(1) (a) All examinations ordered by the
court in criminal cases must be accomplished by the entry of an order of the court
specifying the place where the examination is to be conducted and the period of
time allocated for the examination. The defendant may be committed for the
examination to a state-run mental health hospital, the place where the defendant is
in custody, or any other public institution designated by the court. In determining
the place where the examination is to be conducted, the court shall give priority to
the place where the defendant is in custody, unless the nature and circumstances
of the examination require designation of a different facility. One or more
psychiatrists or forensic psychologists shall observe the defendant during a period
as the court directs. For good cause shown, upon motion of the prosecution or
defendant, or upon the court's own motion, the court may order any further or other
examination as is advisable under the circumstances. This section does not abridge
the right of the defendant to procure an examination as provided in section 16-8-108.
(b) (I) An interview conducted pursuant to this section in any case that
includes a class 1 or class 2 felony charge or a felony sex offense charge described
in section 18-3-402, 18-3-404, 18-3-405, or 18-3-405.5 must be video and audio
recorded and preserved, except as provided in subsection (1)(c) of this section. The
court shall advise the defendant that any examination with a psychiatrist or
forensic psychologist may be video and audio recorded. A copy of the recording
must be provided to all parties and the court 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 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.
(II) In order to protect the presumption of innocence, if the examination is
recorded, the defendant must not be dressed in prison or jail clothing. This
subsection (1)(b)(II) does not require or prohibit the use of restraints, and the
examination may be stopped or paused in order to apply restraints on the
defendant to ensure the safety of the evaluator, the defendant, or others, as long as
the restraints are not visible on the recording.
(c) (I) 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 or will make the examination not useful to the expert forensic
opinion. 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.
(II) If the examination is not recorded in whole or in part, the written report
explaining the decision not to record the examination is admissible as evidence,
and, at the request of either party, the court shall instruct the jury that failure to
record the examination may be considered by the jury in determining the weight to
afford the expert witness testimony.
(III) The psychiatrist or forensic psychologist does not need to record the
administration of psychometric testing that involves the use of copyrighted
material.
(d) 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) The defendant has a privilege against self-incrimination during the
course of an examination conducted pursuant to this section. The fact of the
defendant's noncooperation with psychiatrists, forensic psychologists, and other
personnel conducting the examination may be admissible in the defendant's trial on
the issue of insanity or impaired mental condition and in any sentencing hearing
held pursuant to section 18-1.3-1201 or 18-1.3-1302. This subsection (2)(a) applies to
offenses committed before July 1, 1995.
(b) The defendant has a privilege against self-incrimination during the
course of an examination conducted pursuant to this section. The fact of the
defendant's noncooperation with psychiatrists, forensic psychologists, and other
personnel conducting the examination may be admissible in the defendant's trial on
the issue of insanity and in any sentencing hearing held pursuant to section 18-1.3-1201 or 18-1.4-102. This subsection (2)(b) applies to offenses committed on or after
July 1, 1995, but prior to July 1, 1999.
(c) The defendant shall cooperate with psychiatrists, forensic psychologists,
and other personnel conducting any examination ordered by the court pursuant to
this section. Statements made by the defendant in the course of the examination
shall be protected as provided in section 16-8-107. If the defendant does not
cooperate with psychiatrists, forensic psychologists, and other personnel
conducting the examination, the court shall not allow the defendant to call any
psychiatrist, forensic psychologist, or other expert witness to provide evidence at
the defendant's trial concerning the defendant's mental condition including, but not
limited to, providing evidence on the issue of insanity or at any sentencing hearing
held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or
pursuant to section 18-1.4-102. In addition, the fact of the defendant's
noncooperation with psychiatrists, forensic psychologists, and other personnel
conducting the examination may be admissible in the defendant's trial to rebut any
evidence introduced by the defendant with regard to the defendant's mental
condition including, but not limited to, the issue of insanity and in any sentencing
hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1,
2020, or pursuant to section 18-1.4-102. This subsection (2)(c) applies to offenses
committed on or after July 1, 1999.
