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The Stages of a Colorado Criminal Jury Trial

 

Introduction – While The vast majority of criminal cases are resolved by a defendant deciding to change his or her plea o guilty or no contest, many cases do go to trial. Understanding the procedures and processes that make up a Colorado Criminal trial is essential to making the correct decision.

If the case cannot be resolved by dismissal or a change of plea, it must be tried.  Only a small percentage of cases are tried. Given, however, the large volume of criminal cases, even a small percentage translates into a sufficient number of trials to keep trial courts busy trying cases on a routine basis.

The Basic Trial Sequence

Selection of a Jury;

Opening Statements by the Attorneys;

Presentation of Witnesses and Evidence (In a Criminal Trial, the State Always Goes First, and the Defense Follows; the State Then May Offer Rebuttal Evidence If the Prosecutor Wishes to Do So);

Closing Arguments by the Attorneys;

Instructions on the Law by the Judge to the Jury; and

Deliberation and Decision (Verdict) by the Jury

Burden and Standard of Proof

In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. This is a much more stringent burden of proof than in a civil case. Reasonable doubt is present when the jurors, after they have carefully considered and compared all the evidence, can-not say they are firmly convinced of the truth of the charge. If jurors believe that the defendant is probably guilty, but have reasonable doubt, they must find the defendant not guilty.

Competency and Mental Disease or Defect

If at any time during the proceedings the court or an attorney suspects that the defendant lacks the mental ability to understand what is happening in court or to assist in his or her defense, the court can order the person to be examined for competency. This examination may occur locally or at one of the state’s mental health facilities.

If a doctor concludes that the defendant is competent or if the defendant is not competent but regains competency, the proceedings resume. The court may commit the defendant to a mental health facility for up to a year (in most cases) if the court believes the defendant will regain competency. In many cases, restoring the defendant to a regime of appropriate medication and abstinence from drugs and alcohol will enable the defendant to regain competency. If the defendant is not competent and not likely to become competent, the criminal proceedings are terminated (the defendant is discharged) and the defendant is released or turned over to county authorities who may begin a separate civil commitment proceeding.

The Decision To Ask For A Jury – Or To Have The Judge Hearing the Case

Sometimes, although not often, a defendant decides for tactical reasons to waive his or her right to a jury trial and permit the judge to render the verdict. A trial over which the judge presides and renders the verdict is called a court trial or bench trial. Among the reasons why a defendant might prefer a court trial are: The defendant has a lengthy record, and might perceive that a judge will more carefully weigh that record in judging the defendant’s credibility than a jury might.

Or the defendant’s conduct, whether lawful or not, might seem shocking or offensive or engender less sympathy in the average juror than it would in a judge experienced in criminal casework. Or the evidence might cast the defendant or important witnesses in certain stereotypes to which a judge, again given deeper familiarity with criminal cases, may be immune. Or the defense strategy might depend on a more particularized or a novel application of the law to the facts. Or a defendant might not have to pay as much to his or her lawyer for a bench trial. There are other reasons as well.

A trial in a criminal case proceeds along a routine path: After the jury has been selected, the judge gives preliminary instructions outlining the things the State must prove before the defendant may be found guilty (the elements of the offense, reminding the jurors of the defendant’s presumption of innocence, and defining legal terms such as reasonable doubt.

Jury Selection

The process of choosing jurors is called voir dire. During voir dire, attorneys for both the plaintiff and the defendant interview potential jurors. In many courts the judge begins a preliminary interviewing process before permitting the attorneys to question prospective jurors. The purpose of voir dire is to select individuals for the jury who can be fair and impartial. Each side in a case can reject potential jurors through a challenge for cause or a peremptory challenge.

The jury is selected from a panel of prospective jurors. The panel is selected randomly from a jury pool which, in turn, has been selected randomly from a jury list compiled from voting records, drivers license records, and similar sources. The size of the panel is determined by the judge, and usually contains just enough prospective jurors so that if any jurors are dismissed for cause there will still be enough jurors to choose from after peremptory strikes (also known as peremptory challenges are used.

During jury selection, the judge and the lawyers question prospective jurors to determine if any should be excused because they cannot be open-minded and fairminded about the case, for example, because they may know persons involved in the case or have opinions or experiences that would make them less than impartial. Such persons may be dismissed for cause. After any jurors have been dismissed for cause, the parties are allowed to take turns, using peremptory strikes, removing a predetermined number of names from the jury panel.

