Colo. R. Crim. P. 24
The court may direct that a sufficient number of jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror shall not be discharged until the jury renders its verdict or until such time as determined by the court. When alternate jurors are impaneled, each side is entitled to one peremptory challenge for each alternate to be selected, and such additional peremptory challenges may be exercised as to any prospective jurors. In a case in which a class 1, 2 or 3 felony is charged and in any case in which a felony listed in Section 24-4.1-302(1), C.R.S. is charged, the court, at the request of the defendant or the prosecution, shall impanel at least one alternate juror.
Colo. R. Crim. P. 24
Committee Comment to (c)
These changes were made in order to conform Rule 24 to the legislative changes in the Colorado Uniform Jury Selection and Service Act, Sections 13-71-101 to 13-71-145 , C.R.S. which became effective January 1, 1990.
Committee Comment to (d)
The rule is changed to permit, but not to require, the court to allow the simultaneous questioning of more than 12 potential jurors and one or two alternate jurors at one time. Further, the rule permits, but does not require, the court to allow the exercise of peremptory challenges, in writing, in its discretion, as is done in civil cases. This rule change is intended to apply to both district and county court criminal cases.
Annotation I. General Consideration. Law reviews. For article, "Challenges for Cause in Criminal Trials", see 12 Colo. Law. 1799 (1983). For article, "Criminal Procedure", which discusses a recent Tenth Circuit decision dealing with co-conspirators and voir dire, see 61 Den. L.J. 310 (1984). For article, "Curbing the Prosecutor's Abuse of the Peremptory Challenge", see 14 Colo. Law. 1629 (1985). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses recent cases relating to peremptory challenges on the basis of race, see 15 Colo. Law. 1609 (1986). 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). Defendant entitled 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); People v. Gurule, 628 P.2d 99 (Colo. 1981); People v. Collins, 730 P.2d 293 (Colo. 1986). Although a defendant is entitled to a trial by a fair and impartial jury, he is not entitled to any particular juror. People v. Johnson, 757 P.2d 1098 (Colo. App. 1988). The right to an impartial jury does not require counsel be granted unlimited voir dire examination. People v. O'Neill, 803 P.2d 164 (Colo. 1990). And discrimination in summoning of jurors may be ground for reversal. Counsel may request, in the presence of the presiding judge, or the judge himself may direct, that only good and lawful men be summoned as jurors; but to discriminate in favor of or against any class of citizens eligible for jury duty would be a grievous wrong. Whether such intermeddling would be ground for reversal depends upon the circumstances of the case. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889). Qualified person should not be excused except for statutory reason. Jury service being an obligation of citizenship, the court should not excuse a person otherwise qualified for jury service for any reason short of the statutory criteria of "undue hardship, extreme inconvenience, or public necessity" set out in § 13-71-112(2). People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983). 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 (b)(2) and section (e) of this rule and Crim. P. 23(a)(7) implicitly require that a jury will be sworn to try a case. Hollis v. People, 630 P.2d 68 (Colo. 1981). And delayed swearing not necessarily 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). A ruling by the trial court which calls an alternative juror to replace a juror who becomes "disqualified" to perform his duties is a matter within the discretion of the trial court and will not be disturbed on review unless an abuse of discretion is shown. People v. Johnson, 757 P.2d 1098 (Colo. App. 1988). 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). This rule is not in agreement with § 16-10-105 because that section requires that jurors may be replaced with alternate jurors before deliberations begin and not after. Since the court rules govern practice and procedure in civil and criminal cases while the statute affects the substantive right to a fair trial, § 16-10-105 is the operative provision in deciding that the trial court erred by applying section (e) of this rule and allowing the replacement of a regular juror with an alternate juror after the jury had begun its deliberations People v. Montoya, 942 P.2d 1287 (Colo. App. 1996). Trial court's use of random selection to choose alternate juror was error, but, in the absence of any prejudice demonstrated against the defendant, it was harmless error. People v. Tippett, 733 P.2d 1183 (Colo. 1987). 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 and the 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); People v. Christopher, 896 P.2d 876 (Colo. 1995). Applied in Raullerson v. People, 157 Colo. 462, 404 P.2d 149 (1965); Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970); People v. Bercillio, 179 Colo. 383, 500 P.2d 975 (1972); People v. Fink, 41 Colo. App. 47, 579 P.2d 659 (1978); Kaltenbach v. Julesburg Sch. Dist. Re-1, 43 Colo. App. 150, 603 P.2d 955 (1979); People v. Velarde, 200 Colo. 374, 616 P.2d 104 (1980); People v. Gonzales, 631 P.2d 1170 (Colo. App. 1981); People v. Rivers, 727 P.2d 394 (Colo. App. 1986). II. Examination. Purpose of voir dire examination is to enable counsel to determine whether any prospective jurors are possessed of beliefs which would cause them to be biased in such a manner as to prevent his client from obtaining a fair and impartial trial. