CO Code § 16-8-101 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8 - Insanity - Release|Part 1 - General Provisions|§ 16-8-101. Insanity Defined - Offenses Committed Before July 1, 1995

  The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.”.    The term “diseased or defective in mind”, as used in subsection (1) of this section, does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct.    This section shall apply to offenses committed before July 1, 1995.     History. Source: L. 72: R&RE, p. 225, § 1. C.R.S. 1963: § 39-8-101 . L. 83: Entire section amended, p. 672, § 1, effective July 1. L. 84: (1) amended, p. 490, § 1, effective February 6. L. 95: (3) added, p. 71, § 1, effective July 1.    ANNOTATION   Law reviews. For article, “Insanity Defense Reform”, see 11 Colo. Law. 3006 (1982). For article, “Legislative Update”, see 12 Colo. Law. 1251 (1983). For a discussion of the 1984 amendment to subsection (1), see article, “Legislative Update”, 13 Colo. 1419 (1984). For article, “Not Guilty by Reason of Insanity: A Research Note”, see 14 Colo. Law. 569 (1985).   Annotator's note. Since § 16-8-101 is similar to repealed § 39-8-1 , C.R.S. 1963, and § 39-8-1 , CRS 53, relevant cases construing those provisions have been included in the annotations to this section.   Test of criminal responsibility is policy of general assembly. The kind and character of test and the extent of the category of recognized criminal irresponsibility are questions of policy which are properly within the province of the general assembly. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   Constitutionality. The right and wrong and irresistible impulse tests described by this section are valid. 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 test of insanity prescribed by this section is not so uncertain, ambiguous, and unintelligible as to constitute a deprivation of due process of law. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   This section has adopted the M'Naghten right and wrong test and the irresistible impulse test. Thus a person is held to be insane as far as the criminal laws are concerned when he is so diseased in mind as to be incapable of distinguishing right from wrong or where he suffers such an impairment of mind as to render him incapable of choosing the right and refraining from doing the wrong. Castro v. People, 140 Colo. 493 , 346 P.2d 1020 (1959).   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).   Section does not address defendant's ability to form particular mental state. This section's definition addresses the issue of whether the defendant has sufficient mental capacity to be held accountable for any crimes he may have committed. It does not answer the question of whether the defendant was capable of forming a particular mental state required for a conviction of the substantive charge. People v. Morgan, 637 P.2d 338 (Colo. 1981).   An insane defendant can be found guilty of a crime, provided he was not insane at the time of the offenses charged. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   Trial court did not err in precluding expert witness from offering an opinion as to whether defendant was legally insane in 1981 where the single issue to be determined by the jury was defendant's legal sanity or insanity at the time of the killing in 1983. People v. Galimanis, 944 P.2d 626 (Colo. App. 1997).   Trial court did not improperly exclude evidence of specific instances of defendant's conduct that occurred during defendant's confinement at state hospital in the months subsequent to the killing for which the defendant was on trial. People v. Galimanis, 944 P.2d 626 (Colo. App. 1997).   Different standard for competence to stand trial. A criminal defendant who raises the sanity issue is constitutionally entitled to a separate hearing to determine his competence to stand trial because a different standard determines competence to stand trial from that which determines the validity of a defense of not guilty by reason of insanity. Parks v. Denver District Court, 180 Colo. 202 , 503 P.2d 1029 (1972).   Insanity tests under this section and § 16-8-120 different. The general assembly has chosen by enactment of this section and § 16-8-120 to distinguish between the test in a criminal case for a verdict of not guilty by reason of insanity and the test for release from a mental institution once it is suggested that commitment might safely be terminated. People v. Lyles, 186 Colo. 302 , 526 P.2d 1332 (1974).   And defendant was not denied due process by failure to apply as the standard for release the same test applied to determine whether he was insane several years earlier when the alleged crime was committed. People v. Giles, 192 Colo. 240 , 557 P.2d 408 (1976).   Where defendant was insane at the time of his escape, he should not be held accountable for his escape so as to forfeit good time earned prior thereto, or be held subject to the sanctions of § 17-1-207 (2) (as that section existed prior to the repeal and reenactment of title 17 in 1977), by which he was ordered by the administrative adjustment committee to serve at least two calendar years from and after his administrative transfer to the prison, without the opportunity to earn good time during this two-year period. It would be an anomaly that the defendant, by reason of his legal insanity and unaccountability, could not have been convicted of a felonious escape under § 18-8-208 , whereas he could be held accountable for his escape and be subject to the statutory sanctions resulting therefrom, in spite of his insanity and unaccountability. Lange v. Schauer, 184 Colo. 373 , 520 P.2d 753 (1974).   A court cannot find one sane who had previously been found insane unless he is first “released from commitment” pursuant to law. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   A person found insane as to one time cannot be held to be sane at a subsequent time unless and until there is compliance with the statutory mandates relating to release from commitment. