Colorado Revised Statutes

Colo. Rev. Stat. § 16-8-103.6 (2026)

Waiver of privilege

✓ current as of July 2026

Find cases: SyfertCases citing this section CO-LEGleg.colorado.gov JustiaTitle on Justia CornellLII Search CasesGoogle Scholar

(1) (a) A defendant who places his or her mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, or asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, or disclosing witnesses who may provide evidence concerning the defendant's mental condition during 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, 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 the mental condition for the purpose of any trial or hearing on the issue of the mental condition, or sentencing hearing conducted 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. 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 the 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 16-8-103 or disclosing witnesses who may provide evidence concerning the defendant's mental condition during a sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102; or, for offenses committed on or after July 1, 1999, by seeking to introduce evidence concerning his or her mental condition pursuant to section 16-8-107 (3) 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 the mental condition for the purpose of any trial or hearing on the issue of the mental condition, or sentencing hearing conducted pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102. 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 the mental condition.

(b) This subsection (2) shall apply to offenses committed on or after July 1, 1995.

Source: L. 87: Entire section added, p. 622, § 1, effective July 1. L. 95: Entire section amended, p. 73, § 6, effective July 1. L. 98: Entire section amended, p. 381, § 2, effective April 21. L. 99: (2)(a) amended, p. 403, § 5, effective July 1. L. 2002: (1)(a) and (2)(a) amended, p. 1491, § 136, effective October 1. L. 2002, 3rd Ex. Sess.: (2)(a) amended, p. 29, §§ 17, 18, effective July 12. L. 2008: (1)(a) and (2)(a) amended, p. 1850, § 4, effective July 1. L. 2020: (1)(a) and (2)(a) amended, (SB 20-100), ch. 61, p. 205, § 3, effective March 23.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (1)(a) and (2)(a), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsection (2)(a), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. For the legislative declaration contained in the 2008 act amending subsections (1)(a) and (2)(a), see section 1 of chapter 389, Session Laws of Colorado 2008.

16-8-103.7. Examination after entry of defenses of insanity and impaired mental condition. (1) (a) When, at the time of arraignment, the defense of insanity is raised, pursuant to section 16-8-103, and the defendant asserts his or her intention to raise the affirmative defense of impaired mental condition, pursuant to section 16-8-103.5, the court shall order one examination of the defendant with regard to both defenses pursuant to section 16-8-106.

(b) This subsection (1) shall apply only to offenses committed before July 1, 1995.

(2) (a) When, at the time of arraignment, the defense of insanity is raised pursuant to section 16-8-103, the court shall order an examination of the defendant with regard to the insanity defense pursuant to section 16-8-106.

(b) This subsection (2) shall apply to offenses committed on or after July 1, 1995.

(3) (a) When the defendant gives notice pursuant to section 16-8-107 (3) that he or she intends to introduce evidence in the nature of expert opinion concerning his or her mental condition, the court shall order an examination of the defendant pursuant to section 16-8-106.

(b) The provisions of this subsection (3) shall apply to offenses committed on or after July 1, 1999.

Source: L. 83: Entire section added, p. 673, § 3, effective July 1. L. 95: Entire section amended, p. 74, § 7, effective July 1. L. 99: (3) added, p. 404, § 6, effective July 1.

Notes of Decisions

Cited in 23 cases (1 in the last 5 years), 1990–2026 · leading case: People v. Fuller, 791 P.2d 702 (Colo. 1990).

Sort: Relevance Newest Treatment

People v. Fuller, 791 P.2d 702 (Colo. 1990). · cites it 62× “In particular, Fuller claims that the disclosure requirements of section 16-8-103.6, 8A C.R.S. (1989 Supp.”

Gray v. Dist. Court of the Eleventh Jud. Dist., 884 P.2d 286 (Colo. 1994). · cites it 168× “In 1987, the legislature enacted section 13-90-107(3): [3] The provisions of paragraphs (d) [physician privilege] and (g) [psychologist privilege] of subsection (1) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal…”

Zapata v. People, 2018 CO 82 (Colo. 2018). · cites it 12× “8 8 Notably, section 16-8-103.6, C.R.S. (2018), the waiver provision governing insanity cases, contains the type of limiting language the majority injects into subsection 16-8.”

