CO Code § 16-8-107 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8 - Insanity - Release|Part 1 - General Provisions|§ 16-8-107. Evidence

     Except as provided in this subsection (1), no evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination under section 16-8-106 or acquired pursuant to section 16-8-103.6 is admissible against the defendant on the issues raised by a plea of not guilty, if the defendant is put to trial on those issues, except to rebut evidence of his or her mental condition introduced by the defendant to show incapacity to form a culpable mental state; and, in such case, that evidence may be considered by the trier of fact only as bearing upon the question of capacity to form a culpable mental state, and the jury, at the request of either party, shall be so instructed.    Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination under section 16-8-108 or acquired pursuant to section 16-8-103.6 is admissible at any sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 only to prove the existence or absence of any mitigating factor.    If the defendant testifies in his or her own behalf upon the trial of the issues raised by the plea of not guilty, or at a sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102, the provisions of this section shall not bar any evidence used to impeach or rebut the defendant's testimony. (1.5)   Except as otherwise provided in this subsection (1.5), evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination pursuant to section 16-8-106 or acquired pursuant to section 16-8-103.6 is admissible only as to the issues raised by the defendant's plea of not guilty by reason of insanity, and the jury, at the request of either party, shall be so instructed; except that, for offenses committed on or after July 1, 1999, such evidence shall also be admissible as to the defendant's mental condition if the defendant undergoes the examination because the defendant has given notice pursuant to subsection (3) of this section that he or she intends to introduce expert opinion evidence concerning his or her mental condition.    Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination under section 16-8-106 or acquired pursuant to section 16-8-103.6 is admissible at any sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 only to prove the existence or absence of any mitigating factor.    If the defendant testifies in his or her own behalf, the provisions of this section shall not bar any evidence used to impeach or rebut the defendant's testimony. This subsection (1.5) shall apply to offenses committed on or after July 1, 1995.          In any trial or hearing concerning the defendant's mental condition, physicians, forensic psychologists, and other experts may testify as to their conclusions reached from their examination of hospital records, laboratory reports, X rays, electroencephalograms, and psychological test results if the material which they examined in reaching their conclusions is produced at the time of the trial or hearing.      In no event shall a court permit a defendant to introduce evidence relevant to the issue of insanity, as described in section 16-8-101.5, unless the defendant enters a plea of not guilty by reason of insanity, pursuant to section 16-8-103.    Regardless of whether a defendant enters a plea of not guilty by reason of insanity pursuant to section 16-8-103, the defendant shall not be permitted to introduce evidence in the nature of expert opinion concerning his or her mental condition without having first given notice to the court and the prosecution of his or her intent to introduce such evidence and without having undergone a court-ordered examination pursuant to section 16-8-106. A defendant who places his or her mental condition at issue by giving such notice waives any claim of confidentiality or privilege as provided in section .6. Such notice shall be given at the time of arraignment; except that the court, for good cause shown, shall permit the defendant to inform the court and prosecution of the intent to introduce such evidence at any time prior to trial. Any period of delay caused by the examination and report provided for in section 16-8-106 shall be excluded, as provided in section 18-1-405 (6)(a), C.R.S., from the time within which the defendant must be brought to trial.    The provisions of this subsection (3) shall apply to offenses committed on or after July 1, 1999.        History. Source: L. 72: R&RE, p. 228, § 1. C.R.S. 1963: § 39-8-107 . L. 83: (1) amended, p. 675, § 5, effective July 1. L. 87: (1) amended, p. 623, § 3, effective July 1. L. 96: (1.5) added, p. 5, § 3, effective January 31. L. 98: (1) and (1.5) amended, p. 384, § 4, effective April 21. L. 99: (1.5)(a) amended and (3) added, p. 402, § 4, effective July 1. L. 2002: (1)(b), (1)(c), and (1.5)(b) amended, p. 1493, § 138, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(b), (1)(c), and (1.5)(b) amended, pp. 31, 32, §§ 21, 22, effective July 12. L. 2013: (2) amended,(SB 13-116), ch. 115, p. 396, § 5, effective August 7. L. 2020: (1)(b), (1)(c), and (1.5)(b) amended,(SB 20-100), ch. 61, p. 207, § 5, effective March 23.    