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   Insanity adjudication results in a presumptive continuation of a state of mental incapacity until it is shown that sanity has been restored. People v. Giles, 662 P.2d 1073 (Colo. 1983).   But committed person not incapable of committing crimes. An insanity adjudication represents a judicial determination that an accused is not legally responsible for a past criminal act by reason of a mental disease or defect which existed at the time the act was committed. It is simply not true, however, that an insanity adjudication renders a committed person legally incapable of committing future crimes during the period of commitment. People v. Giles, 662 P.2d 1073 (Colo. 1983).   While a finding of insanity as to one time is binding on the courts, such a finding does not mandate a finding of insanity as to an earlier time period. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   Finding of sanity as to one act does not preclude different finding as to another act. Where acts are separated by time and location, a finding of sanity as to one act would not preclude a different finding as to the later ones. People v. Beasley, 43 Colo. App. 488, 608 P.2d 835 (1979).   The distinction between insanity and incompetency must be sharply drawn. Incompetency merely abates the action and is procedural in effect, while insanity is substantive and renders the defendant not guilty. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   Insane persons are, under the law, not necessarily incompetent to stand trial because of the fact of their insanity, while, in contrast, an incompetent defendant may not be tried. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   Although a person may be both insane and incompetent, likewise, one may be insane and yet competent to stand trial. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).   A person adjudicated not guilty by reason of insanity as defined in this section and § 16-8-101.5 is not a handicapped individual under § 504 of the Rehabilitation Act of 1973. Neiberger v. Hawkins, 239 F. Supp. 2d 1140 (D. Colo. 2002 ).   The “deific-decree” delusion is recognized in Colorado; a defendant may be judged legally insane if the defendant's cognitive ability to distinguish right from wrong with respect to the act has been destroyed as a result of a psychotic delusion that God has decreed the act. People v. Serravo, 823 P.2d 128 (Colo. 1992).   But the trial court did not err in refusing to submit an instruction specifying that a “deific-decree” delusion could constitute legal insanity where the court instead submitted an instruction explaining that the term “incapable of distinguishing right from wrong” refers to cognitive inability, due to mental disease or defect, to distinguish right from wrong as measured by a societal standard of morality, even though the person may be aware that the conduct in question is criminal. People v. Tally, 7 P.3d 172 (Colo. App. 1999).   Trial court did not err in refusing to include as a jury instruction that a “deific-decree” delusion could constitute legal insanity where there was no evidence that defendant felt he was under any compulsion by God to murder the victim. People v. Galimanis, 944 P.2d 626 (Colo. App. 1997).   The concepts of “right” and “wrong” are essentially ethical in character and have their primary source in the existing societal standards of morality as distinguished from the written law. But a personal and subjective standard of morality should not be permitted to exonerate a defendant. People v. Serravo, 823 P.2d 128 (Colo. 1992).   Trial court was not required to submit the clarifying instruction on the definition of legal insanity specifying that right from wrong is measured by a societal standard where defendant did not contend that his actions were justified under his own moral beliefs or moral code, nor that he was conscious that what he was doing was right or wrong, either legally or morally. People v. Galimanis, 944 P.2d 626 (Colo. App. 1997).   The appropriate construction of the term “incapable of distinguishing right from wrong” should be measured by existing societal standards of morality rather than a defendant's personal and subjective understanding of the legality or illegality of the act in question. People v. Serravo, 823 P.2d 128 (Colo. 1992).   Res judicata or collateral estoppel do not operate to make a prior adjudication of insanity into a conclusive presumption of insanity or incompetence to stand trial for criminal acts which are committed after an insanity adjudication but before a formal restoration of the defendant to sanity. Blehm v. People, 817 P.2d 988 (Colo. 1991).   When a mental infirmity is directly caused by voluntary intoxication, even though effects have dissipated, the defendant is not diseased within legal insanity statute, and, therefore, court was correct in refusing to issue jury instruction on settled insanity doctrine. People v. Bieber, 835 P.2d 542 (Colo. App. 1992), aff'd, 856 P.2d 811 (Colo. 1993), cert. denied, 510 U.S. 1054, 114 S. Ct. 716, 126 L. Ed. 2d 680 (1994).   Instruction in language of section is proper. No error is committed when a trial court submits to the jury an instruction which is drafted substantially in the language of this section, and which has been approved by the Colorado supreme court. The words “depravity” and “obliquity”, while not used in every day conversation, are well within the comprehension of a jury. Simms v. People, 174 Colo. 85 , 482 P.2d 974 (1971).   Jury instruction which set forth the test of insanity in the exact language of the statute was held to be proper. Salas v. People, 181 Colo. 321 , 509 P.2d 586 (1973).   Trial court is not required to provide an instruction on the phrase “moral obliquity”, as such term is well within the comprehension of a jury. People v. Galimanis, 944 P.2d 626 (Colo. App. 1997).   Applied in Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971); People v. Chavez, 629 P.2d 1040 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Roark, 643 P.2d 756 (Colo. 1982); People v. Wright, 648 P.2d 665 (Colo. 1982); People v. Martin, 851 P.2d 186 (Colo. App. 1992).