2023 Colorado Revised Statutes › Title 16 - CRIMINAL PROCEEDINGS (§§ 16-1-101 — 16-23-105) › CODE OF CRIMINAL PROCEDURE (§§ 16-1-101 — 16-13-1002) › Article 8 - INSANITY - RELEASE (§§ 16-8-101 — 16-8-301) › Part 1 - GENERAL PROVISIONS (§§ 16-8-101 — 16-8-122) › Section 16-8-107 - Evidence

(1)
(a)
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.
(b)
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.
(c)
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)
(a)
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.
(b)
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.
(c)
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.
(2)
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.
(3)
(a)
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
.
(b)
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
16-8-103.6
. 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.
(c)
The provisions of this subsection (3) shall apply to offenses committed on or after July 1, 1999.
Amended by 2020 Ch. 61, § 5, eff. 3/23/2020.
Amended by 2013 Ch. 115, § 5, eff. 8/7/2013.
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. 396, p. 396, § 5, effective August 7. L. 2020: (1)(b), (1)(c), and (1.5)(b) amended, (SB 20 -100), ch. 207, p. 207, § 5, effective March 23.
(1) 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) . (2) 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.