The number of strikes depends on the offense, the number of parties, and the number of alternate jurors on the panel. The parties alternate striking jurors until the required number of jurors remain at least 12, plus any alternates a judge might require (alternates are a precaution against having too few jurors to complete the case in the event a juror might become ill or unavailable during the trial). The lawyers need not give a reason for their peremptory strikes.

Sometimes judges and lawyers question potential jurors individually in the judge’s chambers, to afford a juror privacy about a sensitive matter, or to prevent other prospective jurors from hearing what a particular juror has to say. Ordering anonymous juries is a way to reassure jurors of their safety and to inoculate their deliberations and their verdict from the distraction and undue influence that might occur in a high profile case.

What If the Jurors Know Too Much?

A common myth about jury selection is that lawyers and judges seek to rid juries of jurors who are too smart or know anything at all about the law, the parties, or the place where the crime is alleged to have occurred. In fact, knowledge of such things does not automatically disqualify a juror as long as the judge is satisfied that the juror is sincerely impartial about the case and will decide the case strictly on the evidence and not on uncommon knowledge that the juror may possess. It is only when a reasonable person in the juror’s position could not set aside an opinion despite the best of intentions to do so that the court must excuse the juror for cause. As a result, it is not unheard of for judges, prosecutors, defense lawyers, police officers, and others with similar experience to have served as jurors in criminal cases.

Opening Statements

After the jury is selected and sworn in, the attorneys for each party make their opening statements, beginning with the prosecutor and followed by the defendant’s attorney. The opening statement is an outline of the facts of the case, what the party expects to prove, and the evidence by which the party expects to prove it. (The defendant may choose to delay his or her statement until the prosecution has finished offering evidence.)

Witnesses and Evidence

The prosecution then presents its evidence, after which the defendant may present any additional evidence. If the defendant presents any evidence, the prosecutor may present rebuttal evidence.

A defendant in a criminal case has no duty to present any evidence. Rather, the state is obligated to prove that the defendant is guilty, whether or not the defendant presents any evidence.

Evidence is almost always presented through witnesses . In fact, witnesses are so important that they can be compelled to attend the trial by means of a subpoena. A subpoena is a court order commanding a witness to appear in court and provide testimony. Anyone who disobeys a subpoena is in contempt of court, and may be fined or jailed, or both.

Witnesses testify about events they saw or heard, report on the tests or investigations they conducted, or testify about other relevant matters. Expert witnesses sometimes are used to give professional opinions about elements of a case. For example, a coroner may testify that a gunshot at close range caused the victim’s death in a murder case. Even tangible evidence, such as a murder weapon or a document, must be introduced through the testimony of a witness.

Evidence may be direct or circumstantial.

Direct evidence is evidence that was seen, touched or heard by a witness directly. For example, if a witness sees rain coming down, he or she has direct evidence that it is raining. Circumstantial evidence comes from a reasonable conclusion of fact that a witness infers from direct evidence. The court will not permit the jury to consider evidence that has nothing to do with the case at hand.

One of the judge’s most important functions in a trial is to rule on whether certain evidence is admissible. Generally, a judge will not keep evidence from being heard unless one of the party’s attorneys objects and asks that the evidence be excluded. But the judge carefully considers matters such as this, since the improper admission or exclusion of evidence may be so prejudicial as to affect the outcome of the trial, and cause an appeal to the court of appeals. In criminal cases, the failure by defense counsel to object to improper evidence may result in the reversal of a conviction, based on counsel’s incompetence.

For each witness, the side that calls that witness conducts direct examination. When that side concludes its questions, the other side has a right to cross-examine that witness. The side that called the witness may ask redirect examination questions after any cross-examination, and the judge may then permit either side to ask further questions. The right of cross-examination is considered so important that it is guaranteed in both the U.S. and Colorado constitutions.

The chief purposes of a cross-examination are to place a witness’s testimony in perspective, to test its accuracy and to bring out information not offered during direct examination.

