Examinations and report

16-8-106. Examinations and report. (1) (a) All examinations ordered by the court in criminal cases must be accomplished by the entry of an order of the court specifying the place where the examination is to be conducted and the period of time allocated for the examination. The defendant may be committed for the examination to a state-run mental health hospital, the place where the defendant is in custody, or any other public institution designated by the court. In determining the place where the examination is to be conducted, the court shall give priority to the place where the defendant is in custody, unless the nature and circumstances of the examination require designation of a different facility. One or more psychiatrists or forensic psychologists shall observe the defendant during a period as the court directs. For good cause shown, upon motion of the prosecution or defendant, or upon the court's own motion, the court may order any further or other examination as is advisable under the circumstances. This section does not abridge the right of the defendant to procure an examination as provided in section 16-8-108. (b) (I) An interview conducted pursuant to this section in any case that includes a class 1 or class 2 felony charge or a felony sex offense charge described in section 18-3-402, 18-3-404, 18-3-405, or 18-3-405.5 must be video and audio recorded and preserved, except as provided in subsection (1)(c) of this section. The court shall advise the defendant that any examination with a psychiatrist or forensic psychologist may be video and audio recorded. A copy of the recording must be provided to all parties and the court with the examination report. Any jail or other facility where the court orders the examination to take place shall permit the recording to occur and shall provide the space and equipment necessary for the recording. If space and equipment are not available, the sheriff or facility director shall attempt to coordinate a location and the availability of equipment with the court, and the court may consult with the district attorney and defense counsel for an agreed-upon location. If an agreement is not reached, and upon the request of either the defense counsel or district attorney, the court shall order the location of the examination, which may include a state-run mental health hospital. (II) In order to protect the presumption of innocence, if the examination is recorded, the defendant must not be dressed in prison or jail clothing. This subsection (1)(b)(II) does not require or prohibit the use of restraints, and the examination may be stopped or paused in order to apply restraints on the defendant to ensure the safety of the evaluator, the defendant, or others, as long as the restraints are not visible on the recording. (c) (I) Prior to or during any examination required by this section, the psychiatrist or forensic psychologist shall assess whether the recording of the examination is likely to cause or is causing mental or physical harm to the defendant or others or will make the examination not useful to the expert forensic opinion. If such a determination is made and documented contemporaneously in writing, the psychiatrist or forensic psychologist shall not record the examination or shall cease recording the examination, and the psychiatrist or forensic psychologist shall advise the court and the parties of this determination and the reasons therefore in a written report to the court. If only a partial recording is made, the psychiatrist or forensic psychologist shall provide the partial recording to the court and the parties, and the partial recording may be used by any psychiatrist or forensic psychologist in forming an opinion, submitting a report, or testifying on the issue of the defendant's mental health. (II) If the examination is not recorded in whole or in part, the written report explaining the decision not to record the examination is admissible as evidence, and, at the request of either party, the court shall instruct the jury that failure to record the examination may be considered by the jury in determining the weight to afford the expert witness testimony. (III) The psychiatrist or forensic psychologist does not need to record the administration of psychometric testing that involves the use of copyrighted material. (d) The court shall determine the admissibility of any recording or partial recording, in whole or in part, subject to all available constitutional and evidentiary objections. (2) (a) The defendant has a privilege against self-incrimination during the course of an examination conducted pursuant to this section. The fact of the defendant's noncooperation with psychiatrists, forensic psychologists, and other personnel conducting the examination may be admissible in the