Colorado § 16-8.5-104 - Defendant's waiver of privilege.

§ 16-8.5-104. Defendant's waiver of privilege.

(1) When a defendant raises the issue of competency to proceed, or when the court determines that the defendant is incompetent to proceed, any claim by the defendant to confidentiality or privilege is deemed waived in the case in which competency is raised and for records or information from any prior criminal case in which the defendant raised the issue of competency or in which the court determined that the defendant was incompetent to proceed. The district attorney, the defense attorney, the bridges court liaison, and the court are granted access, without written consent of the defendant or further order of the court, to:

(a) Reports of competency evaluations, including second evaluations;

(b) Information and documents relating to the competency evaluation that are created by, obtained by, reviewed by, or relied on by a competency evaluator; and

(c) The competency evaluator, for the purpose of discussing the competency evaluation.

(2) Upon a request by either party or the court for the information described in subsection (1) of this section, the competency evaluator or treatment provider shall provide the information for use in preparing for a competency hearing, restorability hearing, or restoration hearing and for use during the hearing.

(3) CDHS, a competency evaluator, or a restoration service provider that is performing work pursuant to a court order issued pursuant to this article 8.5 shall provide information to the court, bridges court liaison, district attorney, or defense counsel concerning the defendant's location, the defendant's hospital or facility admission status, the status of any competency evaluation procedures, and the status of any restoration services.

(4) This section does not limit the court's ability to order that information, in addition to the information described in subsections (1) and (3) of this section, be provided to the competency evaluator, or to either party to the case, nor does it limit the information that is available after the written consent of the defendant.

(5) The court may, upon the request of either party, issue an order to assist a party in accessing, receiving copies of, or discussing with a competency evaluator or treatment provider information or records that the party has the right to access pursuant to the defendant's waiver of privilege. If a party requests an order, the court shall allow the opposing party to make any legal objection, including whether the requested information is within the scope of the defendant's waiver of privilege, and shall consider any requests for protective orders prior to issuing the court order. This section does not limit the court's ability to order information be provided to a party with the written consent of the defendant.

(6) The court shall order both the prosecutor and the defendant or the defendant's counsel to exchange the names, addresses, reports, and statements of each physician or psychologist who has examined or treated the defendant for competency.

(7) Statements made by the defendant in the course of any competency evaluation must be protected in accordance with section 16-8.5-107.

Source: L. 2026: Entire article amended with relocations, (SB 26-149), ch. 142, p. 683, § 1, effective May 21.

ANNOTATION

Annotator's note. Since § 16-8.5-104 is similar to former § 16-8.5-104, a relevant case construing that provision has been included in the annotations to this section.

The confrontation clause does not require a court to conduct an in camera review of a co-defendant's competency report on behalf of a defendant in defendant's case. The confrontation right is a trial right, not a discovery right. Zapata v. People, 2018 CO 82, 428 P.3d 517.

The due process clause requires an in camera review of privileged information for a defendant if the defendant establishes that it contains material evidence. The defendant must make more than a vague assertion that the information may contain exculpatory material. Zapata v. People, 2018 CO 82, 428 P.3d 517.

Defendant made only a vague assertion that co-defendant's competency evaluation could contain impeachable material. Zapata v. People, 2018 CO 82, 428 P.3d 517.

Competency reports are protected by the physician-patient or psychologist-client privilege. Zapata v. People, 2018 CO 82, 428 P.3d 517.

The statutory waiver in subsection (1) applies only to the court, defendant, and prosecution in that defendant's case. It does not apply to a co-defendant. This section does not give a defendant access to a co-defendant's competency report. Zapata v. People, 2018 CO 82, 428 P.3d 517.