Bench Trials in Colorado Criminal Cases

In Colorado, a defendant can request a bench trial instead of a jury trial for most criminal cases. A bench trial is held before a judge instead of a jury. The judge, instead of the jury, decides the verdict, makes a ruling on the defendant's guilt. There are certain cases where a bench trial may be a better option for the defendant. In this article, our Colorado criminal defense lawyers will address:

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In Colorado, a defendant can request a bench trial instead of a jury trial for most criminal cases. A bench trial is held before a judge instead of a jury.

1. What is a bench trial?

A bench trial is a trial before a judge (as opposed to a jury). The judge acts as the finder of fact. In a jury trial, the jurors make determinations of fact, with the judge presiding over the trial and ruling on questions of law. In a bench trial, the judge decides both matters of law and matters of fact.

Bench trials are common in administrative law hearings and in some civil court cases. Bench trials are generally less common in criminal cases.

2. Do I have the right to a bench trial in a criminal case?

Individuals accused of a felony or misdemeanor have the right to a trial by jury in Colorado. However, a defendant may be able to waive their right to a jury trial. If they waive their right to a jury trial, their case may be heard in a bench trial.

If the defendant wants a bench trial, the prosecutor generally has to consent to a bench trial. The court also has to approve of a bench trial, making sure that the defendant's waiver is voluntary, and the defendant understands:

  • The waiver would apply to all issues that might otherwise be determined by a jury;
  • The jury would be composed of a certain number of people;
  • The jury verdict must be unanimous;
  • In a bench trial, the judge alone decides the verdict; and
  • The choice to waive the jury trial is the defendant's choice alone.1

After waiving your right to a trial by jury, you generally cannot withdraw your waiver of a jury trial. However, with consent of the prosecutor, the court has the discretion to permit withdrawal of the waiver prior to the beginning of trial.2

3. Should I have a bench trial or a jury trial?

In most criminal cases, the defendant may benefit from a jury. In a jury trial, the verdict has to be unanimous. That means if all but one juror thinks the defendant is guilty, the defendant may be able to go free because there is not a unanimous decision. The defendant and the defense attorney only have to convince one juror that the defendant is not guilty beyond a reasonable doubt to win their case. In a bench trial, there is only one person who decides the verdict.

However, there are some situations where a bench trial may be preferable. A jury is not always impartial and jurors may not give the defendant a fair hearing. Even if the jurors say they can be impartial, they may harbor prejudices. This could be due to the defendant's appearance, their public reputation, or because of the specific criminal charges.

If the defendant is covered in tattoos or piercings, some jurors may have a preconceived notion about what the defendant is like. Some jurors may assume someone is violent or a gang member because of their appearance. In some cases, a person charged with sex offenses or child abuse may be unfairly judged before the trial even begins.

A bench trial may also be a much faster way to conclude a criminal case. The defendant may want to speed up the trial so they can get back to their normal life. A bench trial may also be less expensive for the defendant and reduce the costs of a trial.

4. What happens during the bench trial?

A bench trial does not go through the long and complicated process of jury selection. A bench trial may begin with the judge hearing opening statements. The prosecutor is the first to present their opening statement, followed by the defense attorney.

Each side may then present their evidence to the court. This includes the prosecutor first calling their witnesses to provide testimony. The defense attorney then gets an opportunity to cross-examine the prosecution's witnesses. The defense then calls their own witnesses, who are then cross-examined by the prosecutor.

The plaintiff and defendant also present physical evidence and may present expert testimony in support of their case. After presenting evidence, the opposing counsel has the opportunity to respond. At the conclusion of presenting testimony and evidence, the prosecution and defense make their closing statements.

The judge deliberates at the conclusion of closing arguments to evaluate the evidence. The judge will make a decision based on the evidence presented and the applicable law. The judge may also make determinations of fact, deciding who to believe and what weight to give testimony. The judge will then deliver a verdict of guilty or not guilty. After the verdict, if the defendant is found guilty, the judge will sentence the defendant.

5. Can you appeal a bench trial decision?

Like a jury trial, the defendant can appeal the judge's verdict or sentencing. An appeal of a criminal conviction in Colorado is the judicial process to have a higher court review the case. In Colorado, the Colorado District Court can review cases from the county courts. The Court of Appeals reviews cases from the Colorado District Courts.

The appellate court can review the lower court's decision and decide whether to uphold the lower court's ruling, reverse the ruling, or remand the case back to the lower court to rule on specific aspects of the case. Appeals can be based on:

  • Errors of law
  • Errors by the judge
  • Prosecutorial misconduct
  • Evidence did not prove guilt beyond a reasonable doubt
  • Improper application of the law

Call us for help...

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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.

Legal References

  1. Colorado Rules of Criminal Procedure Rule 23(a)(5)
  2. C.R.S. 18-1-406




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