, HB13-1127, sponsored by Republican lawmaker Frank McNulty, reads in part: "Under current law, when a defendant pleads not guilty by reason of insanity and introduces any evidence of insanity, the prosecution has to prove beyond a reasonable doubt that the defendant was sane. The bill places the burden of proof on the defendant to prove insanity by clear and convincing evidence."
But CBS Denver
's Legal Analyst Karen Steinhauser has doubts, saying the Colorado constitution is clear in the due process of law.
“Colorado has always said the burden is on the prosecution to prove each and every element,” Steinhauser said.
Two high-profile Colorado cases thrust the issue into the spotlight.
On Feb. 23, 2010, Bruco Eastwood — a schizophrenic — shot and injured two students outside Deer Creek Middle School.
At his trial, a jury found Eastwood not guilty of attempted murder by reason of insanity. He was committed to a mental hospital. Once state mental-hospital doctors deem him safe to re-enter society and a judge concurs, Eastwood will be set free.
The second case is the Aurora theater shooting — a case where defendant James Holmes,25, is charged with killing 12 at the Century Aurora 16 theater. Lawyers for Holmes say he's mentally ill. As a result, some expect Holmes to enter a plea of not guilty by reason of insanity.
It will be up to the prosecution to prove that he was sane, that he did know right from wrong, at the time of the crime, a burden that McNulty says should shift to the defense.
“Thirty-five other states, plus the District of Columbia, plus the federal government, put the burden on the defendant to prove that he was not sane at the time that he committed the crime,” McNulty told CBS Denver
And even though a similar bill was ruled unconstitutional in the 1960s, McNulty is hopes this one will become law.
“Colorado has changed since then,” he said. “This is a different place, a different time, a different bill.”
Steinhauser pointed out that because the bill won’t be applied retroactively if it passes, it would not affect the Aurora theater shooting case.
The bill was up for its first vote in a House committee on Wednesday, according to the Denver Channel
. It passed without objection on a vote of 12-0, the legislative website Openstates.org