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Colorado Criminal Law – How The Jury System Works In Colorado – What Happens To Jurys, – Before, During, and After A Jury Trial In Colorado

Introduction: The Constitutional right to a jury trial is one of the most precious rights that United States citizens hold.  However that right – including the procedures that surround the right to a jury trial are not well understood by these same citizens.  This web page is directed at assisting ordinary citizens in understanding the foundations and procedures underlying this important right.

Right to Jury Trial/Number of Jurors/Verdict

The Right to a Jury Trial in Colorado

(1) Every person accused of a felony has the right to be tried by a jury of twelve.

However, except in class1felonies, before the jury is sworn, the defendant may elect a jury of less than twelve but no fewer than six, with the consent of the court.

(2) Every person accused of a misdemeanor has the right to be tried by a jury of six.

However, before the jury is sworn, the defendant may elect a jury of less than six but no fewer than three, with the consent of the court.

(3) Every person accused of a class 1 or class 2 petty offense has the right to be tried by a jury of three, but up to 6 if requested in the jury demand, if he or she:

(I) Files a written jury demand within twenty days after entry of a plea;

(II) Tenders twenty-five dollars to the court within twenty days after entry of a plea.

The Fee may be waived if the defendant is indigent. The Fee is refunded if the charge is dismissed; the Defendant is acquitted; or the Defendant waives jury trial at least 10 days before the scheduled date.

The Right to Waive of a Jury Trial – The DA Must Consent

(I) The person accused of a felony or misdemeanor may, with the consent of the prosecution, waive a trial by jury in writing or orally in court. Trial shall then be to the court.

However if the prosecution objects:

A defendant does not have a constitutional right to waive a jury trial and may override the People’s objection to a bench trial only if he establishes that a jury trial would violate his right to due process.

In one case – People v. McKeel, – the Colorado Supreme Court makes absolute its order to show cause why the trial court did not exceed its jurisdiction in granting the defendant’s motion for a bench trial over the prosecution’s objection. 

The defendant, who was charged with kidnapping, assault, menacing and habitual counts, moved for a bench (A Judge Only) trial because (1) he feared that he would be impeached with his prior convictions if he testified, and (2) the evidence at trial would likely detail his history of drug abuse and his status as a confidential informer.  The court held that:

– it is not a due process violation for a defendant to be subject to impeachment based on his prior felony convictions;

– the risk of impeachment with prior convictions may chill a defendant’s willingness to testify, but it is not a due process violation; and

– there are procedures in place – such as voir dire, challenges for cause, peremptory challenges, and limiting instructions – that protect the due process rights of the accused.

As a result, the trial court exceeded its jurisdiction in this when it determined that a jury trial would subject the defendant to a constitutionally unfair proceeding.

(II) The court shall not proceed with a trial to the court after waiver of jury trial without first determining:

Under Crim. P. Rule 11(b).

(a) That the defendant’s waiver is voluntary;

(b) That the defendant understands that:

i. The waiver would apply to all issues that might otherwise need to be determined by a jury including those issues requiring factual findings at sentencing;

ii. The jury would be composed of a certain number of people;

iii. A jury verdict must be unanimous;

iv. In a trial to the court, the judge alone would decide the verdict;

v. The choice to waive a jury trial is the defendant’s alone and may be made contrary to counsel’s advice

(III) In a proceeding where the waiver of a jury trial is part of a determination preceding the entry of a guilty or nolo contendere plea, “The court shall not accept a plea of guilty or a plea of nolo contendere without first determining that the defendant has been advised of all the rights set forth in Rule 5(a)(2) and also determining:

(1) That the defendant understands the nature of the charge and the elements of the offense to which he is pleading and the effect of his plea;

(2) That the plea is voluntary on defendant’s part and is not the result of undue influence or coercion on the part of anyone;

(3) That he understands the right to trial by jury and that he waives his right to trial by jury on all issues;

(4) That he understands the possible penalty or penalties

(5) That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;

(6) That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads;

(7) That in class 1 felonies, or where the plea of guilty is to a lesser included offense, a written consent shall have been filed with the court by the district attorney.”

Crim P Rule 23(6). Withdrawal of The Waiver Of A Jury Trial In Colorado

A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, with the consent of the prosecution, may permit withdrawal of the waiver prior to the commencement of the trial.

The Waiver of Minimum Number of Jurors in Colorado Jury Trial Cases

The Court may excuse any juror for reason of illness or other cause that causes him or her to become unable to continue until a verdict is reached.