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974); People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 (Colo. 1986); People v. Collins, 730 P.2d 293 (Colo. 1986). While a defendant does not have a constitutional right to voir dire a prospective jury panel, such right is expressly granted under rules of criminal procedure. People v. Lefebre, 981 P.2d 650 (Colo. App. 1998), aff'd on other grounds, 5 P.3d 295 (Colo. 2000). Court may limit, but may not deny, the defendant's right to voir dire. People v. Lefebre, 981 P.2d 650 (Colo. App. 1998), aff'd on other grounds, 5 P.3d 295 (Colo. 2000). The court's error in denying defense counsel the right to question a prospective juror who was excused by the court does not constitute prejudice requiring a reversal of the conviction where defendant does not allege that the jury that was seated was unfair or partial and where the prosecution did not exhaust its peremptory challenges and thus could have removed the prospective juror even if the court had not excused him. People v. Evans, 987 P.2d 845 (Colo. App. 1998). The knowledge or ignorance of prospective jurors concerning questions of law is generally not a proper subject of inquiry for voir dire. People v. Collins, 730 P.2d 293 (Colo. 1986). Restrictions within court's discretion. Restrictions on the scope of the voir dire examination are within the trial court's discretion, and will not be reversed on appeal absent an abuse of that discretion. People v. Saiz, 660 P.2d 2 (Colo. App. 1982); People v. Rivers, 727 P.2d 394 (Colo. App. 1986); People v. Reaud, 821 P.2d 870 (Colo. App. 1991). If there is firm and clear evidence that a potential juror holds an actual bias that is unlikely to change through education concerning the trial process, exposure to basic principles governing criminal trials, or questioning by the court or the parties, the judge is permitted to excuse that juror without additional questioning. Under subsection (a)(3) of this rule, a trial judge must ordinarily permit voir dire of jurors in circumstances that could involve actual bias. Such questioning is useful to determine whether the juror can set aside bias and decide the case based on the evidence presented and the court's instructions. However, the trial need not waste time on further questioning where there is firm and clear evidence that a juror is unfit to serve under subparagraph (b)(1)(X) of this rule or if there is implied bias under subparagraphs (b)(1)(I) through (IX) or (b)(1)(XII) of this rule. People v. Lefebre, 5 P.3d 295 (Colo. 2000). Trial court abused its discretion in dismissing jurors without allowing the defense to question them where the record did not contain firm and clear evidence that the jurors removed for cause held actual biases that they could not set aside. The following responses on a written questionnaire were insufficient to support dismissal for cause without further questioning: Juror's assertion that he could not be fair because his brother had been convicted of the same offense with which defendant was charged; juror's assertion that a prior criminal background would prevent him from being fair; and juror's statement that he could not be fair because his sister serves as an expert witness and he had not liked the district attorney's treatment of her on the witness stand. People v. Lefebre, 5 P.3d 295 (Colo. 2000). Propriety of questions within discretion of trial court. The propriety of questions to potential jurors on voir dire is within the discretion of the trial court, and its ruling thereon will not be disturbed on appeal unless an abuse of that discretion is shown. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); People v. Collins, 730 P.2d 293 (Colo. 1986); 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 that 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). Rule expressly authorizes counsel to directly question prospective jurors and the judge cannot require counsel to submit questions to prospective jurors through the judge. The judge may, however, limit counsel's questions if they are unduly repetitious, irrelevant, or otherwise improper. People v. Reaud, 821 P.2d 870 (Colo. App. 1991). The court's blanket prohibition against questions regarding a prospective juror's understanding of an instruction is an abuse of discretion where the court makes no inquiry as to the nature of the questions. People v. Reaud, 821 P.2d 870 (Colo. App. 1991). Trial court's failure to conduct examination not plain error. Trial court's failure to explain to potential jurors the qualifications for jury service, the grounds for challenges for cause, and juror's duty to inform the court of anything that would disqualify them from service was not plain error when no party objected. People v. Page, 907 P.2d 624 (Colo. App. 1995). 