(1) There are
particular relations in which it is the policy of the law to encourage confidence and
to preserve it inviolate; therefore, a person must not be examined as a witness in
the following cases:
(a) (I) Except as otherwise provided in section 14-13-310 (4), C.R.S., a husband
shall not be examined for or against his wife without her consent nor a wife for or
against her husband without his consent; nor during the marriage or afterward shall
either be examined without the consent of the other as to any communications
made by one to the other during the marriage; but this exception does not apply to
a civil action or proceeding by one against the other, a criminal action or proceeding
for a crime committed by one against the other, or a criminal action or proceeding
against one or both spouses when the alleged offense occurred prior to the date of
the parties' marriage. However, this exception shall not attach if the otherwise
privileged information is communicated after the marriage.
(II) The privilege described in this paragraph (a) does not apply to class 1, 2,
or 3 felonies as described in section 18-1.3-401 (1)(a)(IV) and (1)(a)(V), C.R.S., or to
level 1 or 2 drug felonies as described in section 18-1.3-401.5 (2)(a), C.R.S. In this
instance, during the marriage or afterward, a husband shall not be examined for or
against his wife as to any communications intended to be made in confidence and
made by one to the other during the marriage without his consent, and a wife shall
not be examined for or against her husband as to any communications intended to
be made in confidence and made by one to the other without her consent.
(III) Communications between a husband and wife are not privileged
pursuant to this paragraph (a) if such communications are made for the purpose of
aiding the commission of a future crime or of a present continuing crime.
(IV) The burden of proving the existence of a marriage for the purposes of
this paragraph (a) shall be on the party asserting the claim.
(V) Notice of the assertion of the marital privilege shall be given as soon as
practicable but not less than ten days prior to assertion at any hearing.
(a.5) (I) Except as otherwise provided in section 14-13-310 (5), C.R.S., a
partner in a civil union shall not be examined for or against the other partner in the
civil union without the other partner's consent, nor during the civil union or
afterward shall either be examined without the consent of the other as to any
communications made by one to the other during the civil union; except that this
exception does not apply to a civil action or proceeding by one against the other, a
criminal action or proceeding for a crime committed by one against the other, or a
criminal action or proceeding against one or both partners when the alleged
offense occurred prior to the date of the parties' certification of the civil union.
However, this exception shall not attach if the otherwise privileged information is
communicated after the certification of the civil union.
(II) The privilege described in this paragraph (a.5) does not apply to class 1, 2,
or 3 felonies as described in section 18-1.3-401 (1)(a)(IV) and (1)(a)(V), C.R.S., or to
level 1 or 2 drug felonies as described in section 18-1.3-401.5 (2)(a), C.R.S. In this
instance, during the civil union or afterward, a partner in a civil union shall not be
examined for or against the other partner in the civil union as to any
communications intended to be made in confidence and made by one to the other
during the civil union without the other partner's consent.
(III) Communications between partners in a civil union are not privileged
pursuant to this paragraph (a.5) if such communications are made for the purpose
of aiding the commission of a future crime or of a present continuing crime.
(IV) The burden of proving the existence of a civil union for the purposes of
this paragraph (a.5) shall be on the party asserting the claim.
(V) Notice of the assertion of the privilege described in this paragraph (a.5)
shall be given as soon as practicable but not less than ten days prior to assertion at
any hearing.
(VI) For the purposes of this paragraph (a.5), partner in a civil union means
a person who has entered into a civil union established in accordance with the
requirements of article 15 of title 14, C.R.S.
(b) An attorney or licensed legal paraprofessional shall not be examined
without the consent of the attorney's or licensed legal paraprofessional's client as
to any communication made by the client to the attorney or licensed legal
paraprofessional or to any advice given to the client by the client's attorney or
licensed legal paraprofessional in the course of professional employment; nor shall
an attorney's or licensed legal paraprofessional's secretary, paralegal, legal
assistant, stenographer, or clerk be examined without the consent of the attorney
or licensed legal paraprofessional concerning any fact, the knowledge of which is
acquired in the person's capacity as the attorney's or licensed legal
paraprofessional's employee.
(c) A clergy member, minister, priest, or rabbi shall not be examined without
both his or her consent and also the consent of the person making the confidential
communication as to any confidential communication made to him or her in his or
her professional capacity in the course of discipline expected by the religious body
to which he or she belongs.
