(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 court-ordered examination under section 16- 8-106 or acquired pursuant to section 16-8-103.6 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 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 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 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, 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 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, shall be so instructed; except that, for offenses committed on or after July 1, 1999, such evidence shall also be 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 he or she intends to introduce expert opinion evidence concerning his or her 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 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.
(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 shall not be permitted to introduce evidence in the nature of expert opinion concerning his or her mental condition without having first given notice to the court and the prosecution of his or her intent to introduce such evidence and without having undergone a court-ordered examination pursuant to section 16-8-106. A defendant who places his or her mental condition at issue by giving such notice waives any claim of confidentiality or privilege as provided in section 16-8-103.6. Such notice shall 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 shall be excluded, as provided in section 18-1-405 (6)(a), C.R.S., from the time within which the defendant must be brought to trial.
(c) The provisions of this subsection (3) shall apply to offenses committed on or after July 1, 1999.
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.
Cross references: (1) For the introduction of evidence of a physician or surgeon or certified psychologist without first obtaining the consent of the patient, see § 13-90-107 (1)(d) and (1)(g).
(2) For the legislative declaration contained in the 2002 act amending subsections (1)(b), (1)(c), and (1.5)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsections (1)(b), (1)(c), and (1.5)(b), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.
Notes of Decisions
Cited in
48
cases (
7 in the last 5 years), 1975–2026 · leading case:
People v. Marko, 2015 COA 139 (Colo. Ct. App. 2015).
People v. Marko, 2015 COA 139 (Colo. Ct. App. 2015).
· cites it 18× “Section 16-8-107, C.R.S. 2015, provides: (1)(a) .”
People v. Herdman, 310 P.3d 170 (Colo. Ct. App. 2012).
· cites it 58× “Herdman moved to suppress these experts' opinions, arguing that the admission of this evidence would violate section 16-8-107, C.R.S.2011, but the trial court denied the motion.”
In Re People v. Rosas, 2020 CO 22 (Colo. 2020).
· cites it 35× “¶26 The very statute on which Rosas leans, section 16-8-107, undercuts his position.”
Dunlap v. People, 173 P.3d 1054 (Colo. 2007).
· cites it 12× “Section 16-8-107, CR.S. In a related argument, Dunlap also claims that admission of the CMHIP staff's testimony was error under section 16-8-107, C.”
People v. Herrera, 87 P.3d 240 (Colo. Ct. App. 2003).
· cites it 42× “Those subsections provide, in pertinent part: (1)(a) [N]o 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 .”
People v. Flippo, 159 P.3d 100 (Colo. 2007).
· cites it 44× “We granted certiorari to consider whether the court of appeals was correct in finding that the trial court improperly excluded Flip-po's expert testimony under section 16-8-107. We now reverse and remand for further consideration of Flippo's remaining issues including the…”
People v. Bondurant, 296 P.3d 200 (Colo. Ct. App. 2012).
· cites it 30× “3d 1078 (when a defendant's expert intends to testify that a defendant possesses a learning disorder, the requirements of section 16-8-107(@B)(b) are triggered). In closing argument, Bondurant conceded that that he suffered from "two significant mental illnesses," the existence…”
v. Moore, 2021 CO 26 (Colo. 2021).
· cites it 34× “12 under section 16-8-107 and Colorado law governing self-defense, the district court reasoned that if “a defendant complies with the other requirements of [s]ection 3(b),” expert testimony about his “mental state or life experiences” is admissible to prove the “subjective part…”
Zapata v. People, 2018 CO 82 (Colo. 2018).
· cites it 12× “But its counterpart in the insanity arena, section 16-8-107, C.R.S. (2018), which is also titled “Evidence” and is nearly identical, has been repeatedly construed by divisions of the court of appeals as protecting only the defendant’s privilege against self-incrimination under…”
People v. Wilburn, 272 P.3d 1078 (Colo. 2012).
· cites it 41× “113 Wilburn's attorney argued that Wilburn's learning disability is not included within the statutory definition of insanity but is admissible under section 16-8-107 as evidence of a "mental condition.”