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). III. Challenges for Cause. A. In General. Distinguishing between challenges. Courts distinguish between challenges "propter affectum", those relating to a juror's bias, prejudice, interest, etc., and challenges "propter defectum", those relating to the absence of some purely statutory qualification such as residence, citizenship, property owning, taxpaying, etc., holding that disregard of the former constitutes reversible error but not disregard of the latter. Also, in case of the former, prejudice to the litigant may be assumed; in case of the latter, it must be shown. Exceptions to this rule are not wanting, but these rest generally upon special facts and are supported by sound reason. Harris v. People, 113 Colo. 511, 160 P.2d 372 (1945). Examination and disposal of challenges within discretion of court. The method and order of procedure in ascertaining the qualifications of veniremen and in disposing of challenges for cause are commonly in the discretion of the court. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). But discretion is not an arbitrary one, and a party is not to be unreasonably denied a challenge to which he shows himself entitled, because his right in such case is a substantial right which it is not within the discretion of the court to take away. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). Determination of the trial court upon a question of fact is not subject to review in challenges to jurors. 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). Challenge need not be made immediately when grounds become apparent. The challenge of a particular juror for cause need not be made at the very time when the ground of challenge becomes apparent and before proceeding to the examination of another juror. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912). Improper for court to require challenge for cause, and subsequent argument, in the presence of potential jurors. However, not plain error requiring reversal of conviction where there is no evidence in record supporting assertion that the challenged jurors were biased by hearing the challenges for cause nor were the challenges so obviously inflammatory to raise the presumption that bias resulted. People v. Flockhart, __ P.3d __ (Colo. App. 2009). No dismissal if juror will render impartial verdict. 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). No abuse of discretion to deny challenge for cause where trial court conducted 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. People v. Goodpaster, 742 P.2d 965 (Colo. App. 1987). No abuse of discretion to deny challenge for cause where trial court concluded that prospective juror, who was a neighbor of police officer who would be testifying, specifically stated that he would not give more or less credibility to the officer's testimony as a result. People v. Loggins, 981 P.2d 630 (Colo. App. 1998). No abuse of discretion in denying challenge for cause where trial court determined that first cousin of investigating police department's chief of police who indicated that while her relationship with the mother of the chief could create a hardship for her she could nonetheless be impartial. People v. Pasillas-Sanchez, 214 P.3d 520 (Colo. App. 2009). 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). 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). Court properly denied challenge for cause of a prospective juror because, although the juror stated that she basically believed children to be honest, she also indicated she would apply the principles of law given by the court to their testimony. People v. Howard, 886 P.2d 296 (Colo. App. 1994). 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). B. Effect of Juror's Opinion or Interest. Subparagraph (b)(1)(X) of this rule does not conflict with the sixth amendment to the United States Constitution, which secures to persons charged with crime the right to be tried by an impartial jury. Jones v. People, 2 Colo. 351 (1874). Defendant has right to ask questions to show existence of grounds for challenge. The defendant has a right to propound questions to the proposed jurors, to show not only that there exists proper grounds for a challenge for cause but also to elicit facts to enable him to decide whether or not he would make a peremptory challenge. Union Pac. Ry. v. Jones, 21 Colo. 340, 40 P. 891 (1895); Jones v. People, 23 Colo. 276, 47 P. 275 (1896); Zancannelli v. People, 63 Colo. 252, 165 P. 612 (1917). The mere expression of some concern by a prospective juror regarding a certain aspect or issue of a case should not result in automatic dismissal of that prospective juror for cause. Likewise, dismissal for cause is not required merely because a prospective juror answers questions in a way that might indicate some bias, prejudice, or preconceived notion. The decisive question is whether it is possible for the prospective juror to set aside his or her preconceived notions and decide the case based on the evidence and the court's instructions. In determining whether a prospective juror can do so, the trial court should consider all available facts, including the prospective juror's assurances of fairness and impartiality. People v. Arko, 159 P.3d 713 (Colo. App. 2006), rev'd on other grounds, 183 P.3d 555 (Colo. 2008). Challenge for cause should be granted where prospective juror is unwilling or unable to accept the basic principles of law applicable to the case and to render a fair and impartial verdict based upon the trial. People v. Russo, 713 P.2d 356 (Colo. 1986); People v. Esch, 786 P.2d 462 (Colo. App. 1989). Juror who is not impartial should be dismissed. If there is sufficient reason to question the impartiality of the juror, the trial court should grant a challenge for cause and dismiss the juror. Nailor v. People, 200 Colo. 30, 612 P.2d 79 (1980); People v. Russo, 677 P.2d 386 (Colo. App. 1983). To ensure 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. Gurule, 628 P.2d 99 (Colo. 1981). If the trial court has genuine doubt about the juror's ability to be impartial, it should resolve the doubt by sustaining the challenge. People v. Russo, 713 P.2d 356 (Colo. 1986). Or who will not follow court's instructions. A prospective juror should be excused if it appears doubtful that he 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). And failure to excuse prejudiced juror is abuse of discretion. Where a juror repeatedly indicated that he would have difficulty applying the principles that the burden of proof rests solely upon the prosecution to establish the guilt of the accused, the trial court abused its discretion by failing to excuse him. Morgan v. People, 624 P.2d 1331 (Colo. 1981). 