Once someone has raised the defendant’s competency, the court may either make a preliminary finding of competency or incompetency or, more commonly, find that it has insufficient information to determine competency at that time and order a competency evaluation. § 16-8.5-103(1)(a), (2). If the court opts to make a preliminary finding of competency, that becomes the final determination of the court unless a party contests the preliminary finding within 7 days. § 16-8.5-103(1)(a). If a party objects, the court must order a competency evaluation. § 16-8.5-103(2).

In-Custody vs. Out-of-Custody Evaluations

When the court orders the defendant evaluated for competency, the court must order the defendant be evaluated out-of-custody on an “outpatient basis” unless:

1. The defendant is unable to post the monetary condition of bond,
2. The defendant is ineligible to be released on bond, or
3. The court finds the defendant meets the special criteria under § 16-8.5-105(1)(b) and orders the defendant “placed in the department’s custody for the time necessary to conduct the inpatient competency evaluation.”

§ 16-8.5-105(1)(a)(I).

Option 3 is sometimes referred to as “commitment.” See § 16-8.5-105(1)(b.5) (referring to inpatient evaluations as “commitment”). This is different from “civil commitment.”

When a defendant is released on bond, the court must require, as a condition of bond, the defendant’s cooperation with the competency evaluation. § 16-8.5-105(1)(a)(III).

Evaluations

Regardless of where the evaluation is conducted, the Colorado Department of Human Services, Office of Civil and Forensic Mental Health (“OCFMH”), must conduct the evaluation. § 16-8.5-103 (“[T]he court shall order that the defendant be evaluated for competency by the department.”). After OCFMH evaluates the defendant, it must issue a report to the court, which must be provided to the parties. § 16-8.5-105(4).

The report issued by OCFMH must contain all of the information listed in § 16-8.5-105(5), including, most importantly, the evaluator’s opinion on whether the defendant is competent or incompetent to proceed. If the evaluator opines the defendant is incompetent, then the report must also include, among other things:

1. Whether there is a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future,
2. Whether inpatient restoration are clinically appropriate, and
3. Whether the defendant meets the criteria for an emergency mental health hold or certification for civil commitment.

§ 16-8.5-105(5)(e).

Within 14 days of the court receiving the competency evaluation report, either party may request a hearing or a second evaluation. If a second evaluation is requested, any pending competency hearings must be continued to permit a second evaluation. § 16-8.5-103(3). The defendant is permitted to be evaluated by an evaluator of the defendant’s choice, but the defendant must provide a copy of the evaluator’s report to the prosecution within a reasonable time before the competency hearing. § 16-8.5-106(2).

Hearing

If a party requests a hearing, the hearing must be conducted within 35 days of the request or the filing of the second evaluation report, unless this deadline is extended for “good cause.” § 16-8.5-103(6). If neither party requests a hearing, the court must make a final determination based on the “information then available to the court.” § 16-8.5-103(5).

Burden of Persuasion

The party asserting the defendant is incompetent has the burden of establishing that the defendant is incompetent. § 16-8.5-103(7). That’s usually the defendant.

In Colorado, a defendant is “Incompetent to Proceed” when:

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(12).

In practice, this is a difficult burden for the defendant to meet when the OCFMH evaluator opines that the defendant is competent to proceed. If, however, the defense requested a second evaluation from a different evaluator and the two evaluators disagree, expect the defense attorney to request a hearing, call the evaluator who opined the defendant is competent to testify, and argue the defendant is incompetent to proceed. If you disagree, you should be prepared to contest the defendant’s assertions at the competency hearing, including cross-examining their evaluator and calling any evaluators who opined the defendant is competent to proceed to testify.