(1) When a defendant raises the issue of competency to proceed, or when the court determines that the defendant is incompetent to proceed, any claim by the defendant to confidentiality or privilege is deemed waived in the case in which competency is raised and for records or information from any prior criminal case in which the defendant raised the issue of competency or in which the court determined that the defendant was incompetent to proceed. The district attorney, the defense attorney, the bridges court liaison, and the court are granted access, without written consent of the defendant or further order of the court, to:
(a) Reports of competency evaluations, including second evaluations;
(b) Information and documents relating to the competency evaluation that are created by, obtained by, reviewed by, or relied on by an evaluator performing a court-ordered evaluation; and
(c) The evaluator, for the purpose of discussing the competency evaluation.
(2) Upon a request by either party or the court for the information described in subsection (1) of this section, the evaluator or treatment provider shall provide the information for use in preparing for a hearing on competency or restoration and for use during such a hearing.
(3) An evaluator or a facility providing competency evaluation or restoration treatment services pursuant to a court order issued pursuant to this article 8.5 shall provide procedural information to the court, bridges court liaison, district attorney, or defense counsel, concerning the defendant's location, the defendant's hospital or facility admission status, the status of evaluation procedures, and other procedural information relevant to the case.
(4) Nothing in this section limits the court's ability to order that information in addition to the information described in subsections (1) and (3) of this section be provided to the evaluator, or to either party to the case, nor does it limit the information that is available after the written consent of the defendant.
(4.5) The court may, upon the request of either party, issue an order to assist a party in accessing, receiving copies of, or discussing with an evaluator or treatment provider information or records that the party has the right to access pursuant to the defendant's waiver of privilege. If a party requests such an order, the court shall allow the opposing party to make any legal objection, including whether the requested information is within the scope of the defendant's waiver of privilege, and consider any requests for protective orders prior to issuing the court order. This section does not limit the court's ability to order information be provided to a party with the written consent of the defendant.
(5) The court shall order both the prosecutor and the defendant or the defendant's counsel to exchange the names, addresses, reports, and statements of each physician or psychologist who has examined or treated the defendant for competency.
(6) Statements made by the defendant in the course of any evaluation must be protected in accordance with section 16-8.5-108.
Source: L. 2008: Entire article added, p. 1841, § 2, effective July 1. L. 2024: IP(1), (3), (4), and (6) amended and (4.5) added, (HB 24-1034), ch. 372, p. 2501, § 3, effective June 4.
Notes of Decisions
Cited in
4
cases, 2016–2019 · leading case:
Zapata v. People, 2018 CO 82 (Colo. 2018).
Zapata v. People, 2018 CO 82 (Colo. 2018).
· cites it 84× “Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
People v. Brown, 2019 CO 50 (Colo. 2019).
· cites it 6× “We held in Zapata that waiver under section 16-8.5-104, C.R.S. (2018) (addressing waiver of privilege in the competency context) is limited to the “parties and the court in that defendant’s case.”
People v. Zapata, 443 P.3d 78 (Colo. Ct. App. 2016).
· cites it 23× “Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case.”
People v. Zapata, 2016 COA 75 (Colo. Ct. App. 2016).
· cites it 16× “5-104, entitled “Waiver of privilege,” provides that when a defendant raises the issue of his competency, “any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access” to the…”
— Colo. Rev. Stat. § 16-8.5-104(1) — 3 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
People v. Zapata, 443 P.3d 78 (Colo. Ct. App. 2016).
“Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case.”
People v. Zapata, 2016 COA 75 (Colo. Ct. App. 2016).
“5-104, entitled “Waiver of privilege,” provides that when a defendant raises the issue of his competency, “any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access” to the…”
— Colo. Rev. Stat. § 16-8.5-104(2) — 3 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
People v. Zapata, 2016 COA 75 (Colo. Ct. App. 2016).
“5-104, entitled “Waiver of privilege,” provides that when a defendant raises the issue of his competency, “any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access” to the…”
People v. Zapata, 443 P.3d 78 (Colo. Ct. App. 2016).
“Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case.”
— Colo. Rev. Stat. § 16-8.5-104(3) — 1 case
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
— Colo. Rev. Stat. § 16-8.5-104(4) — 3 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
People v. Zapata, 2016 COA 75 (Colo. Ct. App. 2016).
“5-104, entitled “Waiver of privilege,” provides that when a defendant raises the issue of his competency, “any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access” to the…”
People v. Zapata, 443 P.3d 78 (Colo. Ct. App. 2016).
“Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case.”
— Colo. Rev. Stat. § 16-8.5-104(5) — 1 case
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
— Colo. Rev. Stat. § 16-8.5-104(6) — 3 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Zapata argued the reports must be provided to him pursuant to section 16-8.5-104, C.R.S. (2018) (addressing “[w]aiver of privilege” as to competency evaluations), and Crim.”
People v. Zapata, 2016 COA 75 (Colo. Ct. App. 2016).
“5-104, entitled “Waiver of privilege,” provides that when a defendant raises the issue of his competency, “any claim by the defendant to confidentiality or privilege is deemed waived, and the district attorney, the defense attorney, and the court are granted access” to the…”
People v. Zapata, 443 P.3d 78 (Colo. Ct. App. 2016).
“Defendant's counsel also told the court that Mr. Murillo had made a proffer in his case making statements about his involvement in this case.”
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