Colo. R. Civ. P. 47
That you and each of you will well and truly try the matter at issue between ________, the plaintiff, and ________, the defendant, and a true verdict render, according to the evidence.
C.R.C.P. 47
Comment
The amendments to this rule add language to require orientation of the prospective jurors. This case-specific orientation would be in addition to any general orientation the prospective jurors may have received. As set forth in the standardized outline that has been developed for use in the orientation, examination and selection processes, the imparted information and instructions should be clear and as neutral as possible.
The contents of any factual orientation information should be reviewed by the judge with counsel at a pre-trial conference to enable consensus concerning the information to be provided. It is recommended that the judge read a stipulated statement of what the case is about. If counsel cannot agree about the content of such a statement, the Judge may develop a preliminary statement of the case in the judge's own discretion. Alternatively, if both counsel desire to make brief, non-argumentative statements to the prospective jurors on what the case is about, the court should have discretion to permit such statements.
As part of the case-specific orientation, certain preliminary instructions should be used to help prospective jurors to understand the claims and defenses of the parties in the civil case. At a minimum, these instructions should address burden of proof, credibility, objections by counsel, bench conferences and whether jurors will be permitted to take notes and ask questions. In complex or technical cases, definitions of terms and other information that would help orient the jury to the case should be given. The trial judge, rather than counsel, should give these instructions as part of the before-examination orientation.
Provisions of the rules pertaining to examination of prospective jurors have been reorganized and clarified to emphasize certain objections. Specific authority is conferred on the jury commissioner to allow service "postponements" as contemplated by C.R.S. § 13-71-116 and to examine and excuse prospective jurors who do not satisfy statutory qualification requirements of C.R.S. § 13-71-105 .
The court's role has been better defined. Because of the court's neutral role in the case, the trial judge should conduct the initial juror examination by asking standard questions and also those which relate to the specific case, but may be of a sensitive nature. A uniform outline of orientation, juror examination and juror selection procedures has been developed by the committee for both civil and criminal cases. Use of such outline would assure that all important information is covered, time is saved and that cases are handled uniformly throughout the state.
Counsel and pro se litigants would continue to have a part in the juror examination process by being allowed to question prospective jurors on relevant matters not covered by the trial judge. The judge, however, would continue to have authority to limit such examinations to avoid repetition, irrelevant or improper inquiries and wasting of time.
In addition to the standardized outline of orientation, jury examination and jury selection, posterboards and questionnaires have been developed to enhance the process of acquiring information from prospective jurors. When and how posterboards and questionnaires are used in discretionary with the trial judge. Posterboard questions provide a method to obtain information from prospective jurors in a fast, neutral and flexible way. Such method gives counsel time to observe panelists and make notes, which is not always possible when the attorney is engrossed in asking questions directly. Questionnaires, while not normally used in routine cases, can be valuable in those cases involving high publicity and/or complex issues. Where used, questionnaires not only can obtain autobiographical information, but can also seek case-specific information to identify potential prejudice on sensitive issues.
Juror notebooks should be used in trials as an aid to jurors in the performance of their duties. The court should supply three-ring binders which can be retrieved and repeatedly reused. The court and counsel should provide the materials to be placed in the juror notebooks. The timing and placement of particular materials in the notebooks will be at the court's discretion. Juror notebooks should not be taken from the courtroom or jury room. They should be returned at the end of the trial so that notes can be destroyed and other materials replaced, recycled and/or reused. Sections should be tabbed with particular sections deleted or left empty as appropriate.
Juror notebooks should contain the following:
(1) Orientation materials;
(2) Preliminary jury instructions;
(3) A copy of the final instructions given by the court;
(4) Items ordered by the court; and
(5) Blank paper for juror notes (together with a copy of CJI(3D) 1:7).
Annotation I. General Consideration. Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Jury Selection and Opening Statements", see 28 Dicta 383 (1951). For article, "Trials: Rules 38-53 ", see 23 Rocky Mt. L. Rev. 571 (1951). Applied in City of Lakewood v. DeRoos, 631 P.2d 1140 (Colo. App. 1981). II. Examination of Jurors. Law reviews. For article, "Colorado Criminal Procedure-Does It Meet Minimum Standards?", see 28 Dicta 14 (1951). The purpose of a "voir dire" examination of the jury panel is to enable the court and counsel to select as fair and impartial a jury as possible. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972). Collective or individual questioning not improper. It is not improper for plaintiff's counsel on "voir dire" to ask each prospective juror individually a question that could be properly asked of the panel collectively. Davis v. Fortino & Jackson Chevrolet Co., 32 Colo. App. 222, 510 P.2d 1376 (1973). Considerable latitude must be allowed in "voir dire" examination, when made in good faith, to enable counsel properly to exercise not only challenges for cause but also peremptory challenges. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972). Permitting questions to jurors upon which to base a peremptory challenge is within the discretion of the trial court. Bonfils v. Hayes, 70 Colo. 336, 201 P. 677 (1921). Counsel has right to inquire about relationship with insurance company. In "voir dire", counsel not only has the right to inquire if any prospective juror has any relationship to a defendant's insurance company, but counsel may also inquire into that relationship, if one exists. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972); Smith v. District Ct. of State of Colo., 907 P.2d 611 (Colo. 1994). So long as counsel acts in good faith in a personal injury case, the counsel for plaintiff may interrogate prospective jurors respecting their interest in or connection with indemnity insurance companies apparently interested in the result of the case. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906); Independence Coffee & Spice Co. v. Kalkman, 61 Colo. 98, 156 P. 135 (1916). Counsel for plaintiff may not interrogate defendant's counsel, either at the bar or as a witness, concerning whether an insurance company is interested in the case for the purpose of obtaining a basis for interrogating the jurors. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906); Independence Coffee & Spice Co. v. Kalkman, 61 Colo. 98, 156 P. 135 (1916). Order preventing questioning on insurance not reversible error in a certain case. A protective order preventing plaintiff from questioning two prospective jurors regarding any interest in defendants' insurance company is not reversible error where prospective jurors had heard the insurance question asked of other jurors and prospective jurors stated there were no interests or other information which they felt ought to be known by plaintiff. Kaltenbach v. Julesburg Sch. Dist. RE-1, 43 Colo. App. 150, 603 P.2d 955 (1979). Limitations on voir dire questions are within the discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). Trial court may place reasonable restrictions on questioning of jurors if the voir dire process facilitates an intelligent exercise of a party's peremptory challenges and challenges for cause. People v. Greenwell, 830 P.2d 1116 (Colo App. 1992). A trial court may properly restrict questions as to the content of publicity regarding defendants and their pasts. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). Whether community prejudice against a party exists is a question of fact that may be developed at "voir dire". Powell v. City of Ouray, 32 Colo. App. 44, 507 P.2d 1101 (1973). Section 13-71-105(2)(b) provides that a prospective juror shall be disqualified based on the inability to read, speak, and understand the English language. People v. Lee, 93 P.3d 544 (Colo. App. 2003). Whether a prospective juror should be disqualified under § 13-71-105(2)(b) is a question of fact for resolution by the trial court. People v. Lee, 93 P.3d 544 (Colo. App. 2003). Alternatives to mistrial in context of prospective juror who has made prejudicial comments during voir dire. Curative instructions and jury canvassing are two alternatives to a mistrial that may remedy the prejudice to a defendant that results from a prospective juror's prejudicial comments during voir dire. People v. Mersman, 148 P.3d 199 (Colo. App. 2006). The general rule that curative instructions will normally remedy any harm caused by a prejudicial statement is also applicable where a jury panel is exposed to prejudicial comments by a prospective juror. A trial court's instruction to the remaining jurors to disregard the statement and render a verdict based on the evidence presented in court will normally be sufficient to cure any harm to the defendant. To receive a curative instruction in this context, however, a defendant must request it, and a trial court does not commit plain error if it does not give a curative instruction sua sponte. People v. Mersman, 148 P.3d 199 (Colo. App. 2006). In the alternative, the trial court could canvass the jury to see whether the jury actually heard the prejudicial comment and, if so, whether the comment affected the jurors ability to decide the case fairly. People v. Mersman, 148 P.3d 199 (Colo. App. 2006). Where a juror is asked if he would be satisfied to have a man, with the same amount of prejudice that he had against defendants, try his case, an objection to such question is properly sustained. Bonfils v. Hayes, 70 Colo. 336, 201 P. 677 (1921). The absence of a direct reference during voir dire to the name of the police officer defendant inmate had previously been convicted of murdering did not preclude a full and complete elaboration of defendant's defense theory that, because of the murder conviction, corrections personnel disliked him, and because of his testimony against a co-conspirator, other inmates considered home a snitch, someone placed the marihuana cigarette for which he was being prosecuted in his pocket without his knowledge. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). Right to demand a discharge for improper interrogation may be waived. Where during the examination of the jury counsel for defendant announces that he does not wish to demand discharge of the jury on the ground of alleged improper interrogation of its members, the statement constitutes a waiver of the right to have the court declare a mistrial on such ground at that stage of the proceedings, if any such right existed. Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935). III. Alternate Jurors. Law reviews. For article, "Colorado Criminal Procedure-Does It Meet Minimum Standards?", see 28 Dicta 14 (1951). The purpose of seating an alternate juror is to have available another juror when, through unforeseen circumstances, a juror is unable to continue to serve. People v. Abbott, 690 P.2d 1263 (Colo. 1984); Hardesty v. Pino, 222 P.3d 336 (Colo. App. 2009). A trial court is in the best position to evaluate whether a juror is unable to serve, and its decision to excuse a juror will not be disturbed absent a gross abuse of discretion. People v. Abbott, 690 P.2d 1263 (Colo. 1984); Hardesty v. Pino, 222 P.3d 336 (Colo. App. 2009). A trial court is not required to conduct a more thorough investigation to make a factual determination regarding an absent juror's physical inability to continue. Hardesty v. Pino, 222 P.3d 336 (Colo. App. 2009). Where some unforeseen circumstance unrelated to the merits of a case hampers a juror's continued ability to sit, replacing a juror with an alternate is in the nature of an administrative task. People v. Anderson, 183 P.3d 649 (Colo. App. 2007); Hardesty v. Pino, 222 P.3d 336 (Colo. App. 2009). IV. Challenges for Cause. Annotator's note. Since section (e) of this rule is similar to § 200 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Trial court entitled to accept statements of jurors made under oath in determining whether bias or enmity exists. Freedman v. Kaiser Fund. Health Plan, 849 P.2d 811 (Colo. App. 1992). This rule specifies the grounds upon which a challenge for cause may be asserted. