“Jury Trial” in Colorado Criminal Cases – How It Works

In Colorado, you have the right to a trial by jury if you are charged with a felony, misdemeanor, petty offense, or criminal municipal ordinance violation. At a jury trial, up to 12 members of the community are selected to hear the evidence and arguments and then render a verdict as to whether you are guilty or not guilty of the charges.

As part of the criminal court process in Colorado, the jury trial takes place after the

1. arraignment,
2. preliminary hearing and
3. pretrial conferences.

If the jury convicts the defendant, then a sentencing hearing will follow.

Note that the juries in criminal trials are completely different from the grand juries that indict criminal suspects:

	Grand jury	Trial jury (“Petit juries”)
Purpose	Decides whether suspect will be charged	Decides whether suspect will be convicted
Size	12 to 23	6 to 12
Standards of proof	Probable cause	Beyond a reasonable doubt
Jurors required to make decision	A quorum (majority) to indict	Unanimous to convict
Evidence presented	Hears all evidence including hearsay whether it turns out to be relevant or not	Only hears evidence judge has deemed relevant, and hearsay is very limited
Who chooses jurors	Judge	Prosecutors and defense counsel
Defendant present	Usually not (defendant has no right to put on a defense)	Usually yes (though defendant has no obligation to put on a defense)
Subpoena power	Yes	No
Judge present	No (the prosecutor controls the proceeding)	Yes
Public allowed	No	Yes (usually)

In this article, our Denver Colorado criminal defense lawyers will answer these key questions:

• 1. Do I have the right to a jury trial?
• 2. What is a bench trial?
• 3. How does jury selection work?
• 4. What happens during the jury trial?

1. Do I have the right to a jury trial?

1.1. Felonies and misdemeanors

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 (Misdemeanors also include traffic misdemeanors and drug misdemeanors.)

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. 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 the withdrawal of the waiver before the beginning of trial.³

Note that you have a right to a speedy trial within six months of your not-guilty plea unless a legal exception applies.

1.2. Petty offenses and criminal municipal ordinance violations

Defendants charged with a petty offense or a criminal municipal ordinance violation have a right to a jury trial if they:

1. request a jury trial in writing within 21 days of their not-guilty plea, and
2. pay the jury fee of $25.

The default jury size is three jurors. But defendants may request a jury of up to six jurors.

Note that defendants are not entitled to jury trials for:

• civil infractions,
• municipal traffic ordinances that do not constitute a criminal offense, and
• other municipal charter, municipal ordinance, or county ordinance offense which is neither criminal nor punishable by imprisonment.⁴
  

2. What is a bench trial?

A bench trial is the alternative to a jury trial in the court system. 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, his or her 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 interpret the evidence more clearly. 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 does jury selection work?

Jury selection begins with a “jury pool” of people who show up for jury duty. If a case is going to trial, the judge may call in a group of prospective jurors to answer a questionnaire giving information about the individual jurors. This includes the potential juror’s educational level, occupation, prior jury service, prior court experience, and other relevant information.

The prosecutor and defense attorney can 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 several factors, including:

• The defendant was in a civil action against the juror
• The juror was a witness to a related matter
• The defendant or attorney was in a relationship with the juror
• 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 ten peremptory challenges. The attorneys have five peremptory challenges in all other criminal cases where the defendant may face imprisonment. In all other criminal cases, each side has three 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, and later the prosecutor may cross-examine them. Each side may also present evidence or expert testimony supporting their case, with the other side having an opportunity to respond.

After both sides present all the testimony and evidence of the facts of the case in open court, the prosecution and defense make their closing arguments.

The trial court 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 the jury room in order to come up with a verdict of guilty or not guilty. The jury may convict only if it finds beyond a reasonable doubt that the defendant is guilty. In Colorado, in order to convict the defendant following jury deliberations, the jury must come to a unanimous decision with all jurors in agreement.⁷

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