2021 Colorado Code
Title 16 - Criminal Proceedings
Article 10 - Jury Trials
Part 1 - Composition and Selection of the Jury
§ 16-10-103. Challenge of Jurors for Cause

1. The court shall sustain a challenge for cause on one or more of the following grounds:
   1. Absence of any qualification prescribed by statute to render a person competent as a juror;
   2. 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;
   3. 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 a partner in business with, or surety on any bond or obligation for any defendant;
   4. 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;
   5. 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 information, or on any other investigatory body which inquired into the facts of the crime charged;
   6. The juror was a juror at a former trial arising out of the same factual situation or involving the same defendant;
   7. The juror was a juror in a civil action against the defendant arising out of the act charged as a crime;
   8. The juror was a witness to any matter related to the crime or its prosecution;
   9. 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;
   10. The existence of a state of mind in the juror evincing enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial;
   11. The juror is a compensated employee of a public law enforcement agency or a public defender's office.

2. If any juror knows of anything which would disqualify him as a juror or be a ground for challenge to him for cause, it is his duty to inform the court concerning it whether or not he is specifically asked about it. The jury panel shall be advised of this duty and of the grounds for challenge for cause before any prospective jurors are called to the jury box.
3. If either party desires to introduce evidence of the incompetency, disqualification, or prejudice of any prospective juror who upon the voir dire examination appears to be qualified, competent, and unprejudiced, such evidence shall be heard, and the competency of the juror shall be determined, by the court, out of the presence of the other jurors, but this action cannot be taken after the jury has been sworn to try the case except upon a motion for mistrial.

History. Source: L. 72: R&RE, p. 236, § 1. C.R.S. 1963: § 39-10-103 . L. 98: (1)(k) amended, p. 466, § 6, effective January 1, 1999.

Law reviews. For article, “Challenges for Cause in Criminal Trials”, see 12 Colo. Law. 1799 (1983). For article, “Criminal Jury Selection After People v. Novotny”, see 44 Colo. Law. 41 (Feb. 2015).

Right to impartial jury. It is fundamental to the right to a fair trial that a defendant be provided with an impartial jury. Nailor v. People, 200 Colo. 30 , 612 P.2d 79 (1980).

This section implements that right. People v. Russo, 713 P.2d 356 (Colo. 1986).

A defendant has a fundamental right to a fair trial by a panel of impartial jurors, and, to protect that right, the trial court must exclude prejudiced or biased persons from the jury. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993).

However, the trial court may consider a potential juror's assurances that the juror can fairly and impartially serve on the case in determining whether that juror will be able to set aside a preconceived notion and render an impartial verdict according to the law and the evidence admitted at trial. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993); People v. Loggins, 981 P.2d 630 (Colo. App. 1998); People v. Young, 16 P.3d 821 (Colo. 2001); People v. Arko, 159 P.3d 713 (Colo. App. 2006), rev'd on other grounds, 183 P.3d 555 (Colo. 2008); People v. Vigil, 2015 COA 88 M, 459 P.3d 553, aff'd, 2019 CO 105, 455 P.3d 332; People v. Lopez, 2018 COA 119 , __ P.3d __.

Neither the prosecution nor the defendant is granted any right in this jurisdiction, by constitution, statute, or rule, to shape the composition of the jury through the use of peremptory challenges. The defendant could not have been harmed by the deprivation of any such right. Vigil v. People, 2019 CO 105, 455 P.3d 332.

Trial court did not abuse its discretion in denying challenge for cause. It was the trial court's role to assess and decide whether the juror could assess the victim's testimony like any other witness's testimony even though the juror had a prior relationship with the victim's family. Vigil v. People, 2019 CO 105, 455 P.3d 332.

A trial court should do one of three things if a prospective juror indicates an unwillingness to apply the law: (1) Dismiss the juror for cause; (2) conduct rehabilitative questioning following up on the juror's concerning statements before denying the challenge for cause; or (3) make findings on the record explaining why the juror's statements indicating an unwillingness or inability to follow the law should be disregarded in light of other seemingly inconsistent statements. People v. Marciano, 2014 COA 92 M, 411 P.3d 831.

Standard of review is “abuse of discretion”. Phrases used in prior case law such as “clear abuse of discretion” and “gross abuse of discretion” are deemed to express this standard and have the same meaning. Carrillo v. People, 974 P.2d 478 (Colo. 1999); People v. Vecchiarelli-McLaughlin, 984 P.2d 72 (Colo. 1999); People v. Martinez, 18 P.3d 831 (Colo. App. 2000); People v. Dashner, 77 P.3d 787 (Colo. App. 2003).

The trial court did not abuse its discretion for denying a challenge for cause when there was reasonable evidence that the juror would be impartial. Therefore, the appellate court erred when it overturned a conviction on the basis that the juror thought that being charged was evidence of guilt because subsequent questioning demonstrated to the trial court that the juror would base his decision on “the facts”. People v. Young, 16 P.3d 821 (Colo. 2001).

The trial court did not abuse its discretion in denying a challenge for cause where, in a case involving a homosexual defendant charged with sexual assault, the prospective juror initially stated she had a religious objection to homosexuality. It was within the court's discretion to rely on the prospective juror's later statements that, based on the evidence presented, she would decide whether the defendant committed an illegal act rather than judge him on his sexual preference. People v. Hoskay, 87 P.3d 194 (Colo. App. 2003); People v. Simon, 100 P.3d 487 (Colo. App. 2004).

It is within the trial court's prerogative to give considerable weight to a potential juror's statement that he or she can fairly and impartially serve on the case. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996); People v. Young, 16 P.3d 821 (Colo. 2001).