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 casually challenged. People v. Gurule, 628 P.2d 99 (Colo. 1981). But denying challenge to juror with bias against handguns not abuse. In a prosecution for armed robbery, the court does not abuse its discretion in denying a challenge for cause to 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). General prejudice against crime does not disqualify. Under this rule a general prejudice against crime, or prejudice against the particular crime with which the accused stands charged, does not disqualify a juror. Smith v. People, 39 Colo. 202, 88 P. 1072 (1907); Ausmus v. People, 47 Colo. 167, 107 P. 204 (1910); Forte v. People, 57 Colo. 450, 140 P. 789 (1914); McGonigal v. People, 74 Colo. 270, 220 P. 1003 (1923); Shank v. People, 79 Colo. 576, 247 P. 559 (1926); Fleagle v. People, 87 Colo. 532, 289 P. 1078 (1930). Nor does a financial interest not directly affected. Where, in a prosecution of bank officers for a conspiracy to defraud the bank, certain jurors, though creditors of the bank or financially interested therein at the time of its failure, testified that they had no bias or prejudice against the defendants, and any interest they might have in the bank's affairs could not be affected in any way by the litigation, they were not disqualified. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907). And fact that jurors have read newspaper articles relating to a case does not disqualify them as jurors. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Even though juror may have preconceived notion as to the guilt or innocence of an accused he may not be automatically disqualified from serving. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). That a person has an opinion or impression concerning the guilt or innocence of the accused which can only be removed by evidence is by no means conclusive of his disqualification to serve as a juror. Solander v. People, 2 Colo. 48 (1873); 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); Jones v. People, 6 Colo. 452, 45 Am. R. 526 (1882); Denver, S. P. & P. R. R. v. Driscoll, 12 Colo. 520, 21 P. 708, 13 Am. St. R. 243 (1889); Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972); People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972). On the theory that news report will not control judgment. As a rule, citizens who are fit to try criminal cases will not allow previous opinions based upon unofficial reports to control their judgment against the sworn evidence in a case. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Power v. People, 17 Colo. 178, 28 P. 1121 (1892). Where the voir dire amply demonstrates the absence of prejudice and the ability of the jurors to set aside any opinions that they may have received from the news media to the end that the case could be determined on the law and on the evidence, reversal is not called for. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972). Where the record contained no evidence that any juror was prejudiced by having read anything in the newspapers, the denial of a challenge for cause was clearly within the trial court's discretion. People v. McKay, 191 Colo. 381, 553 P.2d 380 (1976). The fact that a juror entertains an opinion as to the guilt or innocence of a defendant does not disqualify him, if the court believes that he can and will disregard that opinion and return a verdict based solely upon the evidence. McGonigal v. People, 74 Colo. 270, 220 P. 1003 (1923); Johns v. Shinall, 103 Colo. 381, 86 P.2d 605 (1939); Goldsberry v. People, 149 Colo. 431, 369 P.2d 787 (1962); People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972). 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). The proper test under this rule when a juror states he has "partially" formed an opinion is, can and will the juror render a verdict according to the evidence heard upon the trial impartially and fairly under his oath so to do, regardless of his preconceived opinions. If the juror declares upon his voir dire oath that he can and will so decide, there is no cause for sustaining a challenge on the ground of such previously formed opinion. Solander v. People, 2 Colo. 48 (1873); Jones v. People, 6 Colo. 452, 45 Am. R. 526 (1882). General discussions of crime and possible punishments by a prospective juror do not show sufficient bias or prejudice to disqualify him from serving where he clearly states to the court that he has not arrived at any conclusions and that his mind is free and open. Fleagle v. People, 87 Colo. 532, 289 P. 1078 (1930); Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930). 