Section 18-1-406 - Right to jury trial(1) Except as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous. In matters involving misdemeanors, the accused is entitled to be tried by a jury of six. In matters involving petty offenses, the accused has the right to be tried by a jury under the terms and conditions of section 16-10-109, C.R.S.(2) Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.(3) A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal of the waiver prior to the commencement of the trial.(4) Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before the swearing in of the jury, or after the swearing in of the jury and before verdict, with the agreement of the district attorney and the approval of the court, to be tried by a number of jurors less than the number to which he would otherwise be entitled.(5) Upon request of the defendant in advance of the commencement of the trial, the defendant shall be furnished with a list of prospective jurors who will be subject to call in the trial.(6) Either the district attorney or the defendant may challenge the array on the ground that there has been a material departure from the requirements of the law governing the selection of jurors, but such challenge shall be made in writing setting forth the particular grounds upon which it is based and shall be filed prior to the swearing in of the jury selected to try the case.(7) Except as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury's verdict.L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-506. L. 72: p. 268, § 6. L. 86: (1) amended, p. 769, § 3, effective July 1. L. 91: (4) amended, p. 405, § 7, effective June 6. L. 94: (1) amended and (7) added, p. 1716, § 5, effective July 1.In People v. Taylor, 2021 COA 133, 503 P.3d 912, the Colorado Court of Appeals held that subsection (7) is unconstitutional because it conflicts with a defendant's state constitutional right under § 23 of article II to have a felony case decided by a jury of twelve.
For similar provisions concerning the right to trial by jury, see Crim. P. 23.