“Jury Trial” in Colorado Criminal Cases – How It Works

In Colorado, you have the right to a trial by jury if you are charged with a

• felony,
• misdemeanor,
• petty offense, or
• criminal municipal ordinance violation.

At a jury trial, up to 12 members of the community are selected to hear the evidence and arguments and then render a verdict as to whether you are guilty or not guilty of the charges. As part of the criminal court process in Colorado, the jury trial takes place after the

1. arraignment,
2. preliminary hearing and
3. pretrial conferences.

If the jury convicts the defendant, then a sentencing hearing will follow.

In this article, our Denver criminal defense lawyers will address the following key topics regarding Colorado jury trials.

• 1. Right to a Jury Trial
• 2. Bench Trials
• 3. Jury Selection
• 4. Jury Trial Process
• Frequently Asked Questions
• Additional Resources

1. Right to a Jury Trial

Felonies and Misdemeanors

Every person accused of a felony in Colorado has the right to be tried by a jury of twelve whose verdict shall be unanimous.¹ Every person accused of a misdemeanor in Colorado is entitled to be tried by a jury of six.² (Misdemeanors also include traffic misdemeanors and drug misdemeanors.)

Individuals accused of a felony or misdemeanor may waive their right to a jury trial, except those accused of the most serious class 1 felony charges. If a defendant waives their right to a jury trial, they may be tried by a judge in a bench trial. However, the prosecutor must consent to a bench trial unless the defendant can demonstrate that their rights may be violated.

After waiving your right to a trial by jury, you do not have the right to withdraw your waiver. However, the court has the discretion to permit the withdrawal of the waiver before the beginning of trial.³

Note that you have a right to a speedy trial within six months of your not-guilty plea unless a legal exception applies.

Petty Offenses and Criminal Municipal Ordinance Violations

Defendants charged with a petty offense or a criminal municipal ordinance violation have a right to a jury trial if they:

1. request a jury trial in writing within 21 days of their not-guilty plea, and
2. pay the jury fee of $25.

The default jury size is three jurors. But defendants may request a jury of up to six jurors. Note that defendants are not entitled to jury trials for:

• civil infractions,
• municipal traffic ordinances that do not constitute a criminal offense, and
• other municipal charter, municipal ordinance, or county ordinance offense which is neither criminal nor punishable by imprisonment.⁴

2. Bench Trials

A bench trial is an alternative to a jury trial in the court system. In a bench trial, the judge acts as the finder of fact. The judge will decide the outcome of your case and determine if you are guilty or not guilty.

While most criminal defendants prefer a jury trial, there may be some occasions where a bench trial is preferable. In some situations, a jury may not give the defendant a fair chance. This may be due to the defendant’s appearance, their public reputation, or the perception that the criminal charges are offensive.

In addition, if the defendant is heavily tattooed or pierced or looks like a drug user, the jury may not be able to be impartial. Criminal charges like child abuse or sex offenses may also make it more difficult for a jury made up of public citizens to be unbiased.

A bench trial is also generally much faster, which can result in lower costs for the defendant. If the trial relies on complex evidence, an experienced judge may be better able to interpret it. However, just because a judge is supposed to be impartial does not mean that a bench trial is always the best option.

If you have any questions about whether a bench trial may be better for your case, talk to your Colorado criminal defense attorney.

3. Jury Selection

Jury selection begins with a “jury pool” of people who show up for jury duty.

If a case is going to trial, the judge may call a group of prospective jurors to complete a questionnaire providing information about each prospective juror. This includes the potential juror’s educational level, occupation, prior jury service, prior court experience, and other relevant information.

The prosecutor and defense attorney can question the individual jurors during a process called “voir dire.” During voir dire, the lawyers are trying to determine if the jurors can be impartial or if they may be prejudiced or biased in favor of their case. This includes determining whether the juror knows anyone involved in the case or will be unable to remain impartial in evaluating it. 

Lawyers may challenge a juror for cause to be dismissed from the jury.⁵ The court shall sustain a challenge for cause based on several factors, including:

• The defendant was in a civil action against the juror
• The juror was a witness to a related matter
• The defendant or attorney was in a relationship with the juror
• The juror shows a bias towards the defendant or the state
• The juror is unqualified to serve

The attorneys also have a limited number of challenges that need not be for cause. These are called “peremptory challenges.”

In death penalty cases (which were abolished in 2020), the prosecutor and defense attorney each have ten peremptory challenges. The attorneys have five peremptory challenges in all other criminal cases where the defendant may face imprisonment. In all other criminal cases, each side has three peremptory challenges.⁶

4. Jury Trial Process

After the jury is selected, the lawyers give their opening statements. In a criminal trial, the prosecutor is the first to present their opening statement. The defense attorney follows the prosecutor and delivers their opening statement on the case.

Each side calls witnesses. The prosecutor first calls their witnesses to provide testimony. The defense attorney then gets an opportunity to cross-examine the prosecution’s witnesses. The defense calls its own witnesses, and the prosecutor may later cross-examine them.

Each side may also present evidence or expert testimony supporting their case, with the other side having an opportunity to respond.