People v. Kruse, 839 P.2d 1 (Colo. 1992).
· cites it 22× “6 Judge Van Cise, in dissent, said: *3 Defendant’s argument that the service worker’s testimony was barred under the limited use provision of § 16-8-107(1), C.R.S. (1990 Cum.Supp.) is raised for the first time on appeal.”
In Re The PEOPLE of the State of Colorado v. Aundre D. MOORE, 485 P.3d 1088 (Colo. 2021).
· cites it 36× “" ¶17 The prosecution moved to exclude evidence of Moore's mental condition, arguing that it is inadmissible pursuant to section 16-8-107 (3) (a) because it constitutes evidence "relevant to the issue of insanity" and Moore hasn't pleaded insanity.”
— Colo. Rev. Stat. § 16-8-107(1) — 16 cases
People v. Kruse, 839 P.2d 1 (Colo. 1992).
“6 Judge Van Cise, in dissent, said: *3 Defendant’s argument that the service worker’s testimony was barred under the limited use provision of § 16-8-107(1), C.R.S. (1990 Cum.Supp.) is raised for the first time on appeal.”
Dunlap v. People, 173 P.3d 1054 (Colo. 2007).
“Section 16-8-107, CR.S. In a related argument, Dunlap also claims that admission of the CMHIP staff's testimony was error under section 16-8-107, C.”
— Colo. Rev. Stat. § 16-8-107(1)(a) — 9 cases
People v. Marko, 2015 COA 139 (Colo. Ct. App. 2015).
“Section 16-8-107, C.R.S. 2015, provides: (1)(a) .”
People v. Herrera, 87 P.3d 240 (Colo. Ct. App. 2003).
“Those subsections provide, in pertinent part: (1)(a) [N]o 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 .”
People v. Herdman, 310 P.3d 170 (Colo. Ct. App. 2012).
“Herdman moved to suppress these experts' opinions, arguing that the admission of this evidence would violate section 16-8-107, C.R.S.2011, but the trial court denied the motion.”
Zapata v. People, 2018 CO 82 (Colo. 2018).
“But its counterpart in the insanity arena, section 16-8-107, C.R.S. (2018), which is also titled “Evidence” and is nearly identical, has been repeatedly construed by divisions of the court of appeals as protecting only the defendant’s privilege against self-incrimination under…”
— Colo. Rev. Stat. § 16-8-107(1)(b) — 1 case
Dunlap v. People, 173 P.3d 1054 (Colo. 2007).
“Section 16-8-107, CR.S. In a related argument, Dunlap also claims that admission of the CMHIP staff's testimony was error under section 16-8-107, C.”
— Colo. Rev. Stat. § 16-8-107(2) — 4 cases
— Colo. Rev. Stat. § 16-8-107(2)(b) — 1 case
— Colo. Rev. Stat. § 16-8-107(3) — 6 cases
People v. Herdman, 310 P.3d 170 (Colo. Ct. App. 2012).
“Herdman moved to suppress these experts' opinions, arguing that the admission of this evidence would violate section 16-8-107, C.R.S.2011, but the trial court denied the motion.”
People v. Wilburn, 272 P.3d 1078 (Colo. 2012).
“113 Wilburn's attorney argued that Wilburn's learning disability is not included within the statutory definition of insanity but is admissible under section 16-8-107 as evidence of a "mental condition.”
v. Moore, 2021 CO 26 (Colo. 2021).
“12 under section 16-8-107 and Colorado law governing self-defense, the district court reasoned that if “a defendant complies with the other requirements of [s]ection 3(b),” expert testimony about his “mental state or life experiences” is admissible to prove the “subjective part…”
— Colo. Rev. Stat. § 16-8-107(3)(B) — 1 case
— Colo. Rev. Stat. § 16-8-107(3)(a) — 3 cases
v. Moore, 2021 CO 26 (Colo. 2021).
