H. Michael Steinberg has 42+ years of 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 In A Criminal Trial – Is Not A Right At All

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By H. Michael Steinberg Colorado Criminal Defense Lawyer

The Colorado Right To Waive A Jury Trial In A Criminal Case

Under Colorado law, a person accused of a crime has the right to waive a jury trial pursuant to Section 18-1-406(2). But what may not be clear to the accused, is that the District Attorney may actually want a jury trial and demand a jury trial over the Defendant’s waiver.

If the DA wishes to proceed to a trial by jury they have the right to request a jury trial under Section 16-10-101.

What may be shocking to many persons accused of crimes in the state courts of Colorado, a defendant does NOT have a constitutional right to waive a jury trial and the State, represented by the District Attorney may override the Defendant’s request to waive the jury.

The Defendant Has To Prove That A Jury Trial Would Violate Due Process

To overcome the District Attorney’s jury trial demand the Defendant must establish that a jury trial would violate his right to due process. People v. Dist. Ct., 843 P.2d 6, 9, 11 (Colo.1992).

The Judge must then decide whether a jury trial would prevent the Defendant from a trial that is both fair and impartial in accord with the accused’s right to due process of law.” 

Section 16-10-101 provides that:

The People 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.

To overturn the State’s request for a jury trial, the Accused must show that a jury trial would subject the Defendant to a constitutionally unfair proceeding.  In re People v. McKeel

H. Michael’s Take

It is a little known fact to those not familiar with the reality of everyday life of Colorado criminal cases – 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 for the Defendant,  it makes sense to try a case to the Judge alone. A Judge is trained and 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.

If the Defendant cannot make the showing described above – and establish he or she will not receive a fair trial if that trial is a jury trial, the waiver of a jury trial by the Defendant can be overcome by the State’s request for a jury.  Tactically, that makes the defense attorney’s strategy more difficult as jurors sometimes have great difficulty separating the facts and evidence of the case before them from other issues in the trial that are collateral and not relevant to the guilt of the accused.