When the trial court grants the prosecution's for-cause challenge of a prospective juror, reversal is not required when the claim is that the court abused its discretion. Because the prospective juror did not sit in judgment of the case, that ruling could not have deprived the defendant of his constitutional right to a fair and impartial jury; and because neither the prosecution nor the defendant is granted any right in this jurisdiction, by constitution, statute, or rule, to shape the composition of the jury through the use of peremptory challenges, the defendant could not have been harmed by the deprivation of any such right. Vigil v. People, 2019 CO 105, 455 P.3d 332.

Absence of qualification is basis for challenge, not absolute prohibition. The failure of a prospective juror to meet a qualification for jury service operates as a basis of a challenge for cause, rather than as an absolute prohibition to service; accordingly, that challenge is waived if counsel does not use reasonable diligence on voir dire to determine if a challenge for cause exists. People v. Crespin, 635 P.2d 918 (Colo. App. 1981).

Failure of prospective juror to meet a qualification for jury service operates as a basis of a challenge for cause rather than as an absolute prohibition to service. People v. Orozco, 49 P.3d 1212 (Colo. App. 2002).

Reversal of a criminal conviction for other than structural error is not required absent an express legislative mandate or an appropriate case-specific outcome-determinative analysis. Allowing a defendant fewer peremptory challenges than authorized or than exercised by the prosecution is not structural error requiring reversal. People v. Novotny, 2014 CO 18, 320 P.3d 1194 (overruling People v. Macrander, 828 P.2d 234 (Colo. 1992), People v. Lefebre, 5 P.3d 295 (Colo. 2000), and other holdings to the contrary); People v. Alfaro, 2014 CO 19, 320 P.3d 1191; People v. Roldan, 2014 CO 22, 322 P.3d 922; People v. Montero-Romero, 2014 CO 23, 322 P.3d 923; People v. Wise, 2014 COA 83 , 348 P.3d 482.

Trial court's failure to excuse juror for cause was harmless. Defendant used a peremptory challenge to correct the court's failure to remove the juror. But the record did not reflect that a biased or incompetent juror served on the jury, and therefore defendant could not establish he was harmed by the trial court's erroneous failure to excuse the juror for cause. People v. Oliver, 2020 COA 97 , 474 P.3d 207.

Trial court's ruling affects a substantial right of the defendant and cannot be deemed harmless error where the court erroneously denies a challenge for cause to a prospective juror, the defendant uses a peremptory challenge to remove that juror, and the defendant exhausts all peremptory challenges. Carrillo v. People, 974 P.2d 478 (Colo. 1999); People v. Orozco, 49 P.3d 1212 (Colo. App. 2002).

The entire voir dire of the prospective juror must be reviewed by the appellate court in order to determine whether the trial court abused its discretion in ruling on a challenge for cause. Carrillo v. People, 974 P.2d 478 (Colo. 1999); People v. Orozco, 49 P.3d 1212 (Colo. App. 2002).

Trial court to excuse prejudicial or biased persons. To insure that the right to a fair trial is protected, the trial court must excuse prejudiced or biased persons from the jury. Nailor v. People, 200 Colo. 30 , 612 P.2d 79 (1980); People v. Arevalo, 725 P.2d 41 (Colo. App. 1986).

Trial court must grant challenge for cause where prospective juror is unwilling or unable to accept the basic principles of law applicable and render a fair and impartial verdict based upon the trial. People v. Russo, 713 P.2d 356 (Colo. 1986); People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

No juror should be dismissed for cause if the court is satisfied that the juror will render an impartial verdict. People v. Romero, 593 P.2d 365 (Colo. App. 1978); People v. Veloz, 946 P.2d 525 (Colo. App. 1997).

If the trial court had genuine doubt about the juror's ability to be impartial, under the circumstances, it should resolve the doubt by sustaining the challenge. People v. Russo, 713 P.2d 356 (Colo. 1986).

When potential juror's statements compel inference that he or she cannot decide crucial issues fairly, a challenge for cause must be granted in the absence of rehabilitative questioning or other counterbalancing information. People v. Merrow, 181 P.3d 319 (Colo. App. 2007).

Appellate review of a challenge for cause requires consideration of the entire voir dire examination of a juror. People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

Appellate review not precluded by invited error where a defendant does not use a peremptory challenge to excuse a juror for whom the defendant's challenge for cause was denied. People v. Garcia, 2018 COA 180 , 446 P.3d 922.

Number of challenges for cause not limited. There has been no limit set by statute or rule on the number of challenges for cause. People v. Fink, 41 Colo. App. 47, 579 P.2d 659 (1978).

Trial court did not abuse its discretion in denying challenge of potential juror for cause. Juror admitted that she had read about the case involving felony child abuse that resulted in death and may have formed an opinion about the defendant's affirmative defense; however, the court sufficiently questioned the juror, who said she would listen to the evidence presented and would apply the court's instruction on the law in reaching a verdict. People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).

Trial court did not abuse its discretion in denying challenge of potential juror for cause in sexual assault case where potential juror had been a victim of sexual assault forty years earlier, displayed the emotional impact of her experience, and expressed her wish that she had killed her attacker, but also indicated that her experience would allow her to be more fair, that she could put her own experience out of her mind, and base her decision on what she heard in the courtroom, and would follow the court's instructions. People v. Schmidt, 885 P.2d 312 (Colo. App. 1994).

Trial court did not abuse its discretion in denying a challenge for cause with regard to four jurors where, even though all four had some knowledge of the business at which the crime occurred and other reasons for being potentially biased against the defendant, each one assured the court that he or she could be fair and impartial and follow the law and instructions. People v. Dore, 997 P.2d 1214 (Colo. App. 1999).