(d) A physician, surgeon, or registered professional nurse duly authorized to
practice his or her profession pursuant to the laws of this state or any other state
shall not be examined without the consent of his or her patient as to any
information acquired in attending the patient that was necessary to enable him or
her to prescribe or act for the patient, but this paragraph (d) shall not apply to:
(I) A physician, surgeon, or registered professional nurse who is sued by or
on behalf of a patient or by or on behalf of the heirs, executors, or administrators of
a patient on any cause of action arising out of or connected with the physician's or
nurse's care or treatment of such patient;
(II) A physician, surgeon, or registered professional nurse who was in
consultation with a physician, surgeon, or registered professional nurse being sued
as provided in subparagraph (I) of this paragraph (d) on the case out of which said
suit arises;
(III) A review of a physician's or registered professional nurse's services by
any of the following:
(A) The governing board of a hospital licensed pursuant to part 1 of article 3
of title 25, C.R.S., where said physician or registered professional nurse practices or
the medical staff of such hospital if the medical staff operates pursuant to written
bylaws approved by the governing board of such hospital;
(B) An organization authorized by federal or state law or contract to review
physicians' or registered professional nurses' services or an organization which
reviews the cost or quality of physicians' or registered professional nurses' services
under a contract with the sponsor of a nongovernment group health-care program;
(C) The Colorado medical board, the state board of nursing, or a person or
group authorized by such board to make an investigation in its behalf;
(D) A peer review committee of a society or association of physicians or
registered professional nurses whose membership includes not less than one-third
of the medical doctors or doctors of osteopathy or registered professional nurses
licensed to practice in this state and only if the physician or registered professional
nurse whose services are the subject of review is a member of such society or
association and said physician or registered professional nurse has signed a release
authorizing such review;
(E) A committee, board, agency, government official, or court to which
appeal may be taken from any of the organizations or groups listed in this
subparagraph (III);
(IV) A physician or any health-care provider who was in consultation with the
physician who may have acquired any information or records relating to the services
performed by the physician specified in subparagraph (III) of this paragraph (d);
(V) A registered professional nurse who is subject to any claim or the nurse's
employer subject to any claim therein based on a nurse's actions, which claims are
required to be defended and indemnified by any insurance company or trust
obligated by contract;
(VI) A physician, surgeon, or registered professional nurse who is being
examined as a witness as a result of his consultation for medical care or genetic
counseling or screening pursuant to section 13-64-502 in connection with a civil
action to which section 13-64-502 applies.
(e) A public officer shall not be examined as to communications made to him
in official confidence, when the public interests, in the judgment of the court, would
suffer by the disclosure.
(f) (I) A certified public accountant shall not be examined without the
consent of his or her client as to any communication made by the client to him or
her in person or through the media of books of account and financial records or his
or her advice, reports, or working papers given or made thereon in the course of
professional employment; nor shall a secretary, stenographer, clerk, or assistant of
a certified public accountant be examined without the consent of the client
concerned concerning any fact, the knowledge of which he or she has acquired in
such capacity.
(II) No certified public accountant in the employ of the state auditor's office
shall be examined as to any communication made in the course of professional
service to the legislative audit committee either in person or through the media of
books of account and financial records or advice, reports, or working papers given
or made thereon; nor shall a secretary, clerk, or assistant of a certified public
accountant who is in the employ of the state auditor's office be examined
concerning any fact, the knowledge of which such secretary, clerk, or assistant
acquired in such capacity, unless such information has been made open to public
inspection by a majority vote of the members of the legislative audit committee.
(III) (A) Subpoena powers for public entity audit and reviews. Subparagraph
(I) of this paragraph (f) shall not apply to the Colorado state board of accountancy,
nor to a person or group authorized by the board to make an investigation on the
board's behalf, concerning an accountant's reports, working papers, or advice to a
public entity that relate to audit or review accounting activities of the certified
public accountant or certified public accounting firm being investigated.
(B) For the purposes of this subparagraph (III), a public entity shall include
a governmental agency or entity; quasi-governmental entity; nonprofit entity; or
public company that is considered an issuer, as defined in section 2 of the federal
Sarbanes-Oxley Act of 2002, 15 U.S.C. sec. 7201.
(IV) (A) Subpoena powers for private entity audit and reviews. Subparagraph (I) of this paragraph (f) shall not apply to the Colorado state board of
accountancy, nor to a person or group authorized by the board to make an
investigation on the board's behalf, concerning an accountant's reports or working
papers of a private entity that is not publicly traded and relate to audit or review
attest activities of the certified public accountant or certified public accounting
firm being investigated. This subparagraph (IV) shall not be construed to authorize
the Colorado state board of accountancy or its agent to subpoena or examine
income tax returns.
