16-10-104. Peremptory challenges.

Statute text

(1) In capital cases, the state and the defendant, when there is one defendant, shall each be entitled to ten peremptory challenges. In all other cases, where there is one defendant and the punishment may be by imprisonment in the correctional facilities operated by the department of corrections, the state and the defendant shall each be entitled to five peremptory challenges, and in all other cases to three peremptory challenges. If there is more than one defendant, each side shall be entitled to an additional three peremptory challenges for every defendant after the first in capital cases, but not exceeding twenty peremptory challenges to each side; in all other cases, where the punishment may be by imprisonment in the correctional facilities operated by the department of corrections, to two additional peremptory challenges for every defendant after the first, not exceeding fifteen peremptory challenges to each side; and in all other cases, to one additional peremptory challenge for every defendant after the first, not exceeding ten peremptory challenges to each side. In any case where there are multiple defendants, every peremptory challenge shall be made and considered as the joint peremptory challenge of all defendants. In case of the consolidation of any indictments, informations, complaints, or summonses and complaints for trial, such consolidated cases shall be considered, for all purposes concerning peremptory challenges, as though the defendants had been joined in the same indictment, information, complaint, or summons and complaint. When trial is held on a plea of not guilty by reason of insanity, the number of peremptory challenges shall be the same as if trial were on the issue of substantive guilt.

(2) Peremptory challenges shall be exercised as provided by applicable rule of criminal procedure.

History

Source: L. 72: R&RE, p. 237, 1. C.R.S. 1963: 39-10-104. L. 79: (1) amended, p. 678, 3, effective July 1. L. 81: (1) amended, p. 890, 3, effective July 1. L. 85: (1) amended, p. 617, 9, effective July 1.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Curbing the Prosecutor's Abuse of the Peremptory Challenge", see 14 Colo. Law 1629 (1985). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to peremptory challenges on the basis of race, see 15 Colo. Law. 1609 (1986). For article, "Criminal Jury Selection After People v. Novotny", see 44 Colo. Law. 41 (Feb. 2015).

This section controls over court rule. Peremptory challenges, while not constitutionally required, are deemed to be an effective means of securing a more impartial and better qualified jury and, as such, are an important right of an accused. While also having an incidental effect on trial procedure, this section is primarily an expression of policy concerning this right of the accused, a substantive matter, and, thus, controls over Crim. P. 24(d). People v. Hollis, 670 P.2d 441 (Colo. App. 1983).

Although the statute refers to the number of challenges in capital cases, it does not define "capital case". By contrast, Crim. P. 24(d)(1) does define the term. The rule and the statute, therefore, do not "conflict" in the sense of being irreconcilable or necessarily incompatible with each other, and the rule can be given effect without producing a result irreconcilable with the plain language of the statute. People v. Reynolds, 159 P.3d 684 (Colo. App. 2006).

There is no conflict between the number of peremptory challenges provided by this section and Crim. P. 24(d)(4) regarding nonreduction of peremptory challenges where there has been a waiver. Where counsel waives a peremptory challenge, counsel does not lose that challenge and can still take advantage of all available peremptory challenges to which the party is entitled, so long as, after waiver, at least one new juror is called into the jury box. People v. Terhorst, 2015 COA 110, 360 P.3d 239.

Denial of right to use all challenges is reversible error. The denial of the right of a party to use all of his peremptory challenges creates a jury which is not a statutory tribunal and therefore constitutes reversible error. People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976).

Although right to peremptory challenges is not constitutional, failure to allow defendant peremptory challenges as provided in this section violates defendant's due process rights. People v. Vieyra, 169 P.3d 205 (Colo. App. 2007).

Trial court need not remind defendant of remaining peremptory challenges because it is counsel's duty, and not a responsibility of the court, to track such challenges. People v. Vieyra, 169 P.3d 205 (Colo. App. 2007).

Defendant failed to prove beyond a reasonable doubt that statute is unconstitutional as applied to defendants jointly tried, as peremptory challenges are not constitutionally required and statute is rationally related to a legitimate state interest. People v. Gardenhire, 903 P.2d 1159 (Colo. App. 1995).

Statute does not unconstitutionally discriminate against a person facing life imprisonment as a result of a habitual criminal conviction. Because class 1 felonies are the most serious offenses, the general assembly could rationally perceive that additional procedural protections are warranted. People v. Turley, 18 P.3d 802 (Colo. App. 2000).

Time for determining the number of peremptory challenges is the time voir dire is commenced. People v. Hollis, 670 P.2d 441 (Colo. App. 1983).

