§ 16-8-107 — Evidence

(1) (a) Except as provided in this subsection (1), evidence
acquired directly or indirectly for the first time from a communication derived from
the defendant's mental processes during the course of a court-ordered examination
pursuant to section 16-8-106 or acquired pursuant to section 16-8-103.6 is not
admissible against the defendant on the issues raised by a plea of not guilty, if the
defendant is put to trial on those issues, except to rebut evidence of the
defendant's mental condition introduced by the defendant to show incapacity to
form a culpable mental state; and, in such case, that evidence may be considered
by the trier of fact only as bearing upon the question of capacity to form a culpable
mental state, and the jury, at the request of either party, must be so instructed.

(b) Evidence acquired directly or indirectly for the first time from a
communication derived from the defendant's mental processes during the course of
a court-ordered examination under section 16-8-108 or acquired pursuant to section
16-8-103.6 is admissible 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 18-1.3-1302
for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 only to
prove the existence or absence of any mitigating factor.

(c) If the defendant testifies on the defendant's own behalf upon the trial of
the issues raised by the plea of not guilty, or at a sentencing hearing held pursuant
to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to
section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to
section 18-1.4-102, this section does not bar any evidence used to impeach or rebut
the defendant's testimony.

(1.5) (a) Except as otherwise provided in this subsection (1.5), evidence
acquired directly or indirectly for the first time from a communication derived from
the defendant's mental processes during the course of a court-ordered examination
pursuant to section 16-8-106 or acquired pursuant to section 16-8-103.6 is
admissible only as to the issues raised by the defendant's plea of not guilty by
reason of insanity, and the jury, at the request of either party, must be so instructed;
except that, for offenses committed on or after July 1, 1999, the evidence is also
admissible as to the defendant's mental condition if the defendant undergoes the
examination because the defendant has given notice pursuant to subsection (3) of
this section that the defendant intends to introduce expert opinion evidence
concerning the defendant's mental condition.

(b) Evidence acquired directly or indirectly for the first time from a
communication derived from the defendant's mental processes during the course of
a court-ordered examination under section 16-8-106 or acquired pursuant to section
16-8-103.6 is admissible 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
only to prove the existence or absence of any mitigating factor.

(c) If the defendant testifies on the defendant's own behalf, this section does
not bar any evidence used to impeach or rebut the defendant's testimony. This
subsection (1.5) applies to offenses committed on or after July 1, 1995.

(2) In any trial or hearing concerning the defendant's mental condition,
physicians, forensic psychologists, and other experts may testify as to their
conclusions reached from their examination of hospital records, laboratory reports,
X rays, electroencephalograms, and psychological test results if the material which
they examined in reaching their conclusions is produced at the time of the trial or
hearing.

(3) (a) In no event shall a court permit a defendant to introduce evidence
relevant to the issue of insanity, as described in section 16-8-101.5, unless the
defendant enters a plea of not guilty by reason of insanity, pursuant to section 16-8-103.

(b) Regardless of whether a defendant enters a plea of not guilty by reason
of insanity pursuant to section 16-8-103, the defendant is not permitted to
introduce evidence in the nature of expert opinion concerning the defendant's
mental condition without having first given notice to the court and the prosecution
of the defendant's intent to introduce the evidence and without having undergone a
court-ordered examination pursuant to section 16-8-106. A defendant who places
the defendant's mental condition at issue by giving such notice waives any claim of
confidentiality or privilege as provided in section 16-8-103.6. The notice must be
given at the time of arraignment; except that the court, for good cause shown, shall
permit the defendant to inform the court and prosecution of the intent to introduce
such evidence at any time prior to trial. Any period of delay caused by the
examination and report provided for in section 16-8-106 must be excluded, as
provided in section 18-1-405 (6)(a), from the time within which the defendant must
be brought to trial.

(c) This subsection (3) applies to offenses committed on or after July 1, 1999.

Legislative History

Source: L. 72: R&RE, p. 228, � 1. C.R.S. 1963: � 39-8-107. L. 83: (1) amended, p. 675, � 5, effective July 1. L. 87: (1) amended, p. 623, � 3, effective July 1. L. 96: (1.5) added, p. 5, � 3, effective January 31. L. 98: (1) and (1.5) amended, p. 384, � 4, effective April 21. L. 99: (1.5)(a) amended and (3) added, p. 402, � 4, effective July 1. L. 2002: (1)(b), (1)(c), and (1.5)(b) amended, p. 1493, � 138, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(b), (1)(c), and (1.5)(b) amended, pp. 31, 32, �� 21, 22, effective July 12. L. 2013: (2) amended, (SB 13-116), ch. 115, p. 396, � 5, effective August 7. L. 2020: (1)(b), (1)(c), and (1.5)(b) amended, (SB 20-100), ch. 61, p. 207, � 5, effective March 23. L. 2025: (1)(a), (1)(c), (1.5)(a), (1.5)(c), (3)(b), and (3)(c) amended, (HB 25-1058), ch. 15, p. 48, � 13, effective August 6.