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Feb 19

by H. Michael Steinberg Colorado Criminal Defense Lawyer Email The Author

The Issue Of Competency To Stand Trial In ColoradoThe Issue Of Competency To Stand Trial In Colorado is complex and requires a thorough understanding of the Colorado’s laws, rules and regulations governing the procedures followed by the courts when a defendant is believed to be incompetent to stand trial or to assist in their defense.

The Legal Standard of Incompetence and Statutory Provisions Governing a Referral for a Competency Evaluation

In Colorado a person accused of a crime has the right to “be competent” before he or she can be lawfully prosecuted. Subjecting an accused to trial when he or she is incompetent violates a defendant’s constitutional right to due process.

The procedures that procedurally provide the legal safeguards to ensure against the prosecution of an incompetent defendant are found in 16-8.5-102(2) C.R.S.

This law provides that the very issue of competency can be raised by defense counsel, the prosecutor, or the trial court. When properly raised – the law requires a trial judge to suspend criminal proceedings and determine the competency or incompetency of a defendant if the Judge  “has reason to believe that the defendant is incompetent to proceed” under § 16-8.5- 102(2)(a);

Following this procedure a judge must make a “preliminary finding” or order that the defendant is to be evaluated to determine whether the defendant is incompetent to proceed. § 16-8.5-103(2), C.R.S. 2013.

What Does “Incompetent to Proceed” Really Mean?

Under Colorado law “incompetent to proceed” means that, as a result of a mental disability or developmental disability, the 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 disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings. § 16-8.5-101(11);

Under Colorado law the “reason to believe” threshold that triggers the need for further inquiry into a defendant’s competence to proceed is a discretionary – meaning it is completely within the judge’s professional discretion.

The Issue Of Competency To Stand Trial In Colorado – Judge’s Have Very Broad Discretion To Order A Competency Evaluation

The law – giving judges nearly total discretion – is based on the belief that trial judges have the best and first opportunity to observe the defendant, and his or her actions and general demeanor. Judge’s have great discretion in this areas and there is no definitive standard regarding the type or amount of evidence necessary to raise a doubt in the mind of a judge regarding a defendant’s competency.

Therefore Colorado competency statutes defining the phrase “reason to believe” that a defendant is “incompetent to proceed” must be based on whether a mental or developmental disability prevents a defendant from either:

(1) consulting with defense counsel with a reasonable degree of rational understanding in order to assist in the defense

or

(2) having a rational and factual understanding of the criminal proceedings. § 16-8.5-101(11)

If a judge issues a competency referral order that departs from this legal standard it could  constitute an abuse of the judge’s discretion. Stated differently – a trial court must base its order on the legal standard for competence. A court order suspending the proceedings and directing defendant to undergo a competency evaluation constituted an abuse of discretion. C.R.S. 16-8.5-101 (2013)

Some Of The Most Important Terms To Define – Colorado Law Of Incompetency

16-8.5-101. Definitions (Pertaining To Incompetency)

As used in this article, unless the context otherwise requires:

(1) “Competency evaluation” includes both court-ordered competency evaluations and second evaluations.

(2) “Competency evaluator” means a licensed physician who is a psychiatrist or a licensed psychologist, each of whom is trained in forensic competency assessments, or a psychiatrist who is in forensic training and practicing under the supervision of a psychiatrist with expertise in forensic psychiatry, or a psychologist who is in forensic training and is practicing under the supervision of a licensed psychologist with expertise in forensic psychology.

(3) “Competency hearing” means a hearing to determine whether a defendant is competent to proceed.

(4) “Competent to proceed” means that the defendant does not have a mental disability or developmental disability that prevents the defendant from having 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 prevents the defendant from having a rational and factual understanding of the criminal proceedings.

(5) “Court-ordered competency evaluation” means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant’s competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator and includes evaluations concerning restoration to competency.

(6) “Court-ordered report” means a report of an evaluation, conducted by or under the direction of the department, that is the statutory obligation of the department to prepare when requested to do so by the court.

