HOUSE BILL 981264
BY REPRESENTATIVES Adkins, Kaufman, Epps, and Nichol;
also SENATORS Wells, Arnold, Mutzebaugh, Powers,
and Wattenberg.
CONCERNING DISCOVERY PROCEDURES IN CLASS 1 FELONY
CASES.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. 1611103,
Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW
SUBSECTION to read:
1611103. Imposition of
sentence in class 1 felonies appellate review.
(3.5) (a) THE PROVISIONS OF THIS SUBSECTION (3.5)
SHALL APPLY ONLY IN A CLASS 1 FELONY CASE IN WHICH THE PROSECUTING
ATTORNEY HAS FILED A STATEMENT OF INTENT TO SEEK THE DEATH PENALTY
PURSUANT TO RULE 32.1 (b) OF THE COLORADO RULES OF CRIMINAL PROCEDURE.
(b) THE PROSECUTING ATTORNEY SHALL PROVIDE
THE DEFENDANT WITH THE FOLLOWING INFORMATION AND MATERIALS NOT
LATER THAN FIVE DAYS AFTER THE VERDICT IS RETURNED FINDING THE
DEFENDANT GUILTY OF A CLASS 1 FELONY:
(I) A LIST OF ALL AGGRAVATING FACTORS
THAT ARE KNOWN TO THE PROSECUTING ATTORNEY AT THAT TIME AND THAT
THE PROSECUTING ATTORNEY INTENDS TO PROVE AT THE SENTENCING HEARING;
(II) A LIST OF ALL WITNESSES WHOM THE
PROSECUTING ATTORNEY MAY CALL AT THE SENTENCING HEARING, SPECIFYING
FOR EACH THE WITNESS' NAME, ADDRESS, AND DATE OF BIRTH AND THE
SUBJECT MATTER OF THE WITNESS' TESTIMONY;
(III) THE WRITTEN AND RECORDED STATEMENTS,
INCLUDING ANY NOTES OF THOSE STATEMENTS, FOR EACH WITNESS WHOM
THE PROSECUTING ATTORNEY MAY CALL AT THE SENTENCING HEARING;
(IV) ANY REPORTS, RECORDED STATEMENTS,
AND NOTES OF ANY EXPERT WHOM THE PROSECUTING ATTORNEY MAY CALL
AS A WITNESS DURING THE SENTENCING HEARING, INCLUDING RESULTS
OF PHYSICAL OR MENTAL EXAMINATIONS AND SCIENTIFIC TESTS, EXPERIMENTS,
OR COMPARISONS;
(V) A LIST OF BOOKS, PAPERS, DOCUMENTS,
PHOTOGRAPHS, OR TANGIBLE OBJECTS THAT THE PROSECUTING ATTORNEY
MAY INTRODUCE AT THE SENTENCING HEARING; AND
(VI) ALL MATERIAL OR INFORMATION THAT
TENDS TO MITIGATE OR NEGATE THE FINDING OF ANY OF THE AGGRAVATING
FACTORS THE PROSECUTING ATTORNEY INTENDS TO PROVE AT THE SENTENCING
HEARING.
(c) THE DEFENDANT SHALL PROVIDE THE PROSECUTING
ATTORNEY WITH THE FOLLOWING INFORMATION AND MATERIALS NO LATER
THAN TWENTY DAYS AFTER THE VERDICT IS RETURNED FINDING THE DEFENDANT
GUILTY OF A CLASS 1 FELONY:
(I) A LIST OF ALL WITNESSES WHOM THE DEFENDANT
MAY CALL AT THE SENTENCING HEARING, SPECIFYING FOR EACH THE WITNESS'
NAME, ADDRESS, AND DATE OF BIRTH AND THE SUBJECT MATTER OF THE
WITNESS' TESTIMONY;
(II) THE WRITTEN AND RECORDED STATEMENTS,
INCLUDING ANY NOTES OF THOSE STATEMENTS, OF EACH WITNESS WHOM
THE DEFENDANT MAY CALL AT THE SENTENCING HEARING;
(III) ANY REPORTS, RECORDED STATEMENTS, AND NOTES OF ANY EXPERT WHOM THE DEFENDANT MAY CALL AS A WITNESS DURING THE SENTENCING HEARING, INCLUDING RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS AND SCIENTIFIC TESTS, EXPERIMENTS, OR COMPARISONS; AND
(IV) A LIST OF BOOKS, PAPERS, DOCUMENTS,
PHOTOGRAPHS, OR TANGIBLE OBJECTS THAT THE DEFENDANT MAY INTRODUCE
AT THE SENTENCING HEARING.
