. Les v. Meredith, 193 Colo. 3 , 561 P.2d 1256 (1977).   Section only changes the procedure. The substance of the defendant's right to a jury trial on the question of insanity has been preserved; the procedure only has been changed. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933); Mundy v. People, 105 Colo. 547 , 100 P.2d 584 (1940).   And it is to be liberally construed in favor of defendants. Martinez v. People, 179 Colo. 197 , 499 P.2d 611 (1972).   “Just determination” inquiry or determination regarding imposition of a mental status defense over the objection of the defendant requires a balancing of the public's interest in not holding criminally liable a defendant lacking criminal responsibility and the defendant's interest in autonomously controlling the nature of person's defense. Under subsection (2) and § 16-8-103.5 (2) the court must consider not only the defendant's stated reasons for objecting to the mental status defenses at the time of arraignment--but also the defendant's state of mind at the time of the commission of the offense. Against this, the court must consider the defendant's reasons for attempting to forego assertion of the mental status defense by examining whether those reasons satisfy a “basic rationality” inquiry. Hendricks v. People, 10 P.3d 1231 (Colo. 2000).   Trial court must first consider the viability of the mental status defense that defense counsel requests the court to assert on behalf of the defendant. This requires the court to assess the mental state of the defendant at the time of the commission of the offense to determine whether there is substantial evidence that the defendant may not be guilty because of the defendant's mental status. Hendricks v. People, 10 P.3d 1231 (Colo. 2000).   Defendant's choice should be accorded substantial weight in evaluating whether imposition of a mental status defense results in a “just determination of the charge against the defendant”. At the same time it is inappropriate to give weight to a defendant's choice if the choice is founded in the defendant's delusions or is otherwise devoid of a rational basis. To satisfy this inquiry the trial court must assess whether the defendant's reason for the decision has a plausible grounding in reality. Hendricks v. People, 10 P.3d 1231 (Colo. 2000).   A finding of competency to stand trial does not substitute for a finding of basic rationality. Hendricks v. People, 10 P.3d 1231 (Colo. 2000).   An individual's interest in autonomously controlling the nature of his or her defense, provided that interest is premised on a choice that satisfies the basic rationality test, will predominate over the broader interest of society unless pressing concerns mandate a contrary result. Hendricks v. People, 10 P.3d 1231 (Colo. 2000).   It is mandatory to the extent that it requires a defendant who intends to defend on the ground of insanity to interpose an appropriate plea. But this does not mean that this section operates to exclude every other possible mental examination of an accused. Early v. People, 142 Colo. 462 , 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).   A defendant desiring to rely upon insanity as a defense in a criminal action is bound to comply with the provisions of this section concerning the entry of such plea. Robbins v. People, 142 Colo. 254 , 350 P.2d 818 (1960).   But it does not compel self-incrimination. Since a defendant under a plea of not guilty can offer evidence of his insanity bearing upon his ability to form criminal intent, it cannot be said that he is compelled to enter a plea of not guilty by reason of insanity under this section and his election to do so cannot be held compulsory incrimination. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   Where the defendant does not enter a special plea raising the defense of insanity, any evidence introduced at his trial which would support such a plea is irrelevant and inadmissible. People v. Low, 732 P.2d 622 (Colo. 1987).   Rationale for excusing from criminal responsibility. A person who is criminally insane is excused from criminal responsibility for his actions because, due to a mental disease or defect, he lacks the capacity to distinguish right from wrong with respect to the act or to adhere to the right or refrain from the wrong. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).   Insane persons are not necessarily incompetent to stand trial because of the fact of their insanity. People v. Benns, 641 P.2d 298 (Colo. App. 1981).   Putting accused on trial while he is incompetent violates due process of law. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   And prohibition attaches at commencement of formal criminal proceedings and continues throughout the execution and satisfaction of the sentence. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Defense counsel to bring belief of accused's incompetence to court's attention. When defense counsel has reason to believe the accused is incompetent, he is obliged to bring this matter to the court's attention even though it might be to the disadvantage of the accused. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   And court to inquire where issue of competency raised. Where defense attorney's representation to the court raised a substantial issue as to the petitioner's competency to stand trial, trial court's refusal to make any inquiry into that issue or to receive any evidence in that regard constituted an abuse of discretion. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Or due process is violated when a trial court refuses to accord an accused an adequate hearing on his claimed incompetency to stand trial. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Choice of entering plea left to defendant. The tactical choice of whether to enter a plea of not guilty by reason of insanity by a defendant found “mentally competent” is left to the defendant and his counsel. People v. Lopez, 640 P.2d 275 (Colo. App. 1982).   When a defendant is competent to proceed, the tactical choice whether to utilize the affirmative defense of insanity should be left up to the defendant and his counsel. People v. Benns, 641 P.2d 298 (Colo. App. 1981).   No authority for court to raise defense unless requested by defendant. Neither Crim. P. 11(e) nor this section gives a trial court the authority to enter a plea of not guilty by reason of insanity when it has not been requested by the defendant or his counsel. Labor v. Gibson, 195 Colo. 416 , 578 P.2d 1059 (1978); People v. Lopez, 640 P.2d 275 (Colo. App. 1982).   Claim of incompetence to stand trial on issue of guilt cannot be waived. Jones v. District Court, 617 P.2d 803 (Colo. 1980).   Entitled to instruction on commitment procedures. A defendant who is relying on an insanity defense is entitled, upon request, to an instruction on commitment procedures. People v. Thomson, 197 Colo. 232 , 591 P.2d 1031 (1979); People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979); People v. Beasley, 43 Colo. App. 488, 608 P.2d 835 (1979).   The court should give a jury instruction which clearly and simply explains the consequences to the defendant of an insanity verdict. Such an instruction should clearly indicate that it is only informational and is to have no persuasive bearing on the jury's determination of a proper verdict. People v. Roark, 643 P.2d 756 (Colo. 1982).   People v. Thomson should be applied retroactively in those cases in which an instruction on commitment procedures has been requested and judgment of conviction is not final. People v. Hardin, 199 Colo. 229 , 607 P.2d 1291 (1980).   This section does not seek to regulate arrest and investigation. Early v. People, 142 Colo. 462 , 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).   The statutory procedure does not exclude other examinations. Early v. People, 142 Colo. 462 , 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960); People v. Beasley, 687 P.2d 1323 (Colo. App. 1984).   There is nothing in this section and § 16-8-105 which precludes the employment, by either the accused or the state, of physicians or psychiatrists with a view to their testifying at the trial. Early v. People, 142 Colo. 462 , 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).   One entering insanity plea cannot be denied bail. One who enters a plea of not guilty by reason of insanity at the time of the commission of the alleged crime cannot be denied bail pending trial. Palmer v. District Court, 156 Colo. 284 , 398 P.2d 435 (1965).   Statute as basis for jurisdiction. See Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   Applied in People v. Garza, 44 Colo. App. 393, 612 P.2d 1139 (1979); People v. Moody, 630 P.2d 74 (Colo. 1981).   II. RAISING INSANITY ISSUES.   A. Under Plea of Not Guilty by Reason of Insanity.   Previously the question of insanity could be raised under a general plea of not guilty. In order to avoid or lessen certain abuses that were believed to exist under that practice, the general assembly changed the method of raising the question of insanity, but left to the defendant all the substantial rights he formerly enjoyed. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).   Defense of insanity can only be raised by special plea. Boyd v. People, 108 Colo. 289 , 116 P.2d 193 (1941).   The plea of not guilty by reason of insanity is in the nature of confession and avoidance. Boyd v. People, 108 Colo. 289 , 116 P.2d 193 (1941); Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958); People v. Chavez, 629 P.2d 1040 (Colo. 1981).   It is a plea on the merits because it attacks the mental element of the offense alleged which is an essential element of guilt. Parks v. Denver District Court, 180 Colo. 202 , 503 P.2d 1029 (1972).   By asserting insanity a defendant admits the acts charged, but denies criminal culpability. However, such admission extends only and solely to the consideration of such plea; beyond that it has no efficacy in a criminal case. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958); People v. Chavez, 629 P.2d 1040 (Colo. 1981).   Permitting change of plea is within discretion of court. Where good cause is shown, it is incumbent on the trial court to allow changes of plea or additional pleas to accomplish the fair and just determination of criminal charges. Whether good cause is shown rests within the sound discretion of the trial court, and in the absence of a showing of an abuse of discretion by the trial court, the supreme court will not disturb its ruling. Gallegos v. People, 166 Colo. 409 , 444 P.2d 267 (1968).   Trial court's determination of lack of good cause shown for permitting insanity defense will be affirmed unless there has been an abuse of discretion. Martinez v. People, 179 Colo. 197 , 499 P.2d 611 (1972).   Whether good cause is shown to permit a plea of insanity rests within the sound discretion of the trial court, and in the absence of a showing of an abuse of discretion by the trial court, an appellate court will not disturb its ruling. Taylor v. District Court, 182 Colo. 406 , 514 P.2d 309 (1973).   Question of good cause is addressed to sound discretion of trial judge and, absent a clear abuse of discretion, the trial judge's ruling will not be disturbed on appeal. Garza v. People, 200 Colo. 62 , 612 P.2d 85 (1980).   Good cause shown. Good cause is shown when the defendant establishes that the plea was not entered at arraignment because of mistake, ignorance, or inadvertence, and that fairness and justice will best be served by permitting the additional plea. Ellis v. District Court, 189 Colo. 123 , 538 P.2d 107 (1975); People v. Reed, 692 P.2d 1150 (Colo. App. 1984).   