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). A party is not to be unreasonably denied a challenge for cause to which he shows himself entitled. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). Trial courts are afforded broad discretion in ruling on a challenge for cause to a potential juror, and a decision to deny a challenge will be set aside only when the record shows a clear abuse of that discretion. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). A party's right to a challenge is a substantial right which it is not within the discretion of the court to take away arbitrarily. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). While peremptory challenges are an important right of an accused, they are not constitutionally required. People v. Hollis, 670 P.2d 441 (Colo. App. 1983); People in Interest of M.M.O.P., 873 P.2d 24 (Colo. App. 1993). The opportunity for such challenges must therefore be taken along with those limitations attendant upon the manner of its exercise. People v. Durre, 713 P.2d 1344 (Colo. App. 1985); People in Interest of M.M.O.P., 873 P.2d 24 (Colo. App. 1993). The allocation of peremptory challenges is not a matter of judicial discretion. Blades v. DaFoe, 704 P.2d 317 (Colo. App. 1985); People in Interest of M.M.O.P., 873 P.2d 24 (Colo. App. 1993). Juvenile's right to equal protection was not violated by trial court's refusal to grant juvenile, who was charged as being a violent juvenile offender, five rather than four peremptory challenges where juvenile failed to show that there was unequal treatment within the class of violent juvenile offenders. Although an aggravated juvenile offender is entitled to five peremptory challenges under § 19-2-804(4)(b)(I), the elements constituting an aggravated juvenile offender differ from those constituting a violent juvenile offender. People in Interest of M.M.O.P., 873 P.2d 24 (Colo. App. 1993). Trial court may place reasonable restrictions on the questioning of jurors if the voir dire process facilitates an intelligent exercise of a party's preemptory challenges and challenges for cause. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). Bias is implied under section (e) of this rule to insure that a jury is impartial, not only in fact, but in appearance. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). In cases of prospective jurors who fall within the categories listed in section (e)(1) to (5), bias is implied to avoid even the appearance of prejudice. Action Realty v. Brethouwer, 633 P.2d 522 (Colo. App. 1981). Actual bias need not be shown. When a prospective juror falls within the class of persons designated within section (e) of this rule, subject to a challenge for cause, actual bias need not be shown. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). In determining whether a potential juror is biased toward any party, the trial court must consider the juror's voir dire statements as a whole. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). The decision of the trial court on the challenge of a juror for cause is not ground for reversal unless manifestly erroneous and prejudicial to the party complaining of it. Salazar v. Taylor, 18 Colo. 538, 33 P. 369 (1893). The ruling of the trial court should be sustained unless it clearly appears from the record that the requirements have been disregarded in the overruling of a challenge for cause. Denver, S. P. & P. R. R. v. Moynahan, 8 Colo. 56, 5 P. 811 (1884). The decision of the trial court to deny a challenge for cause will not be disturbed on review in the absence of a manifest abuse of discretion. Blades v. DaFoe, 666 P.2d 1126 (Colo. App. 1983), rev'd on other grounds, 704 P.2d 317 (Colo. 1985); Denver & Rio Grande v. Forster, 773 P.2d 612 (Colo. App. 1989). If the examination leaves the competency of a juror in doubt, the ruling of the trial court will not be disturbed, for before an appellate court will interfere, it must appear that some positive statute has been violated or that the court has abused its discretion. Rio Grande S. R. R. v. Nichols, 52 Colo. 300, 123 P. 318 (1912). For an assignment of error for overruling a challenge for cause to be considered, it must affirmatively appear that the challenging party was forced to accept disqualified jurors or exhausted all its peremptory challenges in attempting to get rid of them. Blackman v. Edsall, 17 Colo. App. 429, 68 P. 790 (1902); Rio Grande S. R. R. v. Nichols, 52 Colo. 300, 123 P. 318 (1912). Where no bias in favor of the plaintiff nor enmity toward the defendants was shown, a challenge for cause is properly overruled. Bonfils v. Hayes, 70 Colo. 336, 201 P. 677 (1921); Stock Yards Nat'l Bank v. Neugebauer, 97 Colo. 246, 48 P.2d 813 (1935). The trial court properly denied defendant's challenge for cause to a Colorado state senator who had participated in enacting the statute under which defendant was charged where the juror's voir dire responses as a whole neither showed any fixed predisposition against the defendant, nor indicated an inability to render an impartial verdict based on the evidence presented and the court's instructions. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). Decision to deny challenge for cause will not be disturbed on review absent a manifest abuse of discretion. Freedman v. Kaiser Found. Health Plan, 849 P.2d 811 (Colo. App. 1992); Day v. Johnson, 232 P.3d 175 (Colo. App. 2009), aff'd on other grounds, 255 P.3d 1064 (Colo. 2011). A trial court is correct in denying plaintiff's request to dismiss prospective jurors for cause after establishing only that they were policyholders with the same insurance company as the defendant, because the fact that they were policyholders in and of itself would not necessarily affect their judgment in the case. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972). A court does err in refusing to allow further inquiry of these policyholders, because such inquiry is necessary to enable counsel to determine if there is a basis for a challenge for cause and to aid counsel in later making an intelligent exercise of his peremptory challenges. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972). Fact that juror and party are stockholders in same company not alone grounds for sustaining challenge. Where a juror is a stockholder in a company and the plaintiff is also a stockholder in the same company, but it does not appear that the juror is otherwise connected with the plaintiff or with the defendant, such a showing as this furnishes no grounds for sustaining the defendant's challenge of this juror for cause. Tabor v. Sullivan, 12 Colo. 136, 20 P. 437 (1889). The interest of a juror as a member or citizen of a municipality which is a party to the proceeding does not disqualify him. Warner v. Gunnison, 2 Colo. App. 430, 31 P. 238 (1892). Mere possibility of a potential juror's future contact with a litigant is insufficient to disqualify the juror under section (e)(5) of this rule. Where juror's interest in the event of the action was uncertain and speculative, trial court did not abuse its discretion by denying plaintiffs' challenge of the juror for cause. Day v. Johnson, 232 P.3d 175 (Colo. App. 2009), aff'd on other grounds, 255 P.3d 1064 (Colo. 2011). This rule does not make the forming or expressing of an opinion a decisive test as to the juror's competency, unless the opinion be unqualified as to the merits of the action. Collins v. Burns, 16 Colo. 7, 26 P. 145 (1891). The law contemplates that the minds of jurors shall be free from such impressions of the merits as amount to a conviction or prejudgment of the case. The rule is a plain and necessary one, but its application is often exceedingly difficult; this is owing to a variety of circumstances which arise in practice. Denver, S. P. & P. R. R. v. Moynahan, 8 Colo. 56, 5 P. 811 (1884). This rule relates more to the quality of the opinion than to the evidence upon which it is based, for the real question is whether the juror stands indifferent between the parties. The general rule that he who has heard rumors and reports only is competent, and he who has had a full relation of the facts from witnesses, or parties, is disqualified is intended as a guide to general results and is not without exceptions. Union Gold Mining Co. v. Rocky Mt. Nat'l Bank, 2 Colo. 565 (1875), aff'd, 96 U.S. 640, 24 L. Ed. 648 (1877). An opinion founded upon rumor of uncertain report, which has not taken firm hold of the mind, shall not disqualify. Union Gold Mining Co. v. Rocky Mt. Nat'l Bank, 2 Colo. 565 (1875), aff'd, 96 U.S. 640, 24 L. Ed. 648 (1877). Inability on the part of persons called to serve as jurors, to speak the English language and to understand it when spoken does not necessarily disqualify them from serving as jurors under the statutes of Colorado. Trinidad v. Simpson, 5 Colo. 65 (1879); In re Allison, 13 Colo. 525, 22 P. 820 (1889). Court has discretion to exclude them. There are many serious objections to the interposition of interpreters in judicial proceedings and while a court holds it within its power to appoint an interpreter where a juror does not understand the English language, it is also within its discretion to exclude such jurors. Trinidad v. Simpson, 5 Colo. 65 (1879). Whenever it is practicable to secure a full panel of English speaking jurors, a wise discretion would excuse from jury duty persons ignorant of that language. Trinidad v. Simpson, 5 Colo. 65 (1879). Juror's religious reservation on judging another cannot be ground for challenge under section (e)(1). Action Realty v. Brethouwer, 633 P.2d 522 (Colo. App. 1981). Failure to sustain challenge was reversible error. The failure of the trial judge to sustain the plaintiff's challenge for cause, after the juror was determined to be within the class of persons designated in section (e)(3) of this rule, was reversible error. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). Test for disqualification because of religious conviction pursuant to section (e)(7) is the impartial fact-finder test. Action Realty v. Brethouwer, 633 P.2d 522 (Colo. App. 1981). Law enforcement agency employee not challengeable for cause. The rules of civil procedure, unlike the rules of criminal procedure, do not explicitly define as grounds for a challenge for cause the juror's employment by a law enforcement agency. People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978). No challenge for cause for being attorney. Trial court committed reversible error by granting a challenge for cause on the grounds that a prospective juror was an attorney, because this was not a ground set forth in the statute governing challenge for cause in civil actions and resulted in giving the defendant what amounted to an extra peremptory challenge. Faucett v. Hamill, 815 P.2d 989 (Colo. App. 1991). No challenge for cause for juror with specific knowledge of damages caps under Health Care Availability Act notwithstanding requirement in § 13-64-302(1) that prevents disclosure of such damage limitations to the jury. Trial court did not err in rejecting defendant's challenge for cause for prospective juror with special knowledge of the caps because this is not a ground set forth in section (e) of this rule for dismissal of a potential juror. Dupont v. Preston, 9 P.3d 1193 (Colo. App. 2000), aff'd on other grounds, 35 P.3d 433 (Colo. 2001). Juror's debtor-creditor relation with party insufficient for challenge for cause. In a civil case, a juror's standing in a debtor-creditor relation with a party, without more, is insufficient grounds for a challenge for cause. Kaltenbach v. Julesburg Sch. Dist. RE-1, 43 Colo. App. 150, 603 P.2d 955 (1979). Denial of challenge not abuse of discretion if juror decides case impartially. Denial of challenge for cause of juror who stated