(d) (I) EXCEPT AS OTHERWISE PROVIDED
IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (d), IF THE WITNESSES DISCLOSED
BY THE DEFENDANT PURSUANT TO PARAGRAPH (c) OF THIS SUBSECTION
(3.5) INCLUDE WITNESSES WHO MAY PROVIDE EVIDENCE CONCERNING THE
DEFENDANT'S MENTAL CONDITION AT THE SENTENCING HEARING CONDUCTED
PURSUANT TO THIS SECTION, THE TRIAL COURT, AT THE REQUEST OF THE
PROSECUTING ATTORNEY, SHALL ORDER THAT THE DEFENDANT BE EXAMINED
AND A REPORT OF SAID EXAMINATION BE PREPARED PURSUANT TO SECTION
168106.
(II) THE COURT SHALL NOT ORDER AN EXAMINATION
PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH (d) IF:
(A) SUCH AN EXAMINATION WAS PREVIOUSLY
PERFORMED AND A REPORT WAS PREPARED IN THE SAME CASE; AND
(B) THE REPORT INCLUDED AN OPINION CONCERNING
HOW ANY MENTAL DISEASE OR DEFECT OF THE DEFENDANT OR CONDITION
OF MIND CAUSED BY MENTAL DISEASE OR DEFECT OF THE DEFENDANT AFFECTS
THE MITIGATING FACTORS THAT THE DEFENDANT MAY RAISE AT THE SENTENCING
HEARING HELD PURSUANT TO THIS SECTION.
(e) IF THE WITNESSES DISCLOSED BY THE
DEFENDANT PURSUANT TO PARAGRAPH (c) OF THIS SUBSECTION (3.5) INCLUDE
WITNESSES WHO MAY PROVIDE EVIDENCE CONCERNING THE DEFENDANT'S
MENTAL CONDITION AT A SENTENCING HEARING CONDUCTED PURSUANT TO
THIS SECTION, THE PROVISIONS OF SECTION 168109 CONCERNING
TESTIMONY OF LAY WITNESSES SHALL APPLY TO SAID SENTENCING HEARING.
(f) THERE IS A CONTINUING DUTY ON THE
PART OF THE PROSECUTING ATTORNEY AND THE DEFENDANT TO DISCLOSE
THE INFORMATION AND MATERIALS SPECIFIED IN THIS SUBSECTION (3.5).
IF, AFTER COMPLYING WITH THE DUTY TO DISCLOSE THE INFORMATION
AND MATERIALS DESCRIBED IN THIS SUBSECTION (3.5), EITHER PARTY
DISCOVERS OR OBTAINS ANY ADDITIONAL INFORMATION AND MATERIALS
THAT ARE SUBJECT TO DISCLOSURE UNDER THIS SUBSECTION (3.5), THE
PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY AND PROVIDE THE OTHER
PARTY WITH COMPLETE ACCESS TO THE INFORMATION AND MATERIALS.
(g) THE TRIAL COURT, UPON A SHOWING OF
EXTRAORDINARY CIRCUMSTANCES THAT COULD NOT HAVE BEEN FORESEEN
AND PREVENTED, MAY GRANT AN EXTENSION OF TIME TO COMPLY WITH THE
REQUIREMENTS OF THIS SUBSECTION (3.5).
(h) IF IT IS BROUGHT TO THE ATTENTION
OF THE COURT THAT EITHER THE PROSECUTING ATTORNEY OR THE DEFENDANT
HAS FAILED TO COMPLY WITH THE PROVISIONS OF THIS SUBSECTION (3.5)
OR WITH AN ORDER ISSUED PURSUANT TO THIS SUBSECTION (3.5), THE
COURT MAY ENTER ANY ORDER AGAINST SUCH PARTY THAT THE COURT DEEMS
JUST UNDER THE CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO AN
ORDER TO PERMIT THE DISCOVERY OR INSPECTION OF INFORMATION AND
MATERIALS NOT PREVIOUSLY DISCLOSED, TO GRANT A CONTINUANCE, TO
PROHIBIT THE OFFENDING PARTY FROM INTRODUCING THE INFORMATION
AND MATERIALS NOT DISCLOSED, OR TO IMPOSE SANCTIONS AGAINST THE
OFFENDING PARTY.
