Colorado § 16-8-108 - Examination at instance of defendant.

§ 16-8-108. Examination at instance of defendant.

(1) (a) If the defendant wishes to be examined by a psychiatrist, psychologist, or other expert of the defendant's own choice in connection with any proceeding under this article 8, the court, upon timely motion, shall order that the examiner chosen by the defendant be given reasonable opportunity to conduct the examination. An interview conducted pursuant to a court order under this section must be video and audio recorded and preserved, except as provided in subsection (1)(b) of this section. The court shall advise the defendant that any examination with a psychiatrist or forensic psychologist may be audio and video recorded. A copy of the recording must be provided to the prosecution 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 available. 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.

(b) 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. 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.

(c) 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 copy of any report of examination of the defendant made at the instance of the defense must be furnished to the court and the prosecution in a reasonable time in advance of trial. Upon receipt of the report of examination, the court shall provide a copy of the report to the department of human services.

Source: L. 72: R&RE, p. 229, § 1. C.R.S. 1963: § 39-8-108. L. 87: (2) amended, p. 623, § 4, effective July 1. L. 2016: (1) amended, (SB 16-019), ch. 297, p. 1207, § 2, effective January 1, 2017. L. 2025: (1)(a) amended, (HB 25-1058), ch. 15, p. 49, § 14, effective August 6. L. 2026: (2) amended, (SB 26-014), ch. 54, p. 229, § 1, effective April 20.

ANNOTATION

Annotator's note. Since § 16-8-108 is similar to repealed § 39-8-2, C.R.S. 1963, and CSA, C. 48, § 508, relevant cases construing those provisions have been included in the annotations to this section.

The court's authority to appoint a psychiatrist upon application of defendant is found in this section. Martinez v. People, 124 Colo. 170, 235 P.2d 810 (1951).

It does not give defendant absolute right to have psychiatrist of his own choosing appointed. Nor does it guarantee that expert selected by indigent defendant will in all cases be provided without cost to him. Massey v. District Court, 180 Colo. 359, 506 P.2d 128 (1973).

Right of incarcerated defendant to private examination. An incarcerated defendant can obtain a court order granting a privately retained psychiatrist a reasonable opportunity to conduct an examination. People v. Rosenthal, 617 P.2d 551 (Colo. 1980).

Court may require good cause to be shown before ordering further psychiatric examination once defendant has been examined by specialists in field of nervous and mental diseases. Massey v. District Court, 180 Colo. 359, 506 P.2d 128 (1973).

Defendant's waiver of right to a third competency evaluation was not a waiver of the right to be competent. Where defendant has had an adequate hearing on the issue of competence, opposes a continuance and waives further competence examinations, due process does not require the court to make a second competency determination. People v. White, 870 P.2d 424 (Colo. 1994).

Sections 16-8-103 and 16-8-105 do not operate to exclude private employment of psychiatrists. Early v. People, 142 Colo. 462, 352 P.2d 112 (1960).

Admissions to court-appointed psychiatrist privileged. During the guilt trial, the prosecution may not call, as a witness in its case-in-chief, an indigent defendant's court-appointed psychiatrist and elicit incriminating admissions made by the defendant during a sanity examination. People v. Roark, 643 P.2d 756 (Colo. 1982).

Admissions to privately retained psychiatrist privileged. The prosecution may not call, as a witness in its case-in-chief, a psychiatrist privately retained by the defendant in connection with an insanity plea and elicit from the psychiatrist incriminating admissions made by the defendant during a sanity examination. People v. Rosenthal, 617 P.2d 551 (Colo. 1980).

But copy of report to prosecution if defense to offer testimony of examination. The only limitation placed on a defendant seeking a sanity examination by a private psychiatrist is that a copy of the psychiatrist's report be furnished to the prosecution reasonably in advance of the sanity trial if the defense intends to offer testimony about the examination. People v. Rosenthal, 617 P.2d 551 (Colo. 1980).

Applied in People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976).