(7) “Criminal proceedings” means trial, sentencing, execution, and any pretrial matter that is not susceptible of fair determination without the personal participation of the defendant.

(11) “Incompetent to proceed” means that, as a result of a mental disability or developmental disability, the 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 disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

(12) “Mental disability” means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. “Mental disability” does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability.

(13) “Restoration hearing” means a hearing to determine whether a defendant who has previously been determined to be incompetent to proceed has become competent to proceed.

(14) “Second evaluation” means an evaluation requested by the court, the district attorney, or the C.R.S. 16-8.5-102 (2013)

Here Is The Actual Statute That Controls The Mental Incompetency Procedure

16-8.5-102. Mental Incompetency to Proceed – How and When Raised

(1) While a defendant is incompetent to proceed, the defendant shall not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant. However, a determination that a defendant is incompetent to proceed shall not preclude the furtherance of the proceedings by the court to consider and decide matters, including a preliminary hearing and motions, that are susceptible of fair determination prior to trial and without the personal participation of the defendant. Those proceedings may be later reopened if, in the discretion of the court, substantial new evidence is discovered after and as a result of the restoration to competency of the defendant.

(2) The question of a defendant’s competency to proceed shall be raised in the following manner:

(a) If the judge has reason to believe that the defendant is incompetent to proceed, it is the judge’s duty to suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103.

(b) If either the defense or the prosecution has reason to believe that the defendant is incompetent to proceed, either party may file a motion in advance of the commencement of the particular proceeding. A motion to determine competency shall be in writing and contain a certificate of counsel stating that the motion is based on a good faith doubt that the defendant is competent to proceed. The motion shall set forth the specific facts that have formed the basis for the motion. The motion shall be sealed by the court.

If the motion is made by the prosecution, the prosecution shall provide to the defense a copy of the motion. If the motion is made by the defense, the defense shall provide to the prosecution notice of the filing of the motion at the time of filing, and if the defense requests a hearing, the defense shall provide the motion to the prosecution at the time the hearing is requested. The motion may be filed after the commencement of the proceeding if, for good cause shown, the mental disability or developmental disability of the defendant was not known or apparent before the commencement of the proceeding.

(c) By the affidavit of any chief officer of an institution having custody of a defendant awaiting execution.

Summary – The Procedure – Whether A Defendant Be Found To Be Incompetent to Stand Trial?

Being “found” to be incompetent to stand trial can be a temporary or permanent finding depending on the defendant’s disability. A finding of incompetent – unlike the more familiar finding – Not Guilty By Reason of Insanity – is not a legal defense – rather it is a status that can delay a case indefinitely.

The constitutional right to assist in your own defense, to have a rational understanding of what is happening in your case, is fundamental to our criminal justice system. Personal comprehension of the courtroom proceedings and to have a “rational and factual understanding of the criminal proceedings against him” and “the sufficient present ability to rationally cooperate with his attorney to assist in his defense” is the very foundation of “competence to stand trial.

When a mental disability or developmental disability arises from an examination of the accused (by means of a competency evaluation by one or more forensic psychologists), the case essentially stops in its tracks until:

The accused is restored to competency

or

The accused is not restored to competency and therefore will not face his charges until competency is restored – if ever.


Under Colorado law, the accused can be remanded to the Colorado state hospital, until he or she has been restored to competency or for the maximum term of confinement that could be imposed for the offenses with which he is charged.


The Issue Of Competency To Stand Trial In Colorado

ABOUT THE AUTHOR: H. Michael SteinbergEmail The Author  – A Denver Colorado Drug Crimes 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 – 720-227-2277.

If you are charged with A Colorado crime or you have questions about The Issue Of Competency To Stand Trial In Colorado, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg Colorado Criminal Defense AttorneyH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience –  specializing in Colorado Criminal Law along the Front Range.  He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options.  Remember, it costs NOTHING to discuss your case.  Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Important: This article is for informational purposes only and not intended to provide legal advice to any individual or group. Individuals and groups should obtain competent legal counsel from lawyers admitted to practice in the jurisdictions where they are subject to legal process.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving … The Issue Of Competency To Stand Trial In Colorado.


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