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18-1.3-1104. Evaluation and report.


(1) When the defendant files a motion alleging that the defendant is a mentally retarded defendant or a defendant with an intellectual and developmental disability, the court shall order one or more evaluations of the defendant with regard to such motion.

(2) In ordering an evaluation of the defendant pursuant to subsection (1) of this section, the court shall specify the place where the evaluation is to be conducted and the period of time allocated for the evaluation. In determining the place where the evaluation is to be conducted, the court shall give priority to the place where the defendant is in custody, unless the nature and circumstances of the evaluation requires designation of a different location. The court shall direct one or more psychologists who are recommended by the executive director of the department of health care policy and financing pursuant to section 25.5-10-239, C.R.S., or his or her designee, to evaluate the defendant. For good cause shown, upon motion of the prosecution or the defendant or upon the courts own motion, the court may order such further or other evaluation as it deems necessary. Nothing in this section shall abridge the right of the defendant to procure an evaluation as provided in section 18-1.3-1105.

(3) The defendant has a privilege against self-incrimination that may be invoked prior to or during the course of an evaluation pursuant to this section. A defendants failure to cooperate with the evaluators or other personnel conducting the evaluation may be admissible in the defendants hearing concerning mental retardation or the presence of an intellectual and developmental disability.

(4) To aid in the formation of an opinion as to mental retardation or the presence of an intellectual and developmental disability, it is permissible in the course of an evaluation conducted pursuant to this section to use statements made by the defendant and any other evidence, including but not limited to the circumstances surrounding the commission of the offense as well as the defendants medical and social history, in evaluating the defendant.

(5) A written report of the evaluation shall be prepared in triplicate and delivered to the appropriate clerk of the court. The clerk shall furnish a copy of the report to both the prosecuting attorney and the counsel for the defendant.

(6) The report of evaluation must include, but is not limited to:

(a) The name of each expert who evaluated the defendant;

(b) A description of the nature, content, extent, and results of the evaluation and any tests conducted; and

(c) Diagnosis and an opinion as to whether the defendant is mentally retarded or has an intellectual and developmental disability.

(7) Nothing in this section shall be construed to preclude the application of section 16-8-109, C.R.S.


Source: L. 2002: Entire article added with relocations, p. 1445, 2, effective October 1. L. 2013: (2) amended,(HB 13-1314), ch. 323, p. 1804, 29, effective March 1, 2014. L. 2018: (1), (3), (4), IP(6), and (6)(c) amended,(SB 18-096), ch. 44, p. 470, 5, effective August 8.


Editors note: This section is similar to former 16-9-404 as it existed prior to 2002.

Cross references:

For the legislative declaration in SB 18-096, see section 1 of chapter 44, Session Laws of Colorado 2018.