Colorado § 16-8-103.6 - Waiver of privilege.

§ 16-8-103.6. Waiver of privilege.

(1) (a) A defendant who places the defendant's mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, or asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, or disclosing witnesses who may provide evidence concerning the defendant's mental condition during 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, waives any claim of confidentiality or privilege as to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for the mental condition for the purpose of any trial or hearing on the issue of the mental condition, or sentencing hearing conducted 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. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for the mental condition.

(b) This subsection (1) applies to offenses committed before July 1, 1995.

(2) (a) A defendant who places the defendant's mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103 or disclosing witnesses who may provide evidence concerning the defendant's mental condition during a sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102; or, for offenses committed on or after July 1, 1999, by seeking to introduce evidence concerning the defendant's mental condition pursuant to section 16-8-107 (3) waives any claim of confidentiality or privilege as to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for the mental condition for the purpose of any trial or hearing on the issue of the mental condition, or sentencing hearing conducted pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for the mental condition.

(b) This subsection (2) applies to offenses committed on or after July 1, 1995.

Source: L. 87: Entire section added, p. 622, § 1, effective July 1. L. 95: Entire section amended, p. 73, § 6, effective July 1. L. 98: Entire section amended, p. 381, § 2, effective April 21. L. 99: (2)(a) amended, p. 403, § 5, effective July 1. L. 2002: (1)(a) and (2)(a) amended, p. 1491, § 136, effective October 1. L. 2002, 3rd Ex. Sess.: (2)(a) amended, p. 29, §§ 17, 18, effective July 12. L. 2008: (1)(a) and (2)(a) amended, p. 1850, § 4, effective July 1. L. 2020: (1)(a) and (2)(a) amended, (SB 20-100), ch. 61, p. 205, § 3, effective March 23. L. 2025: Entire section amended, (HB 25-1058), ch. 15, p. 42, § 6, effective August 6.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (1)(a) and (2)(a), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsection (2)(a), 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)(a) and (2)(a), see section 1 of chapter 389, Session Laws of Colorado 2008.

ANNOTATION

Law reviews. For article, "New Definitions of Therapist Confidentiality", see 18 Colo. Law. 251 (1989).

By requiring disclosure of defendant's medical examinations by defense-retained non-testifying psychiatric experts, statutory provision did not violate defendant's constitutional rights to effective assistance of counsel. People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

This section is not void for vagueness. 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. 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.

No standing to attack the constitutionality of this section where defendant did not raise the defense of impaired mental condition subsequent to the denial of his pretrial challenge to such section. People v. Fuller, 791 P.2d 702 (Colo. 1990).

Testimony relating to an impaired mental condition defense may be excluded if the procedural requirements of this section and § 16-8-103.5 are not met. People v. Sandoval, 805 P.2d 1126 (Colo. App. 1990).

Admissible medical testimony relating to an impaired mental condition need not arise out an examination concerning precisely the issue of impaired mental condition. No such limitation is found in this section or § 16-8-103.5. People v. Sandoval, 805 P.2d 1126 (Colo. App. 1990).

A plain reading of this section and § 13-90-107 is that the attorney-client and the physician-patient privileges do not apply to communications made to a physicians or psychologists who are eligible to testify concerning a defendant's mental condition once the defendant enters a mental condition plea or defense. Gray v. District Ct., 884 P.2d 286 (Colo. 1994).

A defendant who places his or her mental condition at issue waives the attorney-client and the physician-patient privileges. The prosecution may use the testimony of a physician retained by the defense even though the defense does not intend to use the physician at trial. In addition, the prosecution may use pre-offense or post-offense information concerning the defendant's mental condition. Gray v. District Ct., 884 P.2d 286 (Colo. 1994).

This section's waiver of confidentiality applies to persons identified in § 13-90-107 (1)(g) in addition to the physicians and psychologists identified in this section. People v. Liggett, 2021 COA 51, 492 P.3d 356; aff'd, 2023 CO 22, 529 P.3d 113.

"Communications made by the defendant to a physician or psychologist" also includes communications made to a physician's or psychologist's agent. Liggett v. People, 2023 CO 22, 529 P.3d 113.

Discovery under this section includes all medical and mental health records concerning a mental condition that the defendant places at issue in a criminal case and the attorney work product doctrine does not preclude discovery of an expert's file on the ground that the expert is an agent of defense counsel. However, if the defendant invokes the attorney work product doctrine, any work product actually generated by defense counsel that is in an expert's file must be reviewed by the trial court and excised from the file before the file is disclosed to the prosecution. People v. Ullery, 964 P.2d 539 (Colo. App. 1997), aff'd, 984 P.2d 586 (Colo. 1999).

The waiver contained in this section does not encompass attorney work product. Waiver of privileged communications under this section includes the disclosure of medical records but does not apply to the thoughts and conclusions of defense counsel. Therefore, on a defendant's motion claiming attorney work product, the trial court should conduct an in camera review to determine whether portions of the file contain defense counsel's work product. People v. Ullery, 984 P.2d 506 (Colo. 1999).