Colorado § 16-8-105.5 - Procedure after plea for offenses committed on or after July 1, 1995.

§ 16-8-105.5. Procedure after plea for offenses committed on or after July 1, 1995.

(1) (a) When a plea of not guilty by reason of insanity is accepted, the court shall forthwith order the defendant to undergo a sanity examination, specifying where the examination must be conducted. The court, in consultation with the department of human services and the parties, shall determine whether the examination requires the defendant to stay overnight for an extended examination and the number of days of the extended examination.

(b) (I) If the defendant is in custody, the examination may be conducted at the jail or place of confinement or at a facility operated by or under contract with the department of human services. If the defendant is in custody and the court determines the examination must be conducted at a facility operated by or under contract with the department of human services, the court shall order the department of human services to take custody of the defendant to conduct the examination and return the defendant to the original place of custody after the examination is complete.

(II) If the defendant is at liberty on summons or on bond, the examination may be conducted at a facility operated by or contracted with the department of human services or at an out-of-custody location that the court and department of human services determine is appropriate.

(2) Upon receiving the report of the sanity examination, the court shall immediately set the case for trial. Every person is presumed to be sane; but, once any evidence of insanity is introduced, the prosecution has the burden of proving sanity beyond a reasonable doubt.

(3) When the affirmative defense of not guilty by reason of insanity has been raised, the jury must be given special verdict forms containing interrogatories. The trier of fact shall decide first the question of guilt as to felony charges that are before the court. If the trier of fact concludes that guilt has been proven beyond a reasonable doubt as to one or more of the felony charges submitted for consideration, the special interrogatories must not be answered. Upon completion of its deliberations on the felony charges as previously set forth in this subsection (3), the trier of fact shall consider any other charges before the court in a similar manner; except that the trier of fact shall not answer the special interrogatories regarding the charges if the trier of fact has previously found guilt beyond a reasonable doubt with respect to one or more felony charges. The interrogatories must provide for specific findings of the jury with respect to the affirmative defense of not guilty by reason of insanity. When the court sits as the trier of fact, the court shall enter appropriate specific findings with respect to the affirmative defense of not guilty by reason of insanity.

(4) (a) (I) If the trier of fact finds the defendant not guilty by reason of insanity, at the request of the defendant, the court may continue the bond pursuant to section 16-4-108 to allow the defendant to remain at liberty or set a hearing to modify the bond pursuant to section 16-4-109 and delay final disposition, delay formal entry of the finding of not guilty by reason of insanity, and stay the commitment of the defendant to the custody of the department of human services pursuant to subsection (4)(b) of this section until the conclusion of the initial release hearing required pursuant to section 16-8-115 (1)(a). If the defendant is on bond, the court shall order the department of human services to conduct a release examination on an outpatient basis, as well as any other appropriate conditions of release, including participation in outpatient treatment.

(II) In determining whether to continue or modify the bond, the court shall consider the criteria described in section 16-4-103, as well as that the defendant was found not guilty by reason of insanity rather than convicted, the defendant's treatment needs, the availability of treatment in the community, the ability of the department of human services to conduct a release evaluation in the community, whether the department of human services can timely admit the defendant, and the usefulness of an observation period as part of the release evaluation.

(III) (A) The court shall not delay the final disposition and entry of finding of not guilty by reason of insanity unless the defendant is at liberty and requests a delay, in which case the court may delay the final disposition to allow the defendant to post bond for an outpatient release examination.

(B) If the defendant is on bond, the district attorney or a bonding commissioner may file with the court a verified motion to revoke the defendant's bond pursuant to section 16-4-109; except that, if the court finds the defendant violated a bond condition, the court may revoke the bond and enter the final disposition of not guilty by reason of insanity and order the defendant committed to the department of human services.

(IV) This subsection (4)(a) does not apply if the court finds that the crime for which the defendant is found not guilty by reason of insanity:

(A) Is a class 1 or class 2 felony;

(B) Resulted in another person suffering serious bodily injury or death;

(C) Involved the defendant using a deadly weapon; or

(D) Involved felony unlawful sexual behavior pursuant to section 16-22-102 (9).

(b) If the trier of fact finds the defendant not guilty by reason of insanity, unless delayed pursuant to subsection (4)(a) of this section, the court shall commit the defendant to the custody of the department of human services until such time as the defendant is found eligible for release. The executive director of the department of human services shall designate the state facility at which the defendant is held for care and psychiatric treatment and may transfer the defendant from one facility to another if in the opinion of the director it is desirable to do so in the interest of the proper care, custody, and treatment of the defendant or the protection of the public or the personnel of the facilities in question.

(5) This section applies to offenses committed on or after July 1, 1995; except that subsection (4)(a) of this section applies to individuals found not guilty by reason of insanity on or after September 1, 2022.

Source: L. 96: Entire section added, p. 4, § 1, effective January 31. L. 2022: (4) and (5) amended, (HB 22-1061), ch. 438, p. 3080, § 1, effective August 10. L. 2025: (1), (2), and (3) amended, (HB 25-1058), ch. 15, p. 44, § 11, effective August 6.

ANNOTATION

Unitary trial procedures did not violate defendant's rights to due process and a fair trial on the grounds he was deprived of the presumption of innocence. Jury was properly instructed on the presumption of innocence, and there is nothing in the record to indicate that it disregarded those instructions. People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

Under unitary trial provision, defendant does not possess a statutory right to a jury trial on the merits and the affirmative defense of insanity if a plea of not guilty by reason of insanity was entered and stipulated to by the prosecution. People v. Laeke, 2012 CO 13M, 271 P.3d 1111.

Error to instruct jury that if defendant was found guilty on any offense he could not be found not guilty by reason of insanity on any other offense. However, under the circumstances, defendant is not entitled to relief on that basis. People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

Court may determine good cause has been shown adequate to order additional examination on the issue of sanity if prior experts' opinions were incomplete and a potentially new and significant diagnosis had been proposed that could dramatically affect the outcome of the assessment of defendant's behavior. People v. Grant, 174 P.3d 798 (Colo. App. 2007).

Prosecution not required to prove defendant's sanity beyond a reasonable doubt if, prior to the presentation of defendant's case, no evidence had been presented that the defendant's mental condition was unconnected to drug use. To dispel the presumption of sanity, the evidence must tend to establish each of the elements of the insanity defense. People v. Grant, 174 P.3d 798 (Colo. App. 2007).