Prosecutors argued that the notebook and its contents are fair game. He planned to be dead or in prison after the shooting rampage at an opening night showing of "The Dark Night Rises," they said, and had no plans to undergo therapy.
But Deputy District Attorney Rich Orman said even if prosecutors convinced the judge the notebook isn't protected, defense attorneys would likely appeal the decision.
If Holmes' mental health becomes an issue in the case, Orman said Holmes would have to waive privilege and prosecutors likely would gain access to the notebook.
Holmes has been charged with 142 counts, including murder and attempted murder, stemming from the July 20 attack at an Aurora theater that killed 12 and wounded 58 others. Arapahoe County District Judge William B. Sylvester on Thursday approved prosecutors' request to add 10 additional charges and amend 17 others.
The hearing was cut short by the prosecution's decision not to seek the notebook. The lead police investigator and another detective had been expected to take the stand to help prosecutors make their case for why they should be able to see the notebook, which purportedly contains descriptions of a violent attack.
Last month, Orman said in court Aurora police major crimes detective Craig Appel would testify that Holmes bought a ticket at the theater, took a seat, then walked out of an emergency exit, propping the door open so he could come back and start shooting. Orman said that detective Tom Welton would testify that it was Holmes who posted profiles on Match.com and AdultFriendFinder.com before the shooting with the tagline, "Will you visit me in prison?"
In the days following the shooting, bloggers posted profiles reportedly found on those sites showing the same prison comment accompanied by a picture of a man with orange hair who resembled Holmes. In one posting under the screen name, ClassicJim, favorite movies listed include the Jim Carrey cult classic "Dumb and Dumber," and "Star Wars, etc."
Holmes was a graduate student in the neuroscience program at the University of Colorado. Prosecutors said Holmes did poorly on a key exam and withdrew on June 10 while he was stockpiling guns, ammunition and body armor ahead of the shooting.
Holmes had also applied at graduate neuroscience programs at Iowa, University of Illinois, Texas A&M, Kansas, Michigan and Alabama.
Holmes was accepted at the University of Illinois, Urbana-Champaign with an offer of free tuition and $22,000 a year. But Iowa rejected him with a "Do NOT offer admission under any circumstances" notation.
University of Alabama at Birmingham also rejected him with one professor noting that "he may be extremely smart, but difficult to engage."