that he could, and would, put his feelings to one side and decide the case fairly and impartially based on the evidence presented was not an abuse of discretion. Kaltenbach v. Julesburg Sch. Dist. RE-1, 43 Colo. App. 150, 603 P.2d 955 (1979). A juror who expresses an ability to set aside any biases need not be disqualified from jury service. Trial court did not abuse its discretion by denying plaintiffs' challenge for cause of juror who, despite expressing sympathy for defendant, stated she could evaluate the case fairly. Day v. Johnson, 232 P.3d 175 (Colo. App. 2009), aff'd on other grounds, 255 P.3d 1064 (Colo. 2011). V. Order and Determination of Challenges for Cause. Annotator's note. Since section (f) of this rule is similar to § 202 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant case construing that section have been included in the annotations to this rule. The method and order of procedure in ascertaining the qualifications of veniremen and disposing of challenges for cause are commonly in the discretion of the court, but the discretion is not an arbitrary one. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). The rule which requires the challenge of any particular juror for cause to be made at the very time when the ground for challenge becomes apparent from his examination before passing to the examination of another juror is doubtful, and the argument in favor of such a rule is not convincing. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). VI. Order of Selecting Jury. Annotator's note. Since section (g) of this rule is similar to § 203 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. The forming of a jury to try an issue of fact rests largely in the discretion of the trial court. Rio Grande S. R. R. v. Nichols, 52 Colo. 300, 123 P. 318 (1912). For an assignment of error to be considered, it must affirmatively appear from the record that the challenging party exhausted all its peremptory challenges. Rio Grande S. R. R. v. Nichols, 52 Colo. 300, 123 P. 318 (1912). VII. Peremptory Challenges. Law reviews. For comment, "Batson v. Kentucky: Peremptory Challenges Redefined", see 64 Den. U. L. Rev. 579 (1988). Annotator's note. Since section (h) of this rule is similar to § 199 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. A peremptory challenge was not granted by the common law, and the right exists, if at all, by virtue of statute. Butler v. Hands, 43 Colo. 541, 95 P. 920 (1908). Unless this rule regulating the manner of challenges is peremptory that the right cannot be exercised, the court must hold that the right exists. Butler v. Hands, 43 Colo. 541, 95 P. 920 (1908). Guardian ad litem for child who was subject of paternity action should not have been granted preemptory challenges but such preemptory challenges may not be challenged on appeal by putative father who urged the granting of such challenges at trial. Morgan County DSS v. J.A.C., 791 P.2d 1157 (Colo. App. 1989). A juror possessing statutory qualifications is still subject to such challenge. Trinidad v. Simpson, 5 Colo. 65 (1879). Trial court may place reasonable restrictions on the questioning of jurors if the voir dire process facilitates an intelligent exercise of a party's preemptory challenges and challenges for cause. People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992). Multiple litigants are entitled to only one set of peremptory challenges, regardless of whether their interests are essentially common or generally antagonistic. Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Koustas Realty v. Regency Square P'ship, 724 P.2d 97 (Colo. App. 1986). It is reversible error if the trial court grants peremptory challenges in excess of the number prescribed by this rule. Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Fieger v. East Nat. Bank, 710 P.2d 1134 (Colo. App. 1985); Koustas Realty v. Regency Square P'ship, 724 P.2d 97 (Colo. App. 1986). VIII. Oath of Jurors. The juror's oath prescribes his duty; by the obligation thus imposed, he is to well and truly try the issues joined and a true verdict render, according to the law and the evidence. Demato v. People, 49 Colo. 147, 111 P. 703 (1910) (decided under § 198 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). Absent any showing of prejudice by the defendant, the administration of the oath to the panel of jurors accepted for cause before the exercise of peremptory challenges does not constitute reversible error. People v. Smith, 848 P.2d 365 (Colo. 1993). IX. When Juror Discharged. Annotator's note. Since section (j) of this rule is similar to § 189 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. This rule gives the court power to discharge a jury under certain circumstances. Swink v. Bohn, 6 Colo. App. 517, 41 P. 838 (1895). The existence of this authority as a common-law right is recognized. Swink v. Bohn, 6 Colo. App. 517, 41 P. 838 (1895). The court does not have arbitrary power to discharge a jury after it has been impaneled and sworn; the parties are entitled to have their case heard by the jury which has been selected, and they cannot be deprived of that right unless some sufficient reason exists for the exercise of the court's power in the premises. Swink v. Bohn, 6 Colo. App. 517, 41 P. 838 (1895). X. Examination of Premises by Jury. Annotator's note. Since section (k) of this rule is similar to § 206 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. The provisions of section (k) are clear. Kistler v. Northern Colo. Water Conservancy Dist., 126 Colo. 11, 246 P.2d 616 (1952). An inspection of the premises by the jury is a matter entirely within the discretion of the trial court. Saint v. Guerrerio, 17 Colo. 448, 30 P. 335 (1892); Nogote-Northeastern Consol. Ditch Co. v. Gallegos, 70 Colo. 550, 203 P. 668 (1921). Where the jury is permitted by the court to view the premises involved in the litigation, the jurymen are expected to look at everything upon the viewed premises and are not confined to the matters and things mentioned in the testimony given in the court room. Bijou Irrigation Dist. v. Cateran Land & Live Stock Co., 73 Colo. 93, 213 P. 999 (1923). Applied in Kistler v. Northern Colo. Water Conservancy Dist., 126 Colo. 11, 246 P.2d 616 (1952). XI. Deliberation of