Competency to Proceed : Competency to Proceed §16-8.5-101 to 16-8.5-118, C.R.S.
The Basics : The Basics
Slide 3 : Constitutional due process right to be competent to proceed:
Subjecting a defendant to trial when he or she is incompetent violates his or her right to due process. People v. Palmer, 31 P.3d 863, 866 (Colo. 2001).
Also statutory 16-8.5-102(1): defendant cannot be tried or sentenced when incompetent.
16-8.5-101(11): “Incompetent to Proceed” defined: : 16-8.5-101(11): “Incompetent to Proceed” defined: As a result of a mental or developmental disability, defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that,
As a result of a mental or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings
Slide 5 : Mental disability and developmental disability both defined in statute
16-8.5-101(9): developmental
16-8.5-101(12): mental
Raising Competency Issues: initial procedure : Raising Competency Issues: initial procedure 16-8.5-102(2): Questions of competency can be raised by the court, prosecutor, or defense.
For defense: file a motion (in writing) with:
Certificate of counsel stating that motion is based on good faith doubt that defendant is competent to proceed
Must set forth specific facts that are basis for motion (Be Careful!)
Court must seal the motion
If you ask for a hearing, have to give prosecution a copy of the motion
Slide 7 : 16-8.5-103: court then makes preliminary finding, or orders competency evaluation by the Department of Human Services
If either party objects, court orders competency eval
Location for eval (16-8.5-105):
defendant can be committed;
priority given to place where defendant in custody
After receiving the report from the eval, can request a second eval, or a hearing
Privilege Issues : Privilege Issues When competency raised, any privilege claim is deemed waived. 16-8.5-104(1)
The prosecution and court get access to:
Reports of comp evals;
Info and documents relating to the comp eval: what evaluator looked at or relied on
The evaluator
104(4): this section does not limit court’s ability to order additional info be provided to evaluator or either party
Slide 9 : Obviously, the prosecution also gets the comp eval report (16-8.5-105(4)).
The report includes:
Name of anyone who examined defendant
“nature, content, extent, and results of the evaluation and any tests conducted”
Diagnosis and prognosis of disability
Opinion on competency
The Evaluation: : The Evaluation: Permissible to use:
Confessions and admissions of defendant
Evidence surrounding the commission of the charged offense
Medical and social history of defendant
Interviewing defendant
16-8.5-105
Statements made by defendant in during the evaluation, 16-8.5-108 : Statements made by defendant in during the evaluation, 16-8.5-108 Evidence acquired “directly or indirectly for the first time from a communication derived from the defendant’s mental processes during the course of a competency evaluation:”
Not admissible at trial, BUT
May be admissible to rebut evidence of defendant’s mental condition to show lack of culpable mental state
Can request limiting instruction
Can be used to rebut defendant’s testimony if he or she testifies at trial
Competency Hearing : Competency Hearing Evaluators and other experts can testify - 16-8.5-108(2)
Lay witnesses can testify about observations and conversations with defendant regarding defendant’s mental condition – 16-8.5-110
If defendant doesn’t cooperate with eval, that can be used to rebut evidence by defendant regarding competency – 16-8.5-105(2)
Party asserting incompetency has burden of proof by preponderance – 16-8.5-103(7)
Other things you get to do at hearing – 16-8.5-109(2)
When defendant found incompetent : When defendant found incompetent Can be released on bond or committed - 16-8.5-111
Restoration hearing: at any time, on motion by court or either party – 16-8.5-113
Can’t be held longer than max term of offense charged, minus earned time – 16-8.5-116(1)
Court reviews case every 3 months, with new report – 16-8.5-116
If there is “substantial probability that the defendant will not be restored to competency within the foreseeable future,” look at possible termination proceedings – 16-8.5-116