The trial can continue if there is no juror available to replace the excused juror:

Not allowed in class 1 felonies;

For felony cases other than class 1, the defendant and the prosecution, at any time before verdict, may stipulate in writing or on the record in open court, with approval of the court, that the jury shall consist of less than twelve but no fewer than six in felony cases;

For misdemeanor cases, there must be less than six but no fewer than three; and the jurors remaining shall proceed to try the case and determine the issues.

Jury Verdicts

All jury verdicts must be unanimous.

Jury Questionnaires

a. In General, each potential juror shall be given a jury questionnaire on or before the first day of the term of trial or grand juror service.

(1) General contents of questionnaire include:

a.   Name, sex, date of birth, age, residence, and marital status;

b.   Number and ages of children;

c.   Educational level and occupation;

d.   Whether the juror is regularly employed, self-employed, or unemployed;

e.   Spouse’s occupation;

f.    Previous juror service;

g.   Present or past involvement as a party or witness in a civil or criminal proceeding; and

h.   Information the jury commissioner deems appropriate after consulting with the judges in the judicial district.

(2) The questionnaire shall also contain a declaration by the juror that the information supplied is, to the best of the juror’s knowledge including:

a.   A place for the signature of the juror.

b.   A notice that the completed questionnaire is not a public record shall appear prominently on its face.

(3) The jury commissioner shall provide to the trial judge and council for use in jury selection:

a.   Copies of the appropriate completed questionnaires with the exception of the names of qualified jurors and disclosures made during jury selection,

b.   Information on the questionnaires shall be held in confidence by the court, the parties, trial counsel, and their agents.

c.   Upon the completion of jury selection, the parties and their counsel shall return all copies of the completed questionnaires to the court for immediate destruction.

d.   The original completed questionnaires shall not constitute a public record.

(4) A person shall be notified that he is excused from service if their answers to a questionnaire indicate that the person is:

a.   Disqualified or disabled from performing jury service; or

b.   In the opinion of the court, state grounds sufficient to be excused from jury service.

Additional information for Colorado Domestic Violence Cases and Sex Offender Cases

1.   On complex domestic violence felony trials, the Court will often provide the jury with a specific questionnaire that addresses sensitive issues.

2.  A potential juror may need to be questioned outside the presence of the jury panel on these sensitive issues so as to avoid prejudicing or influencing the entire venire.

3. Some sample questions are:

a)   Have you, a family member, or close friend been a victim of domestic violence? Please explain.

b)  Would this prevent you from being a fair and impartial juror?

c)  Do you have any strong feelings about domestic violence that would prevent you from being a fair and impartial juror?

d)  Have you, a family member, or close friend been a victim of sexual abuse? Please explain.

Juror Qualifications/Disqualifications

Juror Qualifications

Qualifications: (1) Any person who is a United States citizen and resides in a county or lives in such county more than fifty percent of the time, whether or not registered to vote, shall be qualified to serve as a trial or grand juror in such county. Citizenship and residency status on the date that the jury service is to be performed shall control.

Eligibility–prohibition of discrimination:

1.   Juror service is a duty that every qualified person has an obligation to perform when selected.

2.   All trial and grand jurors shall be selected at random from a fair cross section of the population of the area served by the court. All selected and summoned jurors shall serve, except as otherwise provided in this article or by court rule.

3.   No person shall be exempted or excluded from serving as a trial or grand juror because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, economic status, or occupation

4.   A person with a disability shall serve except: As otherwise provided by statute

Where the court finds that such person’s disability prevents the person from performing the duties and responsibilities of a juror.

Before dismissing a person with a disability, the court shall interview the person to determine the reasonable accommodations, if any, consistent with federal and state law, that the court may make available to permit the person to perform the duties of a juror.

5.   The court shall strictly enforce the provisions of this article; except that the Supreme Court may provide by rule for the exclusion in a criminal trial of a juror who is employed by a public law enforcement agency or public defender’s office

Juror Disqualifications

Under the age of 18;

Inability to read, speak, and understand the English language;

Inability, by reason of a physical or mental disability, to render satisfactory juror service;

Person claiming a disqualification must not be able to perform a sedentary job requiring close attention for three consecutive business days for six hours per day, with short breaks in the morning and afternoon session

Responsible for the daily care of a permanently disabled person living in the same household if performance of juror service would cause a substantial risk of injury to the health of the disabled person;

Residing outside the country with no intent to return within 12 months;

Selection and service as a juror within the previous 12 months or scheduled in the next 12 months;

Appearance as a prospective juror in state court within the current calendar year; This disqualification does not apply to emergency circumstances.

