The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Hereafter a grand jury shall consist of twelve persons, any nine of whom concurring may find an indictment; provided, the general assembly may change, regulate or abolish the grand jury system; and provided, further, the right of any person to serve on any jury shall not be denied or abridged on account of sex, and the general assembly may provide by law for the exemption from jury service of persons or classes of persons.
Entire article added, effective August 1, 1876, see L. 1877, p. 32. L. 43: Entire section amended, see L. 45, p. 424.
I. GENERAL CONSIDERATION.
Am. Jur.2d. See 38 Am. Jur.2d, Grand Jury, § 3; 47 Am. Jur.2d, Jury, §§ 3, 6, 8, 60, 188. C.J.S. See 50 C.J.S., Juries, §§ 10, 17, 76. Law reviews. For article, "Martial Law in Colorado", see 5 Den. B. Ass'n Rec. 4 (Feb. 1928). For note, "Waiver of Jury Trial in Felony Cases--Colorado Law", see 23 Rocky Mt. L. Rev. 334 (1951). For note, "The Right in Colorado of One Accused of a Felony to Waive Jury Without the Consent of the State", see 24 Rocky Mt. L. Rev. 98 (1951). For note, "The Criminal Jury and Misconduct in Colorado", see 36 U. Colo. L. Rev. 245 (1964). For article, "Criminal Procedure", which discusses a recent Tenth Circuit decision dealing with the right to a jury trial, see 62 Den. U.L. Rev. 182 (1985). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a recent case relating to exclusion of persons from grand jury on the basis of race, see 15 Colo. Law. 1611 (1986). For comment, "No More Tears: Anti-Sympathy Jury Instructions Attempt to Disallow Impulsive Emotion", see 66 Den. U. L. Rev. 645 (1989). Annotator's note. For other annotations concerning the right to trial by jury, see § 18-1-406 and Crim. P. 23. Applied in Colo. Cent. R. R. v. Humphreys, 16 Colo. 34, 26 P. 165 (1891); In re Senate Bill No. 142, 26 Colo. 167, 56 P. 564 (1899); Stainer v. San Luis Valley Land & Mining Co., 166 F. 220 (8th Cir. 1908); Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931); Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed.2d 70 (1960); People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980); People ex rel. Hunter v. District Court, 634 P.2d 44 (Colo. 1981); City of Aurora ex rel. People v. Erwin, 706 F.2d 295 (10th Cir. 1983); Ayres v. King, 665 P.2d 594 (Colo. 1983).
II. TRIAL BY JURY.
A. In General.
Fundamental right to trial by jury in criminal cases is paramount constitutional right guaranteed by amendment VI of the U.S. Constitution and this section. People v. Evans, 44 Colo. App. 288, 612 P.2d 1153 (1980). Where jury trial is granted, right to fair and impartial jury is constitutional right which can never be abrogated. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971). Prosecutor's comment on defendant's choice of a trial by jury violated the defendant's constitutional rights but, in this case, the prosecutorial misconduct was not reversible error since the evidence at trial was sufficient in both quantity and quality to support the conclusion that the jury could not have arrived at a verdict other than guilty. People v. Rodgers, 756 P.2d 980 (Colo. 1988). Requirement that defendant waive his or her sixth amendment right to a jury trial on all facts essential to a death penalty eligibility determination jointly with a guilty plea to the underlying capital crime violates the sixth amendment. The right to have a jury trial on sentencing facts is independent of the right to a jury trial on the underlying offense. By coupling the waiver of the jury hearing on a death sentence with the guilty plea to the underlying charge, there is no opportunity for an independent, knowing, voluntary, and intelligent waiver, rather the waiver is automatic. Without such a waiver, the provision is unconstitutional. People v. Montour, 157 P.3d 489 (Colo. 2007).
To cure the constitutional defect, the offending provision is severed. After severing the language, the result is to remand the case back to the trial court for sentencing hearing with a jury unless the defendant waives the sentencing hearing with a jury. This remedy is consistent with the intent of the general assembly to maintain a valid and operative death penalty. The other remedy, requiring a life sentence when pleading guilty to a capital crime, would subject a defendant to the death penalty only when he or she choose a jury trial; such a result would create an unconstitutional burden on the defendant's sixth amendment right. People v. Montour, 157 P.3d 489 (Colo. 2007).
The U.S. Constitution does not forbid states to prescribe relevant qualifications for their jurors. The states remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. People v. Lee, 93 P.3d 544 (Colo. App. 2003). The right to a 12-person jury is purely statutory. The sixth and fourteenth amendments to the U.S. Constitution guarantee the right to trial by jury, but do not, nor does the Colorado Constitution guarantee the right to a 12-person jury. People v. Chavez, 791 P.2d 1210 (Colo. App. 1990). Constitutional right to a jury of 12 lies only with felony cases and does not extend to misdemeanor cases. The phrase "courts not of record" is a reference to "justice courts" which were eliminated in 1962, and their jurisdiction was combined with county courts in 1962. The key to determining whether a court is "of record" lies in the difference between misdemeanor and felony offenses. People v. Rodriguez, 112 P.3d 693 (Colo. 2005). Section 18-1-406 (1) and Crim. P. 23, which provide for six jurors in misdemeanor cases, are constitutional under this section of the constitution. People v. Rodriguez, 112 P.3d 693 (Colo. 2005). The statutory right to a 12-person jury could be waived by counsel's statements. The requirement that a defendant must make a written or oral "announcement" of his intention to waive a jury does not extend to a reduction in the number of jurors. People v. Chavez, 791 P.2d 1210 (Colo. App. 1990). The defendant's right to a jury of 12 is violated if one juror has an inability to hear, and the effect of this inability is tantamount to the juror not being in attendance for more than one-third of the trial. People v. Trevino, 826 P. 2d 399 (Colo. App. 1991). As consent of prosecuting attorney cannot be imposed by rule as a condition on the defendant's right to waive trial by jury. Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980). This section secures right of trial by jury in criminal cases, but imposes no restriction upon general assembly in respect to trial of civil causes. Huston v. Wadsworth, 5 Colo. 213 (1880); Clough v. Clough, 10 Colo. App. 433, 51 P. 513 (1897), aff'd, 27 Colo. 97, 59 P. 736 (1899); Parker v. McGinty, 77 Colo. 458, 239 P. 10 (1925). "Criminal cases", as used in this section, refers to cases, which at the time of the adoption of the constitution, were recognized as criminal, or cases which should thereafter be made criminal by statute. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1703, 26 L. Ed.2d 69 (1970). Complaint which fixes the nature of the suit determines whether an action is tried by a jury and, since a proceeding to establish an attorney's lien is equitable in nature, there is no right to a jury trial in such actions. In re Rosenberg, 690 P.2d 1293 (Colo. App. 1984). Right to trial by jury comprehends fair verdict, free from the influence or poison of evidence which should never have been admitted, and the admission of which arouses passions and prejudices which tend to destroy the fairness and impartiality of the jury. Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962).