(1) (a) In capital cases and in cases in which the defendant is charged with murder in the first degree, the state and the defendant, when there is one defendant, are each entitled to ten peremptory challenges. In all other cases where there is one defendant and the punishment may be by imprisonment in the correctional facilities operated by the department of corrections, the state and the defendant are each entitled to five peremptory challenges, and in all other cases to three peremptory challenges.
(b) (I) If there is more than one defendant in a case:
(A) In capital cases and in cases in which a defendant is charged with murder in the first degree, each side is entitled to an additional three peremptory challenges for every defendant after the first, but not exceeding twenty peremptory challenges to each side;
(B) In all other cases where the punishment may be by imprisonment in the correctional facilities operated by the department of corrections, each side is entitled to two additional peremptory challenges for every defendant after the first, not exceeding fifteen peremptory challenges to each side; and
(C) In all other cases, each side is entitled to one additional peremptory challenge for every defendant after the first, not exceeding ten peremptory challenges to each side.
(II) In any case where there are multiple defendants, every peremptory challenge shall be made and considered as the joint peremptory challenge of all defendants.
(c) In case of the consolidation of any indictments, informations, complaints, or summonses and complaints for trial, the consolidated cases shall be considered, for all purposes concerning peremptory challenges, as though the defendants had been joined in the same indictment, information, complaint, or summons and complaint.
(d) When trial is held on a plea of not guilty by reason of insanity, the number of peremptory challenges is the same as if trial were on the issue of substantive guilt.
(2) Peremptory challenges shall be exercised as provided by applicable rule of criminal procedure.
Source: L. 72: R&RE, p. 237, § 1. C.R.S. 1963: § 39-10-104. L. 79: (1) amended, p. 678, § 3, effective July 1. L. 81: (1) amended, p. 890, § 3, effective July 1. L. 85: (1) amended, p. 617, § 9, effective July 1. L. 2024: (1) amended, (HB 24-1225), ch. 130, p. 459, § 2, effective December 17, 2024, (see editor's note).
Editor's note: Section 3 of chapter 130, Session Laws of Colorado 2024, provides that amendments to subsection (1) are effective only if House Concurrent Resolution 24-1002 is approved by the people at the November 2024 statewide election, in which case the amendments take effect on the date of the official declaration of the vote thereon by the governor. That resolution was approved by a vote of the registered electors of Colorado on November 5, 2024, as Amendment I. Amendments to subsections (1) were effective upon the proclamation of the Governor, December 17, 2024. The vote count for the measure was as follows: FOR: 2,058,063 AGAINST: 953,652
Notes of Decisions
Cited in
39
cases (
7 in the last 5 years), 1976–2026 · leading case:
v. Abu-Nantambu-El, 2019 CO 106 (Colo. 2019).
v. Abu-Nantambu-El, 2019 CO 106 (Colo. 2019).
· cites it 4× ““The statute directs that such peremptory challenges are to be exercised ‘as provided by applicable rule of criminal procedure.”
v. People, 2019 CO 105 (Colo. 2019).
· cites it 3× “§ 16-10-104(1), C.R.S. (2019). As the 6 term implies, these challenges may, within constitutional limitations, be exercised without regard for or specification of any reason whatsoever.”
v. Valera-Castillo, 2021 COA 91 (Colo. Ct. App. 2021).
· cites it 3× “Relatedly, section 16-10-104, C.R.S. 2020, identifies the number of peremptory challenges — generally five per side — in a criminal case, but similarly does not speak to when they must be exercised.”
People v. Reynolds, 159 P.3d 684 (Colo. Ct. App. 2006).
· cites it 35× “" The following day, after hearing argument and reviewing the parties' authorities, the court concluded that the statute addressing peremptory challenges, § 16-10-104, C.R.S. 2005, had been interpreted as inapplicable to first degree kidnapping and that, to the extent there was…”
People v. Novotny, 320 P.3d 1194 (Colo. 2014).
· cites it 3× “§ 16-10-104, CRS. (20183). As the term implies, these challenges may, within constitutional limitations, be exercised without regard to or specification of any reason whatsoever.”