Trial court did not abuse its discretion in denying a challenge for cause with regard to a juror who attended the same church as that attended by the victim's family, the juror stated that he would be able to consider the possibility that the testimony of his pastor, a witness, might not be entirely truthful or accurate, and the juror stated that he had not formed an opinion about defendant's guilt or innocence. People v. Medina, 72 P.3d 405 (Colo. App. 2003).

Trial court did not abuse its discretion in denying defendant's challenge for cause where defense counsel asked during voir dire whether anyone believed it would be impossible to be fair if defendant did not testify and juror stated that it would and that it might upset her, but not so much as to affect her decision-making. The trial court found that the juror indicated she would do what the court instructed her to do even though she might not like it. People v. Frantz, 114 P.3d 34 (Colo. App. 2004).

The court did not abuse its discretion in denying defendant's challenge for cause. The juror's responses, as a whole, reflect that, while serving as a juror may have been difficult, he or she would base his or her decision on the evidence and the law and would follow the court's instructions. People v. Montoya, 141 P.3d 916 (Colo. App. 2006).

Under the totality of the circumstances, trial court's denial of challenge for cause was not arbitrary, unreasonable, or unfair. Although the juror initially expressed concerns over the use of the insanity defense, the trial court sufficiently rehabilitated the juror through questioning. Marko v. People, 2018 CO 97, 432 P.3d 607.

Similarly, trial court did not abuse its discretion in excusing a potential juror for cause when the potential juror expressed a particular aversion to serving as a juror in a sexual assault trial, and asserted her religious beliefs as a reason. People v. Schmidt, 885 P.2d 312 (Colo. App. 1994).

Trial court did not abuse its discretion in granting challenge for cause when the potential juror expressed an opinion that he thought the law was unfair because court reasoned that based on juror's opinion of the law, there was a question as to whether the juror would follow the instructions of the law. People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

Trial court did not abuse discretion in denying defendant's challenge for cause against a juror who was “concerned of maybe a judge of character kind of thing” when such statement did not establish that she would fail to be fair and impartial. Morrison v. People, 19 P.3d 668 (Colo. 2000).

The trial court did not abuse its discretion in denying defendant's challenge for cause to a juror that had multiple associations with law enforcement. The juror understood that the defense had no burden of proof, that the prosecution had the burden of proving every element, and that both sides would get a fair trial from said juror. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

The trial court did not abuse its discretion in denying defendant's challenge for cause to a juror based on said juror's views regarding the death penalty and previous traumatic experiences. The juror did not express any partiality for or bias in favor of or against either side. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

No abuse of discretion for denying challenge for cause. Although the potential juror indicated his relationship with law enforcement officers might bias him in favor of believing police testimony, he also explained he would be fair and impartial and fair to the defendant. People v. Garrison, 2012 COA 132 M, 303 P.3d 117.

Court did not err in not dismissing for cause two jurors who specifically committed to putting aside what they had read, not telling the other jurors about what they read, and rendering a fair and impartial verdict based only on the evidence presented at trial. People v. Shreck, 107 P.3d 1048 (Colo. App. 2004).

It is incumbent upon challenging party to clearly state on the record the particular ground on which challenge for cause is made, since this statute operates as the legal basis for challenging a juror for cause. Only in this way can the court and opposing counsel direct appropriate questions to the juror to determine whether the challenge is well taken. People v. Russo, 713 P.2d 356 (Colo. 1986); People v. West, 724 P.2d 623 (Colo. 1986).

Court's questioning and “rehabilitation” of prospective jurors was not improper where the questions were directed to eliciting information on the subject of the prospective jurors' possible bias and were no more leading than necessary. People v. James, 981 P.2d 637 (Colo. App. 1998).

Missing portion of transcript of voir dire proceedings does not automatically require reversal. Where trial court held a hearing to reconstruct, to the extent possible, the relevant portion of voir dire, the court's denial of the challenge for cause was upheld. People v. Loggins, 981 P.2d 630 (Colo. App. 1998); People v. Carmichael, 179 P.3d 47 (Colo. App. 2007), rev'd on other grounds, 206 P.3d 800 (Colo. 2009).

Although the record was incomplete, there was sufficient information in the record to support court's denial of challenge for cause. People v. Carmichael, 179 P.3d 47 (Colo. App. 2007), rev'd on other grounds, 206 P.3d 800 (Colo. 2009).

Propriety of questions within discretion of court. The propriety of questions during voir dire is within the discretion of the trial court, and its ruling will not be disturbed absent an abuse of that discretion. People v. Shipman, 747 P.2d 1 (Colo. App. 1987).

Trial court did not abuse its discretion in disallowing one of defense counsel's questions which went to the defendant's theory of the case. The court permitted other questions that allowed the defendant to determine whether potential jurors held certain attitudes toward the defendant's affirmative defense. People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).

Grant of challenge for cause within discretion of trial court. The ultimate decision of whether or not to grant a challenge for cause is one for the trial court's sound discretion, since the factors of credibility and appearance which are determinative of bias are best observed at the trial court level. Nailor v. People, 200 Colo. 30 , 612 P.2d 79 (1980); People v. Reddick, 44 Colo. App. 278, 610 P.2d 1359 (1980); People v. Wilson, 678 P.2d 1024 (Colo. App. 1983); People v. Russo, 713 P.2d 356 (Colo. 1986); People v. Schmidt, 885 P.2d 312 (Colo. App. 1994); People v. Veloz, 946 P.2d 525 (Colo. App. 1997); People v. Sherman, 45 P.3d 774 (Colo. App. 2001).

Defendant must exercise reasonable diligence to determine whether a prospective juror should have been excused. If defendant fails to do so, he or she is considered to have waived his or her opportunity to raise any matters pertaining to the qualifications and competency of the excluded juror on appeal. People v. Asberry, 172 P.3d 927 (Colo. App. 2007).