(B) At the request of either the client of the certified public accountant or
certified public accounting firm or the certified public accountant or certified public
accounting firm subject to the subpoena pursuant to this subsection (1)(f)(IV), a
second certified public accounting firm or certified public accountant with no
interest in the matter may review the report or working papers for compliance with
the provisions of article 100 of title 12. The second certified public accounting firm
or certified public accountant conducting the review must be approved by the
board prior to beginning its review. The approval of the second certified public
accounting firm or certified public accountant shall be in good faith. The written
report issued by a second certified public accounting firm or certified public
accountant shall be in lieu of a review by the board. Such report shall be limited to
matters directly related to the work performed by the certified public accountant or
certified public accounting firm being investigated and should exclude specific
references to client financial information. The party requesting that a second
certified public accounting firm or certified public accountant review the reports
and working papers shall pay any additional expenses related to retaining the
second certified public accounting firm or certified public accountant by the party
who made the request. The written report of the second certified public accounting
firm or certified public accountant shall be submitted to the board. The board may
use the findings of the second certified public accounting firm or certified public
accountant as grounds for discipline pursuant to article 100 of title 12.
(V) Disclosure of information under subsection (1)(f)(III) or (1)(f)(IV) of this
section shall not waive or otherwise limit the confidentiality and privilege of such
information nor relieve any certified public accountant, any certified public
accounting firm, the Colorado state board of accountancy, or a person or group
authorized by such board of the obligation of confidentiality. Disclosure that is not
in good faith of such information shall subject the board, a member thereof, or its
agent to civil liability pursuant to section 12-100-104 (4).
(VI) Any certified public accountant or certified public accounting firm that
receives a subpoena for reports or accountant's working papers related to the audit
or review attest activities of the accountant or accounting firm pursuant to
subparagraph (III) or (IV) of this paragraph (f) shall notify his or her client of the
subpoena within three business days after the date of service of the subpoena.
(VII) Subparagraph (III) or (IV) of this paragraph (f) shall not operate as a
waiver, on behalf of any third party or the certified public accountant or certified
public accounting firm, of due process remedies available under the State
Administrative Procedure Act, article 4 of title 24, C.R.S., the open records laws,
article 72 of title 24, C.R.S., or any other provision of law.
(VIII) Prior to the disclosure of information pursuant to subparagraph (III) or
(IV) of this paragraph (f), the certified public accountant, certified public accounting
firm, or client thereof shall have the opportunity to designate reports or working
papers related to the attest function under subpoena as privileged and confidential
pursuant to this paragraph (f) or the open records laws, article 72 of title 24, C.R.S.,
in order to assure that the report or working papers shall not be disseminated or
otherwise republished and shall only be reviewed pursuant to limited authority
granted to the board under subparagraph (III) or (IV) of this paragraph (f).
(IX) No later than thirty days after the board of accountancy completes the
investigation for which records or working papers are subpoenaed pursuant to
subparagraph (III) or (IV) of this paragraph (f), the board shall return all original
records, working papers, or copies thereof to the certified public accountant or
certified public accounting firm.
(X) Nothing in subparagraphs (III) and (IV) of this paragraph (f) shall cause
the accountant-client privilege to be waived as to customer financial and account
information of depository institutions or to the regulatory examinations and other
regulatory information relating to depository institutions.
(XI) For the purposes of subparagraphs (III) to (X) of this paragraph (f),
entity shall have the same meaning as in section 7-90-102 (20), C.R.S.
(g) A licensed psychologist, professional counselor, marriage and family
therapist, social worker, or addiction counselor, an unlicensed psychotherapist, a
certified addiction counselor, a psychologist candidate registered pursuant to
section 12-245-304 (3), a marriage and family therapist candidate registered
pursuant to section 12-245-504 (4), a licensed professional counselor candidate
registered pursuant to section 12-245-604 (4), or a person described in section 12-245-217 shall not be examined without the consent of the licensee's, certificate
holder's, registrant's, candidate's, or person's client as to any communication made
by the client to the licensee, certificate holder, registrant, candidate, or person or
the licensee's, certificate holder's, registrant's, candidate's, or person's advice
given in the course of professional employment; nor shall any secretary,
stenographer, or clerk employed by a licensed psychologist, professional
counselor, marriage and family therapist, social worker, or addiction counselor, an
unlicensed psychotherapist, a certified addiction counselor, a psychologist
candidate registered pursuant to section 12-245-304 (3), a marriage and family
therapist candidate registered pursuant to section 12-245-504 (4), a licensed
professional counselor candidate registered pursuant to section 12-245-604 (4), or
a person described in section 12-245-217 be examined without the consent of the
employer of the secretary, stenographer, or clerk concerning any fact, the
knowledge of which the employee has acquired in such capacity; nor shall any
person who has participated in any psychotherapy, conducted under the
supervision of a person authorized by law to conduct such therapy, including group
therapy sessions, be examined concerning any knowledge gained during the course
of such therapy without the consent of the person to whom the testimony sought
relates.