SECTION 2. 168103.6,
Colorado Revised Statutes, is amended to read:
168103.6. Waiver of privilege.
(1) (a) A defendant who places his or her mental
condition at issue by pleading not guilty by reason of insanity
pursuant to section 168103, asserting the affirmative
defense of impaired mental condition pursuant to section 168103.5,
or raising
the question of incompetency to proceed pursuant to section 168110,
OR DISCLOSING WITNESSES WHO MAY PROVIDE EVIDENCE CONCERNING THE
DEFENDANT'S MENTAL CONDITION DURING A SENTENCING HEARING HELD
PURSUANT TO SECTION 1611103 OR 1611802
waives any claim of confidentiality or privilege as to communications
made by the defendant to a physician or psychologist in the course
of an examination or treatment for such mental condition for the
purpose of any trial, or
hearing on the issue of such mental condition, OR SENTENCING HEARING
CONDUCTED PURSUANT TO SECTION 1611103 OR 1611802.
The court shall order both the prosecutor and the defendant to
exchange the names, addresses, reports, and statements of any
physician or psychologist who has examined or treated the defendant
for such mental condition.
(b) This subsection (1) shall apply only
to offenses committed before July 1, 1995.
(2) (a) A defendant who places his
or her mental condition at issue by pleading not guilty by reason
of insanity pursuant to section 168103, or
raising the question of incompetency to proceed pursuant to section
168110, OR DISCLOSING WITNESSES WHO MAY PROVIDE EVIDENCE
CONCERNING THE DEFENDANT'S MENTAL CONDITION DURING A SENTENCING
HEARING HELD PURSUANT TO SECTION 1611103 waives any
claim of confidentiality or privilege as to communications made
by the defendant to a physician or psychologist in the course
of an examination or treatment for such mental condition for the
purpose of any trial, or
hearing on the issue of such mental condition, OR SENTENCING HEARING
CONDUCTED PURSUANT TO SECTION 1611103. The court
shall order both the prosecutor and the defendant to exchange
the names, addresses, reports, and statements of any physician
or psychologist who has examined or treated the defendant for
such mental condition.
(b) This subsection (2) shall apply to
offenses committed on or after July 1, 1995.
SECTION 3. 168106
(2), (3), (5) (d), and (6), Colorado Revised Statutes, are amended
to read:
168106. Examinations and
report. (2) (a) The defendant
shall have a privilege against selfincrimination during
the course of an examination under this section. The fact of
the defendant's noncooperation with psychiatrists and other personnel
conducting the examination may be admissible in the defendant's
trial on the issues of insanity, competency, or impaired mental
condition AND IN ANY SENTENCING HEARING HELD PURSUANT TO SECTION
1611103 OR 1611802. This paragraph (a)
shall apply only to offenses committed before July 1, 1995.
(b) The defendant shall have a privilege
against selfincrimination during the course of an examination
under this section. The fact of the defendant's noncooperation
with psychiatrists and other personnel conducting the examination
may be admissible in the defendant's trial on the issues of insanity
or competency AND IN ANY SENTENCING HEARING HELD PURSUANT TO SECTION
1611103. This paragraph (b) shall apply to offenses
committed on or after July 1, 1995.