Cross references:    For the introduction of evidence of a physician or surgeon or certified psychologist without first obtaining the consent of the patient, see § 13-90-107 (1)(d) and (1)(g).    For the legislative declaration contained in the 2002 act amending subsections (1)(b), (1)(c), and (1.5)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsections (1)(b), (1)(c), and (1.5)(b), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.     ANNOTATION   Law reviews. For comment on French v. District Court, see 36 U. Colo. L. Rev. 280 (1964). For article, “Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview”, see 50 U. Colo. L. Rev. 277 (1979).   Annotator's note. Since § 16-8-107 is similar to § 39-8-2 , C.R.S. 1963, § 39-8-2 , CRS 53, and laws antecedent to CSA, C. 48, § 508, relevant cases construing those provisions have been included in the annotations to this section.   Subsection (3)(b) does not violate the separation of powers doctrine. The statute is a mix between substantive law and procedural rules. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   Although affecting the procedure of the courts, subsection (3)(b) also concerns the public policy of full disclosure in criminal cases involving a defense based on a defendant's mental condition. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   Subsection (3)(b) does not conflict with Crim. P. 11(e) or 16, part II, in violation of the separation of powers doctrine. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   This section is not void for vagueness. The term “mental condition” in subsection (3)(b) includes mental illness within its ordinary meaning and impaired mental condition, so the statute is not incomprehensible in all applications. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   The term “cooperate” is capable of a common meaning. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   This section does not violate a defendant's constitutional privilege against self-incrimination. The information obtained in compulsory mental examinations is admissible only on the issue of mental condition and insanity raised by defendants themselves. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   This section does not violate a defendant's fundamental right to present a defense or the right to effective assistance of counsel. A defendant can present a defense if he or she complies with the statute. People v. Bondurant, 2012 COA 50 , 296 P.3d 200.   The evidentiary prerequisites of this section do not apply to the Colorado Children's Code and specifically to delinquency proceedings. Because the Colorado Code of Criminal Procedure expressly provides that it does not apply to proceedings under the Children's Code except as specifically set forth in the Criminal Procedure Code itself, and because no such provision exists in the Criminal Procedure Code, this section does not apply to proceedings under the Children's Code. In re People in Interest of A.A., 2013 CO 65, 312 P.3d 1170 .   Separate trials designed as safeguard against prejudice. On a separate trial of a plea of not guilty by reason of insanity in a murder prosecution, a much wider area of defendant's conduct may be the subject of inquiry than would be permissible in trial of a plea of not guilty; separate trials of such issues are provided to safeguard against prejudice likely to arise by reason of wide variety of evidence competent on issue of insanity but which would not be admissible on trial of a not guilty plea. Trujillo v. People, 150 Colo. 235 , 372 P.2d 86 (1962).   Recognition of the constitutional rights of the defendant relative to self-incrimination appears in subsection (1). Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   The general assembly, in providing for the admission in evidence of defendant's statements to the psychiatrist where sanity is the issue, but barring them on the guilt issue, does not violate the defendant's rights against self-incrimination. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   When the sanity issue is a separate proceeding, as it is in Colorado, before a jury that cannot consider the issue of guilt in the event the defendant is found sane and where the admissions cannot be used to establish guilt, there is no self-incrimination within the contemplation of the constitutional provisions. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   In a sanity trial the admission of statements made by the defendant does not violate his right against self-incrimination because the issue of defendant's guilt is not decided. People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979).   