Colo. R. Crim. P. 23

As amended through Rule Change 2022(13), effective September 8, 2022
Rule 23 - Trial by Jury or to the Court
(a)
(1) Every person accused of a felony has the right to be tried by a jury of twelve. Before the jury is sworn, the defendant may, except in class 1 felonies, elect a jury of less than twelve but no fewer than six, with the consent of the court.
(2) Every person accused of a misdemeanor has the right to be tried by a jury of six. Before the jury is sworn, the defendant may elect a jury of less than six but no fewer than three, with the consent of the court.
(3) Every person accused of a class 1 or class 2 petty offense has the right to be tried by a jury of three, if he or she:
(I) Files a written jury demand within 21 days after entry of a plea;
(II) Tenders twenty-five dollars to the court within 21 days after entry of a plea, unless such fee is waived by the judge because of the indigence of the defendant. If the charge is dismissed or the defendant is acquitted of the charge, or if the defendant, having paid the jury fee, files with the court, at least 7 days before the scheduled trial date a written waiver of jury trial, the jury fee shall be returned to the defendant.
(4) The jury, in matters involving class 1 and class 2 petty offenses, shall consist of a greater number than three, not to exceed six, if requested by the defendant in the jury demand.
(5)
(I) The person accused of a felony or misdemeanor may, with the consent of the prosecution, waive a trial by jury in writing or orally in court. Trial shall then be to the court.
(II) The court shall not proceed with a trial to the court after waiver of jury trial without first determining:
(a) That the defendant's waiver is voluntary;
(b) That the defendant understands that:
(i) The waiver would apply to all issues that might otherwise need to be determined by a jury including those issues requiring factual findings at sentencing;
(ii) The jury would be composed of a certain number of people;
(iii) A jury verdict must be unanimous;
(iv) In a trial to the court, the judge alone would decide the verdict;
(v) The choice to waive a jury trial is the defendant's alone and may be made contrary to counsel's advice.
(III) In a proceeding where the waiver of a jury trial is part of a determination preceding the entry of a guilty or nolo contendere plea, the court need only make the determinations required by Rule 11(b) and not those required by this rule.
(6) A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, with the consent of the prosecution, may permit withdrawal of the waiver prior to the commencement of the trial.
(7) In any case in which a jury has been sworn to try a case, and any juror by reason of illness or other cause becomes unable to continue until a verdict is reached, the court may excuse such juror. Except in class 1 felonies, if no alternate juror is available to replace such juror, the defendant and the prosecution, at any time before verdict, may stipulate in writing or on the record in open court, with approval of the court, that the jury shall consist of less than twelve but no fewer than six in felony cases, and less than six but no fewer than three in misdemeanor cases, and the jurors thus remaining shall proceed to try the case and determine the issues.
(8) All jury verdicts must be unanimous.

Colo. R. Crim. P. 23

Source: a1 and a2 amended June 9, 1988, effective 1/1/1989; headnote a repealed and a5 amended July 16, 1992, effective 11/1/1992; a5 amended and adopted September 7, 2006, effective 1/1/2007; entire rule amended and effective 4/17/2008; entire rule corrected July 16, 2008, effective nunc pro tunc 4/17/2008; a3 amended and adopted December 14, 2011, effective 7/1/2012.

Committee Comment

Amended Rule 23(a)(5) reflects the legislature's 1989 decision to condition a defendant's waiver of a jury trial upon the consent of the prosecution. See 1989 S.B. 246, Section 35, amending Section 16-10-101 , C.R.S. See also People v. District Court, 731 P.2d 720, 722 (Colo. 1987). Also, consistent with Colorado caselaw, the amended rule would permit the waiver of a jury trial even in a class 1 felony case. See People v. Davis, 794 P.2d 159, 209-12 (Colo. 1990).

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Annotation Annotator's note. For other annotations concerning the right to trial by jury, see § 23 of art. II, Colo. Const., and § 18-1-406 . Section 18-1-406(1) and this rule, 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). Right to waive trial by jury is substantive in nature. Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980). Rule conflicts with § 18-1-406 . Subsection (a)(5) of this rule and § 18-1-406(2) are not reconcilable and are in direct conflict with each other. Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980). And section 18-1-406(2) controls over subsection (a)(5) of this rule, so that the consent of the prosecuting attorney cannot be imposed as a condition on right to waive trail by jury. Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980). Defendant must personally waive right to jury. The plain meaning of subsection (a)(5) requires that a defendant personally waive his right to a jury trial and that a statement by his counsel does not operate as a waiver. Rice v. People, 193 Colo. 270, 565 P.2d 940 (1977); People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980); Moore v. People, 707 P.2d 990 (Colo. 1985). A waiver must be understandingly, voluntarily, and deliberately made. A defendant in a criminal case may waive his right to a jury trial; however, that waiver must be understandingly, voluntarily, and deliberately made, and a determination of waiver must be a matter of certainty and not implication. People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980); Moore v. People, 707 P.2d 990 (Colo. 1985). Presumption accorded waiver of jury trial. 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). Advisement by court did not substantially comply with this rule, however the remedy is not an automatic new trial. The proper remedy is a postconviction evidentiary hearing. People v. Walker, __ P.3d __ (Colo. App. 2011). Waiver not constitutional right. The defendant in a criminal case does not have a constitutional right to waive a jury and be tried by the court. People v. Linton, 193 Colo. 64, 565 P.2d 919 (1977). Effect of waiver. 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). Waiver is effective where defendant fails to present evidence from which it could be reasonably inferred that the waiver was not voluntary, knowing, and intentional. People v. Porterfield, 772 P.2d 638 (Colo. App. 1988). Jury to be sworn. While there is no explicit statute or rule requiring the administration of an oath to a jury in this state, subsection (a)(7) of this rule and subsection (b)(2) and section (e) of Crim. P. 24, implicitly require that a jury will be sworn to try a case. Hollis v. People, 630 P.2d 68 (Colo. 1981). But delayed swearing not error. Where no prejudice is shown by the delayed swearing of the jury, no objection is made, and the oath is administered before the jury retires to begin its deliberations, the error is harmless. Hollis v. People, 630 P.2d 68 (Colo. 1981). Juror properly dismissed and replaced. A juror, after being sequestered for eight days, was properly dismissed and replaced with an alternative when the juror was shown to be quite nervous and upset, and no evidence of prejudice against the defendant was shown by the dismissal and replacement of the juror. People v. Evans, 674 P.2d 975 (Colo. App. 1983). Requirement of written stipulation to jury of less than 12 met. Where defense counsel stipulates to a jury of less than 12 in open court and on the record, the requirement of section (a)(7) that the stipulation be in writing is met. People v. Waters, 641 P.2d 292 (Colo. App. 1981). Unanimity is required only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and not with respect to alternative means by which the crime was committed. People v. Taggart, 621 P.2d 1375 (Colo. 1981). 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 (a)(5)(II) is intended to require that trial courts conduct on-the-record advisements to defendants, informing them of specific elements of their right to a trial by jury and of certain consequences if they waive that right. People v. Montoya, 251 P.3d 35 (Colo. App. 2010). Trial court did not substantially comply with subsection (a)(5)(II)(b) due to omissions in the court's advisement to defendant about the waiver. Nor did the omissions in the advisement merely constitute a "slip-up" by the trial court. People v. Montoya, 251 P.3d 35 (Colo. App. 2010). Advisement regarding waiver was not deficient simply because trial court did not advise defendant of the possible penalties upon conviction. Such an advisement is neither required nor necessary. People v. Montoya, 251 P.3d 35 (Colo. App. 2010). Where advisement is deficient under subsection (a)(5)(II), the appropriate remedy is to remand the case to the trial court for an evidentiary hearing to resolve defendant's challenge to the validity of the waiver of a jury trial. People v. Montoya, 251 P.3d 35 (Colo. App. 2010). 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). Defense counsel stipulation to a jury of less than 12 in open court and on the record satisfies the statutory requirement that the stipulation must be in writing. People v. Baird, 66 P.3d 183 (Colo. App. 2002). Applied in Hawkins v. Superior Court, 196 Colo. 86, 580 P.2d 811 (1978); People v. Ledman, 622 P.2d 534 (Colo. 1981); People v. Andrews, 632 P.2d 1012 (Colo. 1981); People v. Norman, 703 P.2d 1261 (Colo. 1985).