Jury. Law reviews. For article, "Limitations of the Power of Courts in Instructing Juries", see 6 Dicta 23 (March 1929). Jury shall not separate during deliberation. Upon the close of the cause a jury shall retire for deliberation, and during such deliberation, shall not separate, although it might be in the discretion of the court to permit the jury to separate under certain circumstances. Dozenback v. Raymer, 13 Colo. 451, 22 P. 787 (1889). The mere separation of a jury will not be "per se" sufficient ground for setting aside the verdict and granting a new trial; something else must appear-that is, that there was a strong probability that the jury had been tampered with or influenced to return the verdict which is sought to be set aside. Dozenback v. Raymer, 13 Colo. 451, 22 P. 787 (1889); Beals v. Cone, 27 Colo. 473, 62 P. 948 (1900). The practice of calling the jury into the court room after they have deliberated longer than usual without agreeing upon a verdict and impressing upon them the importance of agreeing if possible is approved of; ordinarily a trial judge is within his rightful province when he urges agreement upon a jury at loggerheads with itself, but this process has its limits. Peterson v. Rawalt, 95 Colo. 368, 36 P.2d 465 (1934). Reading of testimony is discretionary. The overwhelming weight of authority in this country is that the reading of all or part of the testimony of one or more of the witnesses at trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). Where trial testimony is read to the jury at their request during their deliberations, it is essential that the court observe caution that evidence is not so selected, nor used in such a manner, that there is a likelihood of it being given undue weight or emphasis by the jury, for this would be prejudicial abuse of discretion and constitute grounds for reversal. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). Where the only portion of the record designated on review is the testimony which the trial court permitted to be read to the jury during deliberation, there is nothing upon which the court can make a determination of abuse of discretion, and it must therefore presume the trial court acted properly and without error. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). A trial court has discretion to grant the equitable relief of specific performance while the jury concurrently deliberates on the award of damages in cases where the damages are in no way contingent upon the trial court's equity decision. Soneff v. Harlan, 712 P.2d 1084 (Colo. App. 1985). XII. Papers Taken by Jury. Annotator's note. Since section (m) of this rule is similar to § 211 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Amendment to section (m) that allows all exhibits admitted into evidence to be taken into the jury room undercuts previous rule of law that jury could not have unrestricted and unsupervised access to evidence. Thus, the basis no longer exists for prohibiting juror access during deliberations to videotapes, audiotapes, or written documents. People v. McKinney, 80 P.3d 823 (Colo. App. 2003), rev'd on other grounds, 99 P.3d 1038 (Colo. 2004). The pleadings should not be sent out with the jury. Spaulding v. Saltiel, 18 Colo. 86, 31 P. 486 (1892). It is not a good practice to allow the jury to take the declaration to their room when they retire to consider their verdict. Good v. Martin, 1 Colo. 165 (1869), aff'd, 95 U.S. 90, 24 L. Ed. 341 (1877). Jury may take pleadings with them unless objected or excepted to. Where it is assigned for error that the court permitted the jury to take the pleadings with them when they retired, but there is no record of an objection or an exception, an appellate court cannot review alleged irregularities that were apparently waived or consented to. King v. Rea, 13 Colo. 69, 21 P. 1084 (1889). A transcript of the defendant's voluntary confession may be taken into the jury room during deliberations if it passed the tests of admissibility and was admitted into evidence. People v. Miller, 829 P.2d 443 (Colo. App. 1991). No error in permitting jury unfettered access to properly admitted transcripts. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006). No error in permitting jury to view videotapes introduced at trial in jury room without defendant present. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006). The concern about the unsupervised review of materials indicated by the prohibition in this section of depositions in the jury room also applies to the videotape of the interrogation of a witness. As a result, the review of such a videotape by the jurors in this case should have been allowed only under circumstances which would assure that statements made in the videotape were not given undue weight or emphasis. People v. Montoya, 773 P.2d 623 (Colo. App. 1989), cert. denied, 781 P.2d 647 (Colo. 1989). The amendment to section (m) effective January 1, 1999, undercuts the rationale of People v. Montoya and, under the amended rule, written statements that are trial exhibits may be taken into the jury room. People v. McKinney, 80 P.3d 823 (Colo. App. 2003), rev'd on other grounds, 99 P.3d 1038 (Colo. 2004). The amendment to section (m) effective in 1999 made the analysis in People v. Montoya no longer applicable. Trial court, therefore, did not err when it permitted jurors to take victim's written statement into the jury room for deliberations. People v. Pahlavan, 83 P.3d 1138 (Colo. App. 2003). Submission of deposition transcripts to the jury which are not read or otherwise used by the jurors, does not necessitate a new trial. Montrose Valley Funeral Home, Inc. v. Crippin, 835 P.2d 596 (Colo. App. 1992). Applied in Billings v. People, 171 Colo. 236, 466 P.2d 474 (1970). XIII. Additional Instructions. Annotator's note. Since section (n) of this rule is similar to § 212 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. No error will be presumed in denying request for further instructions. Where a jury after retiring for deliberation returns into court and requests further instructions, which request is denied by the court, and the abstract of record contains neither the instructions given nor the request for further instructions, it will be presumed that no