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). Trial court did not abuse its discretion in denying challenge for cause to juror who admitted familiarity with murder case from press accounts, but who stated she would attempt to be fair and impartial despite such knowledge. People v. Brown, 731 P.2d 763 (Colo. App. 1986). Nor did trial court abuse its discretion in denying challenge for cause to juror who 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. Juror, upon sufficient questioning by the court, 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). 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). 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). Exclusion of unconscious influence of preconceptions cannot be assumed. 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). Belief that failure to testify indicates guilt does not disqualify. Notwithstanding a juror expressed belief that failure of defendant to testify would be an indication of guilt, where such juror acknowledges a willingness to lay aside any personal belief and follow the law as instructed by the court, a challenge for cause is properly overruled. Goldsberry v. People, 149 Colo. 431, 369 P.2d 787 (1962). 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). Informing jurors of mandatory sentence for crime not proper purpose for voir dire. The trial court did not err in refusing to allow defense counsel to conduct voir dire for the purpose of informing potential jurors of the mandatory sentence for a crime of violence. People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979). Voir dire examination concerning capital punishment. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972); Segura v. District Court, 179 Colo. 20, 498 P.2d 926 (1972); People v. District Court, 190 Colo. 342, 546 P.2d 1268 (1976). Knowledge of jurors concerning questions of law not proper subject for voir dire. The knowledge or ignorance of prospective jurors concerning questions of law is generally not a proper subject of inquiry for voir dire, for it is presumed that jurors will be adequately informed as to the applicable law by the instructions of the court. People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979). Juror with tenuous relationship with law enforcement agency should be excused. 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). 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). 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). State penitentiary deemed law enforcement agency. The state penitentiary, as a state "institution" within the department of institutions, is a law enforcement agency for the purposes of determining the eligibility of employees thereof to serve as jurors. People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978). Showing of bias not required. Under § 16-10-103 and subsection (b)(XII), 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). But disqualification not applicable to former employees. As § 16-10-103 and this rule do 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 should be denied. People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978). Prospective juror clearly was not an "employee" under subparagraph (b)(1)(XII) of this rule or § 16-10-103 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). Defendants were not prejudiced by having the wife of the deputy sheriff on jury where voir dire questions revealed that her husband was a police officer, but where she was not asked whether he was a deputy sheriff nor did she disclose the information, because it would have added nothing material to counsel's decision as to whether to challenge for bias. Ray v. People, 147 Colo. 587, 364 P.2d 578 (1961). Noncitizen properly excused from jury. It is proper to excuse from the jury a person who is not a citizen of the United States. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889). A county official whose office, by statutory mandate, is represented by the prosecutor need not automatically be 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). C. Public Law Enforcement Agency or Public Defender's Office Employee as Juror. While § 16-10-103(1)(k) and subparagraph (b)(1)(XII) of this rule 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). For purposes of § 16-10-103(1)(k) or subparagraph (b)(1)(XII) of this rule, 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). Division of youth corrections (DYC) within the department of human services is a public law enforcement agency within the meaning of § 16-10-103(1)(k) and subparagraph (b)(1)(XII) of this rule. 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). An employee of a community corrections facility is an employee of a public law enforcement agency within the meaning of § 16-10-103(1)(k) and subparagraph (b)(1)(XII) of this rule. 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 § 16-10-103(1)(k). People v. Novotny, __ P.3d __ (Colo. App. 2010). D. Determination of Juror's Fitness. Court is trier of qualifications of jurors. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889). Extent of examination by trial judge. The trial judge may examine prospective jurors on any matter relevant to their competence as jurors. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). Court to determine if juror indifferent. This rule makes the trial court the trier of the qualifications of the jurors when challenged on the ground of having formed opinions, and it is for that court to determine, as a matter of fact, whether the juror stands indifferent. Thompson v. People, 26 Colo. 496, 59 P. 51 (1899); Solander v. People, 2 Colo. 48 (1873); Jones v. People, 6 Colo. 452, 45 Am. R. 526 (1882); Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Power v. People, 17 Colo. 178, 28 P. 1121 (1892); 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). While a challenge based upon the interest or bias or prejudice of a juror is somewhat different from that based upon the grounds of having formed an opinion, so far as the determination of his qualifications is concerned, the principle is the same; and as this rule makes the trial court trier of the qualifications of jurors when challenged upon the grounds of having formed opinions, it is for that court to determine as a matter of fact whether the juror stands indifferent. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907); Minich v. People, 8 Colo. 440, 9 P. 4 (1885); Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Thompson v. People, 26 Colo. 496, 59 P. 51 (1899). "Undue hardship" may include financial burden. What constitutes "undue hardship" sufficient to excuse a juror lies within the discretion of the trial court, and includes one for whom jury service would impose an undue financial burden. People v. Reese, 670 P.2d 11 (Colo. App. 1983). Trial judge determines as a fact the fitness of the jurors to hear and determine an issue. 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). And appellate court to review trial judge's determination. 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). But trial court's determination will not be disturbed on review. Where a trial court is satisfied that a juror can lay aside a previously formed opinion and decide a case upon its evidence, the court's decision will not be disturbed on review. Fleagle v. People, 87 Colo. 532, 289 P. 1078 (1930); Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Hillen v. People, 59 Colo. 280, 149 P. 250 (1915); Shank v. People, 79 Colo. 576, 247 P. 559 (1926); People v. Nunez, 698 P.2d 1376 (Colo. App. 1984), aff'd, 737 P.2d 422 (Colo. 1987). The trial court is in the best position to view the demeanor of a juror claiming impartiality, and the record must affirmatively demonstrate that the trial court abused its discretion before its decision can be disturbed on appeal. People v. Russo, 713 P.2d 356 (Colo. 1986); People v. Christopher, 896 P.2d 876 (Colo. 1995). A new trial may be required where a juror deliberately misrepresents or knowingly conceals information relevant to a challenge for cause or a preemptory challenge; however, where the juror's nondisclosure was inadvertent, the defendant must show that the nondisclosed fact was such as to create an actual bias either in favor of the prosecution or against the defendant. People v. Christopher, 896 P.2d 876 (Colo. 1995). Absent abuse of discretion. If the trial judge is persuaded that a juror would fairly and impartially try the issues, his denial of a challenge for cause should not be disturbed, except where such denial is clearly an abuse of discretion. 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); Solander v. People, 2 Colo. 48 (1873); Jones v. People, 2 Colo. 351 (1874); Jones v. People, 6 Colo. 452, 45 Am. R. 526 (1882); Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Thompson v. People, 26 Colo. 496, 59 P. 51 (1899); McGonigal v. People, 74 Colo. 270, 220 P. 1003 (1923); Shank v. People, 79 Colo. 576, 247 P. 559 (1926). Since trial judge in best position to observe. While a trial judge hears the questions put to a juror and the answers given, observes a juror's demeanor while being interrogated, and discerns through the use of his eyes, ears, and intelligence wherein truth and credit should be given, a reviewing court does not have the benefit of this personal observation which is so important in judging the credibility of a juror. 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). 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). 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). IV. Peremptory Challenges. Section 16-10-104 controls over section (d). Peremptory challenges, while not constitutionally required, are deemed to be an effective means of securing a more impartial and better qualified jury and, as such, are an important right of an accused. While also having an incidental effect on trial procedure, § 16-10-104 , is primarily an expression of policy concerning this right of the accused, a substantive matter, and, thus, controls over section (d) of this rule. People v. Hollis, 670 P.2d 441 (Colo. App. 1983). Although § 16-10-104 refers to the number of challenges in capital cases, it does not define "capital case". By contrast, subsection (d)(1) of this rule does define the term. The rule and the statute, therefore, do not "conflict" in the sense of being irreconcilable or necessarily incompatible with each other, and the rule can be given effect without producing a result irreconcilable with the plain language of the statute. People v. Reynolds, 159 P.3d 684 (Colo. App. 2006). The time for determining the number of peremptory challenges is the time voir dire is commenced. People v. Hollis, 670 P.2d 441 (Colo. App. 1983). Number of peremptory challenges allowed is governed by the statute and rule in effect at the time voir dire is conducted. People v. Priest, 672 P.2d 539 (Colo. App. 1983). Party has absolute right to use all peremptory challenges granted him by this rule, and any frustration thereof, whether by erroneous ruling, false information, or concealment constitutes