Defendant did not waive his or her right to challenge for cause during the first discussion related to the challenge for cause, since the court did not make it clear that first discussion for cause would be the defendant's only opportunity to challenge for cause. Ma v. People, 121 P.3d 205 (Colo. 2005).

As trial court is in position to assess potential jurors. The need for a careful evaluation of the competence of potential jurors to assess the defendant's guilt or innocence solely on the evidence admitted at trial, and the serious practical problems involved with these assessments, are sound reasons for placing great discretion in the trial court in the jury selection procedures. Morgan v. People, 624 P.2d 1331 (Colo. 1981).

Since the factors of credibility and appearance which are determinative of bias are best observed at the trial court level, the ultimate decision whether to grant a challenge for cause is left to the trial court's sound discretion. People v. Arevalo, 725 P.2d 41 (Colo. App. 1986).

A decision denying a challenge for cause will be set aside only if the record discloses a clear abuse of discretion by the trial court. People v. Moya, 899 P.2d 212 (Colo. App. 1994).

Trial courts have considerable discretion in ruling on challenges for cause, because the trial judge is in the best position to assess the credibility, demeanor, and sincerity of the potential juror's responses, including statements that linguistically may appear to be inconsistent. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

If a court erroneously denies a challenge for cause and the defendant uses all of the defendant's peremptory challenges, including one to remove the disqualified juror, the effect is to deprive the defendant of the guaranteed number of peremptory challenges. This circumstance has always been looked upon as prejudicial. People v. Macrander, 817 P.2d 579 (Colo. App. 1991), aff'd, 828 P.2d 234 (Colo. 1992), overruled in People v. Novotny, 2014 CO 18, 320 P.3d 1194; People v. Merrow, 181 P.3d 319 (Colo. App. 2007).

Reversal of conviction is required where trial court erroneously denies a challenge for cause and defendant exhausts his or her peremptory challenges. The jurors' statements of bias were unequivocal, occurred at the close of lengthy voir dire, and were not mitigated by any rehabilitative questioning and responses. People v. Chavez, 313 P.3d 594 (Colo. App. 2011).

While subsection (1)(k) of this section and Crim. P. 24(b)(1)(XII) require a trial court to grant a party's challenge for cause to a juror who is employed by a public law enforcement agency, neither expressly requires the court to excuse a juror sua sponte. People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007).

A violation of subsection (1)(k) does not require reversal under an express legislative mandate when a trial court erroneously denies a challenge for cause and the impliedly biased juror ultimately serves on the jury. People v. Abu-Nantambu-El, 2019 CO 106, 454 P.3d 1044.

Jurors who are presumed by law to be biased under subsection (1)(k) are not legally distinguishable from jurors who are actually biased under subsection (1)(j). People v. Abu-Nantambu-El, 2019 CO 106, 454 P.3d 1044.

If a trial court error results in the seating of a juror who is actually biased against the defendant, the defendant's right to an impartial jury is violated, the error is structural, and reversal is required. People v. Abu-Nantambu-El, 2019 CO 106, 454 P.3d 1044.

Because the trial court erroneously denied a for-cause challenge to a juror who was presumed by law to be biased under subsection (1)(k), the defendant exhausted his peremptory challenges, and the impliedly biased juror served on the defendant's jury, the error is structural, and defendant's convictions must be reversed. People v. Abu-Nantambu-El, 2019 CO 106, 454 P.3d 1044.

For purposes of subsection (1)(k), department of social services is properly characterized as a public assistance and welfare organization and not as a public law enforcement agency. People v. Zurenko, 833 P.2d 794 (Colo. App. 1991).

Subsection (1)(k) describes a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. The potential juror in question was not paid by the county jail, nor did the record indicate that she was subject to the jail personnel's direction and control. Therefore, she was not a compensated employee under this section. Mulberger v. People, 2016 CO 10, 366 P.3d 143.

Administrator for a victim advocacy organization was not a “compensated employee of a public law enforcement agency”. People v. Whitman, 205 P.3d 371 (Colo. App. 2007).

Prospective jurors employed with the transportation security administration (TSA) are not compensated employees of public law enforcement agency, the department of homeland security, for purposes of subsection (1)(k) and, therefore, do not need to be excused for cause since such employees lack the authority to arrest, to prosecute, or to detain suspected criminals. People v. Speer, 216 P.3d 18 (Colo. App. 2007).

Prospective juror who was employed as a security officer with the Pueblo depot activity is not a compensated employee of a public law enforcement agency pursuant to subsection (1)(k). That the functions of the department of defense require it to maintain security measures at its facilities, and to hire civil security guards who conduct investigations and searches, does not transform the Army and its various installations into a law enforcement arm of the government. People v. Urrutia, 893 P.2d 1338 (Colo. App. 1994).

A law enforcement agency for the purposes of subsection (1)(k) is a police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals. The army military police corps is a law enforcement agency for the purposes of subsection (1)(k). Ma v. People, 121 P.3d 205 (Colo. 2005); People v. Speer, 255 P.3d 1115 (Colo. 2011).

Statutory classification of employees of an agency as “peace officers” while engaged in their duties is not determinative of whether the agency is a law enforcement agency. People v. Carter, 2015 COA 24 M-2, 402 P.3d 480.

An employee of a community corrections facility is an employee of a public law enforcement agency within the meaning of subsection (1)(k) of this section and Crim. P. 24(b)(1)(XII). People v. Romero, 197 P.3d 302 (Colo. App. 2008).

The office of the state attorney general is a law enforcement agency for purposes of subsection (1)(k). People v. Novotny, 356 P.3d 829 (Colo. App. 2010), rev'd on other grounds, 2014 CO 18, 320 P.3d 1194.

Private prison operator is not a public law enforcement agency under subsection (1)(k) because it is not a division or subdivision of state or federal government that has the authority to investigate crimes and to arrest, prosecute, or detain suspected individuals. People v. Bonvicini, 2016 CO 11, 366 P.3d 151.