The People of the State of Colorado, Petitioner: v. Phillip Romero, Respondent:, 2024 CO 62 (Colo. 2024).
· cites it 12× “§ 16-10-104, C.R.S. (2023). [7] ¶30 And, as long as our legislature continues to require that peremptory strikes be available-a policy decision that is its prerogative-we must continue applying Batson , regardless of whether its controversial framework is an effective colander…”
People v. Terhorst, 2015 COA 110 (Colo. Ct. App. 2015).
· cites it 15× “First, he argues that he was improperly denied a fifth peremptory challenge in violation of section 16-10-104, C.R.S. 2014, and Crim.”
People v. Hines, 572 P.2d 467 (Colo. 1977).
· cites it 3× “One found guilty of first-degree kidnapping can suffer the death penalty only if the victim has not been liberated alive prior to the conviction.”
People v. Prator, 856 P.2d 837 (Colo. 1993).
· cites it 8× “In Colorado, we recognize the significance of this right in section 16-10-104(1), 8A C.R.S. (1986) and Rule 24(d) of the Colorado Rules of Criminal Procedure.”
People v. Maass, 981 P.2d 177 (Colo. Ct. App. 1998).
· cites it 3× “1995), a division of this court addressed a due process challenge to § 16-10-104(1), C.R.S.1998. The statute provides, among other things, that in a capital case involving codefendants, the exercise of peremptory challenges is to be made and considered as the joint peremptory…”
People v. Tippett, 733 P.2d 1183 (Colo. 1987).
· cites it 4× “Under section 16-10-104, 8A C.R.S. (1986), the defendant is entitled to five peremptory challenges and under section 16-10-105, the defendant is entitled to an additional peremptory challenge for the alternate juror empaneled, for a total of six peremptory challenges.”
— Colo. Rev. Stat. § 16-10-104(1) — 12 cases
v. People, 2019 CO 105 (Colo. 2019).
“§ 16-10-104(1), C.R.S. (2019). As the 6 term implies, these challenges may, within constitutional limitations, be exercised without regard for or specification of any reason whatsoever.”
People v. Prator, 856 P.2d 837 (Colo. 1993).
“In Colorado, we recognize the significance of this right in section 16-10-104(1), 8A C.R.S. (1986) and Rule 24(d) of the Colorado Rules of Criminal Procedure.”
People v. Maass, 981 P.2d 177 (Colo. Ct. App. 1998).
“1995), a division of this court addressed a due process challenge to § 16-10-104(1), C.R.S.1998. The statute provides, among other things, that in a capital case involving codefendants, the exercise of peremptory challenges is to be made and considered as the joint peremptory…”
People v. Reynolds, 159 P.3d 684 (Colo. Ct. App. 2006).
“" The following day, after hearing argument and reviewing the parties' authorities, the court concluded that the statute addressing peremptory challenges, § 16-10-104, C.R.S. 2005, had been interpreted as inapplicable to first degree kidnapping and that, to the extent there was…”
— Colo. Rev. Stat. § 16-10-104(1)(a) — 1 case
— Colo. Rev. Stat. § 16-10-104(2) — 5 cases
v. People, 2019 CO 105 (Colo. 2019).
“§ 16-10-104(1), C.R.S. (2019). As the 6 term implies, these challenges may, within constitutional limitations, be exercised without regard for or specification of any reason whatsoever.”
v. Abu-Nantambu-El, 2019 CO 106 (Colo. 2019).
““The statute directs that such peremptory challenges are to be exercised ‘as provided by applicable rule of criminal procedure.”
People v. Novotny, 320 P.3d 1194 (Colo. 2014).
“§ 16-10-104, CRS. (20183). As the term implies, these challenges may, within constitutional limitations, be exercised without regard to or specification of any reason whatsoever.”
People v. Terhorst, 2015 COA 110 (Colo. Ct. App. 2015).
“First, he argues that he was improperly denied a fifth peremptory challenge in violation of section 16-10-104, C.R.S. 2014, and Crim.”
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