(1) Except as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous. In matters involving misdemeanors, the accused is entitled to be tried by a jury of six. In matters involving petty offenses, the accused has the right to be tried by a jury under the terms and conditions of section 16-10-109, C.R.S.
(2) Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.
(3) A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal of the waiver prior to the commencement of the trial.
(4) Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before the swearing in of the jury, or after the swearing in of the jury and before verdict, with the agreement of the district attorney and the approval of the court, to be tried by a number of jurors less than the number to which he would otherwise be entitled.
(5) Upon request of the defendant in advance of the commencement of the trial, the defendant shall be furnished with a list of prospective jurors who will be subject to call in the trial.
(6) Either the district attorney or the defendant may challenge the array on the ground that there has been a material departure from the requirements of the law governing the selection of jurors, but such challenge shall be made in writing setting forth the particular grounds upon which it is based and shall be filed prior to the swearing in of the jury selected to try the case.
(7) Except as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury's verdict.
Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-506. L. 72: p. 268, § 6. L. 86:
(1) amended, p. 769, § 3, effective July 1. L. 91: (4) amended, p. 405, § 7, effective June 6. L. 94: (1) amended and (7) added, p. 1716, § 5, effective July 1.
Editor's note: In People v. Taylor, 2021 COA 133, 503 P.3d 912, the Colorado Court of Appeals held that subsection (7) is unconstitutional because it conflicts with a defendant's state constitutional right under § 23 of article II to have a felony case decided by a jury of twelve.
Cross references: For similar provisions concerning the right to trial by jury, see Crim. P. 23.
Notes of Decisions
Cited in
38
cases, 1977–2020 · leading case:
People v. Davis, 794 P.2d 159 (Colo. 1990).
People v. Davis, 794 P.2d 159 (Colo. 1990).
· cites it 26× “Further, because there exists no provision conditioning this right of waiver on obtaining the consent of the prosecution, the right must lie unconditionally with the defendant.”
Sanchez-martinez v. People, 250 P.3d 1248 (Colo. 2011).
· cites it 6× “§ 18-1-406(1), C.R.S. (2010); Crim. P. 23(2); see People v.”
Mosley v. People, 2017 CO 20 (Colo. 2017).
· cites it 4× “¶20 With these general considerations in mind, we turn to the language of section 18-1-406. ¶21 Subsection (1) of the statute provides that if a defendant is not brought to trial within six months from the date of the entry of a not-guilty plea, the defendant must be released…”
People v. Huber, 139 P.3d 628 (Colo. 2006).
· cites it 6× “[7] We note that defendants in Colorado are granted a right to jury trial in misdemeanor cases by section 18-1-406, C.R.S. (2005). We address the parties' arguments on this issue nonetheless, however, in order fully to explain the scope of the prior-conviction exception to the…”
People v. Rodriguez, 112 P.3d 693 (Colo. 2005).
· cites it 22× “We have determined that section 18-1-406 and Crim. P. 23 identify a constitutionally permissible number of jurors' in misdemeanor eases.”
v. People, 2020 CO 79 (Colo. 2020).
· cites it 4× “§ 18-1-406(1), C.R.S. (2020). Considering the entirety of the applicable statutory scheme, as we must, it seems apparent that the legislature intended to include the fact of prior convictions as an element of the offense of felony DUI.”
People v. Dist. Court, City & Cnty. of Denver, 953 P.2d 184 (Colo. 1998).
· cites it 18× “*186 Prior to trial, Finley moved to waive his right to a jury trial pursuant to section 18-1-406(2), 6 C.R.S. (1997), and to proceed with a bench trial.”
Nagi v. People, 2017 CO 12 (Colo. 2017).
· cites it 2× “¶ 2 Because section 18-1-406, on its face, mandates exclusion from the defendant’s speedy trial computation of any period during which he was actually being examined for competency, without regard for the necessity or propriety of the court’s order requiring such an examination,…”
Garcia v. People, 615 P.2d 698 (Colo. 1980).
· cites it 10× “Section 18-1-406(2) provides: “Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record, or by announcement in open court appearing of record.”
People v. Baird, 66 P.3d 183 (Colo. Ct. App. 2002).
· cites it 2× “See § 18-1-406(1), C.R.S. 2002. This right may be waived if a juror becomes unable to serve.”
Colorado v. Richardson, 184 P.3d 755 (Colo. 2008).
· cites it 4× “23(a)(8), 31(a)(3); see also § 18-1-406(1), C.R.S. (2007). However, the jury's questions on Friday, March 9th and Monday, March 12th indicated that no unanimity had been reached as to either option.”
— Colo. Rev. Stat. § 18-1-406(1) — 13 cases
People v. Rodriguez, 112 P.3d 693 (Colo. 2005).
“We have determined that section 18-1-406 and Crim. P. 23 identify a constitutionally permissible number of jurors' in misdemeanor eases.”
v. People, 2020 CO 79 (Colo. 2020).
“§ 18-1-406(1), C.R.S. (2020). Considering the entirety of the applicable statutory scheme, as we must, it seems apparent that the legislature intended to include the fact of prior convictions as an element of the offense of felony DUI.”
People v. Baird, 66 P.3d 183 (Colo. Ct. App. 2002).
“See § 18-1-406(1), C.R.S. 2002. This right may be waived if a juror becomes unable to serve.”
Colorado v. Richardson, 184 P.3d 755 (Colo. 2008).
“23(a)(8), 31(a)(3); see also § 18-1-406(1), C.R.S. (2007). However, the jury's questions on Friday, March 9th and Monday, March 12th indicated that no unanimity had been reached as to either option.”
— Colo. Rev. Stat. § 18-1-406(2) — 14 cases
People v. Davis, 794 P.2d 159 (Colo. 1990).
“Further, because there exists no provision conditioning this right of waiver on obtaining the consent of the prosecution, the right must lie unconditionally with the defendant.”
People v. Dist. Court, City & Cnty. of Denver, 953 P.2d 184 (Colo. 1998).
“*186 Prior to trial, Finley moved to waive his right to a jury trial pursuant to section 18-1-406(2), 6 C.R.S. (1997), and to proceed with a bench trial.”
Garcia v. People, 615 P.2d 698 (Colo. 1980).
“Section 18-1-406(2) provides: “Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record, or by announcement in open court appearing of record.”
Mosley v. People, 2017 CO 20 (Colo. 2017).
“¶20 With these general considerations in mind, we turn to the language of section 18-1-406. ¶21 Subsection (1) of the statute provides that if a defendant is not brought to trial within six months from the date of the entry of a not-guilty plea, the defendant must be released…”
— Colo. Rev. Stat. § 18-1-406(3) — 1 case
— Colo. Rev. Stat. § 18-1-406(4) — 4 cases
— Colo. Rev. Stat. § 18-1-406(5) — 2 cases
Mosley v. People, 2017 CO 20 (Colo. 2017).
“¶20 With these general considerations in mind, we turn to the language of section 18-1-406. ¶21 Subsection (1) of the statute provides that if a defendant is not brought to trial within six months from the date of the entry of a not-guilty plea, the defendant must be released…”
— Colo. Rev. Stat. § 18-1-406(6) — 1 case
— Colo. Rev. Stat. § 18-1-406(6)(g)(H) — 1 case
— Colo. Rev. Stat. § 18-1-406(7) — 1 case
People v. Rodriguez, 112 P.3d 693 (Colo. 2005).
“We have determined that section 18-1-406 and Crim. P. 23 identify a constitutionally permissible number of jurors' in misdemeanor eases.”
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