Where good cause not found. Where defense counsel forcefully argues that he has demonstrated good cause through his showing that defendant lied to him about his real identity and his past criminal record and said that he had some mental problems, this did not establish good cause. Garza v. People, 200 Colo. 62 , 612 P.2d 85 (1980).   Denial, for lack of good cause, of request to add insanity plea held not abuse of discretion. Martinez v. People, 179 Colo. 197 , 499 P.2d 611 (1972).   Where four and one half months after a plea of not guilty to a charge of murder has been entered, a jury selected and sworn, counsel for the defendant is advised that defendant may be subject to epilepsy, and thereupon requests the court to order a mistrial and to permit defendant to enter a plea of “not guilty by reason of insanity”, the refusal of the trial court to grant such requests is not an abuse of discretion where the record discloses that the trial court carefully investigated the matter in the course of which competent medical advice was sought and received following an examination of the defendant. Robbins v. People, 142 Colo. 254 , 350 P.2d 818 (1960).   Court acted arbitrarily in denying leave to plead defense. Prior to arraignment, counsel for defendant had discussed the insanity defense with him, but defendant did not want to plead not guilty by reason of insanity and counsel agreed. However, when defendant was severed from his codefendants for trial, he disclosed new evidence to his counsel, which led counsel to the discovery of other evidence indicative of a foundation for insanity pleas, and, on the basis of this new knowledge, counsel again discussed the possibility of the insanity defense with him, and he then stated that he wanted to so plead. On the basis of this showing, the trial court acted arbitrarily in denying leave to plead the defense of insanity. Taylor v. District Court, 182 Colo. 406 , 514 P.2d 309 (1973).   B. Under Plea of Not Guilty.   Under plea of not guilty defendant cannot demand acquittal by reason of insanity. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).   Defendant withdrew his plea of not guilty by reason of insanity and having done so, he may not thereafter seek an acquittal on the ground that he was incapable of forming the general intent to commit a crime. Russell v. People, 155 Colo. 422 , 395 P.2d 16 (1964).   On a trial of the issue of guilt after defendant was adjudged sane, evidence of mental condition could not form the basis for an outright acquittal on the ground that the accused was unable to form even a general intent to commit a crime. Rupert v. People, 163 Colo. 219 , 429 P.2d 276 (1967).   Evidence of mental condition admissible as bearing on specific intent. Upon trial of issues framed by a plea of not guilty, any evidence bearing on the mental condition of the accused, including evidence of legal insanity, is admissible as bearing on the ability to deliberate and form the intent essential to murder in the first degree. Leick v. People, 131 Colo. 353 , 281 P.2d 806 (1955).   This section provides that evidence of mental condition may be offered regardless of whether a plea of not guilty by reason of insanity has been interposed. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   Evidence of insanity or mental deficiency is relevant in a criminal trial, notwithstanding the fact that defendant has merely entered a plea of not guilty, as bearing upon the capacity of the accused to form a specific intent essential to the crime. Early v. People, 42 Colo. 462 , 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).   A defendant is entitled under the proviso of this section to adduce evidence bearing upon his capacity to form the particular intent essential to constitute the crime of felonious escape. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).   A line of testimony regarding mental condition is proper on a trial on the issue of guilt after defendant was adjudged sane, but only for the very limited purpose of whether testimony bears upon the capacity of the accused to form a specific intent essential to constitute a crime. Rupert v. People, 163 Colo. 219 , 429 P.2d 276 (1967).   Or to reduce the grade of the crime. A defendant pleading not guilty may introduce evidence of mental condition for the purpose not of securing an acquittal, but of reducing the grade of the crime. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).   Or in mitigation of sentence. A defendant may introduce evidence of mental derangement at the time of the commission of the homicide for the purpose of enabling the jury to determine, in the exercise of its discretion, whether to fix the penalty at death or imprisonment for life, should it find him guilty of first degree murder. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).   And court may limit jury determination to issue of specific intent. After defendant withdrew his plea of not guilty due to insanity, the trial court was correct in limiting medical testimony on defendant's emotional age to the determination by the jury as to whether defendant could form a specific intent. Russell v. People, 155 Colo. 422 , 395 P.2d 16 (1964).   But refusal to admit such evidence would deny due process. A refusal on the part of a trial court to admit evidence of mental condition, including evidence of legal insanity, would be a denial of due process of law. Leick v. People, 131 Colo. 353 , 281 P.2d 806 (1955).   Defendant who withdrew his plea of not guilty by reason of insanity could not complain regarding a jury instruction which failed to indicate that insanity resulting from involuntary intoxication could mitigate first degree murder. People v. Manier, 184 Colo. 44 , 518 P.2d 811 (1974).