Subsection (1.5)(a) does not violate the privilege against self-incrimination. The only permissible use of statements made during a sanity examination is to determine whether a defendant was capable of forming a culpable mental state. People v. Herrera, 87 P.3d 240 (Colo. App. 2003).   The court's limiting instruction and surrounding instructions regarding the expert's testimony on the issue of defendant's sanity adequately protected defendant's privilege against self-incrimination. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).   This section does not force a defendant to choose between the privilege against self-incrimination and the due process right to a competency determination. A defendant may remain silent during the court-ordered evaluation under this section and then be examined by a psychiatrist of his own choice under § 16-8-108 . Therefore, under the statutory scheme, the defendant could obtain a competency evaluation and protect his privilege against self-incrimination unless and until he relied upon the lack of mental capacity to commit the charged crimes. People v. Thomas, 962 P.2d 263 (Colo. App. 1997).   This section does not force a defendant to choose between his privilege against self-incrimination and his fundamental right to present a defense. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).   Defendant could comply with subsection (3)(b) without waiving his privilege against self-incrimination by invoking the privilege during the court-ordered examination. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).   Use in impeaching defendant constitutional. Neither the United States constitution nor the Colorado constitution should be construed to allow a defendant to take the stand without the possibility of his credibility being impeached by his prior inconsistent statements. Where the defendant makes statements to a psychiatrist upon the advice of his counsel and without physical coercion and intimidation, he cannot take the stand with his credibility immune from attack on the basis of his prior inconsistent statements. People v. Pearson, 190 Colo. 313 , 546 P.2d 1259 (1976).   When cross-examination for impeachment purposes not narrowly limited. When a defendant elects to fabricate testimony to effectively commit perjury, cross-examination for the purpose of impeachment is not narrowly limited. People v. Allen, 193 Colo. 526 , 568 P.2d 56 (1977).   Miranda warnings not required. Even assuming that warnings are required, or that the examination under this section was a type of custodial interrogation requiring that defendant be given the equivalent of Miranda v. Arizona (384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)) warnings prior to his examination, such warnings are not required before the admission of statements for impeachment purposes. People v. Pearson, 190 Colo. 313 , 546 P.2d 1259 (1976).   The last sentence of subsection (1) cannot be interpreted as only permitting the admission of statements concerning defendant's lack of capacity to form a specific intent and as not allowing the admission of statements concerning other issues of his guilt. People v. Pearson, 190 Colo. 313 , 546 P.2d 1259 (1976).   The reference in subsection (1.5)(a) to issues raised by the insanity plea relates to the defendant's “mental condition” and is equivalent to the references in subsection (1)(a) to a defendant's “capacity to form a culpable mental state”. People v. Herrera, 87 P.3d 240 (Colo. App. 2003).   Subsection (2) allows for prosecution to call “other experts” to testify as to their observations, conversations, and opinions regarding a defendant's mental condition. Prosecution presented sufficient evidence that defendant's behavior was not driven by insanity but by drugs and antisocial behavior. People v. Porter, 2013 COA 130 , 353 P.3d 852, rev'd on other grounds, 2015 CO 34, 348 P.3d 922.   Evidence from examination limited to rebuttal in trial of guilt. This section provides that any statements made by the defendant to examining psychiatrists cannot be used as evidence against him in a trial on the issue of guilt of the crime charged. However, it is also provided that such evidence may be received on the trial of the issued guilt of a murder charge to rebut evidence of insanity offered by the defendant to reduce the degree of murder. French v. District Court, 153 Colo. 10 , 384 P.2d 268 (1963).   This section definitely prohibits the presentation of the evidence obtained by experts during the period of observation, until evidence has been brought forward by defendant placing in issue, by testimony, the question of mental capacity. The entry of a plea of not guilty by reason of insanity does not destroy the presumption of sanity with which all persons are clothed. Under this section the evidence obtained during the period of observation should not have been received upon the direct case of the people on the trial of the issue of guilt and the cause is remanded for a new trial upon all issues raised by the plea. Leick v. People, 131 Colo. 353 , 281 P.2d 806 (1955).   