“12 under section 16-8-107 and Colorado law governing self-defense, the district court reasoned that if “a defendant complies with the other requirements of [s]ection 3(b),” expert testimony about his “mental state or life experiences” is admissible to prove the “subjective part…”
In Re People v. Rosas, 2020 CO 22 (Colo. 2020).
“¶26 The very statute on which Rosas leans, section 16-8-107, undercuts his position.”
— Colo. Rev. Stat. § 16-8-107(3)(b) — 13 cases
In Re People v. Rosas, 2020 CO 22 (Colo. 2020).
“¶26 The very statute on which Rosas leans, section 16-8-107, undercuts his position.”
v. Moore, 2021 CO 26 (Colo. 2021).
“12 under section 16-8-107 and Colorado law governing self-defense, the district court reasoned that if “a defendant complies with the other requirements of [s]ection 3(b),” expert testimony about his “mental state or life experiences” is admissible to prove the “subjective part…”
People v. Flippo, 159 P.3d 100 (Colo. 2007).
“We granted certiorari to consider whether the court of appeals was correct in finding that the trial court improperly excluded Flip-po's expert testimony under section 16-8-107. We now reverse and remand for further consideration of Flippo's remaining issues including the…”
People v. Bondurant, 296 P.3d 200 (Colo. Ct. App. 2012).
“3d 1078 (when a defendant's expert intends to testify that a defendant possesses a learning disorder, the requirements of section 16-8-107(@B)(b) are triggered). In closing argument, Bondurant conceded that that he suffered from "two significant mental illnesses," the existence…”
— Colo. Rev. Stat. § 16-8-107(8) — 2 cases
People v. Wilburn, 272 P.3d 1078 (Colo. 2012).
“113 Wilburn's attorney argued that Wilburn's learning disability is not included within the statutory definition of insanity but is admissible under section 16-8-107 as evidence of a "mental condition.”
People v. Flippo, 159 P.3d 100 (Colo. 2007).
“We granted certiorari to consider whether the court of appeals was correct in finding that the trial court improperly excluded Flip-po's expert testimony under section 16-8-107. We now reverse and remand for further consideration of Flippo's remaining issues including the…”
— Colo. Rev. Stat. § 16-8-107(8)(a) — 1 case
People v. Wilburn, 272 P.3d 1078 (Colo. 2012).
“113 Wilburn's attorney argued that Wilburn's learning disability is not included within the statutory definition of insanity but is admissible under section 16-8-107 as evidence of a "mental condition.”
— Colo. Rev. Stat. § 16-8-107(8)(b) — 6 cases
People v. Bondurant, 296 P.3d 200 (Colo. Ct. App. 2012).
“3d 1078 (when a defendant's expert intends to testify that a defendant possesses a learning disorder, the requirements of section 16-8-107(@B)(b) are triggered). In closing argument, Bondurant conceded that that he suffered from "two significant mental illnesses," the existence…”
People v. Herdman, 310 P.3d 170 (Colo. Ct. App. 2012).
“Herdman moved to suppress these experts' opinions, arguing that the admission of this evidence would violate section 16-8-107, C.R.S.2011, but the trial court denied the motion.”
People v. Wilburn, 272 P.3d 1078 (Colo. 2012).
“113 Wilburn's attorney argued that Wilburn's learning disability is not included within the statutory definition of insanity but is admissible under section 16-8-107 as evidence of a "mental condition.”
People v. Flippo, 159 P.3d 100 (Colo. 2007).
“We granted certiorari to consider whether the court of appeals was correct in finding that the trial court improperly excluded Flip-po's expert testimony under section 16-8-107. We now reverse and remand for further consideration of Flippo's remaining issues including the…”
— Colo. Rev. Stat. § 16-8-107(l) — 1 case
People v. Kruse, 839 P.2d 1 (Colo. 1992).
“6 Judge Van Cise, in dissent, said: *3 Defendant’s argument that the service worker’s testimony was barred under the limited use provision of § 16-8-107(1), C.R.S. (1990 Cum.Supp.) is raised for the first time on appeal.”
— Colo. Rev. Stat. § 16-8-107(l)(a) — 1 case
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