2021 Colorado Code
Title 18 - Criminal Code
Article 1 - Provisions Applicable to Offenses Generally
Part 4 - Rights of Defendant
§ 18-1-406. Right to Jury Trial

1. Except as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous. In matters involving misdemeanors, the accused is entitled to be tried by a jury of six. In matters involving petty offenses, the accused has the right to be tried by a jury under the terms and conditions of section 16-10-109, C.R.S.
2. Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.
3. A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal of the waiver prior to the commencement of the trial.
4. Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before the swearing in of the jury, or after the swearing in of the jury and before verdict, with the agreement of the district attorney and the approval of the court, to be tried by a number of jurors less than the number to which he would otherwise be entitled.
5. Upon request of the defendant in advance of the commencement of the trial, the defendant shall be furnished with a list of prospective jurors who will be subject to call in the trial.
6. Either the district attorney or the defendant may challenge the array on the ground that there has been a material departure from the requirements of the law governing the selection of jurors, but such challenge shall be made in writing setting forth the particular grounds upon which it is based and shall be filed prior to the swearing in of the jury selected to try the case.
7. Except as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury's verdict.

History. Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-506 . L. 72: P. 268, § 6. L. 86: (1) amended, p. 769, § 3, effective July 1. L. 91: (4) amended, p. 405, § 7, effective June 6. L. 94: (1) amended and (7) added, p. 1716, § 5, effective July 1.

For similar provisions concerning the right to trial by jury, see Crim. P. 23.

Law reviews. For article, “Criminal Procedure”, which discusses a Tenth Circuit decision dealing with the right to a jury trial, see 62 Den. U. L. Rev. 1982 (1985).

Annotator's note. For other annotations concerning the right to trial by jury, see § 23 of art. II, Colo. Const., and Crim. P. 23.

Although there is a statutory right to a unanimous verdict in criminal cases in Colorado, the state constitution does not explicitly guarantee the right to a unanimous verdict. Nevertheless, there are some cases in which the jury may return a general verdict of guilty when instructed on alternative theories of principal and complicitor liability and in which the state constitution has provided a criminal defendant the right to a unanimous jury verdict. People v. Hall, 60 P.3d 728 (Colo. App. 2002).

Subsection (1) of this section and Crim. P. 23, which provide for six jurors in misdemeanor cases, are constitutional under § 23 of art. II of the Colorado Constitution. People v. Rodriguez, 112 P.3d 693 (Colo. 2005).

Jury to have at least six persons. One accused of a noncapital felony or class 1 misdemeanor who elects, pursuant to subsection (4), to be tried by a jury of less than 12 persons may not be tried by a jury of less than six persons. People ex rel. Hunter v. District Court, 634 P.2d 44 (Colo. 1981); People v. Byerley, 635 P.2d 542 (Colo. 1981).

Right to waive trial by jury is substantive in nature. Garcia v. People, 200 Colo. 413 , 615 P.2d 698 (1980).

Even though subsection (2) fails to provide a procedure for waiving a jury trial in class 1 felonies, because the criminal defendant has a substantive right to waive a jury trial, the lack of a waiver procedure does not prohibit the waiver right of the criminal defendant. People v. Cisneros, 720 P.2d 982 (Colo. App.), cert. denied, 479 U.S. 887, 107 S. Ct. 282, 93 L. Ed. 2d 257 (1986).

Requirement of § 16-8-105 (2) that prosecution consent to waiver of jury in sanity trial applied to trial of defendant prosecuted for second degree murder rather than this subsequently enacted general statute which does not refer to prosecutor's consent to waiver of jury trial. People v. District Court, 731 P.2d 720 (Colo. 1987).

Colorado constitution does not afford criminal defendants the right to waive jury and be tried by the court. People v. District Court, 843 P.2d 6 (Colo. 1992); People v. District Court, 953 P.2d 184 (Colo. 1998).

A court exceeds its jurisdiction if it allows a defendant to waive his or her right to a jury trial over the objection of the district attorney based on defendant's claim that his due process rights would be violated by testifying and that he would be subject to impeachment about his past criminal convictions and his ties to drug use. It is not a due process violation to be subject to impeachment about prior criminal convictions; the choice to testify or not is part of adversarial trial process and does not create an unfair trial for the defendant. People v. McKeel, 246 P.3d 638 (Colo. 2010).

In construing the provisions of subsection (2) with § 16-10-101 , requiring the prosecution to consent to waiver of jury trial, due process compels conclusion that prosecution alone cannot compel trial by jury where defendant may not receive a fair trial. People v. District Court, 843 P.2d 6 (Colo. 1992).

The right to a 12-person jury is purely statutory. The sixth and fourteenth Amendments to the U.S. Constitution guarantee the right to trial by jury, but do not, nor does the Colorado Constitution, guarantee the right to a 12-person jury. People v. Chavez, 791 P.2d 1210 (Colo. App. 1990).

Constitutional right to a jury of 12 lies only with felony cases and does not extend to misdemeanor cases. A defendant in a misdemeanor case does not have a constitutional right under art. II, § 23, of the Colorado Constitution to demand a 12-person jury. People v. Rodriguez, 112 P.3d 693 (Colo. 2005).

The statutory right to a 12-person jury could be waived by counsel's statements. The requirement that a defendant must make a written or oral “announcement” of his intention to waive a jury does not extend to a reduction in the number of jurors. People v. Chavez, 791 P.2d 1210 (Colo. App. 1990).

Allotment of right to select mode of trial made in unequivocal terms. When the general assembly has allotted to one party only, such as the accused in a criminal proceeding, the right to select the appropriate mode of trial, it has done so in unequivocal terms. S.A.S. v. District Court, 623 P.2d 58 (Colo. 1981).

Subsection (2) and Crim. P. 23(a)(5) are not reconcilable and directly conflict with each other because the rule provides an additional requirement not present in subsection (2), that the prosecutor's consent must be obtained as a condition before a defendant's oral request to waive his right to a jury trial may be allowed. Garcia v. People, 200 Colo. 413 , 615 P.2d 698 (1980).

Subsection (2) controls over Crim. P. 23(a)(5). Garcia v. People, 200 Colo. 413 , 615 P.2d 698 (1980).

Defendants voluntarily waived jury. Where, when the jury was assembled in the courtroom ready for trial, defendants' counsel orally announced that defendants had decided to waive their right to a jury trial, and the court inquired of each defendant if that was their desire and both indicated in the affirmative, and as a further precaution, the court then insisted that a written waiver of jury trial be prepared and be signed by each defendant and their counsel, which was done, it will be presumed that defendants understandingly, voluntarily, and deliberately decided to waive the jury. People v. Fowler, 183 Colo. 300 , 516 P.2d 428 (1973).

Waiver precludes defendant's complaint that judge rules on evidence and renders verdict. Where the defendant voluntarily and with advice of counsel waived a jury trial, defendant in such circumstances cannot be heard to complain when he creates a situation which necessarily makes the trial judge both the one who decides the admissibility of evidence and the one who renders the verdict. People v. Thompson, 182 Colo. 198 , 511 P.2d 909 (1973).

Judge attempted to use office to force defendant to waive right. When the trial judge couples his intervention into plea negotiations with threats of a longer sentence if the defendant goes to trial and is found guilty, he has attempted to use his office to force the defendant to waive his right to a jury trial or be penalized for exercising this constitutionally guaranteed right. People v. Clark, 183 Colo. 201 , 515 P.2d 1242 (1973).

Applied in People v. Lichtenstein, 630 P.2d 70 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981).