(h) A qualified interpreter, pursuant to section 13-90-202, who is called upon
to testify concerning the communications he interpreted between a hearing-impaired person and another person, one of whom holds a privilege pursuant to this
subsection (1), shall not be examined without the written consent of the person who
holds the privilege.
(i) A confidential intermediary, as defined in section 19-1-103, must not be
examined as to communications made to the intermediary in official confidence
when the public interests, in the judgment of the court, would suffer by the
disclosure of such communications.
(j) (I) (A) If any person or entity performs a voluntary self-evaluation, the
person, any officer or employee of the entity or person involved with the voluntary
self-evaluation, if a specific responsibility of such employee was the performance
of or participation in the voluntary self-evaluation or the preparation of the
environmental audit report, or any consultant who is hired for the purpose of
performing the voluntary self-evaluation for the person or entity may not be
examined as to the voluntary self-evaluation or environmental audit report without
the consent of the person or entity or unless ordered to do so by any court of
record, or, pursuant to section 24-4-105, C.R.S., by an administrative law judge. For
the purposes of this paragraph (j), voluntary self-evaluation and environmental
audit report have the meanings provided for the terms in section 13-25-126.5 (2).
(B) This paragraph (j) does not apply if the voluntary self-evaluation is
subject to an exception allowing admission into evidence or discovery pursuant to
the provisions of section 13-25-126.5 (3) or (4).
(II) This paragraph (j) applies to voluntary self-evaluations that are
performed on or after June 1, 1994.
(k) (I) A victim's advocate shall not be examined as to any communication
made to such victim's advocate by a victim of domestic violence, as defined in
section 18-6-800.3 (1), C.R.S., or a victim of sexual assault, as described in sections
18-3-401 to 18-3-405.5, 18-6-301, and 18-6-302, C.R.S., in person or through the
media of written records or reports without the consent of the victim.
(II) For purposes of this paragraph (k), a victim's advocate means a person
at a battered women's shelter or rape crisis organization or a comparable
community-based advocacy program for victims of domestic violence or sexual
assault and does not include an advocate employed by any law enforcement
agency:
(A) Whose primary function is to render advice, counsel, or assist victims of
domestic or family violence or sexual assault; and
(B) Who has undergone not less than fifteen hours of training as a victim's
advocate or, with respect to an advocate who assists victims of sexual assault, not
less than thirty hours of training as a sexual assault victim's advocate; and
(C) Who supervises employees of the program, administers the program, or
works under the direction of a supervisor of the program.
(l) (I) A parent may not be examined as to any communication made in
confidence by the parent's minor child to the parent when the minor child and the
parent were in the presence of an attorney representing the minor child, or in the
presence of a physician who has a confidential relationship with the minor child
pursuant to paragraph (d) of this subsection (1), or in the presence of a mental
health professional who has a confidential relationship with the minor child
pursuant to paragraph (g) of this subsection (1), or in the presence of a clergy
member, minister, priest, or rabbi who has a confidential relationship with the minor
child pursuant to paragraph (c) of this subsection (1). The exception may be waived
by express consent to disclosure by the minor child who made the communication
or by failure of the minor child to object when the contents of the communication
are demanded. This exception does not relieve any physician, mental health
professional, or clergy member, minister, priest, or rabbi from any statutory
reporting requirements.
(II) This exception does not apply to:
(A) Any civil action or proceeding by one parent against the other or by a
parent or minor child against the other;
(B) Any proceeding to commit either the minor child or parent, pursuant to
title 27, C.R.S., to whom the communication was made;
(C) Any guardianship or conservatorship action to place the person or
property or both under the control of another because of an alleged mental or
physical condition of the minor child or the minor child's parent;
(D) Any criminal action or proceeding in which a minor's parent is charged
with a crime committed against the communicating minor child, the parent's
spouse, the parent's partner in a civil union, or a minor child of either the parent or
the parent's spouse or the parent's partner in a civil union;
(E) Any action or proceeding for termination of the parent-child legal
relationship;
(F) Any action or proceeding for voluntary relinquishment of the parent-child
legal relationship; or
(G) Any action or proceeding on a petition alleging child abuse, dependency
or neglect, abandonment, or non-support by a parent.
(III) For purposes of this paragraph (l):
(A) Minor child means any person under the age of eighteen years.