Because the defendant is presumed innocent and constitutionally entitled to remain silent, the defendant is not required to provide any evidence, nor is the defendant required to testify. The defendant is entitled to be present in the courtroom for all parts of the trial, although disruptive defendants may be removed from the courtroom after being warned

Sidebars

From time to time during the trial, the judge may conduct hearings at sidebar. These hearings are intended to be brief, usually involve legal questions about what evidence may be provided to the jury, and entail information that might compromise the fairness of the trial if discussed in the jury’s presence. Usually these conferences are summarized at a later point in the trial on the record. (Some judges will have a court reporter join them at sidebar, which obviates the need to summarize the sidebar conference later. Although such conferences will be outside the earshot of the news media as well as the jury, a transcript of the comments at sidebar can be obtained from the court reporter.)

Defense Theories

Some defendants may pursue a theory that they are innocent . they have an alibi, it was impossible to commit the crime, another person committed the crime, and so on. Other defendants simply focus on whether the State can prove what it alleges. They contend that the State’s evidence is doubtful and attack the credibility, reliability, or accuracy of the State’s witnesses and evidence. Of course, a defendant might pursue both courses.

Thus, an acquittal might reflect the jury’s view that the defendant is innocent, or just that the State failed to prove the defendant guilty.

Motion For Judgement of Acquittal

At the close of the State’s case, the defense routinely moves to have the case dismissed; the motion may appear formalistic, but it is necessary to preserve certain appellate rights, and in some cases it may prove successful if the State has not provided evidence of all the elements of the charge. When the judge decides such a motion, the judge is not usurping the jury’s duty to decide the case.

The judge may dismiss the case only if, considering the evidence in a light most favorable to the State, there is no credible evidence upon which a reasonable jury could rely to find the defendant guilty. This is another low hurdle to weed out the rare case that does not justify a jury trial. (A similar motion and ruling must be made after the close of all the evidence.)

Closing Aguments

Once all the evidence has been presented, the attorneys deliver their closing arguments to the jury. The prosecutor goes first. When the prosecutor is finished, it is the defense attorney’s turn. The prosecutor may reserve part of his or her time for rebuttal after the defense attorney is finished.  The prosecutor is permitted to speak first and last during closing arguments, because the prosecution has the burden of proving the defendant guilty. The judge and the parties may ask the jury to consider whether, if the defendant is not found guilty of the offense charged by the State, he or she is guilty of a lesser included offense a different crime with all of the same elements but one (for example, robbery is a lesser included offense of armed robbery).

Jury Instructions

When the attorneys have completed their closing arguments, the judge instructs or charges the jury. This means the judge explains to the jury their duties as members of a jury and the law applicable to the case.

Verdict

After the judge charges the jury, the jurors are escorted to the jury room to make their decision or verdict. Once inside the jury room, the jury selects a foreperson to make sure that the discussions are orderly and that each juror gets ample time to speak, and to report to the judge in the courtroom. Once a foreperson is selected, the jury begins deliberations about the facts of the case.

The bailiff is outside the jury room and allows no one to enter or leave the room without the express permission of the judge. Sometimes the jury’s deliberations go on for several days.

In such cases, the jurors may be allowed to go home for the night with an order to return the following day to resume deliberations. Or, in certain high-profile cases, the jury may be sequestered, that is, housed at a local hotel under the supervision of the court bailiff, with security provided by deputy sheriffs. In a capital murder case, the jurors will be sequestered if they are unable to reach a verdict by the end of the day. In all cases, the jurors are told not to discuss the case with anyone until after the verdict is announced in court. Even then, the jurors have no obligation to discuss the case with anyone else.

Usually, the court will give jurors written forms for each of the possible verdicts in the case. In a criminal case, the verdict must be unanimous. In many cases, the court may give the jury detailed information about specific questions (known as interrogatories) pertaining to the case.

Hung Juries

On rare occasions, the jury becomes hopelessly deadlocked when the jurors cannot agree on a decision. This is called a hung jury, and if the judge is convinced that they will not be able to reach a verdict, the judge declares a mistrial. The case may have to be retried with a new jury, unless the prosecutor decides to dismiss it. If the jurors agree on a decision, they will sign the appropriate verdict form and return to the court-room where the verdict is announced either by the judge, by the jury foreperson, by the clerk of the court, or by the court bailiff.

Jury Questions

From time to time the jury may have a question about the evidence or the law. The judge usually consults with the parties before answering and, unless the parties agree to the answer, may convene a hearing before submitting an answer.

Unanimous Verdicts and Polling of the Jury

In Colorado, the jury’s verdict in a criminal case, whether guilty or not guilty, must be unanimous. If the jury returns a guilty verdict, the judge usually polls the jury to make sure that each juror individually agrees with the verdict.

