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    Colorado Criminal Law – A Defendant’s Request For A Physical or Psychological Examination Of An Alleged Victim Or A Witness

    The question arises on a regular basis – especially in Colorado Sexual Assault cases – as to whether an alleged victim or a witness can be physically or psychologically examined against their will.  This page address the legal issues and tests required before that can happen.

    Although Colorado case law permits the courts to order a psychological evaluation of a witness or victim, a defendant has a difficult burden to overcome before that can ever happen

    The test for this to occur in Colorado – and that has been adopted in the Colorado Courts is that:

    A court should order such an examination only where there is a compelling reason for it.

    It is necessary for the court to balance the possible emotional trauma, embarrassment or intimidation to the complainant against the likelihood of the examination producing material, as distinguished from speculative, evidence.

    Additional case law in Colorado demonstrates that the test to compel a psychological evaluation is a difficult test to overcome by the Defendant.

    Some Colorado Case Law Examples People v. King, 581 P.2d 739, 740 (Colo. App. 1978); People v. Estorga, 612 P.2d 520 (Colo. 1980).See People v. Piro, 671 P.2d 1341 (Colo. App. 1983).People v. Lucero, 724 P.2d 1374 (Colo. App. 1986). People v. Woertman, 786 P.2d 443(Colo. App. 1989). People v. Chard, III, 808 P.2d 351 (Colo. 1991). People v. Turley, 870 P.2d 498 (Colo. App. 1993)

    Case 1:

    The Defendant wanted the psychological examination to show the child victim was incompetent to testify because inconsistent statements and because the child was under the care of a psychologist.  The court upheld the trial court’s decision to deny the request, and stated that the court can determine pre-trial by examination of the witness whether they are competent to testify.

    Case 2:

    The Defendant wanted a psychological evaluation because the child victim was currently in the state hospital. The Court of Appeals upheld the trial court’s decision to deny the request;

    Case 3:

    The Defendant wanted a psychological evaluation because the victim had a documented history of psychiatric disturbances and because the victim was taking daily psychotropic medications. The Court of Appeals upheld the trial court’s decision to deny the request;

    Case 4:

    The Defendant wanted a psychological evaluation of a child victim because the victim’s inconsistent statements and based on evidence that the child had been exposed to bizarre and deviant sexual behavior on television which could have led to the accusations. The trial court denied the motion. The Court of Appeals reversed the trial court’s decision and ordered that an evaluation be completed. The Colorado Supreme Court then reversed the decision by the Court of Appeals and held that the compelling reasons test had not been met;

    Case 5:

    The Defendant wanted a psychological evaluation of a victim because the victim¡|s unusual behavior after the assault. The Court of Appeals upheld the trial court¡|s decision to deny the request.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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    8400 East Prentice Ave, Penthouse 1500
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