The office of prevention and security within the Colorado department of homeland security and emergency management operates the state's fusion center, which is not a public law enforcement agency under subsection (1)(k) of this section or Crim. P. 24(b)(1)(XII). People v. Avila, 2019 COA 145 , 457 P.3d 771.

For purposes of subsection (1)(k) or Crim. P. 24(b)(1)(XII), the environmental protection agency is properly characterized as an investigatory and rulemaking body and not a law enforcement agency. People v. Simon, 100 P.3d 487 (Colo. App. 2004).

For purposes of subsection (1)(k) or Crim. P. 24(b)(1)(XII), the public utilities commission is not a public law enforcement agency because it is charged primarily with the regulation of civil matters and only has incidental penal enforcement authority. People v. Carter, 2015 COA 24 M-2, 402 P.3d 480.

Where a juror's final responses to questions on voir dire indicate a clear expression of bias in favor of a significant prosecution witness, it may not be assumed that the juror would render an impartial verdict and challenge for cause should be granted. People v. Zurenko, 833 P.2d 794 (Colo. App. 1991).

Prejudice is shown if defendant exhausts all of his peremptory challenges and one of those challenges is expended on a juror who should have been removed for cause. A defendant is not required to request an additional peremptory challenge to preserve this issue on appeal. People v. Prator, 833 P.2d 819 (Colo. App. 1992).

No abuse of discretion. Where trial court conducted rehabilitative questioning of jurors and was satisfied of their impartiality, trial court did not abuse discretion in denying defendant's challenge for cause. People v. Manners, 713 P.2d 1348 (Colo. App. 1985).

Where trial court conducted requisite inquiry of juror who was related to sheriff's posse members and was satisfied with juror's specific assurances that she could render a fair and impartial verdict, it was not an abuse of discretion to deny challenge for cause. People v. Goodpaster, 742 P.2d 965 (Colo. App. 1987).

The test for determining whether a prospective juror should be disqualified for bias is whether that person will render a fair and impartial verdict according to the law and the evidence presented at trial, and the trial court is in the best position to observe the credibility and appearance of the veniremen when deciding the question of bias. People v. Fuller, 791 P.2d 702 (Colo. 1990).

The test to be applied is whether the person would be able to set aside any bias or preconceived notion and render an impartial verdict according to the law and the evidence presented at trial. People v. Moya, 899 P.2d 212 (Colo. App. 1994).

But appellate courts to insure requirements of fairness fulfilled. The placing of discretion in the trial judge in jury selection procedures does not permit appellate courts to abdicate their responsibility to ensure that the requirements of fairness are fulfilled. Morgan v. People, 624 P.2d 1331 (Colo. 1981).

Absent a gross abuse of discretion, the trial court's decision to deny a challenge for cause should not be disturbed on appeal. No abuse of discretion where the record did not show that the jurors' prior knowledge of the case was so extensive that it would preclude them from determining defendant's guilt or innocence solely from the evidence presented at trial. People v. Arevalo, 725 P.2d 41 (Colo. App. 1986).

A trial court must sustain a challenge for cause if a prospective juror is unable or unwilling to accept the basic principles of criminal law. People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

A challenge for cause should not be sustained if subsequent examination of the prospective juror clearly demonstrates the juror's original statement that would subject the juror to a cause challenge was the product of mistake, confusion, or some other factor unrelated to the juror's ability to render a fair verdict. People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

A challenge for cause should not be sustained when the juror's statement reflects a bias in the abstract, but the juror indicates he or she will decide the case on the law and the evidence. People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

One cannot assume juror's ability to exclude unconscious influence of preconceptions. One cannot assume that the average juror is so endowed with a sense of detachment, so clear in his introspective perception of his own mental processes, that he may exclude even the unconscious influence of his preconceptions. Beeman v. People, 193 Colo. 337 , 565 P.2d 1340 (1977).

In a prosecution for rape and deviate sexual intercourse, where the juror was sufficiently upset by defendant's earlier contact with her pregnant daughter that she called his employer to have him reprimanded, and further, the juror had raised the possibility in her mind that it was her daughter's knife which had been used in the alleged rape, a personal and emotional situation concerning the juror and the accused existed rather than an opinion or abstract belief in the defendant's guilt or innocence. Beeman v. People, 193 Colo. 337 , 565 P.2d 1340 (1977).

Test as to whether prospective juror has been unduly affected by pretrial publicity is whether the nature and strength of the opinion formed or of the information learned from that publicity are such as necessarily raise the presumption of partiality or of the inability of the potential juror to block out the information from his consideration. People v. Romero, 42 Colo. App. 20, 593 P.2d 365 (1978); People v. Bashara, 677 P.2d 1376 (Colo. App. 1983).

Mere familiarity with a case due to pretrial publicity does not, in itself, create a constitutionally defective jury. People v. Loscutoff, 661 P.2d 274 (Colo. 1983).

On trial of a criminal case where the issue of insanity is tried separately, questions of both counsel to prospective jurors eliciting answers disclosing that such jurors have no opinions and express none concerning a defendant's sanity, and that they entertain no bias or prejudice against him on the issue of insanity, and that they could try him fairly and impartially on such issue, presents no grounds of challenge for cause. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958) (decided under repealed § 78-5-3, C.R.S. 1963). On trial of a criminal case where the issue of insanity is tried separately, questions of both counsel to prospective jurors eliciting answers disclosing that such jurors have no opinions and express none concerning a defendant's sanity, and that they entertain no bias or prejudice against him on the issue of insanity, and that they could try him fairly and impartially on such issue, presents no grounds of challenge for cause. Leick v. People, 136 Colo. 535 , 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958) (decided under repealed § 78-5-3, C.R.S. 1963).