defendant's trial on the issue of insanity or impaired mental condition and in any sentencing hearing held pursuant to section 18-1.3-1201 or 18-1.3-1302. This subsection (2)(a) applies to offenses committed before July 1, 1995. (b) The defendant has a privilege against self-incrimination during the course of an examination conducted pursuant to this section. The fact of the defendant's noncooperation with psychiatrists, forensic psychologists, and other personnel conducting the examination may be admissible in the defendant's trial on the issue of insanity and in any sentencing hearing held pursuant to section 18-1.3-1201 or 18-1.4-102. This subsection (2)(b) applies to offenses committed on or after July 1, 1995, but prior to July 1, 1999. (c) The defendant shall cooperate with psychiatrists, forensic psychologists, and other personnel conducting any examination ordered by the court pursuant to this section. Statements made by the defendant in the course of the examination shall be protected as provided in section 16-8-107. If the defendant does not cooperate with psychiatrists, forensic psychologists, and other personnel conducting the examination, the court shall not allow the defendant to call any psychiatrist, forensic psychologist, or other expert witness to provide evidence at the defendant's trial concerning the defendant's mental condition including, but not limited to, providing evidence on the issue of insanity or 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. In addition, the fact of the defendant's noncooperation with psychiatrists, forensic psychologists, and other personnel conducting the examination may be admissible in the defendant's trial to rebut any evidence introduced by the defendant with regard to the defendant's mental condition including, but not limited to, the issue of insanity and in 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. This subsection (2)(c) applies to offenses committed on or after July 1, 1999. (3) (a) To aid in forming an opinion regarding the defendant's mental condition, it is permissible in the course of an examination conducted pursuant to this section to use the defendant's confessions and admissions and any other evidence of the circumstances surrounding the commission of the offense, as well as the defendant's medical and social history, in questioning the defendant. When the defendant is noncooperative with psychiatrists, forensic psychologists, and other personnel conducting the examination, an opinion of the defendant's mental condition may be rendered by the psychiatrists, forensic psychologists, or other personnel based upon the defendant's confessions and admissions and any other evidence of the circumstances surrounding the commission of the offense, as well as the defendant's known medical and social history, and the opinion may be admissible into evidence at trial and in any sentencing hearing held pursuant to section 18-1.3-1201 or 18-1.3-1302. This subsection (3)(a) applies to offenses committed before July 1, 1995. (b) To aid in forming an opinion regarding the defendant's mental condition, it is permissible in the course of an examination conducted pursuant to this section to use the defendant's confessions and admissions and any other evidence of the circumstances surrounding the commission of the offense, as well as the defendant's medical and social history, in questioning the defendant. When the defendant is noncooperative with psychiatrists, forensic psychologists, and other personnel conducting the examination, an opinion of the defendant's mental condition may be rendered by the psychiatrists, forensic psychologists, or other personnel based upon the defendant's confessions and admissions and any other evidence of the circumstances surrounding the commission of the offense, as well as the defendant's known medical and social history, and the opinion may be admissible into evidence at trial and in 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. This subsection (3)(b) applies to offenses committed on or after July 1, 1995. (c) For offenses committed on or after July 1, 1999, when a defendant undergoes an examination pursuant to subsection (3)(b) of this section because the defendant has given notice pursuant to section 16-8-107 (3) that the defendant intends to introduce expert opinion evidence concerning the defendant's mental condition, the physicians, forensic psychologists, and other personnel conducting the examination may testify to the results of any procedures and the defendant's statements and reactions if the statements and reactions entered into the formation of the experts' opinions regarding the defendant's mental condition. (4) A written report of the examination shall be prepared in triplicate and delivered to the clerk of the court which ordered