What does a not guilty verdict mean?

Not guilty is not necessarily the same as innocent. The focus of a criminal trial is always on whether the State can prove the defendant guilty, the defendant is not required to prove his or her innocence, nor is the State required to prove the defendant is not innocent. This distinction is significant because it helps explain the different defense theories that may be pursued at trial.

Sentencing and Motions after the Trial

The Sentencing Hearing

A person who is convicted of a crime, either by pleading guilty or by a guilty verdict after a trial, must be sentenced by a judge. Sentencing hearings can take place immediately upon conviction or after a few days or weeks. In some cases, even in felony cases, the judge may decide that the case is ready for sentencing immediately. In other cases, the parties may need time to prepare. One consideration that may affect the timing of sentencing is the need to notify the victim, who has a right to be present and speak at sentencing.

The Pre-Sentence Investigation Reports (PSIR)

The sentencing hearing also may be delayed in a felony case if the judge orders a presentence investigation (PSI). This investigation, conducted by a State probation agent, reports the offender’s version of events, the victim’s thoughts, the defendant’s record, and information about the defendant’s personal and family background that may help the judge decide what sentence to impose. Some PSIs recommend a particular sentence. The presentence report is confidential (not a public record) although comments about it by the lawyers and judge can be quoted. Sometimes defendants will retain an investigator or consultant or attorney to perform an independent presentence report and submit it to the court.

If the court accepts the report for filing, it is not confidential. At the time of sentencing the judge will hear from the prosecutor, victim (if there is a victim), defense lawyer, defendant, and others related to the parties. Persons interested in the sentencing may submit letters which, if reviewed by the judge, should be made part of the court file. The defendant may submit a letter in lieu of speaking at sentencing, or might decide not to speak at all.

Sentencing: Sentencing Options

Generally speaking, judges have these options at sentencing: incarcerate the defendant (in jail for misdemeanors, or in jail or in prison for felonies), fine the defendant, place the defendant on probation subject to certain conditions or a combination of these (for example, a judge might impose a prison sentence, then stay (that is, suspend or hold) the sentence and place the defendant on probation for a specified time and also order the defendant to serve time in the county jail as a condition of probation).

For a few offenses, probation is not permitted, such as certain homicides and crimes of violence. When a defendant is being sentenced for more than one crime, or is already serving a sentence, the judge must decide whether the sentence he or she imposes will be served concurrently (at the same time as the other sentence) or consecutively (after the other sentence).

Persons interested in the sentencing may submit letters which, if reviewed by the judge, should be made part of the court file.

Post Conviction Proceedings

Following a conviction, the defendant may file a motion for a new trial or for a judgment notwithstanding the verdict (a judgment that sets aside the jury’s guilty verdict in favor of a judgment for the defendant). There are a variety of procedures for reviewing the court’s decision. Sometimes a defendant may ask the judge who sentenced him or her to undo the conviction or the sentence. Sometimes the defendant may ask the judge merely to modify the sentence in some way (for example, shorten the sentence, or change a condition of probation).

Sometimes the defendant takes the case to a higher court to undo the conviction or the sentence. The standard the defendant must meet to obtain post conviction relief depends in part on the claim the defendant makes. For example, if the defendant claims after a jury trial that the evidence was not sufficient to support a guilty verdict, the defendant must show that there is no credible evidence at all that would support the guilty verdict.

One of the most common post conviction claims made by defendants is that they received ineffective assistance from their lawyers. To prevail on such a claim, the defendant must show both that the lawyer’s performance fell below the standard of performance expected of the attorney and that the deficient performance actually prejudiced the defendant, that is, that there is a reasonable probability that the outcome of the proceedings would have been different if the attorney had performed as expected.

Appeal

In criminal cases, a person who is convicted may appeal, but the state’s (prosecution’s) right of appeal is very limited because of the constitutional protection against double jeopardy. In general, double jeopardy means a person cannot be tried or punished more than once for the same offense.

Other Post-trial Proceedings

In criminal cases, there are other proceedings that may be held months or years after the trial, including court hearings to determine if probation should be revoked, or if a parole violator should be returned to prison. Also, the trial court may hold a post-conviction relief proceeding to determine the validity of late claims that the offender’s constitutional rights were violated.



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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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