A prospective juror who was a first cousin of a local attorney who had done some preliminary work in this case for defense counsel but who had never been an attorney of record and had at no time appeared in court in connection with the case did not fall within the mandate of this section requiring the court to sustain the challenge for cause. People v. Langford, 191 Colo. 87 , 550 P.2d 329 (1976).

Removal of potential juror who will not follow court's instructions. A fair trial for the accused when a juror has given indications that he would not follow the court's instructions is an improbability; thus, such a juror should be removed from the panel by the trial court. Morgan v. People, 624 P.2d 1331 (Colo. 1981).

Impartial juror cannot be dismissed for cause. No juror can be dismissed for cause if the trial court is satisfied the juror will render an impartial verdict. People v. Romero, 42 Colo. App. 20, 593 P.2d 365 (1978).

So long as the court is satisfied, from an examination of the prospective juror or from other evidence, that the juror will render an impartial verdict according to the evidence admitted at trial and the court's instructions of law, the court may permit the juror to serve. People v. Gurule, 628 P.2d 99 (Colo. 1981); People v. Sandoval, 733 P.2d 319 (Colo. 1987).

However, a prospective juror with a previously formed or expressed opinion need not be disqualified if the court is satisfied from the examination of the juror, or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted at trial. People v. Arevalo, 725 P.2d 41 (Colo. App. 1986).

Even if a potential juror expresses some prejudice or predisposition other than a bias against the accused, a disqualification for cause is not necessary if the trial court is reasonably satisfied that he or she is willing to be fair and follow the instructions given by the court. People v. Schmidt, 885 P.2d 312 (Colo. App. 1994).

Although the prospective juror may have displayed a preconceived opinion that defendants in general should testify in their own defense, he later confirmed that he would not use the defendant's decision not to testify as evidence of his guilt and therefore the trial court did not abuse its discretion in denying the defendant's challenge for cause. The record of this prospective juror's answers, taken as a whole, demonstrates that he did not have a state of mind evincing enmity or bias against the defendant. People v. Vecchiarelli-McLaughlin, 984 P.2d 72 (Colo. 1999).

Challenged jurors did not patently demonstrate any fixed prejudgment. People v. Arevalo, 725 P.2d 41 (Colo. App. 1986).

Where juror demonstrates fixed prejudgment about merits, court errs in refusing to excuse. Where the prospective juror patently demonstrates a fixed prejudgment about the merits of the case and an unwillingness to accept and apply those principles that form the bedrock of a fair trial, the trial court errs in refusing to excuse that juror when causally challenged. People v. Gurule, 628 P.2d 99 (Colo. 1981).

Denying challenge to juror with bias against handguns not abuse of discretion. In a prosecution for armed robbery, the court does not abuse its discretion in denying a challenge for cause to a potential juror who admits his long-standing bias against handguns, where the juror is questioned extensively by the court and defendant's counsel on his opinions concerning handguns and the probable effect of his opinions and experiences on his evaluation of the evidence, where the juror reveals no enmity or bias toward the defendant or the state, and where he expresses an understanding of the principles upon which a fair trial is based. People v. Ward, 673 P.2d 47 (Colo. App. 1983).

Automatic challenge for cause of law enforcement employee. Under subsection (1)(k) the actual bias of a law enforcement employee need not be shown to sustain a challenge for cause. People in Interest of R.A.D., 196 Colo. 430 , 586 P.2d 46 (1978); People v. Maes, 43 Colo. App. 426, 609 P.2d 1105 (1979).

Employee of the state department of administration was improperly challenged for cause under this section. People v. Topping, 764 P.2d 369 (Colo. App. 1988).

Neither the department of social services nor the equal employment opportunity commission constitute a “law enforcement agency”, and therefore trial court did not err by refusing defendant's challenge for cause of jurors employed by such entities. People v. Zurenko, 833 P.2d 794 (Colo. App. 1991).

A prospective juror whose son is a deputy district attorney in the same judicial district where the defendant is being tried may be challenged for cause even though her son is not involved in the prosecution of the case against the defendant. The prospective juror's son is an attorney of record under the provisions of subsection (1)(b). People v. Macrander, 817 P.2d 579 (Colo. App. 1991), aff'd, 828 P.2d 234 (Colo. 1992).

A county official whose office, by statutory mandate, is represented by the prosecutor need not be automatically excluded from serving on a jury on the grounds that the county official is implicitly biased. The relationship between the offices of the clerk and county recorder and of the district attorney, standing alone, does not provide sufficient grounds to justify a challenge for cause. People v. Rhodus, 870 P.2d 470 (Colo. 1994).

Under subsection (1)(j), prospective jurors should be excused if “it appears doubtful” that they will be governed by the instructions of the court as to the law of the case. Morgan v. People, 624 P.2d 1331 (Colo. 1981); People v. Blackmer, 888 P.2d 343 (Colo. App. 1994).

Failure of trial court to excuse juror in response to challenge for cause did not constitute reversible error when juror indicated that she would need to hear both sides to make a decision; rather, such statement suggested juror's commitment to base her decision on the evidence as presented at trial. Morrison v. People, 19 P.3d 668 (Colo. 2000); People v. Honeysette, 53 P.3d 714 (Colo. App. 2002).

Failure of trial court to excuse juror in response to the challenge for cause constituted reversible error where the juror indicated she would have difficulty applying the principles of law unless she heard the defendant testify at trial. People v. Blackmer, 888 P.2d 343 (Colo. App. 1994).

Challenge for cause valid. Juror's close association with the law enforcement establishment, the crime scene, and the co-employee who attended the murder victim required dismissal for cause. People v. Rogers, 690 P.2d 886 (Colo. App. 1984).