People v. Ullery, 984 P.2d 586 (Colo. 1999). · cites it 35× “The trial court ruled that Ullery had waived any privilege by asserting his affirmative defense, pursuant to section 16-8-103.6, 6 C.R.S. (1998). The court of appeals reversed, holding that the attorney work product was not discoverable and that the trial court should have…”

People v. Bondurant, 296 P.3d 200 (Colo. Ct. App. 2012). · cites it 6× “1994), the supreme court discussed the legislative history of section 16-8-103.6, C.R.S.2011, concerning waiver of the claim of confidentiality or privilege for criminal defendants using insanity or impaired mental condition as a defense.”

People v. Herrera, 87 P.3d 240 (Colo. Ct. App. 2003). · cites it 6× “Defendant next contends that § 16-8-103.6(2)(a), C.R.S.2003, unconstitutionally forced him to relinquish his privilege against self-incrimination as to communications made to a physician or psychologist.”

People v. Garcia, 113 P.3d 775 (Colo. 2005). · cites it 2× “(2004), waiver of certain medical privileges, § 16-8-103.6(2)(a), C.R.S. (2004), and commitment for treatment if successful, § 16-8-105.”

People v. Bielecki, 964 P.2d 598 (Colo. Ct. App. 1998). · cites it 4× “Specifically, he asserts that because he was forced to waive any claim of privilege as to his psychiatric examinations, his counsel’s ability to prepare an effective insanity defense was compromised.”

In Re People v. Rosas, 2020 CO 22 (Colo. 2020). · cites it 2× “(2019) (distinguishing, for purposes of waiver of confidentiality or privilege, between pleading NGRI and seeking to introduce expert evidence of mental condition under section 16-8-107(3)(b)). ¶9 Whereas a defendant who raises the defense of insanity must plead NGRI, see §…”

People v. Kruse, 839 P.2d 1 (Colo. 1992). · cites it 2× “Section 16-8-107(1) provides: 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 court-ordered examination under section 16-8-106 or…”

People v. Wilburn, 272 P.3d 1078 (Colo. 2012). · cites it 3× “This distinction is also evident in section 16-8-103.6(2)(a), C.R.S. (2011), a section titled "Waiver of Privilege.”

People v. Dist. Court, Cnty. of Adams, 797 P.2d 1259 (Colo. 1990). · cites it 6× “(1987), expressly provides that the privilege does not apply to “psychologists eligible to testify concerning a criminal defendant’s mental condition pursuant to section 16-8-103.6, C.R.S. [plea of not guilty by reason of insanity, assertion of the affirmative defense of…”

Show all 23 citing cases →

— Colo. Rev. Stat. § 16-8-103.6(1)(a) — 1 case

Hendricks v. People, 10 P.3d 1231 (Colo. 2000).

— Colo. Rev. Stat. § 16-8-103.6(2) — 1 case

People v. Bondurant, 296 P.3d 200 (Colo. Ct. App. 2012). “1994), the supreme court discussed the legislative history of section 16-8-103.6, C.R.S.2011, concerning waiver of the claim of confidentiality or privilege for criminal defendants using insanity or impaired mental condition as a defense.”

— Colo. Rev. Stat. § 16-8-103.6(2)(a) — 5 cases

People v. Herrera, 87 P.3d 240 (Colo. Ct. App. 2003). “Defendant next contends that § 16-8-103.6(2)(a), C.R.S.2003, unconstitutionally forced him to relinquish his privilege against self-incrimination as to communications made to a physician or psychologist.”

People v. Garcia, 113 P.3d 775 (Colo. 2005). “(2004), waiver of certain medical privileges, § 16-8-103.6(2)(a), C.R.S. (2004), and commitment for treatment if successful, § 16-8-105.”

In Re People v. Rosas, 2020 CO 22 (Colo. 2020). “(2019) (distinguishing, for purposes of waiver of confidentiality or privilege, between pleading NGRI and seeking to introduce expert evidence of mental condition under section 16-8-107(3)(b)). ¶9 Whereas a defendant who raises the defense of insanity must plead NGRI, see §…”

People v. Wilburn, 272 P.3d 1078 (Colo. 2012). “This distinction is also evident in section 16-8-103.6(2)(a), C.R.S. (2011), a section titled "Waiver of Privilege.”

Johnson v. People, 2016 CO 69 (Colo. 2016).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.