2016 Colorado Incompetency Evaluations In Sex Crime Felonies Must Now Be Video Taped

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer.

2016 Colorado Incompetency Evaluations In Sex Crime Felonies Must Now Be Video Taped – On occasion a Colorado criminal defense lawyer may believe, based on that lawyer’s experience and knowledge base, that his client is no competent to make decisions, to assist in their defense or to go to trial. It is that lawyer’s duty to raise that issue in court. While I have written on this issue before – this article addresses a new law mandates that in serious felony sex crimes – the competency evaluation must now be videotaped.

Colorado Mental Condition Examinations – Felony Sex Crimes

This new law – which is effective in January of 2017 – requires a court-ordered mental condition examination to be video and audio recorded if a Defendant is charged with a class 1 or class 2 felony or a felony sex crime. That video recording must be provided to the defense and included with the evaluator’s report.

The only exception to the creation of the video recording is when:

…the examination could cause or is causing mental or physical harm to the defendant or others or will make the examination not useful to the expert forensic opinion.

The bill requires a court-ordered mental condition examination to be video and audio recorded. A copy of the recording must be included with the evaluator’s report.

Colorado’s competency evaluation laws are complex – this brief update addresses only the video requirement change to the statutory scheme – here is a LINK to ALL Colorado Laws and a LINK the entire statute 16-8-106:

The New Section Of the Law 16-8-106 (1)(b) Reads As Follows:

…

(1) (b) An interview conducted in any case that includes a class 1 or class 2 felony charge or a felony sex offense charge described in section 18-3-402 , 18-3-404 , 18-3-405 , or 18-3-405.5 , C.R.S., pursuant to this section must be video and audio recorded and preserved. The court shall advise the defendant that any examination with a psychiatrist or forensic psychologist may be video and audio recorded. A copy of the recording must be provided to all parties and the court with the examination report. Any jail or other facility where the court orders the examination to take place must permit the recording to occur and must provide the space and equipment necessary for such recording.

If space and equipment are not available, the sheriff or facility director shall attempt to coordinate a location and the availability of equipment with the court, which may consult with the district attorney and defense counsel for an agreed upon location. If no agreement is reached, and upon the request of either the defense counsel or district attorney, the court shall order the location of the examination which may include the Colorado mental health institute at Pueblo.

While there are other Colorado statutes that address the use and admissibility of this evidence – it is most important to note that the required video – the very best evidence that a judge and jury should have in my opinion – must in almost all cases – at least be requested – and if not created – a motion must be filed on the issue.

A Quick Description Of Raising Competency In Colorado Criminal Cases

While “Competency to Stand Trial” may seem like a simple concept – it is not. A Colorado Defendant’s ability to understand and participate in the court proceedings is critical to every stage of the Colorado criminal case..

At times the issue is referred to as:

• Competency to Stand Trial
• Competence To Proceed, or
• Fitness to Proceed

The foundation of our criminal justice system is based on the notion of fairness – or “due process” which insures equal treatment under the law and the basic dignity of legal proceedings.

Whose Rights?

When a Colorado Defendant is competent to stand trial he or she has the right to determine the kind of plea he will enter. This right originates in the Colorado Constitution and recognizes the accused’s autonomy in controlling the nature his case. Therefore the right to choose his or her plea is a fundamental constitutional right of the Defendant – not his lawyer.

But that right is not absolute. On occasion, it is the lawyer’s duty to “raise competency” before the Court. A Judge, defense attorney or even a prosecutor may request a competency evaluation if a Colorado Defendant exhibits visible signs of mental illness. When that happens, the Colorado defendant us required to undergo a mental health exam to determine whether they are mentally competent to stand trial.

When competency is raised – the Trial Judge the exam and all criminal procedural proceedings come to a quick stop. It is then up to a State funded doctor to try to determine if the Defendant is mentally competent to understand court proceedings and the charges against him.

Basic Competency Concepts Include Two Major Issues

1. A Colorado Defendant’s capacity to understand the criminal process, including the role of the participants in the process.

2. A Colorado Defendant’s ability to function in that process, primarily through consultation with counsel in the preparation of a defense.

If a Colorado Defendant is found by the Trial Court to be “incompetent,” that Judge may require hospitalization, medication or treatment until they can be “restored to competency” – that is – until they can understand the charges and process, ensuring a fair trial. When and if a Colorado Defendant is restored to a stable mental state, the case resumes it’s procedural path.

Not A ” Not Guilty By Reason Of Insanity” Plea

A competency evaluation should not be confused with a “sanity evaluation.” A sanity evaluation is an evaluation which looks back – retrospectively – to the state of mind of the accused at the time of the crime. Was the Defendant sane or insane when the crime occurred.

On the other, competency evaluations capture a “snapshot” of a Colorado Defendant’s current mental state.

2016 Colorado Incompetency Evaluations In Sex Crime Felonies Must Now Be Video Taped

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – 2016 Colorado Incompetency Evaluations In Sex Crime Felonies Must Now Be Video Taped.

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2016 Colorado Incompetency Evaluations In Sex Crime Felonies Must Now Be Video Taped

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On occasion a Colorado criminal defense lawyer may believe, based on that lawyer's experience and knowledge base, that his client is no competent to make decisions, to assist in their defense or to go to trial. It is that lawyer's duty to raise that issue in court. While I have written on this issue before - this article addresses a new law mandates that in serious felony sex crimes - the competency evaluation must now be videotaped

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H. Michael Steinberg