A person will be temporarily excused if service would cause extreme physical hardship to him or her or to another person under his or her direct supervision

This applies even if the person does not have sole responsibility for the care of another person.

The determination is made by the judge or jury commissioner.

Undue physical hardship is limited to a person who:

Would be required to abandon a person under his or her direct care or supervision because of the inability to obtain an appropriate substitute care provider during the period of jury service; or Would suffer physical hardship possibly resulting in illness or disease.

The court or jury commissioner may require a physician’s statement or other evidence.

Once the temporary excuse expires, a person will again become eligible

This section does not apply to impaneled or deliberating jurors

The Supreme Court may provide by rule for the exclusion in a criminal trial of a juror who is employed by a public enforcement agency or public def en der’s  office.

Alternate Jurors

Alternate Jurors are permitted and in fact should be seated in jury trials lasting more than a few days.

The Prosecution and Defense must be informed what juror will be the alternate juror in advance as trial for fairness and tactical decision regarding preemptory challenges.

Some judges prefer not to inform the alternate juror they are an “alternate” until they are dismissed for jury deliberations so as to keep the attention of the alternate juror.

The court may direct that a sufficient number of jurors in addition to the regular jury be called and impaneled to sit as alternate jurors.

Alternate jurors in the order in which they are called shall replace jurors who become unable or disqualified to perform their duties.

Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors.

An alternate juror shall not be discharged until the jury renders its verdict or until such time as determined by the court.

When alternate jurors are impaneled, each side is entitled to one peremptory challenge for each alternate to be selected, and such additional peremptory challenges may be exercised as to any prospective jurors.

The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors.

Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.

An alternate juror who does not replace a principal juror shall not be discharged until the jury renders its verdict or until such time as determined by the court.

If the court and the parties agree, alternate jurors may deliberate and participate fully with the principal jurors in considering and returning a verdict.

If one or two alternate jurors are called each side is entitled to one peremptory challenge in addition to those otherwise allowed. The additional peremptory challenge may be exercised as to any prospective juror.

Juror Compensation

The goal is to prevent financial hardship, so where financial hardship exists, the court shall attempt to place the juror in the same financial position as such juror would have been were it not for the performance of juror service.

Unemployed persons shall be reimbursed by the state for reasonable travel, child care, and other necessary out-of-pocket expenses, except food, for the first three days of juror service or any part thereof, not to exceed 50 dollars per day.

Jury Orientation/Examination of Jurors

Juror Orientation

Orientation and examination of jurors shall be conducted to inform prospective jurors about their duties and to obtain information to facilitate an intelligent exercise of challenges for cause and peremptory challenges.

(1) The jury commissioner is authorized to examine and, when appropriate, excuse prospective jurors who do not satisfy the statutory qualifications for jury service, or who are entitled to a postponement, or as otherwise authorized by appropriate court order.

(2) The judge shall explain to the jury in plain language:

The grounds for challenge for cause;

Each juror’s duty to volunteer information that would constitute a disqualification or give rise to a challenge for cause;

The identities of the parties and their counsel;

The nature of the case using applicable instructions if available or, alternatively a joint statement of factual information intended to provide a relevant context for the prospective jurors to respond to questions asked of them. Alternatively, at the request of counsel and in the discretion of the judge, counsel may present such information through brief non-argumentative statements;

General legal principles applicable to the case including the presumption of innocence, burden of proof, definition of reasonable doubt, elements of charged offenses and other matters that jurors will be required to consider and apply in deciding the issues.

(3) The judge shall ask prospective jurors questions concerning their qualifications, and the parties or their counsel shall be permitted to ask additional questions. The methods used are at the discretion of the judge. Also, the judge may reasonably limit the time available to parties and limit or terminate improper examinations.

(4) Jurors shall not be required to disclose personal locating information, such as address or place of business in open court and such information shall not be maintained in files open to the public. The trial judge shall assure that parties and counsel have access to appropriate and necessary locating information.

(5) Once the jury is impaneled, the judge shall again explain in more detail:

The general principles of law applicable to criminal cases;

The procedural guidelines regarding conduct by jurors during the trial; and

Case specific legal principles and definitions of technical or special terms expected to be used during the presentation of the case.

An orientation and examination shall be conducted to inform prospective jurors about their duties and service and to obtain information about prospective jurors to facilitate an intelligent exercise of challenges for cause and peremptory challenges. C.R.C.P. 47.

