§ 16-8-108 — Examination at instance of defendant

(1) (a) If the defendant
wishes to be examined by a psychiatrist, psychologist, or other expert of the
defendant's own choice in connection with any proceeding under this article 8, the
court, upon timely motion, shall order that the examiner chosen by the defendant
be given reasonable opportunity to conduct the examination. An interview
conducted pursuant to a court order under this section must be video and audio
recorded and preserved, except as provided in subsection (1)(b) of this section. The
court shall advise the defendant that any examination with a psychiatrist or
forensic psychologist may be audio and video recorded. A copy of the recording
must be provided to the prosecution 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 available. 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.

(b) 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. 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.

(c) 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 copy of any report of examination of the defendant made at the
instance of the defense shall be furnished to the prosecution a reasonable time in
advance of trial.

Legislative History

Source: L. 72: R&RE, p. 229, � 1. C.R.S. 1963: � 39-8-108. L. 87: (2) amended, p. 623, � 4, effective July 1. L. 2016: (1) amended, (SB 16-019), ch. 297, p. 1207, � 2, effective January 1, 2017. L. 2025: (1)(a) amended, (HB 25-1058), ch. 15, p. 49, � 14, effective August 6.