it. The clerk shall furnish a copy of the report both to the prosecuting attorney and the counsel for the defendant. (5) With respect to offenses committed before July 1, 1995, the report of examination shall include, but is not limited to: (a) The name of each physician, forensic psychologist, or other expert who examined the defendant; and (b) A description of the nature, content, extent, and results of the examination and any tests conducted; and (c) A diagnosis and prognosis of the defendant's physical and mental condition; and (d) (I) An opinion as to whether the defendant suffers from a mental disease or defect; and, if so, (II) Separate opinions as to whether the defendant was insane or had an impaired mental condition at the time of the commission of the act or is ineligible for release, as those terms are defined in this article, and, in any class 1 felony case, an opinion as to how the mental disease or defect affects any mitigating factor. The nature of the opinions required depends upon the type of examination ordered by the court. (6) With respect to offenses committed on or after July 1, 1995, the report of examination shall include, but is not limited to, the items described in subsections (5)(a), (5)(b), and (5)(c) of this section, and: (a) An opinion as to whether the defendant suffered from a mental disease or defect or from a condition of mind caused by mental disease or defect that prevented the person from forming the culpable mental state that is an essential element of any crime charged; and, if so, (b) Separate opinions as to whether the defendant was insane or is ineligible for release, as those terms are defined in this article 8, and, in any class 1 felony case for an offense charged prior to July 1, 2020, an opinion as to how the mental disease or defect or the condition of mind caused by mental disease or defect affects any mitigating factor. The nature of the opinions required depends upon the type of examination ordered by the court. (7) With respect to offenses committed on or after July 1, 1999, when a defendant has undergone an examination pursuant to this section because the defendant has given notice pursuant to section 16-8-107 (3) that the defendant intends to introduce expert opinion evidence concerning the defendant's mental condition, the examination report must include, but is not limited to, the items described in subsections (5)(a), (5)(b), and (5)(c) of this section, and: (a) An opinion as to whether the defendant suffered from a mental disease or defect or from a condition of mind caused by mental disease or defect that affected the defendant's mental condition; and, if so, (b) Separate opinions as to the defendant's mental condition including, but not limited to, whether the defendant was insane or is ineligible for release, as those terms are defined in this article 8, and, in any class 1 felony case for an offense charged prior to July 1, 2020, an opinion as to how the mental disease or defect or the condition of mind caused by mental disease or defect affects any mitigating factor. The nature of the opinions required depends upon the type of examination ordered by the court. Source: L. 72: R&RE, p. 227, � 1. C.R.S. 1963: � 39-8-106. L. 73: p. 500, � 1. L. 83: (1), (2), (3), and (5)(e) amended, p. 674, � 4, effective July 1. L. 91: (1) amended, p. 1142, � 3, effective May 18. L. 95: (2), (3), and IP(5) amended and (6) added, p. 75, � 9, effective July 1. L. 98: (2), (3), (5)(d), and (6) amended, p. 382, � 3, effective April 21. L. 99: (2)(b) amended and (2)(c), (3)(c), and (7) added, pp. 401, 402, �� 1, 2, 3, effective July 1. L. 2002: (2), (3)(a), and (3)(b) amended, p. 1492, � 137, effective October 1. L. 2002, 3rd Ex. Sess.: (2)(b), (2)(c), and (3)(b) amended, pp. 29, 30, �� 19, 20, effective July 12. L. 2006: (1) amended, p. 177, � 1, effective March 31. L. 2008: (1), (2), (3), (5)(d)(II), (6)(b), and (7)(b) amended, p. 1851, � 6, effective July 1. L. 2013: (1), (2), (3), and (5)(a) amended, (SB 13-116), ch. 115, p. 394, � 4, effective August 7. L. 2016: (1) amended, (SB 16-019), ch. 297, p. 1206, � 1, effective January 1, 2017. L. 2020: (2)(c), (3)(b), IP(6), (6)(b), IP(7), and (7)(b) amended, (SB 20-100), ch. 61, p. 205, � 4, effective March 23. L. 2025: (1)(a), (1)(b), (2)(a), (2)(b), (3), and IP(7) amended, (HB 25-1058), ch. 15, p. 45, � 12, effective August 6. Cross references: For the legislative declaration contained in the 2002 act amending subsections (2), (3)(a), and (3)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsections (2)(b), (2)(c), and (3)(b), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. For the legislative declaration contained in the 2008 act amending subsections (1), (2), (3), (5)(d)(II), (6)(b), and (7)(b), see section 1 of chapter 389, Session Laws of Colorado 2008.