(1) The jury commissioner is authorized to examine and, when appropriate, excuse prospective jurors who do not satisfy the statutory qualifications for jury service, or who are entitled to a postponement, or as otherwise authorized by appropriate court order.

(2) When prospective jurors have reported to the courtroom, the judge shall explain to them in plain and clear language:

The grounds for challenge for cause;

Each juror’s duty to volunteer information that would constitute a disqualification or give rise to a challenge for cause;

The identities of the parties and their counsel;

The nature of the case, utilizing the parties’ CJI(3d) Instruction 2:1 or, alternatively, a joint statement of factual information intended to provide a relevant context for the prospective jurors to respond to questions asked of them. Alternatively, at the request of counsel and in the discretion of the judge, counsel may present such information through brief non-argumentative statements.

General legal principles applicable to the case, including burdens of proof, definitions of preponderance and other pertinent evidentiary standards and other matters that jurors will be required to consider and apply in deciding the issues.

(3) The judge shall ask prospective jurors questions concerning their qualifications to serve as jurors. The parties or their counsel shall be permitted to ask the prospective jurors additional questions. In the discretion of the judge, juror questionnaires, poster boards and other methods may be used. In order to minimize delay, the judge may reasonably limit the time available to the parties or their counsel for juror examination. The court may limit or terminate repetitious, irrelevant, unreasonably lengthy, abusive, or otherwise improper examination.

(4) Jurors shall not be required to disclose personal locating information, such as address or place of business in open court and such information shall not be maintained in files open to the public. The trial judge shall assure that parties and counsel have access to appropriate and necessary locating information.

(5) Once the jury is impaneled, the judge shall again explain in more detail:

The general principles of law applicable to civil cases;

The procedural guidelines regarding conduct by jurors during the trial; and Case specific legal principles and definitions of technical or special terms expected to be used during the presentation of the case.

Juror Notebooks

Juror notebooks shall be available during all felony trials and deliberations.

The parties shall confer about the items to be included and make a joint submission to the court on the items to be submitted.

In general, there are 3 parts to a juror notebook including:

1.   Statement of the case (charges, date of offense, and pleading);

2.   Potential list of witnesses (for both prosecution and defense);

3.   Potential list of Exhibits (very general list).

Juror Notebooks: Shall be available during trial and deliberation to aid jurors in the performance of their duties.

Order of Jury selection

The clerk shall draw by lot and call the number of jurors that are to try the cause plus such an additional number as will allow for all peremptory challenges permitted.

After each challenge for cause sustained, another juror shall be called to fill the vacancy and may be challenged for cause.

When the challenges for cause are completed, the clerk shall make a list of jurors remaining, in the order called, and each side, beginning with plaintiff, shall indicate thereon its peremptory challenge to one juror at a time in regular turn until all peremptory challenges are exhausted or waived.

The clerk shall then swear the remaining jurors, or so many of them in the order listed as will make up the number fixed to try the cause, and these shall constitute the jury.

Jury Selection in General

Traditional Criminal

Questioning is done of the actual jurors that are in the jury box.

Modified Civil

The entire group of jurors (venue) is questioned at one time.

Generally, the prosecution and defense are provided with a set amount of time to question the panel.

Juror Seating Chart

The clerk will prepare a jury seating chart noting what juror number will sit in what chair in the jury box.

Depending on the method of jury selection, the jury chart will denote where all jurors will be seated in the courtroom.

Judges will typically ask the majority of the questions and are treated with respect during the process.

The court is always respectful of the jury panel’s time. Pre-trial planning for the jury selection assists in this process.

The panel must be advised of their duty and grounds for challenges for cause before any potential jurors are questioned.

Additional Questions for Domestic Violence include:

Have you, a family member, or close friend been a victim of domestic violence? Please explain.

Would this prevent you from being a fair and impartial juror?

Do you have any strong feelings about domestic violence that would prevent you from being a fair and impartial juror?

Have you, a family member, or close friend been a victim of sexual abuse? Please explain.

Challenges by the Parties

Challenges for Cause

1.   The court shall sustain a challenge for cause on one or more of the following grounds:

a.   Absence of any qualification prescribed by statute to render a person competent as a juror;

b.   Relationship within the third degree, by blood, adoption, or marriage, to a defendant or to any attorney of record or attorney engaged in the trial of the case;

c.   Standing in the relation of guardian and ward, employer and employee, landlord and tenant, debtor and creditor, or principal and agent to, or being a member of the household of, or associated in business with, or surety on any bond or obligation for, any defendant;

d.   The juror is or has been a party adverse to the defendant in a civil action, or has complained against or been accused by him in a criminal prosecution;

e.   The juror has served on the grand jury which returned the indictment or on a coroner’s jury which inquired into the death of a person whose death is the subject of the indictment or the information, or on any other investigatory body which inquired into the facts of the crime charged;

f. The juror was a juror at a former trial arising out of the same factual situation or involving the same defendant;

g.   The juror was a juror in a civil action against the defendant arising out of the act charged as a crime;

h.   The juror was a witness to any matter related to the crime or its prosecution;

i. The juror occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted;

j. The existence of a state of mind in a juror manifesting a bias for or against the defendant, or for or against the prosecution, or the acknowledgement of a previously formed or expressed opinion regarding the guilt or innocence of the defendant shall be grounds for disqualification of the juror, unless the court is satisfied that the juror will render an impartial verdict based solely upon the evidence and the instructions of the court;

k.   The juror is an employee of a public law enforcement agency or public defender’s office.

2.   If either party desires to introduce evidence, other than the sworn responses of the prospective juror, for the purpose of establishing grounds to disqualify or challenge the juror for cause, such evidence shall be heard and all issues related thereto shall be determined by the court out of the presence of the other prospective jurors.

All matters pertaining to the qualifications and competency of the prospective jurors shall be deemed waived by the parties if not raised prior to the swearing in of the jury to try the case,

Except that the court for good cause shown or upon a motion for mistrial or other relief may hear such evidence during the trial out of the presence of the jury and enter such orders as are appropriate.

Preemptory Challenges

Crim. P. Rule 24(d). Number of challenges

Capital cases – 10 for each side (For purposes of rule 24, a capital case is a case in which a class 1 felony is charged)

More than 1 defendant – plus 3 for each additional defendant, not to exceed 20.

Cases with punishment of imprisonment – 5 each side

More than 1 defendant – plus 2 for each additional defendant, not to exceed 15.

All other cases – 3 for each side

More than 1 defendant – plus 1 for each additional defendant, not to exceed 10.

” Each preemptory challenge made by a defendant will be considered as the joint challenge of all defendants.

” Claims of insanity have no effect on the number of challenges.

” For good cause shown, the court may at any time add challenges to either or both sides.

” Challenges shall be exercised alternately, the first challenge by the prosecution.

” Challenged jurors shall be excused, and another juror from the panel shall replace the excused juror

” Counsel waiving further challenges to those jurors in the jury box may thereafter exercise challenges only as to jurors subsequently called into the jury box.

This does not reduce the total number of challenges available to either side.

Challenges to Array/Pool – Crim. P. Rule 24(c).

Challenge to Pool.

1.   Upon the request of the defendant or the prosecution in advance of the commencement of the trial, the defendant or the prosecution shall be furnished with a list of prospective jurors who will be subject to call in the trial.

2.   Either the prosecution or the defendant may challenge the pool on the ground that there has been a substantial failure to comply with the requirements of the law governing the selection of jurors. Such challenge must be made in writing setting forth the particular ground upon which it is based and shall be accompanied by one or more affidavits specifying the supporting facts and demographic data. The challenge must be filed prior to the swearing in of the jury selected to try the case.

3.   If the court finds the affidavit or affidavits filed under subsection (2) of this section, if true, demonstrate a substantial failure to comply with the “Uniform Jury Selection and Service Act”, the moving party is entitled to present in support of the motion the testimony of any person responsible for the implementation of the “Uniform Jury Selection and Service Act.” Any party may present any records used in the selection and summoning of jurors for service, and any other relevant evidence. If the court determines, by a preponderance of the evidence, that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with the “Uniform Jury Selection and Service Act”, the court shall discharge the jury panel and stay the proceedings pending the summoning of a new juror pool or dismiss an indictment, information, or complaint, or grant other appropriate relief. C.R.C.P. 47 (c).

Challenge to Array.

1.   Any party may challenge the array of jurors by motion setting forth particularly the causes of challenge; and the party opposing the challenge may join issue on the motion, and the issue shall be tried and decided by the court.

Oath of Jury  C.R.C.P. 47(I).

Oath of Jurors: As soon as the jury is completed, an oath or affirmation shall be administered to the jurors in substance:

That you and each of you will well and truly try the matter at issue between, the plaintiff, and , the defendant, and a true verdict render, according to the evidence.

Jury Sequestration Crim. P. Rule 24(f).

The court should only sequester jurors in extraordinary cases.

Otherwise, jurors should be permitted to separate during all trial recesses, both before and after the case has been submitted to the jury for deliberation. Cautionary instructions as to their conduct during all recesses shall be given to the jurors by the court.

The jurors shall be in the custody of the bailiff whenever they are deliberating and at any other time as ordered by the court.

If the jurors are permitted to separate during any recess of the court, the court shall order them to return at a day and hour appointed by the court for the purpose of continuing the trial, or for resuming their deliberations if the case has been submitted to the jury.

Jury View of the Scene  C.R.C.P. 47(k).

Examination of Premises by Jury. If in the opinion of the court it is proper for the jury to see or examine any property or place, it may order the jury to be conducted thereto in a body by a court officer.

A guide may be appointed.

The court shall, in the presence of the parties, instruct the officer and guide as to their duties.

While the jury is thus absent, no person shall speak to it on any subject connected with the trial excepting only the guide and officer in compliance with such instructions. The parties and their attorneys may be present.

Juror Questions  – Crim P. Rule 24(g).

Jurors shall be allowed to submit written questions to the court to ask of witness during trial. However, the trial court has the discretion to Prohibit or limit questioning in a particular trial for:

Reasons relating to the severity of the charges; The presence of significant suppressed evidence; or Other good cause.

Allowing jurors to ask witnesses questions though the court does not violate a defendant’s right to a fair trial and impartial jury.

Trial Order

a.   Jury Selection/Voir Dire:

This includes Jury Questionnaires.

The Judge will remind the final selected panel jurors about:

i.   Note taking.

ii.   They have the opportunity to ask questions.

b.   Opening Statements:

Prosecution

Defense (optional)

i.   The Judge will ask the defense if they are planning on an opening prior to announce it is the Defenses turn in open court.

c.   Prosecution’s Case in Chief:

Endorsed witnesses are called by the Prosecution.

The Prosecutor will ask the questions of the witnesses first.  The Defense attorney then has an opportunity to ask questions. The Prosecutor then has an opportunity for re-direct. On occasion, the Court may permit “re-cross” on newly elicited topics.

d.   Judgments of Acquittal Motions by Defense: Crim. P. Rule 29: “HalfTime Motions”

Defense counsel will move to dismiss the charges on a variety of grounds. They may include:

i.   No probable cause.

ii.   Prosecution has failed to elicit an element(s) of the charged offense.

The Judge will inquire of Defense if they have any judgment of acquittal motions at this time.

Standard: The prosecution must establish through direct and circumstantial evidence substantial and sufficient evidence that the defendant is guilty of the charge beyond a reasonable doubt. The evidence must be viewed in the light most favorable to the prosecution.

e.   Defense’s Case:

Curtis Advisement

You must advise a Defendant of their right to testify on their own behalf and that it is solely their decision. The court should seek to assure that waiver is voluntary, knowing, and intentional.

ii.   Specifically, you are required to advising the defendant outside the presence of the jury:

1.   that he has a right to testify, that if he wants to testify then no one can prevent him from doing so,

2.   that if he testifies the prosecution will be allowed to cross-examine him, that if he has been convicted of a felony the prosecutor will be entitled to ask him about it and thereby disclose it to the jury, and that if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon his credibility.

3.   In connection with the privilege against self- incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.

iii.   In longer trials, you may wish to do this advisement after the prosecution has rested, and then again near the end of the defense’s presentation of evidence.

Endorsed witnesses are called by the Defense.

i.   The same order of questioning occurs.

f. Prosecutions’ Rebuttal Case:

The Prosecution has the burden of proof in a criminal trial.

Therefore, they have the opportunity to present rebuttal evidence to the Defense’s case presentation and witness testimony.

Generally, rebuttal witnesses do NOT need to be endorsed.

Jury Instructions:

Jury instructions are one of the most important areas of a jury trial. Improper jury instructions can often lead to reversals on appeal. Taking time to verify you are instructing the jury correctly is imperative.  Often times the Court will “rely on” or “defer” to the attorneys to provide accurate jury instructions. You should take an  active role in this process.

Some Judges prepare the jury instructions themselves. This is done frequently in misdemeanor trials.

The better practice may be to require submission of the jury instructions by the Prosecution in advance in trial, or at least on the first day of trial.

You should also require defense to submit any proposed jury instructions. Often times the Defense will request lesser included offenses or defense instructions. These should be submitted prior on the first day of trial, or at the end of the Prosecution’s case.

i.   A Defense’s “Theory of the Case” is the exception to this rule, as they need to first present their case before they can prepare this instruction.

ii.   The Court is required to assist a Defense attorney in the preparation of their “Theory of Defense.”

Inquire if the parties will waiver the court reporter typing the jury instructions being read to the jury.

The instructions in their entirety must be read to the jury. Warn the jury if the instructions will take a considerable amount of time to read.

You may wish to offer a few “comments” prior to reading jury instructions. Caution should be taken that you do not “explain” the jury instructions, as they should speak for themselves.

Closing Arguments:

There are three parts to closing arguments:

i.   Prosecution’s “first” closing argument.

ii.   Defense’s closing argument.

iii.   Prosecution’s “rebuttal” argument.

1.   The Judge will be familiar with the law regarding what proper rebuttal argument and what may be burden is shifting.

A prosecutor’s comment on the lack of evidence confirming a defendant’s theory of the case is permissible and does not shift the burden of proof.

While it is improper to comment intentionally on a defendant’s failure to testify, it is permissible to comment on the lack of evidence confirming defendant’s theory of the case.

Swearing in Bailiff for Jury Deliberations:

The Bailiff(s) must be sworn in on the record after closing arguments are completed.

Jury Deliberations:

Dismissing the Alternate Juror.

The Judge will remind the juror they cannot discuss the case with anyone until the jury reaches a decision, as they may be called back to deliberate if a juror becomes unavailable and then obtain contact information for this dismissed alternate juror.

Access to Evidence – see section below.

Questions by Jurors – see section below.

Jury Verdict:

The court is required, Under the Victim’s Right Amendment, to allow the victim to be present for the jury verdict.

You may wish in inquire of the Prosecutor prior to verdict, outside the presence of the jury, if they have made arrangement to inform the victim, and how long it will take the victim to arrive for the verdict.

The Judge will inquire of the parties if they wished to have the jury polled individually.

Discharge of Jury:

The Judge will give the final mandatory “discharge” instruction. and then Thank the jury.

The Judge will ask the jury to remain in the deliberation room so that the Judge can come in and personally thank them. Juror appreciation certificates can also be handed out at this time.

ii.   In the Judge’s discussions with the jurors, the Judge may wish to answer questions they have. When there is a conviction, jurors want to know the possible sentence and/or when sentencing will take place. The Judge may tell them the sentencing range.

iii.   The clerk will contact the alternate juror to inform them of the jury’s decision and that they are dismissed.

Revocation of Bonds When Convicted/Post Trial Bond:

If a Defendant was required to post bond, the Defendant must have consent of his surety to remain on bond.

Be familiar with convictions that require revocation of bond and being held without bond:

For factors the Court to consider on revoking bond after conviction See  C.R.S. § 16-4-201.

n.   Defense’s Request to Set Aside Verdict or New Trial:

Motion to Set Aside Verdict:

i.   The standard is the same as during “half time motions”, except the Court must consider all the evidence, whether it is sufficient to support a conclusion by a reasonable person. Trial courts must afford the prosecution “the benefit of every reasonable inference which might fairly be drawn from the evidence.”

Motions for New Trial or Other Relief:

i.   Optional. The party claiming error in the trial of any case may move the trial court for a new trial or other relief. The party, however, need not raise all the issues it intends to raise on appeal in such motion to preserve them for appellate review. If such a motion is filed, the trial court may dispense with oral argument on the motion after it is filed.

ii.   Directed by the Court. The court may direct a party to file a motion for a new trial or other relief on any issue. The failure of the party to file such a motion when so ordered shall preclude appellate review of the issues ordered to be raised in the motion. The party, however, need not raise all the issues it intends to raise on appeal in such motion to preserve them for appellate review.

iii.   The court may grant a defendant a new trial if required in the interests of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of.

1.   A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. A motion for a new trial based upon newly discovered evidence shall be filed as soon after entry of judgment as the facts supporting it become known to the defendant, but if a review is pending the court may grant the motion only on remand of the case.

2.   A motion for a new trial other than on the ground of newly discovered evidence shall be filed within fifteen days after verdict or finding of guilt or within such additional time as the court may fix during the fifteen-day period.

The order of the trial court granting the motion is a final order reviewable on appeal.

Jury Acquittal:

You need to discharge any applicable bond the Defendant has posted.

You should inform the Defendant he may have a right to seal his case due to his acquittal.

Sentencing:

All domestic violence cases will require victim notification prior to sentencing under the Victim’s Right Amendment. You will need to set the case over for sentencing so that the victim can be notified by the Prosecution.

Jury Instructions

Crim. P. 30 A party who desires instructions shall tender his proposed instructions to the court in duplicate, the original being unsigned.

All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury. Only the grounds so specified shall be considered on motion for a new trial or on review.

Before argument the court shall read its instructions to the jury, but shall not comment upon the evidence. Such instructions may be read to the jury and commented upon by counsel during the argument, and they shall be taken by the jury when it retires.

 All instructions offered by the parties, or given by court, shall be filed with the clerk and, with the endorsement thereon indicating the action of the court, shall be taken as a part of the record of the case.

Jury Deliberations C.R.C.P. 47(l).

After hearing the charge the jury may either decide in court or retire for deliberation.

If it retires, except as hereinafter provided in this section (l ), it shall be kept together in a separate room or other convenient place under the charge of one or more officers until it agrees upon a verdict or is discharged. While the jury is deliberating the officer shall, to the utmost of his ability, keep the jury together, separate from other persons. He shall not suffer any communication to be made to any juror or make any himself unless by order of the court except to ask it if it has agreed upon a verdict; and he shall not, before the verdict is rendered, communicate with any person the state of its deliberations or the verdict agreed upon.

The court in its discretion in any individual case may modify the procedure under this Rule by permitting a jury which is deliberating to separate during the luncheon or dinner hour or separate for the night under appropriate cautionary instructions, with directions that they meet again at a time certain to resume deliberations again under the charge of the appropriate officer.

Items Taken to Deliberation Consist of:

The jury instructions;

Their juror notebooks and notes they personally made; and

Those exhibits that have been admitted as evidence, to the extent feasible.

The court must use caution on full unrestricted access to some types of evidence, such as recorded interviews.

After the jury has retired for deliberation, if it desires additional instructions, it may request the same from the court; any additional instructions shall be given it in court in the presence of or after notice to the parties.

Jury Verdict   C.R.C.P. 47 C.R.C.P. 47(p), (q), (r), (s).

When Sealed Verdict.

While the jury is absent the court may adjourn from time to time, in respect to other business, but it shall be nevertheless deemed open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict at the opening of court, in case of an agreement during a recess or adjournment for the day.

Declaration of Verdict.

When the jury has agreed upon its verdict it shall be conducted into court by the officer in charge. The names of the jurors shall be called, and the jurors shall be asked by the court or clerk if they have agreed upon a verdict, and if the answer is in the affirmative, they shall hand the same to the clerk. The clerk shall enter in his records the names of the jurors. Upon a request of any party the jury may be polled.

Correction of Verdict.

If the verdict is informal or insufficient in any particular, the jury, under the advice of the court, may correct it or may be again sent out.

Verdict Recorded, Disagreement.

The verdict, if agreed upon by all jurors, shall be received and recorded and the jury discharged. If all the jurors do not concur in the verdict, the jury may be again sent out, or may be discharged

Submission and Finding.

(1) Forms of Verdict. Before the jury retires the court shall submit to it written forms of verdict for its consideration.

(2) Retirement of Jury. When the jury retires to consider its verdict, the bailiff shall be sworn or affirmed to conduct the jury to some private and convenient place, and to the best of his ability to keep the jurors together until they have agreed upon a verdict. The bailiff shall not speak to any juror about the case except to ask if a verdict has been reached, nor shall he allow others to speak to the jurors. When they have agreed upon a verdict, the bailiff shall return the jury into court.

However, in any case except where the punishment may be death or life imprisonment, the court, upon stipulation of counsel for all parties, may order that if the jury should agree upon a verdict during the recess or adjournment of court for the day, it shall seal its verdict, to be retained by the foreman and delivered by the jury to the judge at the opening of the court, and that thereupon the jury may separate, to meet in the jury box at the opening of court. Such a sealed verdict may be received by the court as the lawful verdict of the jury.

(3) Return. The verdict shall be unanimous and signed by the foreman. It shall be returned by the jury to the judge in open court.

Several Defendants.

If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

Conviction of Lesser Offense.

The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.

Poll of Jury.

When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

Juror Discharge C.R.C.P. 47(j).

When Juror Discharged.

If, before verdict, a juror becomes unable or disqualified to perform his duty and there is no alternate juror, the parties may agree to proceed with the other jurors, or that a new juror be sworn and the trial begun anew. If the parties do not so agree the court shall discharge the jury and the case shall be tried anew.

Mistrial C.R.C.P. 47(o).

New trial if no verdict. When a jury is discharged or prevented from giving a verdict for any reason, the action shall be tried anew.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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