H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The Right to Refuse a Jury Trial – Is Not A Right At All in Colorado

In a recent decision of the Colorado Supreme Court that involved what is called an interlocutory appeal – (that means an appeal that takes place DURING rather than after the tria) – the Colorado Supreme court reversed an order from the trial court granting defendant a bench trial over the People’s objection. Defendant sought to waive his right to a jury trial under C.R.S. Section 18-1-406(2), but the People refused to consent to the “waiver” of that right under C.R.S. Section 16-10-101.

The Colorado Supreme Court held that the trial court exceeded it;s jurisdiction when it determined that a jury trial would subject defendant to a constitutionally unfair proceeding because he risked impeachment based on his prior felony convictions, which included a conviction for failure to register as a sex offender, and because the evidence at trial would reveal his history of drug use and his status as a confidential informant. In re People v. McKeel
H. Michael’s Take

It is a little known fact and reality of everyday life of Colorado Criminal Defense Lawyers – that the District Attorney – the prosecutor – has a right to ask for a jury over the objection of the accused in a trial.

There clearly are occasions when tactically it makes sense to try a case to the Judge alone-A Judge will most likely ignore issues pertaining to a Defendant’s criminal history instead focusing on the facts and the law of the case. A Judge also is much more careful to avoid bias and passion or be misled by collateral issues unrelated to the guilt or innocence of the Defendant.

Colorado’s law CRS 18-1-406(2) – provides, “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.”

The District Attorney’s objection was under under section 16-10-101, C.R.S. (2009), which provides, “The [P]eople 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.”

The People contended that McKeel had not presented any evidence “that a fair and impartial jury cannot be selected from this community.” They argued that if McKeel chose to testify, the trial court would give jury instructions to limit any unfairly prejudicial impact arising from his impeachment by prior felony convictions. The People also rejected the notion that the courts should presume that a jury would be unfair or biased toward defendants with drug-related issues that were collateral to the charges at issue.

The Supreme Court here held that the lower court went too far and exceeded it’s jurisdiction when it determined that a jury trial would subject McKeel to a constitutionally unfair proceeding because he risked impeachment based on his prior felony convictions, which included a conviction for failure to register as a sex offender, and because the evidence at trial would reveal his history of drug use and his status as a confidential informant. Accordingly, the trial court’s order was vacated and the trial court was ordered to set the matter for a jury trial.

The appellate court ruling was correct – because it followed the law – however the law should be amended to allow a Judge to do what we pay them to do — judge the case before them and permit a waiver of a jury where the trial court knows a jury would struggle to be fair.

The impact of the ruling I am certain will deal a serious blow to the Defendant’s chances at trial and will deny him a fair trial – as the jurors inthis case will have great difficulty separating the facts and evidence of the case before them from the Defendant’s past.