After both sides present all the testimony and evidence of the facts of the case in open court, the prosecution and defense make their closing arguments. The trial court judge gives the jury instructions on the specific criminal charges and the elements of the offense, and explains the standard they are to use to evaluate the case.

The jury convenes in the jury room to deliberate and reach a verdict of guilty or not guilty. The jury may convict only if it unanimously finds beyond a reasonable doubt that the defendant is guilty.⁷

Frequently Asked Questions

What happens if a defendant is mentally unable to understand the trial?

If the court or an attorney suspects a defendant lacks the mental capacity to understand the proceedings or assist in their own defense, the court can order a competency examination.

If a doctor finds the defendant incompetent, the trial is paused. The court may commit the defendant to a mental health facility for up to a year to help them regain competency (often through medication or substance abstinence).

Once competency is restored, the criminal trial resumes.

Can a juror be disqualified if they already know about the case or have legal knowledge?

It is a common myth that courts only want jurors who know absolutely nothing about the law or the case. Having prior knowledge about the events, the parties, or the law does not automatically disqualify a juror in Colorado.

A judge will only dismiss a juror for cause if a reasonable person in their position could not set aside their opinions. If a juror can sincerely remain impartial and base their decision strictly on the evidence presented in court, they can serve.

Because of this, it is not unheard of for police officers, lawyers, or even judges to be selected as jurors.

Are Colorado juries ever kept anonymous or sequestered?

Yes, in certain situations. A judge can order an anonymous jury to reassure jurors of their safety and protect them from undue influence or harassment, usually in high-profile cases.

During deliberations for high-profile trials, a jury may also be sequestered. This means they are housed at a local hotel under the supervision of court bailiffs and deputy sheriffs to completely isolate their decision-making process from outside media or public distraction.

What happens if the jury has questions during their deliberations?

It is normal for juries to have questions about the evidence or the law once they go to the jury room to deliberate. If this happens, they submit their question to the judge. The judge will then consult with both the prosecutor and the defense attorney.

Unless both parties agree on how to answer the question, the judge may convene a brief hearing before providing the jury with a response.

What is a “hung jury”?

A “hung jury” happens when the jurors become hopelessly deadlocked and cannot agree on a unanimous verdict. If the judge is convinced that further deliberation will not result in a unanimous decision, the judge will declare a mistrial.

When a mistrial is declared due to a hung jury, the prosecutor must decide whether to dismiss the charges or retry the case from the beginning with a completely new jury.

What happens after a jury announces a guilty verdict?

If a jury returns a guilty verdict, the judge will usually “poll the jury.” This means the judge will ask each juror individually in open court to confirm that they personally agree with the guilty verdict that was just read.

This ensures that the verdict is truly unanimous and that no juror was coerced into voting guilty in the deliberation room.

Does a “not guilty” verdict mean the defendant is innocent?

In the eyes of the law, a “not guilty” verdict simply means that the prosecution failed to prove guilt beyond a reasonable doubt. The criminal justice system focuses entirely on whether the state can meet this high burden of proof.

Defendants are never required to prove their innocence, and a “not guilty” verdict simply reflects that the strict standard for a criminal conviction was not met by the evidence presented.

How are grand juries different from regular juries?

Juries in criminal trials are completely different from the grand juries that indict criminal suspects, as the following table shows:

	Grand jury	Trial jury (“Petit juries”)
Purpose	Decides whether suspect will be charged	Decides whether suspect will be convicted
Size	12 to 23	6 to 12
Standards of proof	Probable cause	Beyond a reasonable doubt
Jurors required to make decision	A quorum (majority) to indict	Unanimous to convict
Evidence presented	Hears all evidence including hearsay whether it turns out to be relevant or not	Only hears evidence judge has deemed relevant, and hearsay is very limited
Who chooses jurors	Judge	Prosecutors and defense counsel
Defendant present	Usually not (defendant has no right to put on a defense)	Usually yes (though defendant has no obligation to put on a defense)
Subpoena power	Yes	No
Judge present	No (the prosecutor controls the proceeding)	Yes
Public allowed	No	Yes (usually)

Does a defendant have a right to discovery after they were convicted?

Generally, no. There is no automatic constitutional or statutory right to general discovery during postconviction proceedings.

However, the Court established an important exception for indigent (low-income) defendants: if a defendant can prove that specific, missing pretrial evidence would likely help substantiate their claim for postconviction relief, the court should order the prosecution to provide a free, duplicate copy of those requested materials to protect the defendant’s right to due process.⁸

Additional Resources

For more information, refer to the following:

• How Criminal Cases Work – Explanation by the Denver, Colorado District Attorney.
• Criminal Court Self-Help Forms – Provided by the Colorado Judicial Branch.
• Colorado Rules of Criminal Procedure – Rules that apply to all criminal cases in Colorado.
• Colorado Criminal Code: Title 18 of the C.R.S. – The principal body of laws defining and governing federal criminal offenses for Colorado.
• Steps in the Federal Criminal Process – Overview by the Offices of the United States Attorneys.

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Legal References