Colorado § 18-1.3-911 - Evidentiary hearing.

§ 18-1.3-911. Evidentiary hearing.

(1) (a) The court shall set a hearing date at least fourteen days and no more than twenty-eight days after service upon the defendant and his or her counsel of the reports required by sections 18-1.3-908 and 18-1.3-909.

(b) The court may, in its discretion, upon the motion of the defendant, continue the hearing an additional twenty-one days.

(2) (a) The court shall, upon motion of the district attorney or the defendant, subpoena all witnesses required by the moving party in accordance with the Colorado rules of criminal procedure.

(b) The district attorney shall serve upon the defendant and his or her counsel a list of all witnesses to be called by the district attorney at least fourteen days before the evidentiary hearing.

(3) In the evidentiary hearing, the court shall receive evidence bearing on the issue of whether the defendant, if at large, constitutes a threat of bodily harm to members of the public.

(4) In the evidentiary hearing, the following procedure shall govern:

(a) The district attorney may call and examine witnesses, and the defendant shall be allowed to cross-examine those witnesses.

(b) The defendant may call and examine witnesses, and the district attorney shall be allowed to cross-examine those witnesses.

(c) The defendant may call and cross-examine as adverse witnesses the psychiatrists and probation officers who have filed reports pursuant to sections 18-1.3-908 and 18-1.3-909.

(5) The reports of the psychiatrists and probation officers filed with the court pursuant to sections 18-1.3-908 and 18-1.3-909 may be received into evidence.

(6) Except as otherwise provided in this section, the laws of this state concerning evidence in criminal trials shall govern in the evidentiary hearing.

Source: L. 2002: Entire article added with relocations, p. 1433, § 2, effective October 1. L. 2012: (1) and (2)(b) amended, (SB 12-175), ch. 208, p. 867, § 117, effective July 1.

Editor's note: This section is similar to former § 16-13-210 as it existed prior to 2002.

Cross references: For subpoenas to compel attendance of witnesses, see Crim. P. 17.

ANNOTATION

Annotator's note. Since § 18-1.3-911 is similar to § 16-13-210 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, repealed § 39-19-10, C.R.S. 1963 (1969 Supp.), and §§ 39-19-1 to 39-19-10, C.R.S. 1963, and to §§ 39-19-1 to 39-19-10, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

Commitment proceedings, whether denominated civil or criminal, are subject to the equal protection clause of the fourteenth amendment and to the due process clause. Specht v. Patterson, 386 U.S. 605 (1967).

Defendant entitled to all safeguards of fair trial. A proceeding under the sex offenders act is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. A defendant is entitled to a full judicial hearing before the magnified sentence is imposed and to the full panoply of relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial, including notice, that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed. Specht v. Patterson, 386 U.S. 605 (1967); People v. Harper, 796 P.2d 4 (Colo. App. 1989).

A psychiatric report is not binding on the trial court, and was not intended to limit or restrict the trial court in the exercise of its judgment relating to sentencing of sex offenders. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961).

The trial court should consider all material matter before it from probation reports and other sources which will aid in the formation of a proper opinion. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655 (1961); Ray v. People, 160 Colo. 173, 415 P.2d 328 (1966).

This act does not purport to make the findings or opinion of the psychiatrist binding or controlling on the court. It is merely an aid to the court. Trueblood v. Tinsley, 316 F.2d 783 (10th Cir. 1963).

Applied in People v. White, 656 P.2d 690 (Colo. 1983).