Applicable in juvenile proceedings. The rule allowing one charged in an adult criminal prosecution to challenge for cause a prospective juror who is employed by a law enforcement agency must also be applied in juvenile delinquency proceedings. People in Interest of R.A.D., 196 Colo. 430 , 586 P.2d 46 (1978).

Actual function of such employee irrelevant as to challenge. This section does not discriminate on the basis of the particular function served by a challenged employee working in the penitentiary, but mandates that all present employees of law enforcement agencies be excused from jury service. People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978).

State penitentiary deemed law enforcement agency. The state penitentiary, as a state “institution” within the department of institutions, is a law enforcement agency as to the eligibility of employees thereof to serve as jurors. People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978).

Division of youth corrections (DYC) within the department of human services is a public law enforcement agency within the meaning of subsection (1)(k). The court erroneously denied defendant's challenge for cause to a prospective juror employed by the DYC. People v. Sommerfeld, 214 P.3d 570 (Colo. App. 2009).

Neither the federal department of homeland security nor the federal transportation safety administration is a public law enforcement agency within the contemplation of the statute. Neither agency has as its predominant purpose the enforcement of penal laws. People v. Speer, 255 P.3d 1115 (Colo. 2011).

Even tenuous relationships with law enforcement agency grounds for challenge. To insure that a jury is impartial in both fact and appearance, a prospective juror who has even a tenuous relationship with any prosecutorial or law enforcement arm of the state should be excused from jury duty in a criminal case. People in Interest of R.A.D., 196 Colo. 430 , 586 P.2d 46 (1978); People v. Maes, 43 Colo. App. 426, 609 P.2d 1105 (1979).

Where juror stated that she was acquainted with a police officer who would be a witness for the prosecution, that her husband was a police officer, and that the name of a police officer who was to testify as a defense witness sounded familiar to her and where the juror stated that these factors would not have a bearing upon her ability to be a fair and impartial juror, while no one of these factors alone would have required that this juror be excused for cause, the combination of factors reflecting her close association with the law enforcement establishment required her dismissal for cause, despite her somewhat ambivalent statements that these factors would not affect her ability to be a fair and impartial juror. People v. Reddick, 44 Colo. App. 278, 610 P.2d 1359 (1980).

But where the juror has only a passing acquaintance with police officers and states that her impartiality will not be affected, the court may permit the juror to serve. People v. Fields, 697 P.2d 749 (Colo. App. 1984).

Similarly, where the juror has a casual friendship with a police cadet, and the juror states that he would be fair to the defendant, the court may permit the juror to serve. People v. Vigil, 718 P.2d 496 (Colo. 1986).

But former employees not subject to challenge. Since this section does not purport to disqualify former employees of a public law enforcement agency challenged for cause, a defendant's challenge of a retired guard member of the jury panel was properly denied. People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978).

But volunteer reserve police officer not ineligible for jury service. The plain language of the statute makes compensated employees of public law enforcement agencies ineligible for jury service. Compensation by private employers for off-duty work does not bring panel member within reach of statute. Employment at the time of the defendant's trial, and not future employment, is determinative. People v. Veloz, 946 P.2d 525 (Colo. App. 1997).

Prospective juror clearly was not an “employee” under this section or under Crim. P. 24(b)(1)(XII), where she volunteered to serve on an on-call basis to work with victims, at the time of trial had been an advocate for a brief period, had been called only approximately six times, and had only a casual limited time commitment. People v. Gilbert, 12 P.3d 331 (Colo. App. 2000).

Statute is not “eliminated” by § 13-71-104 . This statute was enacted prior to the passage of § 13-71-104 and general assembly is assumed to have been aware of this statute at that time, both statutes should be read together so as to give effect to each, particular statutes prevail over general and statutory repeal by implication is not favored, and this statute applies only in criminal trials while § 13-71-104 applies generally to all jury trials. People v. Veloz, 946 P.2d 525 (Colo. App. 1997).

Being a spouse does not subject a person to a challenge for cause as a compensated employee of a public law enforcement agency under subsection (1)(k). To be an employee of a public law enforcement agency an individual must agree to perform certain services or tasks and to accept direction and control from an authorized representative of the employer for compensation and being a spouse of such an employee even though the recipient of certain benefits by reason of being the spouse does not subject a person to a challenge for cause as a compensated employee under subsection (1)(k). People v. Coleman, 844 P.2d 1215 (Colo. App. 1992).

Word “lawyer” includes only those persons licensed to practice law. For challenge for cause to be successful as to a prospective juror who is learned in the law but not licensed to practice, there must be a showing that prospective juror's education has produced state of mind resulting in enmity or bias toward defendant or the state. People v. Binkley, 687 P.2d 480 (Colo. App. 1984), aff'd, 716 P.2d 1111 (Colo. 1986) (case decided prior to 1998 amendment to subsection (1)(k) that deleted applicability to lawyers).

A prospective juror who retained a license to practice law is a “lawyer” under subsection (1)(k), even if the juror is no longer eligible to practice law because of a transfer to inactive status. People v. Pope, 944 P.2d 689 (Colo. App. 1997); People v. Daniels, 973 P.2d 641 (Colo. App. 1998) (cases decided prior to 1998 amendment to subsection (1)(k) that deleted applicability to lawyers).

As used in subsection (1)(b), the term “third degree” means a relationship between one person and another based on consanguinity, or blood relationship, and affinity, or relationship by marriage. Each generation is called a degree in determining the particular degree of the relationship. People v. Macrander, 828 P.2d 234 (Colo. 1992).

A prospective juror would be related to an attorney of record within the third degree “by blood” if the attorney was the juror's child or parent; brother, sister, grandchild, or grandparent; or niece, nephew, great-grandparent, or great-grandchild. People v. Macrander, 828 P.2d 234 (Colo. 1992).