(B) Parent includes the legal guardian or legal custodian of a minor child as
well as adoptive parents.
(C) Partner in a civil union means a person who has entered into a civil
union in accordance with the requirements of article 15 of title 14, C.R.S.
(m) (I) A law enforcement or firefighter peer support team member,
emergency medical service provider or rescue unit peer support team member, or
district attorney or public defender peer support team member must not be
examined without the consent of the person to whom peer support services have
been provided as to any communication made by the person to the peer support
team member under the circumstances described in subsection (1)(m)(IV) of this
section; nor is a recipient of peer support services to be examined as to any such
communication without the recipient's consent.
(I.5) and (I.6) (Deleted by amendment, L. 2024.)
(II) Recipients of group peer support services must not be examined as to
any knowledge gained from other recipients of group peer support services without
the consent of the person to whom the knowledge relates.
(III) As used in this subsection (1)(m):
(A) Communication means an oral statement, written statement, note,
record, report, or document made during, or arising out of, a meeting with a peer
support team member.
(B) District attorney or public defender peer support team member means
an employee of a district attorney's office or a public defender's office who has
been trained in peer support skills and who is officially designated by a district
attorney or the state public defender as a member of a district attorney's office
peer support team or an office of the state public defender peer support team.
(C) Emergency medical service provider or rescue unit peer support team
member means an emergency medical service provider, as defined in section 25-3.5-103, a regular or volunteer member of a rescue unit, as defined in section 25-3.5-103, or other person who has been trained in peer support skills and who is
officially designated by the supervisor of an emergency medical service agency as
defined in section 25-3.5-103 or a chief of a rescue unit as a member of an
emergency medical service provider's peer support team or rescue unit's peer
support team.
(D) Group peer support services means peer support interactions
comprised of at least one peer support member and more than one recipient of
group peer support services and includes any group meeting conducted or
facilitated by one or more peer support team members for the purpose of peer
support or incident debriefing.
(E) Law enforcement or firefighter peer support team member means a
peace officer, civilian employee, or volunteer member of a law enforcement agency
or a regular or volunteer member of a fire department or other person who has been
trained in peer support skills and who is officially designated by a police chief, the
chief of the Colorado state patrol, a sheriff, or a fire chief as a member of a law
enforcement agency's peer support team or a fire department's peer support team.
(IV) This subsection (1)(m) applies only to communications made during
interactions conducted by a peer support team member:
(A) Acting in the person's official capacity as a law enforcement or
firefighter peer support team member, emergency medical service provider or
rescue unit peer support team member, or district attorney or public defender peer
support team member; and
(B) Functioning within the written peer support guidelines that are in effect
for the person's respective law enforcement agency, fire department, emergency
medical service agency, rescue unit, district attorney's office, or public defender's
office.
(V) This subsection (1)(m) does not apply in cases in which:
(A) A law enforcement or firefighter peer support team member, emergency
medical service provider or rescue unit peer support team member, or district
attorney or public defender peer support team member was a witness or a party to
an incident which prompted the delivery of peer support services;
(B) Information received by a peer support team member is indicative of
actual or suspected child abuse, as described in section 18-6-401; actual or
suspected child neglect, as described in section 19-3-102; or actual or suspected
crimes against at-risk persons, as described in section 18-6.5-103;
(C) Due to intoxication by alcohol, being under the influence of drugs, or
incapacitation by substances as described in section 27-81-111, the person receiving
peer support is a clear and immediate danger to the person's self or others;
(D) There is reasonable cause to believe that the person receiving peer
support has a mental health disorder and, due to the mental health disorder, is an
imminent threat to himself or herself or others or is gravely disabled as defined in
section 27-65-102; or
(E) There is information indicative of any criminal conduct.
(2) The medical records produced for use in the review provided for in
subparagraphs (III), (IV), and (V) of paragraph (d) of subsection (1) of this section
shall not become public records by virtue of such use. The identity of any patient
whose records are so reviewed shall not be disclosed to any person not directly
involved in such review process, and procedures shall be adopted by the Colorado
medical board or state board of nursing to ensure that the identity of the patient
shall be concealed during the review process itself.
(3) The provisions of subsection (1)(d) of this section shall not apply to
physicians required to make reports in accordance with section 12-240-139. In
addition, the provisions of subsections (1)(d) and (1)(g) of this section shall not apply
to physicians or psychologists eligible to testify concerning a criminal defendant's
mental condition pursuant to section 16-8-103.6. Physicians and psychologists
testifying concerning a criminal defendant's mental condition pursuant to section
16-8-103.6 do not fall under the attorney-client privilege in subsection (1)(b) of this
section.