The limitation in this section on the admission of evidence applies only to the guilt phase of a trial and does not speak to the penalty phase or a postconviction proceeding. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).   Nothing in this section prohibits the prosecution from calling the examining psychiatrist to give an opinion based on information derived from other sources, provided that such evidence was not acquired directly or indirectly for the first time from a communication made during the course of a court-ordered examination. People v. Saiz, 923 P.2d 197 (Colo. App. 1995).   Prosecution's antisocial personality disorder evidence properly admitted as relevant evidence. Prosecution's rebuttal of a defendant's insanity defense is not limited solely to presenting evidence that directly disproves the disorder claimed by defendant. Rather, the prosecution may present alternative explanations of a defendant's behavior. People v. Gonzales-Quevedo, 203 P.3d 609 (Colo. App. 2008).   Use of defendant's statements to hospital employee while confined for sanity examination to rebut defendant's self-defense theory did not constitute reversible error as defendant failed to properly object to hospital employee's testimony at trial and fact that testimony was given in prosecution's case-in-chief rather than as rebuttal testimony did not constitute plain error which would require consideration of issue not raised at trial. People v. Kruse, 839 P.2d 1 (Colo. 1992).   Expert testimony concerning the nature of the condition of minimal brain dysfunction, and its relation to poor impulse control and lack of willpower, is admissible in evidence and relevant to the issue of the defendant's sanity. People v. Wright, 648 P.2d 665 (Colo. 1982).   Trial court not required to give limiting instruction sua sponte. Court is required to give jury limiting instruction on use of expert testimony only at the request of either party. People v. Grant, 174 P.3d 798 (Colo. App. 2007).   Trial court has discretion to determine order in which evidence will be presented at the sanity trial. People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979).   Opinion based on information of third persons not testifying inadmissible. A physician cannot express an opinion based in whole or in part upon information obtained from third persons who have not testified to the facts, and the admission of such evidence was reversible error. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931).   An expert witness is not permitted to give an opinion of sanity based upon information obtained from third persons who have not testified. Garrison v. People, 158 Colo. 348 , 408 P.2d 60 (1965).   Exception if opinion not based on such information. A doctor is not disqualified to express his opinion concerning the sanity of a defendant merely because he had some information from a source outside his own examination if his opinion was not in any manner based on that information. Garrison v. People, 158 Colo. 348 , 408 P.2d 60 (1965).   Doctor-patient privilege was not violated by court-appointed psychiatrist's testimony where the prosecution called him as a witness to rebut evidence introduced by defendant which tended to show that he was incapable of forming a specific intent. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).   Admissions to privately retained psychiatrist privileged. The prosecution may not call, as a witness in its case-in-chief, a psychiatrist privately retained by the defendant in connection with an insanity plea and elicit from the psychiatrist incriminating admissions made by the defendant during a sanity examination. People v. Rosenthal, 617 P.2d 551 (Colo. 1980).   Prosecutor entitled to physician's information. Where the confessions and admissions of the defendant have been weighed by the examining physician in evaluating the defendant's sanity, fairness requires that the prosecutor have the same information as the defense attorney. Lewis v. Thulemeyer, 189 Colo. 139 , 538 P.2d 441 (1975).   Section only requires a limiting instruction “at the request of either party”. People v. Freeman, 47 P.3d 700 (Colo. App. 2001).   Subsection (3)(b) is not limited to evidence of a defendant's condition during the offense and it contains no exception for evidence of a post-incident condition. Trial court properly ruled that expert testimony related to defendant's mental condition and that defendant would have to comply with the provisions of subsection (3)(b) if he wished to have the experts testify. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).   