13-71-104. Eligibility for juror service - prohibition of discrimination.
Statute text
(1) Juror service is a duty that every qualified person has an obligation to perform when selected.
(2) All trial and grand jurors shall be selected at random from a fair cross section of the population of the area served by the court. All selected and summoned jurors shall serve, except as otherwise provided in this article or by court rule.
(3) (a) A person shall not be exempted or excluded from serving as a trial juror or grand juror because of race, color, religion, sex, sexual orientation, gender identity, gender expression, marital status, national origin, ancestry, economic status, or occupation.
(b) A person with a disability shall serve except:
(I) As otherwise provided in section 13-71-105 or 13-71-119.5; or
(II) Where the court finds that such person's disability prevents the person from performing the duties and responsibilities of a juror.
(c) Before dismissing a person with a disability pursuant to paragraph (b) of this subsection (3), the court shall interview the person to determine the reasonable accommodations, if any, consistent with federal and state law, that the court may make available to permit the person to perform the duties of a juror.
(4) The court shall strictly enforce the provisions of this article; except that the supreme court may provide by rule for the exclusion in a criminal trial of a juror who is employed by a public law enforcement agency or public defender's office.
History
Source: L. 89: Entire article R&RE, p. 766, 1, effective January 1, 1990. L. 96: Entire section amended, p. 737, 8, effective July 1. L. 98: Entire section amended, p. 304, 1, effective April 17; entire section amended, p. 464, 1, effective January 1, 1999. L. 2000: (2) amended, p. 32, 1, effective August 2. L. 2004: (1) and (3) amended, p. 276, 1, effective August 4. L. 2008: (3)(a) amended, p. 1600, 20, effective May 29. L. 2021: (3)(a) amended, (HB 21-1108), ch. 156, p. 891, 18, effective September 7.
Annotations
Editor's note: (1) This section is similar to former 13-71-103 as it existed prior to 1989.
(2) Amendments to this section by Senate Bill 98-136 and Senate Bill 98-066 were harmonized.
Annotations
Cross references: For the legislative declaration contained in the 2008 act amending subsection (3)(a), see section 1 of chapter 341, Session Laws of Colorado 2008. For the legislative declaration in HB 21-1108, see section 1 of chapter 156, Session Laws of Colorado 2021.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Batson -- Aging Well or in Need of Revision?", see 51 Colo. Law. 22 (Apr. 2022).
Annotator's note. Since 13-71-104 is similar to 13-71-103 as it existed prior to the 1989 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.
A waiver of a peremptory challenge, without more, does not support a prima facie case of discrimination under Batson v. Kentucky. Although waiver of a peremptory challenge, without more, is insufficient to establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), waiver, accompanied by something more, can support a prima facie case. People v. Lucero, 2014 COA 53, 353 P.3d 874.
The distinction between the "action" of exercising a peremptory challenge and the "inaction" of waiving a peremptory challenge is an artificial construct that does not support a constitutional distinction. Batson and its progeny preclude the use of peremptory challenges to "exclude" potential jurors based solely on the jurors' race, gender, or ethnicity. People v. Lucero, 2014 COA 53, 353 P.3d 874.
Although discrimination -- whether based on disability or some other characteristic -- in jury selection might sometimes result in fundamental unfairness, that does not mean it always will. The remaining jury pool may be completely unbiased and fair to the defendant, so that the defendant still receives a fair trial despite the arbitrary or discriminatory exclusion of certain jurors. Meadows v. Lind, 996 F.3d 1067 (10th Cir. 2021).
Trial court has discretion concerning a prospective juror's ability to render satisfactory jury service when questions of the juror's ability to serve are raised because of a physical disability, and absent an abuse of discretion, the trial court's decision will not be disturbed on appeal. State v. Janes, 942 P.2d 1331 (Colo. App. 1997); People v. Coughlin, 304 P.3d 575 (Colo. App. 2011).
Although the better practice is for the trial court to interview the prospective juror and enter findings pursuant to this section, trial court did not abuse its discretion by excusing the prospective juror for cause without entering such findings when juror had reported an attention deficit disorder and potential difficulty understanding testimony without taking notes. In light of the trial court's ban on note taking, the court properly determined that the potential juror's condition prevented her from performing the duties and responsibilities of a juror as required under this section. People v. Pineda, 40 P.3d 60 (Colo. App. 2001).
Elements of fair cross-section requirement. To establish a prima facie violation of the fair cross-section requirement, defendant must show that: (1) The group alleged to be excluded is a distinct group in the community; (2) the representation of this group in venires is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. State v. Janes, 942 P.2d 1331 (Colo. App. 1997).
Defendant had no standing to assert rights of excluded juror under federal Americans with Disabilities Act where juror herself had asked to be excused due to physical disability. State v. Janes, 942 P.2d 1331 (Colo. App. 1997).
Defendant failed to prove racial discrimination despite fact that no persons with Spanish surnames were on grand jury. Prosecution succeeded in offering race-neutral explanation for jury selection process. People v. Cerrone, 867 P.2d 143 (Colo. App. 1993), aff'd, 900 P.2d 45 (Colo. 1995).
Prosecution's failure to voir dire juror and use of peremptory challenge to exclude juror from service can demonstrate intent to discriminate because of race. The use of peremptory challenges to exclude jurors because of race violates the equal protection clause. To establish discriminatory use of peremptory challenges, the defendant must make a prima facie showing the challenges were used to discriminate against a juror because of race. The party using the peremptory challenge must have a non-racial reason for using the challenge. However, failure to voir dire can demonstrate intent to exclude jurors on the basis of race. Applying non-racial criteria for peremptory challenge differently to different jurors can also indicate a peremptory challenge used to discriminate because of race. People v. Gabler, 958 P.2d 505 (Colo. App. 1997).
The state's actions were inherently discriminatory in excluding an economic class from the opportunity to participate in grand jury service based on generalized assumptions concerning hourly wage earners. Although the state's actions were discriminatory and violated the requirements of this section, they did not prejudice the defendants who, following indictment by the grand jury, were afforded full procedural protections in their trials before petit juries. Cerrone v. People, 900 P.2d 45 (Colo. 1995).
Statute does not "eliminate" 16-10-103. This statute was enacted after the passage of 16-10-103 and general assembly is assumed to have been aware of that statute at that time, both statutes should be read together so as to give effect to each, particular statutes prevail over general and statutory repeal by implication is not favored, and 16-10-103 applies only in criminal trials while this statute applies generally to all jury trials. People v. Veloz, 946 P.2d 525 (Colo. App. 1997).