In Colorado, any defendant facing a misdemeanor or felony is entitled to a trial by jury. In a jury trial, the judge presides over the criminal court proceedings and the jury makes determinations of fact. At the end of a criminal trial, the jury will make a finding of guilty or not guilty based on the court’s instructions.
As part of the criminal court process in Colorado, the jury trial takes place after the arraignment, preliminary hearing and pretrial conferences. If the defendant is convicted, the trial will be followed by a sentencing hearing.
In this article, our Colorado criminal defense lawyers will address:
- 1. Do I have the right to a jury trial?
- 2. Should I have a jury trial or bench trial?
- 3. How is the jury selected?
- 4. What happens during the jury trial?
1. Do I have the right to a jury trial?
Every person accused of a felony in Colorado has the right to be tried by a jury of twelve whose verdict shall be unanimous.1 Every person accused of a misdemeanor in Colorado is entitled to be tried by a jury of six.2
Individuals accused of a felony or misdemeanor may waive their right to a jury trial, except those accused of the most serious class 1 felony charges.3 If a defendant waives their right to a jury trial, they may be tried by a judge in a bench trial. However, the prosecutor has to consent to a bench trial unless the defendant can show that their rights may be violated.
After waiving your right to a trial by jury, you do not have the right to withdraw your waiver. However, the court has the discretion to permit withdrawal of the waiver prior to the beginning of trial.4
Petty offenses are less serious criminal charges than misdemeanors or felonies. This includes offenses such as littering, or theft of property valued at less than $50. Defendants charged with a petty offense have a right to trial by a jury of three if they request a jury trial in writing within 21 days of their not guilty plea and pay the jury fee of $25.
2. Should I have a jury trial or bench trial?
The alternative to a jury trial is a bench trial. In a bench trial, the judge acts as the finder of fact. The judge will decide the outcome of your case and determine if you are guilty or not guilty. While most criminal defendants prefer a jury trial, there may be some occasions where a bench trial is preferable.
In some situations, a jury may not give the defendant a fair chance. This may be because of the defendant’s appearance, their public reputation, or because the criminal charges are seen as offensive. If the defendant is heavily tattooed or pierced or looks like a drug user, the jury may not be able to be impartial. Criminal charges like child abuse or sex offenses may also make it more difficult for a jury made up of public citizens to be impartial.
A bench trial is also generally much faster, which can result in lower costs for the defendant. If the trial relies on complicated evidence, an experienced judge may be able to more clearly interpret the evidence. However, just because a judge is supposed to be impartial does not mean that a bench trial is always the best option.
If you have any questions about whether a bench trial may be better for your case, talk to your Colorado criminal defense attorney.
3. How is the jury selected?
Jury selection begins with a pool of people who show up for jury duty. If a case is going to trial, the judge may call in a group of jurors to answer a questionnaire giving information about the individual jurors. This includes the juror’s educational level, occupation, prior jury service, prior court experience, and other relevant information.
The prosecutor and defense attorney have a chance to question the individual jurors during a process called “voir dire.” During voir dire, the lawyers are trying to determine if the jurors can be impartial, or if they may be prejudicial or beneficial to their case. This includes finding out if the juror knows anyone involved in the case or will be unable to be impartial in evaluating the case. The lawyers can challenge a juror for cause to be dismissed from the jury.5
The court shall sustain a challenge for cause based on a number of factors, including:
- The juror has a relationship with a defendant or attorney
- The juror has been in a civil action against the defendant
- The juror was a witness to a related matter
- The juror shows a bias towards the defendant or the state
- The juror is unqualified to serve
The attorneys also have a limited number of challenges that do not have to be for cause. These are called “peremptory challenges.” In a death penalty case, the prosecutor and defense attorney each have 10 peremptory challenges. In all other criminal cases where the defendant may face imprisonment, the attorneys have 5 peremptory challenges. In all other criminal cases, each side has 3 peremptory challenges.6
4. What happens during the jury trial?
After the jury is selected, the lawyers give their opening statements. In a criminal trial, the prosecutor is the first to present their opening statement. The defense attorney follows the prosecutor, giving their opening statement on the case.
Each side calls witnesses. The prosecutor first calls their witnesses to provide testimony. The defense attorney then gets an opportunity to cross-examine the prosecution’s witnesses. The defense calls their own witnesses, who are later cross-examined by the prosecutor. Each side may also present evidence or expert testimony in support of their case, with the other side having an opportunity to respond.
After all testimony and evidence have been presented, the prosecution and defense make their closing statements.
The judge gives the jury instructions on the specific criminal charges, elements of the offense, and explains the standard they are to use to evaluate the case. The jury confers in order to come up with a verdict of guilty or not guilty. In Colorado, in order to convict the defendant, the jury must come to a unanimous decision with all jurors in agreement.7
If you are facing a criminal jury trial in Colorado, please contact us at Colorado Legal Defense Group.
Read our article on attorney-client privilege in Colorado.
- C.R.S. 18-1-406(1)
- C.R.S. 18-1-406(2)
- C.R.S. 18-1-406(3)
- C.R.S. 16-10-103
- C.R.S. 16-10-104
- C.R.S. 16-10-108