(3) (a) To aid in forming an opinion regarding the defendant's mental
condition, it is permissible in the course of an examination conducted pursuant to
this section to use the defendant's confessions and admissions and any other
evidence of the circumstances surrounding the commission of the offense, as well
as the defendant's medical and social history, in questioning the defendant. When
the defendant is noncooperative with psychiatrists, forensic psychologists, and
other personnel conducting the examination, an opinion of the defendant's mental
condition may be rendered by the psychiatrists, forensic psychologists, or other
personnel based upon the defendant's confessions and admissions and any other
evidence of the circumstances surrounding the commission of the offense, as well
as the defendant's known medical and social history, and the opinion may be
admissible into evidence at trial and in any sentencing hearing held pursuant to
section 18-1.3-1201 or 18-1.3-1302. This subsection (3)(a) applies to offenses
committed before July 1, 1995.
(b) To aid in forming an opinion regarding the defendant's mental condition,
it is permissible in the course of an examination conducted pursuant to this section
to use the defendant's confessions and admissions and any other evidence of the
circumstances surrounding the commission of the offense, as well as the
defendant's medical and social history, in questioning the defendant. When the
defendant is noncooperative with psychiatrists, forensic psychologists, and other
personnel conducting the examination, an opinion of the defendant's mental
condition may be rendered by the psychiatrists, forensic psychologists, or other
personnel based upon the defendant's confessions and admissions and any other
evidence of the circumstances surrounding the commission of the offense, as well
as the defendant's known medical and social history, and the opinion may be
admissible into evidence at trial and in any sentencing hearing held pursuant to
section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to
section 18-1.4-102. This subsection (3)(b) applies to offenses committed on or after
July 1, 1995.
(c) For offenses committed on or after July 1, 1999, when a defendant
undergoes an examination pursuant to subsection (3)(b) of this section because the
defendant has given notice pursuant to section 16-8-107 (3) that the defendant
intends to introduce expert opinion evidence concerning the defendant's mental
condition, the physicians, forensic psychologists, and other personnel conducting
the examination may testify to the results of any procedures and the defendant's
statements and reactions if the statements and reactions entered into the
formation of the experts' opinions regarding the defendant's mental condition.
(4) A written report of the examination shall be prepared in triplicate and
delivered to the clerk of the court which ordered it. The clerk shall furnish a copy of
the report both to the prosecuting attorney and the counsel for the defendant.
(5) With respect to offenses committed before July 1, 1995, the report of
examination shall include, but is not limited to:
(a) The name of each physician, forensic psychologist, or other expert who
examined the defendant; and
(b) A description of the nature, content, extent, and results of the
examination and any tests conducted; and
(c) A diagnosis and prognosis of the defendant's physical and mental
condition; and
(d) (I) An opinion as to whether the defendant suffers from a mental disease
or defect; and, if so,
(II) Separate opinions as to whether the defendant was insane or had an
impaired mental condition at the time of the commission of the act or is ineligible
for release, as those terms are defined in this article, and, in any class 1 felony case,
an opinion as to how the mental disease or defect affects any mitigating factor. The
nature of the opinions required depends upon the type of examination ordered by
the court.
(6) With respect to offenses committed on or after July 1, 1995, the report of
examination shall include, but is not limited to, the items described in subsections
(5)(a), (5)(b), and (5)(c) of this section, and:
(a) An opinion as to whether the defendant suffered from a mental disease or
defect or from a condition of mind caused by mental disease or defect that
prevented the person from forming the culpable mental state that is an essential
element of any crime charged; and, if so,
(b) Separate opinions as to whether the defendant was insane or is ineligible
for release, as those terms are defined in this article 8, and, in any class 1 felony
case for an offense charged prior to July 1, 2020, an opinion as to how the mental
disease or defect or the condition of mind caused by mental disease or defect
affects any mitigating factor. The nature of the opinions required depends upon the
type of examination ordered by the court.
(7) With respect to offenses committed on or after July 1, 1999, when a
defendant has undergone an examination pursuant to this section because the
defendant has given notice pursuant to section 16-8-107 (3) that the defendant
intends to introduce expert opinion evidence concerning the defendant's mental
condition, the examination report must include, but is not limited to, the items
described in subsections (5)(a), (5)(b), and (5)(c) of this section, and:
(a) An opinion as to whether the defendant suffered from a mental disease or
defect or from a condition of mind caused by mental disease or defect that affected
the defendant's mental condition; and, if so,
(b) Separate opinions as to the defendant's mental condition including, but
not limited to, whether the defendant was insane or is ineligible for release, as
those terms are defined in this article 8, and, in any class 1 felony case for an
offense charged prior to July 1, 2020, an opinion as to how the mental disease or
defect or the condition of mind caused by mental disease or defect affects any
mitigating factor. The nature of the opinions required depends upon the type of
examination ordered by the court.