This section does not preclude a defendant from calling expert witnesses, it merely requires defendant to comply with subsection (3)(b) if he chooses to pursue this line of defense. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).   A defendant who has not pleaded insanity but seeks to plead a mental condition defense demonstrates “good cause” for delay under subsection (3)(b) when justice is best served by permitting the introduction of evidence regarding a defendant's mental condition and notice was not given at the time of arraignment due to mistake, ignorance, or inadvertence. When considering whether good cause has been shown, courts should construe subsection (3)(b) liberally in the defendant's favor. People v. Gilbert, 2020 COA 137 , __ P.3d __.   “Mental condition” includes expert testimony offered to show how defendant's intellectual or developmental disability affects the reliability or credibility of statements made to police. People v. Flippo, 159 P.3d 100 (Colo. 2007).   Learning disability such as a disorder of written expression is outside of the statutory definition of “insanity”. Therefore, evidence of defendant's learning disability to prove a mistake of fact is admissible without an insanity plea as long as defendant provides notice and permits a court-ordered examination. People v. Wilburn, 2012 CO 21, 272 P.3d 1078.   A defendant charged with a specific intent crime cannot introduce evidence that shows, as a result of a mental disease or defect, the defendant was incapable of forming the requisite culpable mental state unless the defendant enters a plea of not guilty by reason of insanity. Evidence that a defendant is incapable of forming the requisite culpable mental state as a result of a mental disease or defect is relevant to the issue of insanity. People v. Rosas, 2020 CO 22, 459 P.3d 540.   Trial court did not err in denying defendant's motion to present evidence of his mental state without pleading not guilty by reason of insanity. Defendant proffered evidence that tended to show he was incapable of accurately comprehending the surrounding circumstances and of making a reasoned decision about an appropriate course of action and that otherwise fell within the statutory definition of insanity. People v. Gonzales-Quevedo, 203 P.3d 609 (Colo. App. 2008).   A defendant may not call an expert witness to generally testify about a mental condition without having undergone a court-ordered examination pursuant to § 16-8-106 . People v. Lane, 2014 COA 48 , 343 P.3d 1019.   Psychiatrist's testimony that defendant knew his actions were wrong violates subsections (1)(a) and (1.5)(a) and defendant's right against self-incrimination. The testimony was not confined to a court-ordered sanity examination of whether defendant had the capacity to distinguish right from wrong or form the culpable mental state at the time of the offense. People v. Marko, 2015 COA 139 , 434 P.3d 618, aff'd, 2018 CO 97, 432 P.3d 607.   The error does not require reversal because: the statements were few and relatively inconspicuous in the context of the psychiatrist's testimony; the prosecution only used the psychiatrist's testimony in closing arguments in relation to the plea of not guilty by reason of insanity, not the defendant's guilt; and the prosecution presented substantial evidence that the defendant knew his actions were wrong. People v. Marko, 2015 COA 139 , 434 P.3d 618, aff'd, 2018 CO 97, 432 P.3d 607.   Prosecution can introduce evidence obtained in court-ordered evaluation of defendant pursuant to defendant's withdrawn insanity plea as evidence of defendant's “mental condition” relating to his subsequent involuntary intoxication defense. Defendant's mental health examination was triggered by his initial claims of insanity. Court did not err in allowing prosecution to call the experts to testify in accordance with their previously produced reports to rebut testimony identified in the defendant's expert disclosures. The experts were not required to conduct additional examinations of the sole purpose of reissuing their original reports. People v. Herdman, 2012 COA 89 , 310 P.3d 170.   When the defendant raised the issue of his or her mental condition without pleading insanity, the privilege against self-incrimination is not implicated by a court-ordered mental examination when the information obtained therefrom is admitted only on the issue of mental condition and rebuts defendant's testimony at trial. People v. Herdman, 2012 COA 89 , 310 P.3d 170.   For the admissibility of prearraignment examination, see 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).   Applied in Oaks v. People, 150 Colo. 64 , 371 P.2d 443 (1962); People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980); People v. Roark, 643 P.2d 756 (Colo. 1982); 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).