reversible error. Harris v. People, 113 Colo. 511, 160 P.2d 372 (1945). And unnecessary use of peremptory challenges not error where not fatal. Where a challenge by the accused to a juror for cause should have been sustained, but the objectionable juror was subsequently peremptorily challenged by defendant, and, at the time of going to trial, defendant had left unused seven peremptory challenges, the error was not fatal to the judgment. Minich v. People, 8 Colo. 440, 9 P. 4 (1885); Solander v. People, 2 Colo. 48 (1873); Jones v. People, 2 Colo. 351 (1874). But error where peremptory challenges exhausted unnecessarily. Where a challenge is properly made, but is overruled by the court, and the challenging party afterwards exhausted his peremptory challenges, using one of them on the disqualified juror, the action of the court in denying the challenge is error to the substantial prejudice of the party who made the challenge. Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 P. 680 (1912); Denver City Tramway Co. v. Kennedy, 50 Colo. 418, 117 P. 167 (1911); People v. Maes, 43 Colo. App. 365, 609 P.2d 1105 (1979); People v. Russo, 677 P.2d 386 (Colo. App. 1983). 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). However, defendant must show exhaustion on appeal. Where defendant claims error in denial of his challenge of a juror for cause who was later excused by peremptory challenge, but makes no showing that all of the peremptory challenges to which defendant was entitled were exercised, nor is it shown that he was deprived of the right to challenge any other prospective juror because he was forced to exhaust his peremptory challenges, even assuming that the court should have sustained the challenge for cause, there can be no prejudice to the rights of the defendant resulting from the denial of such challenge. Skeels v. People, 145 Colo. 281, 358 P.2d 605 (1961). Where the trial court improperly removed jurors for cause and the prosecution subsequently used all of its peremptory challenges, the prosecution enjoyed an unfair tactical advantage in determining the makeup of the jury, detrimentally affecting the rights of the defendant and requiring a new trial. Improperly dismissing some jurors for cause had the effect of granting additional peremptory challenges to the prosecution. It was irrelevant that the defendant had full ability to use his peremptory challenges. The prosecution's relatively greater ability to remove jurors it viewed as objectionable was independently prejudicial to the defendant's rights, and the court presumed prejudice to the defendant. People v. Lefebre, 5 P.3d 295 (Colo. 2000). Defendant must object to the use of excess peremptory challenges. Right to object to prosecution's use of more than statutorily allowed number of peremptory challenges is waived unless there is timely objection by the defendant. Righi v. People, 145 Colo. 457, 359 P.2d 656 (1961). Judge may grant peremptory challenge of juror after his acceptance. Although there is no provision in section (d), for the trial judge to exercise his discretion, in a proper case the trial judge may properly exercise his discretion, upon a showing of good cause, and grant a peremptory challenge even after the juror has been accepted. Simms v. People, 174 Colo. 85, 482 P.2d 974 (1971). Subsection (d)(3) of this rule allows the court to add peremptory challenges to either or both sides, but does not require the court to do so. People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 (Colo. 1986). Applicability of right of 10 peremptory challenges to adjudicative stage of a juvenile proceeding. People in Interest of T.A.W., 38 Colo. App. 175, 556 P.2d 1225 (1976). V. Custody of Jury. This rule implements traditional practice of trial courts in this state. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). Colorado permits the separation of jurors even in capital cases where assented to by the attorneys for the parties, although the supreme court has expressed its disapproval of the practice in serious criminal cases. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). But rule requires sequestration of jurors in first-degree murder case unless requirement waived by the accused. Tribe v. District Court, 197 Colo. 433, 593 P.2d 1369 (1979); Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). Defendant's personal assent as opposed to counsel's alone is not mandatory for such waiver in capital cases. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). Showing of prejudice necessary for error where counsel agrees to separation. Where defense counsel expressly agrees to separation of the jury in a capital case, error cannot be predicated on that procedure in the absence of a showing of prejudice to the defendant. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). And, in such a case, the defendant has burden of proof. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). Burden of showing prejudice from separation of a deliberating jury in a noncapital case also rests upon the defendant. People v. Maestas, 187 Colo. 107, 528 P.2d 916 (1974). And absent a showing of prejudice, separation is not grounds for reversal. People v. Maestas, 187 Colo. 107, 528 P.2d 916 (1974). Determination of whether prejudice has occurred during jury sequestration is within the sound discretion of the trial court and only where that discretion has been abused will a new trial be ordered. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974). Trial of a first-degree murder charge is a "capital case" for purposes of jury sequestration under section (f), even though the district attorney does not intend to qualify the jury for consideration of the death penalty or to seek the imposition of the death penalty in the event of a conviction. People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983) (decided prior to 1983 amendment of this rule); People v. Jones, 677 P.2d 383 (Colo. App. 1983), aff'd in part and rev'd in part on other grounds, 711 P.2d 1270 (Colo. 1986). While the rule does not expressly forbid a trial court from allowing jurors to predeliberate, those juror discussions are not allowed in criminal cases in Colorado. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002). VI. Alternate Jurors. Alternate jurors must be discharged at the time the jury retires to deliberate; any replacement of a regular juror by an alternate must occur prior to such time. People v. Burnette, 753 P.2d 773 (Colo. App. 1987), aff'd, 775 P.2d 583 (Colo. 1989) (decided prior to 1993 amendment). Section 16-10-105 controls over section (e) of this rule because the statute provides substantive, in addition to procedural, direction to the trial court. Carrillo v. People, 974 P.2d 478 (Colo. 1999). Trial court has the authority under both § 16-10-105 and section (e) of this rule to replace a juror with an alternate after jury deliberations have commenced. Carrillo v. People, 974 P.2d 478 (Colo. 1999). If a trial court interrupts deliberations of a jury and suspends the jury's fact finding functions to investigate allegations of juror misconduct, the court's inquiry must not intrude into the deliberative process. In the exercise of judicial discretion, before a juror is dismissed from a deliberating jury due to an allegation of juror misconduct, the court must make findings supporting a conclusion that the allegedly offending juror will not follow the court's instructions. Garcia v. People, 997 P.2d 1 (Colo. 2000). Prejudice is presumed when alternate juror replaces regular juror during deliberations. People v. Burnette, 775 P.2d 583 (Colo. 1989); Carrillo v. People, 974 P.2d 478 (Colo. 1999). Presence of alternate juror during jury's deliberations sufficiently impinges upon defendant's constitutional right to a jury that renders its verdict in secret as to create a presumption of prejudice that requires reversal if not rebutted, and, where it is unclear from the record whether the alternate juror was actually present during the jury deliberations, the issue should be remanded for an evidentiary hearing. People v. Boulies, 690 P.2d 1253 (Colo. 1984). Presumption of prejudice held sufficiently rebutted where juror was replaced for an obvious and bona fide hearing impairment, court carefully instructed remaining jurors and the alternate juror to start their deliberations anew, the jury physically tore up and discarded their notes from the earlier deliberations, and the second set of deliberations took two hours longer than the first. Carrillo v. People, 974 P.2d 478 (Colo. 1999). Presumption of prejudice may be rebutted only by a showing that trial court took extraordinary precautions to ensure that defendant would not be prejudiced and that, under the circumstances of the case, such precautions were adequate to achieve that result. People v. Burnette, 775 P.2d 583 (Colo. 1989). Procedures instituted by the trial court did not meet the People v. Burnette standard. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992). Reversible error. Where trial court replaced regular juror with alternate juror during jury deliberations but did not ask regular jurors if they were capable of disregarding their previous deliberations or if they would be receptive to an alternate juror's attempt to assert a non-conforming view and did not ask alternate juror about his activities after being discharged or his present ability to serve on the jury, trial court did not take extraordinary measures to ensure that defendant would not be prejudiced by such mid-deliberation replacement and, as a result thereof, defendant's conviction required reversal. People v. Burnette, 753 P.2d 773 (Colo. App. 1987), aff'd, 775 P.2d 583 (Colo. 1989). Absent a showing of prejudice, a defendant's failure to timely object to the separation of the jury during a trial constitutes a waiver of sequestration. Jones v. People, 711 P.2d 1270 (Colo. 1986). Defendant did not waive right to challenge the procedure followed in accomplishing substitution of juror by consenting to the fact of substitution. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992). Applied in People v. Avery, 736 P.2d 1233 (Colo. App. 1986). VII. Juror Questions. Juror questioning in a criminal trial does not, in and of itself, violate a defendant's constitutional rights to a fair and impartial jury. Medina v. People, 114 P.3d 845 (Colo. 2005). Where the court errs by asking an improper question from the jury, the impact of the question should be reviewed for harmless error. Medina v. People, 114 P.3d 845 (Colo. 2005). Trial court did not commit reversible error by posing jury's questions to witnesses without first consulting defense counsel. When an improper question from the jury is asked of a witness, the proper course is not to apply structural error but to review the impact of the trial court's ruling for harmless error. People v. Zamarippa-Diaz, 187 P.3d 1120 (Colo. App. 2008).
For the "Uniform Jury Selection and Service Act", see article 71 of title 13, C.R.S.