Jury Trial

In Colorado, every person charged with at least a class 2 petty offense has the right to be tried by a jury. See Crim. P. 23. If you’re charged with a felony, you have the right to be tried by a jury of 12. See Crim. P. 23(a)(1). However, you can elect to have less than 12 except in class 1 felony cases and you need consent from the court. See id. If you’re charged with a misdemeanor, you have the right to be tried by a jury of 6. See Crim. P. 23(a)(2). Again, you can elect less than 6 jury members but no less than 3 and with the court’s consent. See id. If you’re charged with a class 1 or 2 petty offense, you have the right to be tried by a jury of 3. See Crim. P. 23(a)(3). However, in class 1 or 2 petty offenses, you must file a jury demand within 21 days of pleading not guilty and pay the court $25 unless you are indigent. See id. Additionally, you can request more than 3 and up to 6 jurors in your jury demand. See Crim. P. 23(a)(4). Finally, in any type of case, you can waive your right to a jury trial and be tried by the court or judge. See Crim. P. 23(a)(5). Typically, this is not advised by most attorneys.

What does trial look like? Trial typically starts with what’s called motions in limine. This is an opportunity for counsel for the defendant and the district attorney to argue whether evidence that has been provided in discovery is admissible or not. For misdemeanors and petty offenses, motions in limine will usually take place immediately before the trial begins. For felonies or if more time is needed, the court may schedule a date before trial to argue motions in limine.

Once motions in limine are done, a jury needs to be empaneled. This is when the court will bring a juror pool out. For misdemeanors, a pool of 18 jurors is used with 6 jurors needing to be seated in order for trial to proceed. For felonies, a pool of 60 jurors is used with 12 needing to be seated for trial to proceed. With the jury pool in place, the judge begin to explain to the jury what is about to happen and ask some questions to determine which jurors may not be able to serve on the jury. See Crim. P. 24(a)(2). When the judge is finished speaking with the jury, the district attorney and defense counsel get to question members of the jury. See Crim. P. 24(a)(3). The point of the questioning is to get information from members of the jury to use during for cause challenges and peremptory challenges. For cause challenges is when the district attorney or defense counsel argues that based on a particular jurors response, they won’t be able to follow the law in this case or they fit other criteria that makes them ineligible to serve on the jury. See Crim. P. 24(b)(1). Both sides can make as many for cause challenges as they want. However, whether to grant a for cause challenge is ultimately up to the judge. Next, each side gets peremptory challenges. Peremptory challenges are essentially the opportunity to eliminate jurors for any reason as long as it doesn’t violate the Constitution. Additionally, it is not up to a judge whether to grant peremptory challenges. Instead, each side gets a certain number of peremptory challenges. In class 1 felonies, each side gets 10 peremptory challenges. See Crim. P. 24(d)(2). In all other felonies, each side gets 5 peremptory challenges. See id. In all other cases, each side gets 3 peremptory challenges. See id. After all the challenges are over, the jury will be empaneled based on the seating arrangement of the jurors. Each juror is given a number and if no jurors are eliminated then jurors 1 to 6 would be the jury for misdemeanors, 1 to 12 for felonies, etc. However, if there is not enough jurors left to seat the full jury, a mistrial will be declared and the case will be rescheduled for trial within 90 days.

Once the jury is empaneled, each side has the opportunity to make opening statements. This is a chance for each side to tell the jury what the evidence at trial will show. Attorneys are not supposed to make legal argument here and can draw an objection if they do. Defense can waive opening statement and make it after the district attorney has presented their case. However, this is typically not advisable.

After each side has made opening statements, the district attorney will put on their case. This means they will call witnesses and present evidence in order to prove the defendant committed the crime charged. For each witness the district attorney calls, defense counsel will have the opportunity to cross examine them.

After the district attorney presents all the evidence in the case, defense counsel should always move for judgment of acquittal. See Crim. P. 29. Failure to move for judgment of acquittal is likely malpractice. When defense moves for judgment of acquittal, the court will ask the question of when the evidence is viewed in the light most favorable to the prosecution, could a reasonable juror find the defendant guilty beyond a reasonable doubt. The answer to this question is almost always yes when the evidence is viewed in the light most favorable to the prosecution. However, in many cases attorneys can successfully get charges dismissed here if the district attorney fails to prove an essential element of the case. For example, in a criminal mischief case, if the alleged victim admits on the stand that the property the defendant destroyed belonged only to him, a court would have no choice but to dismiss a charge of criminal mischief during motion for judgment of acquittal because criminal mischief requires the defendant to destroy another person’s or joint property.

After motion for judgment of acquittal, defense presents their case. This is when the defense calls any witnesses, including the defendant, or presents any evidence they have in favor of a not guilty verdict. However, a criminal defendant is not required to present any evidence and in some cases the defense rests immediately after motion for judgment of acquittal. Additionally, in some cases, defense can waive motion for judgment of acquittal until after defense presents its case. See Crim. P. 29(b).

After defense presents its case, the court will go through jury instructions. This is an opportunity for defense counsel and the district attorney to present jury instructions to the court they feel should be given to the jury. See Crim. P. 30. This is typically when defense presents jury instructions on possible affirmative defenses. The court will review the jury instructions presented by each side and prepared by the court itself and choose which instructions will be included and how they are worded. After jury instructions are chosen, the court will read the instructions to the jury.

After jury instructions, each side makes closing arguments. This is an opportunity for each side to argue how the evidence shows the defendant guilty or not guilty. Attorneys can make legal argument here and typically argue how the evidence shows guilt or not. For defendants who have bad evidence against them, many attorneys will try to draw attention away from the evidence and focus, instead, on how the district attorney did not present enough evidence to prove the defendant guilty beyond a reasonable doubt or call into question the credibility of a witness.

Once closing arguments are over, the case is submitted to the jury for deliberation.