CO Code § 16-10-101 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 10 - Jury Trials|Part 1 - Composition and Selection of the Jury|§ 16-10-101. Jury Trials - Statement of Policy

 The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter, municipal ordinance, or county ordinance violation as provided in section 16-10-109 (1) , to have a trial by jury is inviolate and a matter of substantive due process of law as distinguished from one of “practice and procedure”. The people shall also have the right to refuse to consent to a waiver of a trial or sentencing determination by jury in all cases in which the accused has the right to request a trial or sentencing determination by jury.   History. Source: L. 72: R&RE, p. 235, § 1. C.R.S. 1963: § 39-10-101 . L. 82: Entire section amended, p. 655, § 5, effective January 1, 1983. L. 88: Entire section amended, p. 667, § 1, effective July 1. L. 89: Entire section amended, p. 828, § 35, effective July 1. L. 2001: Entire section amended, p. 859, § 7, effective July 1. L. 2002, 3rd Ex. Sess.: Entire section amended, p. 16, § 11, effective July 12.    Cross references:   For the legislative declaration contained in the 2002 act amending this section, see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.   ANNOTATION   Fundamental right to trial by jury in criminal cases is paramount constitutional right guaranteed by the sixth amendment to the United States constitution and § 23 of art. II, Colo. Const.People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980).   A person does not have a right to a jury trial upon being found in contempt of court if the person is not subject to more than six months incarceration upon issuance of such citation. People v. Barron, 677 P.2d 1370 (Colo. 1984); Kourlis v. Port, 18 P.3d 770 (Colo. App. 2000).   This section extends a statutory right to a jury trial only to violations of state statutes not contempt charges. People v. Shell, 148 P.3d 162 (Colo. 2006).   Death qualified juries are not more prone to convict than to acquit and do not deny a defendant his right to an impartial jury. People v. Manier, 184 Colo. 44 , 518 P.2d 811 (1974).   Defendant may waive his right to 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).   But defendant must personally express waiver. Where, the prosecution conceded that prior to the time defendant requested a jury trial he had not personally expressed a waiver of his right to trial by a jury, trial court, which, in reviewing the question of whether to grant a jury trial, questioned defendant concerning his understanding relative to counsel's waiver of his rights the previous day and which concluded that because defendant had concurred in counsel's request the waiver was valid, did not comport with the requirement of Crim. P. 23(a)(5) because the waiver must be expressed by defendant personally at the time that the waiver is attempted. People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980).   Under unitary trial provision, defendant does not possess a statutory right to a jury trial on the merits and the affirmative defense of insanity if a plea of not guilty by reason of insanity was entered and stipulated to by the prosecution. People v. Laeke, 2012 CO 13M, 271 P.3d 1111, cert. denied, 568 U.S. 829, 133 S. Ct. 109, 184 L. Ed. 2d 51 (2012).   Valid waiver of jury trial does not require extensive, on-the-record advisements of the kind set out in United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995). People v. Thompson, 121 P.3d 273 (Colo. App. 2005).   Defendant voluntarily waived jury. Where, when the jury was assembled in the courtroom ready for trial, defendants' counsel orally announced that defendants had decided to waive their right to a jury trial, and the court inquired of each defendant if that was his 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 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).   Where the record of the trial court discloses that the trial judge orally advised the defendant of his right to a jury, that the defendant read and signed a written waiver, and that he failed to give any indication to the trial court that his waiver was not voluntary, the record was substantial evidence to support the findings that the waiver was voluntary. People v. Simms, 185 Colo. 214 , 523 P.2d 463 (1974).   Waiver precludes defendant's complaint that judge rules on evidence and renders verdict. Where the defendant voluntarily and with advice of counsel waived a jury trial, defendant in such circumstances cannot be heard to complain when he creates a situation which necessarily makes the trial judge both the one who decides the admissibility of evidence and the one who renders the verdict. People v. Thompson, 182 Colo. 198 , 511 P.2d 909 (1973).   Colorado constitution does not afford criminal defendants the right to waive jury and be tried by the court. People v. District Court, 843 P.2d 6 (Colo. 1992); People v. District Court, 953 P.2d 184 (Colo. 1998).   A court exceeds its jurisdiction if it allows a defendant to waive his or her right to a jury trial over the objection of the district attorney based on defendant's claim that his due process rights would be violated by testifying and that he would be subject to impeachment about his past criminal convictions and his ties to drug use. It is not a due process violation to be subject to impeachment about prior criminal convictions; the choice to testify or not is part of adversarial trial process and does not create an unfair trial for the defendant. People v. McKeel, 246 P.3d 638 (Colo. 2010).   In construing the provisions of this section with § 18-1-406 (2) , granting the defendant the right to waive a jury trial, due process compels conclusion that prosecution alone cannot compel trial by jury where defendant may not receive a fair trial. People v. District Court, 843 P.2d 6 (Colo. 1992).   Provisions of this section which require the people's consent as a prerequisite to defendant's waiver of trial by jury held facially constitutional; however as applied may violate an accused's right to due process. People v. District Court, 843 P.2d 6 (Colo. 1992).   Unqualified prosecution consent requirement to defendant's waiver of trial by jury may violate defendant's constitutional right to due process where defendant contends that such trial would constitute an unfair proceeding before a biased jury. People v. District Court, 843 P.2d 6 (Colo. 1992).   It is incumbent upon a criminal defendant, in seeking waiver of jury trial, to raise due process concerns with the trial court; trial court may evaluate whether a defendant's due process rights are violated only after the defendant makes a showing that an inability to waive trial by jury infringes on defendant's due process rights. People v. District Court, 843 P.2d 6 (Colo. 1992).   In determining whether defendant's right to a fair trial would be violated by denying defendant's waiver of jury trial, trial court may consider the extent to which a change in venue may cure bias or prejudice against the defendant. People v. District Court, 843 P.2d 6 (Colo. 1992).   Due process does not require the prosecution to consent to a waiver of a jury trial in a trial for possession of a weapon by a prior offender merely because the jury will hear evidence of a prior offense even if one of the prior offenses was for a similar weapons offense. People v. District Court, 953 P.2d 184 (Colo. 1998).   Applied in People ex rel. Hunter v. District Court, 634 P.2d 44 (Colo. 1981).