(3) (a) To aid in forming an opinion
as to the mental condition of the defendant, it is permissible
in the course of an examination under this section to use confessions
and admissions of the defendant and any other evidence of the
circumstances surrounding the commission of the offense, as well
as the medical and social history of the defendant, in questioning
the defendant. When the defendant is noncooperative with psychiatrists
and other personnel conducting the examination, an opinion of
the mental condition of the defendant may be rendered by such
psychiatrists or other personnel based upon such confessions,
admissions, and any other evidence of the circumstances surrounding
the commission of the offense, as well as the known medical and
social history of the defendant, and such opinion may be admissible
into evidence at trial AND IN ANY SENTENCING HEARING HELD PURSUANT
TO SECTION 1611103 OR 1611802. It shall
also be permissible to conduct a narcoanalytic interview of the
defendant with such drugs as are medically appropriate and to
subject the defendant to polygraph examination. In any trial
or hearing on the issue of the defendant's sanity, eligibility
for release, impaired mental condition, or competency to proceed
AND IN ANY SENTENCING HEARING HELD PURSUANT TO SECTION 1611103
OR 1611802, the physicians and other personnel conducting
the examination may testify to the results of any such procedures
and the statements and reactions of the defendant insofar as the
same entered into the formation of their opinions as to the mental
condition of the defendant both at the time of the commission
of the alleged offense and at the present time. This paragraph
(a) shall apply only to offenses committed before July 1, 1995.
(b) To aid in forming an opinion as to
the mental condition of the defendant, it is permissible in the
course of an examination under this section to use confessions
and admissions of the defendant and any other evidence of the
circumstances surrounding the commission of the offense, as well
as the medical and social history of the defendant, in questioning
the defendant. When the defendant is noncooperative with psychiatrists
and other personnel conducting the examination, an opinion of
the mental condition of the defendant may be rendered by such
psychiatrists or other personnel based upon such confessions,
admissions, and any other evidence of the circumstances surrounding
the commission of the offense, as well as the known medical and
social history of the defendant, and such opinion may be admissible
into evidence at trial AND IN ANY SENTENCING HEARING HELD PURSUANT
TO SECTION 1611103. It shall also be permissible
to conduct a narcoanalytic interview of the defendant with such
drugs as are medically appropriate and to subject the defendant
to polygraph examination. In any trial or hearing on the issue
of the defendant's sanity, eligibility for release, or competency
to proceed AND IN ANY SENTENCING HEARING HELD PURSUANT TO SECTION
1611103, the physicians and other personnel conducting
the examination may testify to the results of any such procedures
and the statements and reactions of the defendant insofar as the
same entered into the formation of their opinions as to the mental
condition of the defendant both at the time of the commission
of the alleged offense and at the present time. This paragraph
(b) shall apply to offenses committed on or after July 1, 1995.
(5) With respect to offenses committed
before July 1, 1995, the report of examination shall include,
but is not limited to:
(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, is incompetent to proceed,
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 paragraphs (a) to
(c) of subsection (5) 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, is incompetent to proceed, 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 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.
SECTION 4. 168107
(1) and (1.5), Colorado Revised Statutes, are amended to read:
168107. Evidence.
(1) (a) Except as provided in this subsection
(1), no evidence acquired directly or indirectly for the first
time from a communication derived from the defendant's mental
processes during the course of a courtordered examination
under section 168106 or acquired pursuant to section
168103.6 is 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 his OR HER
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, shall 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 COURTORDERED EXAMINATION
UNDER SECTION 168108 OR ACQUIRED PURSUANT TO SECTION
168103.6 IS ADMISSIBLE AT ANY SENTENCING HEARING HELD
PURSUANT TO SECTION 1611103 OR 1611802
ONLY TO PROVE THE EXISTENCE OR ABSENCE OF ANY MITIGATING FACTOR.
(c) If the defendant testifies in his
OR HER own behalf upon the trial of the issues raised by the plea
of not guilty OR AT A SENTENCING HEARING HELD PURSUANT TO SECTION
1611103 OR 1611802, the provisions of
this section shall 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 courtordered examination
pursuant to section 168106 or acquired pursuant to
section 168103.6 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, shall 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 COURTORDERED EXAMINATION
UNDER SECTION 168106 OR ACQUIRED PURSUANT TO SECTION
168103.6 IS ADMISSIBLE AT ANY SENTENCING HEARING HELD
PURSUANT TO SECTION 1611103 ONLY TO PROVE THE EXISTENCE
OR ABSENCE OF ANY MITIGATING FACTOR.
(c) If the defendant testifies in his
or her own behalf, the provisions of this section shall not bar
any evidence used to impeach or rebut the defendant's testimony.
This subsection (1.5) shall apply to offenses committed on or
after July 1, 1995.
SECTION 5. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Patricia K. Dicks
CHIEF CLERK OF THE HOUSE ASSISTANT SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO