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FAQ – Colorado Criminal Law – Can I Give Up (Waive) A Jury And Let The Trial Judge Decide My Case?

FAQ – Colorado Criminal Law – Can I Give Up (Waive) A Jury And Let The Trial Judge Decide My Case?

By Colorado Criminal Defense Trial Lawyer – H. Michael Steinberg

Introduction: I am sometimes asked and also advise clients affirmatively to waiver – give up – their right to a jury trial. The major reason? …. the facts and evidence in the case may “turn off” the jury and they may decide the case not on the evidence – but on their passions and prejudice against the Defendant.  Where you have a fair and just Judge – this is a good trial – case tactic and strategy.

The Waiver of A Jury Trial In Colorado

Prior to trial, a defendant has a right to waive “trial by jury.”

The issue for each case is whether the waiver was not made voluntarily, knowingly, and intelligently.

Whether the waiver of a constitutional right is voluntary, knowing, and intelligent presents a mixed question of law and fact.

When a court – on appeal – an appellate court reviews the validity of a defendant’s waiver of his or her constitutional right to a jury trial, they look at the advisement and they weigh the totality of the circumstances. Id. Whether there is a valid waiver of a jury trial by an accused depends on the unique circumstances of each case.

The Constitutional Right to Trial By Jury

The right to trial by a jury in criminal cases is guaranteed by the United States and Colorado Constitutions. U.S. Const. amend. VI; Colo. Const. art. II, § 23;

It is “one of those primary personal rights fundamental to our system of government.” and is “fundamental and considered one of the most important in our democracy.”

A defendant in a criminal case may elect to waive the right to a jury trial. The only constitutional requirement is that the jury trial waiver be made voluntarily, knowingly, and intelligently.

A defendant must personally waive his or her right to a jury trial, and a statement by defense counsel does not operate as a waiver.

In Colorado, a conversation with the Defendant (a colloquy), is not constitutionally required, but it is a “procedural device” that assists the court in resolving the constitutional issue of whether a jury trial waiver is made voluntarily, knowingly, and intelligently.

Colorado Rule of Criminal Procedure – Crim. P. 23(a)(5) requires’ that trial courts conduct on-the-record advisements to defendants informing them of specific elements of their right to a trial by jury and of certain consequences if they waive that right.”

Crim. P. 23(a)(5) provides:

(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.

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

(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.

Before the trial court can find a defendant’s waiver of the right to a jury trial was constitutionally invalid and warrants a new trial, the defendant must establish prejudice by showing that:

(1) if there had been a proper advisement, he would not have waived the jury;


(2) therefore, the deficient advisement resulted in a waiver that was not made knowingly, voluntarily, or intelligently.