error was committed in denying the request. Buzanes v. Frost, 19 Colo. App. 388, 75 P. 594 (1904). Sections (l) and (n) of this rule are not violated by written reply that matter is already covered. Where a jury in the course of its deliberations sends a note to the judge requesting advice on a question, and the judge replies in writing that "this matter is covered in your instructions", sections (l) and (n) of this rule are not violated. Kath v. Brodie, 132 Colo. 338, 287 P.2d 957 (1955); Reimer v. Walker, 170 Colo. 149, 459 P.2d 274 (1969). Trial courts of necessity possess a large discretion in recalling juries and submitting amended or additional legal propositions by way of instructions. Hayes v. Williams, 17 Colo. 465, 30 P. 352 (1892). Unless it fairly appears that some legal right of the party complaining has under proper objection been invaded and that the invasion may have resulted in injury, a reversal will not take place upon this ground. Hayes v. Williams, 17 Colo. 465, 30 P. 352 (1892). Communication should take place in open court in counsel's presence. There ought to be no communication between the judge and jury after the latter have been charged and have retired to consider their verdict unless the communication takes place in open court, and, if practicable, in the presence of counsel on the respective sides. Colo. Cent. Consol. Mining Co. v. Turck, 50 F. 888 (8th Cir. 1892). Where the communication complained of evidently took place in open court, but the record does not show the cause of counsel's absence, whether they were absent due to their own fault, or as to whether any efforts were made to secure their presence, every presumption in favor of the regularity and propriety of the court's action must be indulged. Colo. Cent. Consol. Mining Co. v. Turck, 50 F. 888 (8th Cir. 1892). This rule must be given a reasonable construction. Tilley v. Montelius Piano Co., 15 Colo. App. 204, 61 P. 483 (1900). This rule is intended simply to apply to such instructions or communications from the court to the jury as might bear upon the issues of the case and influence it in its determination for the one party or the other. Tilley v. Montelius Piano Co., 15 Colo. App. 204, 61 P. 483 (1900). This rule is not intended to reach, or embrace, such communications as could not be construed to be instruction as to the law in the case and which are manifestly harmless in their character. Tilley v. Montelius Piano Co., 15 Colo. App. 204, 61 P. 483 (1900); People in Interest of E.S., 681 P.2d 528 (Colo. App. 1984). An inquiry as to admissibility of verdict is not error. Where the jury after retiring send to the court by the bailiff, in the absence of counsel on both sides, a communication wherein they inquire whether a certain verdict would be admissible, to which communication the court returns by the bailiff a verbal answer "no", it is not reversible error as in violation of this rule. Tilley v. Montelius Piano Co., 15 Colo. App. 204, 61 P. 483 (1900). An agreement may be called for. This rule has no application to a communication of the judge to jury, not as to the law of the case, but an exhortation to endeavor to harmonize their differences and come to an agreement. Hutchins v. Haffner, 63 Colo. 365, 167 P. 966 (1917). Instruction that jury "must" return verdict is error. When the jury indicates that it is in disagreement and an oral instruction precludes any possibility of a hung jury and goes far beyond the usual written third-degree instruction, which should be used with caution, then, where almost immediately after receiving this oral communication the jury returns its verdict, it can be reasonably assumed that any honest debate among the jurors is further precluded by the blunt instruction that they must return one verdict or the other with the implication that they cannot report a disagreement, so as to be prejudicial error. Reimer v. Walker, 170 Colo. 149, 459 P.2d 274 (1969). A communication not in any way indicating the opinion of the court as to the merits of the controversy and not tending in any degree to coercion upon the jury is entirely proper and praiseworthy, though made in the absence of counsel and without their knowledge. Hutchins v. Haffner, 63 Colo. 365, 167 P. 966 (1917). XIV. New Trial if No Verdict. When the trial court learns that the jury verdict was not unanimous and chooses to discharge the jury, the trial court had no choice but to order a new trial. Neil v. Espinoza, 747 P.2d 1257 (Colo. 1987). XV. Sealed Verdict. Annotator's note. Since section (p) of this rule is similar to § 214 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Jurors may, by order of court, if they arrive at a verdict during recess, reduce it to writing, seal it, and separate. Kohn v. Kennedy, 6 Colo. App. 388, 41 P. 510 (1895). The verdict must be retained by the jury or by some member thereof and be delivered to the court. Kohn v. Kennedy, 6 Colo. App. 388, 41 P. 510 (1895). Although a jury may be allowed to separate after having sealed a verdict, they must be called at the opening of court and asked whether they have agreed upon their verdict. Kohn v. Kennedy, 6 Colo. App. 388, 41 P. 510 (1895). Irregularity in the reception of a verdict is not waived by a failure to object at the time it was so received. Kohn v. Kennedy, 6 Colo. App. 388, 41 P. 510 (1895). Where one seeks reversal on the ground of irregularity in the failure of the trial judge to be present when the verdict was received, then, if he was not substantially prejudiced by the trial court's procedure, he has no right to complain of the action of the trial court in entering its judgment on the verdict. Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533 (1948). XVI. Declaration of Verdict. Annotator's note. Since section (q) of this rule is similar to § 215 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Whether there shall be a poll of the jury rests in the sound discretion of the trial judge. Hindrey v. Williams, 9 Colo. 371, 12 P. 436 (1886); Morgan v. Gore, 96 Colo. 508, 44 P.2d 918 (1935). If there should be any good reason, a request by either party to test the unanimity of the jury by a poll should be allowed. Hindrey v. Williams, 9 Colo. 371, 12 P. 436 (1886). As a matter of practice, when a demand for a poll is made, it should be granted. Ryan v. People, 50 Colo. 99, 114 P. 306 (1911). Rule does not require polling of jury unless a party so requests. Kading v. Kading, 683 P.2d 373 (Colo. App. 1984). XVII. Correction of Verdict. Annotator's note. Since section (r) of this rule is similar to § 216 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Objections to the form of a verdict must be made in the court and before the jury is discharged. Cowell v. Colo. Springs Co., 3 Colo. 82 (1876), aff'd, 100 U.S. 55, 25 L. Ed. 547 (1879). An objection to the form of a verdict cannot be raised on appeal for the first time. Cowell v. Colo. Springs Co., 3 Colo. 82 (1876), aff'd, 100 U.S. 55, 25 L. Ed. 547 (1879). Where verdict is for plaintiff, it is the duty of the plaintiff and not the defendant to see that the verdict is corrected at the proper time. Dorsett v. Crew, 1 Colo. 18 (1864). When mistakes in the form of the verdict are brought to the notice of the court, it becomes the duty of the court to send the jury back for the purpose of returning a correct verdict. Dorsett v. Crew, 1 Colo. 18 (1864). If the amount of indemnity awarded by the jury is incorrect and the correct amount has already been determined and is not disputed, the court may amend the verdict in order to award the determined amount. Cole v. Angerman, 31 Colo. App. 279, 501 P.2d 136 (1972). Trial court may increase amount in verdict. Where the amount in question is undisputed or liquidated and the jury has failed to follow the instructions and returned a verdict for a lesser sum, the trial court has the power to increase the verdict to the higher figure. Cole v. Angerman, 31 Colo. App. 279, 501 P.2d 136 (1972). Trial court may reduce amount in verdict. The action of the trial court, after receiving the verdict of the jury and remarking to them that they were discharged, in causing them to amend their verdict by reducing it to the amount claimed by the plaintiff, is not reversible error inasmuch as the same action might have been taken without the jury. Patrick Red Sandstone Co. v. Skoman, 1 Colo. App. 323, 29 P. 21 (1892). Error by clerk is amendable. Any error or defect in a record which occurs through the act or omission of the clerk of the court in entering, or failing to enter of record, its judgment or proceedings is not an error in the express judgments pronounced by the court in the exercise of its judicial discretion, but is a clerical error and amendable. Hittson v. Davenport, 4 Colo. 169 (1878). Word "defendant" in verdict presumed to include both defendants. Where two persons are sued as defendants and, although answering separately, make the same defense, a verdict for "the defendant" is not void for uncertainty, but must be presumed to include both defendants. Waddingham v. Dickson, 17 Colo. 223, 29 P. 177 (1892). Nonpertinent matter may be disregarded. Where a verdict is irregular, the court may direct the jury to make necessary corrections, but it is not limited to that procedure, as it may properly disregard nonpertinent matter. Morgan v. Gore, 96 Colo. 508, 44 P.2d 918 (1935). Any irregularity of form in verdict should be disregarded if it fairly appears that the jury intended a given verdict. Tyler v. District Court, 200 Colo. 254, 613 P.2d 899 (1980). Court may not look beyond face of record to examine thought processes of jurors, and, if their intent is clear from the record, the verdict shall be given effect. Tyler v. District Court, 200 Colo. 254, 613 P.2d 899 (1980). An incorrect method of expressing an intended verdict amounts to a mistake in the verdict that may properly be corrected under this rule. Kading v. Kading, 683 P.2d 373 (Colo. App. 1984). A trial court may amend a verdict in matters of form, but not of substance. A change of substance is a change affecting the jury's underlying decision, but a change in form is one which merely corrects a technical error made by the jury. If amending a verdict to resolve an ambiguity would change the jury's underlying intent, the change is one of substance and cannot be done without a new trial. Dysert Assoc. Architecture v. Hoeltgen, 728 P.2d 756 (Colo. App. 1986). A trial court may not set aside or amend, by way of remittitur, a jury's award for damages, so long as the verdict is consistent with the court's instruction and supported by evidence and the amount awarded is not so excessive or inadequate as to indicate bias, passion, or prejudice. Belfor USA Group v. Rocky Mtn. Caulking & Waterproofing, 159 P.3d 672 (Colo. App. 2006). Where inconsistent verdicts indicate that the jury was misled by its instructions concerning the awarding of damages, the trial court may not resolve the inconsistency by amending the verdict, and the appropriate remedy is a new trial on the issue of damages. Hugh v. Washington Indus. Bank, 757 P.2d 1154 (Colo. App. 1988). XVIII. Verdict Recorded. Annotator's note. Since section (s) of this rule is similar to § 217 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. If the answer is in the affirmative, the sealed verdict may be delivered to the court and, if in form, the jury may be discharged from the case. Kohn v. Kennedy, 6 Colo. App. 388, 41 P. 510 (1895). When juror was questioned about whether the verdict in favor of defendant as reported by a written special verdict was her verdict and juror responded "no", judge should have declared a mistrial or directed the jurors to deliberate further; by engaging in extended questioning as to why the juror had said the verdict was not hers, the court and counsel improperly delved into the deliberations and mental processes of the jurors and risked unduly influencing the juror to conform to the signed verdict. Simpson v. Stjernholm, 985 P.2d 31 (Colo. App. 1998). Until the jury is discharged, the jurors are not relieved their duties pertaining to the case. Kohn v. Kennedy, 6 Colo. App. 388, 41 P. 510 (1895).
For the "Colorado Uniform Jury Selection and Service Act", see article 71 of title 13, C.R.S.; for irregularity in selecting, summoning, and managing jurors, see § 13-71-140 , C.R.S.; for motions for post-trial relief, see C.R.C.P. 59; for grounds for new trial, see C.R.C.P. 59(d); for third-party practice, see C.R.C.P. 14; for intervention, see C.R.C.P. 24.