13. It shall also be permissible to conduct a narcoanalytic interview of you with such drugs as are medically appropriate, and to subject you to polygraph examination. In any trial or hearing on the issue of your sanity or eligibility for release and in any sentencing hearing held pursuant to C.R.S. § 18-1.3-1201, the physicians and other personnel conducting the examination may testify to the results of any such procedures and your statements and reactions insofar as these entered into the formation of their opinions as to your mental condition both at the time of the commission of the alleged offense(s) and at the present time. Authority: C.R.S. § 16-8-
106(3)(b).
The defense objection (available here):
Mr. Holmes has argued that the use of statements involuntarily compelled through a narcoanalytic interview violates due process and, in any capital proceeding, the prohibition against cruel and unusual punishment. Mr.Holmes has also argued that admission of the results of a polygraph examination against a defendant who pleads not guilty by reason of insanity is unconstitutional as the Colorado Supreme Court has recognized that the results of polygraph examinations are unreliable and inadmissible in all other contexts. Admission of any such results or statements against Mr. Holmes would violate due process and, in a capital case, the right against cruel and unusual punishment. U.S. Const. amends. V, VIII, XIV; Colo. Const. art. II, sees. 20, 25.
Although this Court acknowledged these arguments at p.8 of its order, it only ruled that the admission of such evidence did not violate the right against self-incrimination. See p.9 of Order. It did not address the due process issue of voluntariness or the unconstitutional use of such an interview as evidence in support of a death sentence.
Prosecutors have not yet filed a notice of their intent to seek the death penalty, but it is widely expected they will do so.
All of the case pleadings since January are available here.