The number of peremptory challenges allowed is governed by the statute and rule in effect at the time voir dire is conducted. People v. Priest, 672 P.2d 539 (Colo. App. 1983); People v. Marquiz, 685 P.2d 242 (Colo. App. 1984), aff'd, 726 P.2d 1105 (Colo. 1986).

Number of peremptory challenges allowed is governed by statute and is not subject to judicial discretion. People v. Macrander, 828 P.2d 234 (Colo. 1992).

Reversal of a criminal conviction for other than structural error is not required absent an express legislative mandate or an appropriate case-specific outcome-determinative analysis. Allowing a defendant fewer peremptory challenges than authorized or than exercised by the prosecution is not structural error requiring reversal. People v. Novotny, 2014 CO 18, 320 P.3d 1194 (overruling People v. Macrander, 828 P.2d 234 (Colo. 1992), People v. Lefebre, 5 P.3d 295 (Colo. 2000), and other holdings to the contrary); People v. Alfaro, 2014 CO 19, 320 P.3d 1191; People v. Roldan, 2014 CO 22, 322 P.3d 922; People v. Montero-Romero, 2014 CO 23, 322 P.3d 923; People v. Wise, 2014 COA 83, 348 P.3d 482.

Trial court's failure to excuse juror for cause was harmless. Defendant used a peremptory challenge to correct the court's failure to remove the juror. But the record did not reflect that a biased or incompetent juror served on the jury, and therefore defendant could not establish he was harmed by the trial court's erroneous failure to excuse the juror for cause. People v. Oliver, 2020 COA 97, 474 P.3d 207.

Prejudicial error occurred when a defendant was required to exercise a peremptory challenge under this section to remove a suspect juror following trial court's improper denial of defendant's challenge for cause where defendant exhausted all available peremptory challenges on the other jurors. People v. Macrander, 828 P.2d 234 (Colo. 1992), overruled in People v. Novotny, 2014 CO 18, 320 P.3d 1194.

Prejudice is shown, if defendant exhausts all peremptory challenges and one of those challenges is expended on a juror who should have been removed for cause. People v. Zurenko, 833 P.2d 794 (Colo. App. 1991).

Prejudice is shown if defendant exhausts all of his peremptory challenges and one of those challenges is expended on a juror who should have been removed for cause. A defendant is not required to request an additional peremptory challenge to preserve this issue on appeal. People v. Prator, 833 P.2d 819 (Colo. App. 1992), aff'd, 856 P.2d 837 (Colo. 1993).

No error occurred when trial court properly denied defendant's motion for cause challenge to a juror who would base her decision on the evidence presented at trial and who would follow the court's instructions concerning the presumption of innocence; defendant cannot claim prejudice for his choice not to excuse the juror by use of a peremptory challenge. Morrison v. People, 19 P.3d 668 (Colo. 2000); People v. Honeysette, 53 P.3d 714 (Colo. App. 2002).

Where the trial court improperly removed jurors for cause and the prosecution subsequently used all of its peremptory challenges, the prosecution enjoyed an unfair tactical advantage in determining the makeup of the jury, detrimentally affecting the rights of the defendant and requiring a new trial. Improperly dismissing some jurors for cause has the effect of granting additional peremptory challenges to the prosecution. It is irrelevant that the defendant has full ability to use his peremptory challenges. The prosecution's relatively greater ability to remove jurors it views as objectionable is independently prejudicial to the defendant's rights, and the court will presume prejudice to the defendant. People v. Lefebre, 5 P.3d 295 (Colo. 2000), overruled in People v. Novotny, 2014 CO 18, 320 P.3d 1194.

Where defendant was charged with first-degree murder, defendant, as well as the state, was entitled to 15 peremptory challenges. People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976).

Despite Furman v. Georgia (408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)) which abolished the death penalty in capital cases, the procedural aspects of a capital case, as established by the Colorado constitution or Colorado statutes, remain in effect for crimes which have previously been classified as capital. People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976).

Where the death penalty was not even a possibility, the trial court correctly limited the appellant to 10 peremptory challenges. People v. Hines, 194 Colo. 284, 572 P.2d 467 (1977).

Applied in People v. Fink, 41 Colo. App. 47, 579 P.2d 659 (1978); People v. Warren, 196 Colo. 75, 582 P.2d 663 (1978); People v. Gonzales, 631 P.2d 1170 (Colo. App. 1981); People v. Fields, 697 P.2d 749 (Colo. App. 1984); People v. Gardenhire, 903 P.2d 1165 (Colo. App. 1995).