A prospective juror would be related to an attorney of record within the third degree “by marriage” if the attorney was the spouse of the prospective juror, or if the attorney was the child, sibling, grandchild, grandparent, uncle, aunt, niece, nephew, great-grandchild, or great grandparent of the spouse of the prospective juror. People v. Macrander, 828 P.2d 234 (Colo. 1992).

As used in subsection (1)(b), “attorney of record” includes the elected district attorney of a judicial district who initiates a criminal prosecution and also includes any deputy district attorney serving in the office of such elected district attorney at the time of voir dire examination, even though the deputy district attorney may not have formally appeared or participated in the case. People v. Macrander, 828 P.2d 234 (Colo. 1992).

As used in subsection (1)(b), the phrase “any attorney of record or attorney engaged in the trial of the case” includes not only all prosecuting attorneys on the district attorney's staff, but also includes any defense attorney who previously entered an appearance on behalf of the defendant but who may not be participating in the trial of the case, as well as any attorney who will act on behalf of any party during the trial regardless of the level of the attorney's participation. People v. Macrander, 828 P.2d 234 (Colo. 1992).

For purposes of a challenge for cause under subsection (1)(b) a prospective juror who is related within the third degree by blood, adoption, or marriage to a deputy district attorney presently serving on the staff of the elected district attorney responsible for the criminal prosecution is related to an “attorney of record.” People v. Macrander, 828 P.2d 234 (Colo. 1992).

As used in subsection (1)(b), “attorney of record” or “attorney engaged in the trial of the case” does not include a paralegal employed by the district attorney's office. Because juror's daughter was a paralegal and not an attorney, the trial court did not err in denying defendant's challenge for cause under subsection (1)(b). People v. Fleischacker, 2013 COA 2 , 411 P.3d 20.

A marital relationship between a presiding judge and a juror is not included in the specific circumstances under which a court must sustain a challenge to a juror for cause. Considering the statute as a whole and giving the word “attorney” its plain and ordinary meaning in context, it is apparent that it refers to attorneys who represent or have represented the parties and advocated on their behalf. Moreover, an attorney is defined as someone who practices law, and a judge is prohibited from engaging in the practice of law. People v. Richardson, 2018 COA 120 , __ P.3d __, aff'd on other grounds, 2020 CO 46, 481 P.3d 1, cert. denied, __ U.S. __, __ S. Ct. __, 209 L. Ed. 2d 133 (2021).

Presence of presiding judge's spouse on the jury did not rise to the level of structural error without any evidence of prejudice resulting from the judge's spouse serving on the jury. Although it would have been prudent for the judge to excuse his wife, or to recuse himself as presiding judge, the judge's misjudgment was not so egregious that it requires reversal under the plain error standard. People v. Richardson, 2018 COA 120 , __ P.3d __, aff'd on other grounds, 2020 CO 46, 481 P.3d 1, cert. denied, __ U.S. __, __ S. Ct. __, 209 L. Ed. 2d 133 (2021).

Trial court lacks discretion and shall sustain a challenge to remove a prospective juror from further service on the case where a statutory relationship is established and a party challenges the prospective juror for cause on that ground. People v. Macrander, 828 P.2d 234 (Colo. 1992).

Exclusion under subsection (1)(b) not automatic. Both prosecution and defense have the right to either challenge for cause or to forgo such challenge. People v. Macrander, 828 P.2d 234 (Colo. 1992).

A challenge for cause may be for bias that is either actual or implied. An implied bias is a bias attributable in law to a prospective juror regardless of actual partiality. People v. Moya, 899 P.2d 212 (Colo. App. 1994).

Trial court's denial of defendant's challenge for cause under subsection (1)(b) constituted prejudicial error where it failed to remove prospective juror whose son was a deputy district attorney in the same district where defendant was being tried and defendant was required to exercise a peremptory challenge to remove suspect juror and where defendant exhausted all available peremptory challenges on other jurors. People v. Macrander, 828 P.2d 234 (Colo. 1992).

When court's failure to advise panel rendered harmless. Where the trial court failed to advise the jury panel pursuant to subsection (2) until after 13 prospective jurors had been seated in the jury box and the prosecutor had completed his voir dire, but the defendant failed to show that he was prejudiced by this error or that his substantial rights were in any way affected, the trial court's error was rendered harmless by the trial court's subsequent statements to the jury panel in accordance with subsection (2). People v. Reddick, 44 Colo. App. 278, 610 P.2d 1359 (1980).

Prosecution not required to move for mistrial before court could consider sua sponte whether to dismiss juror for alleged inability to follow court's instruction. Where neither party brought juror's misconduct to court's attention, the double jeopardy concerns reflected in subsection (3) are not implicated, and the statute is not applicable. People v. Garcia, 964 P.2d 619 (Colo. App. 1998), rev'd on other grounds, 997 P.2d 1 (Colo. 2000).

Investigation into jury deliberations limited. Once the evidence shows any possibility that the juror is attempting to apply the law, further investigation into juror misconduct based upon the deliberations must stop. People v. Kriho, 996 P.2d 158 (Colo. App. 1999).

Failure of juror during voir dire to reveal information about juror's beliefs insufficient to establish a charge of contempt. Alleged failure to reveal opposition to enforcement of drug laws through the courts, alleged failure to reveal intent not to follow the judge's instruction on the law, and failure to disclose membership in an association supporting the legalization of marijuana were insufficient to establish contempt of court charge. People v. Kriho, 996 P.2d 158 (Colo. App. 1999).

Applied in People v. Manners, 708 P.2d 1391 (Colo. App. 1985); People v. Pernell, 2014 COA 157 , 414 P.3d 1, aff'd on other grounds, 2018 CO 13, 411 P.3d 669.