§ 1.4.1—Summary

In a criminal prosecution, the Sixth Amendment to the U.S. Constitution and article II, section 16 of the Colorado Constitution require that a defendant be informed of "the nature and cause of the accusation" against him or her. Fehringer v. People, 147 P. 361 (Colo. 1915). The right of an accused to notice of the charges constitutes a fundamental constitutional guarantee and lies at the foundation of due process of law. People v. Cooke, 525 P.2d 426 (Colo. 1974).

In addition, Crim. P. 5 and C.R.S. § 16-7-207 mandate that upon the first appearance, the defendant be advised of, and understand, certain additional rights. Advisement concerning these additional rights is discretionary, not mandatory, and is discussed below. There is neither a constitutional nor statutory requirement that the defendant be advised of every constitutional right to which he or she is entitled, so long as the defendant is advised of the rights set forth in Crim. P. 5(a)(2) and 11(b). People v. Reyes, 728 P.2d 349 (Colo. App. 1986); People v. Wade, 708 P.2d 1366 (Colo. 1985). Failure to advise the defendant as to discretionary rights will not invalidate the proceedings.

Arraignment under Crim. P. 10 and C.R.S. §§ 16-7-201 through -205 is technically distinguished from "first appearance" (when the defendant is in custody and must be brought before the judge without unnecessary delay) in that arraignment is the time when the defendant is required to enter a plea to the charge. In most DUI cases, first appearance and arraignment actually occur at the same time. Arraignment is discussed in this section, but the requirements for a guilty plea are discussed in detail in § 2.4.

Advisement hearings and arraignments can be conducted by magistrates, although the appointing authority (the chief judge of the district) can modify and restrict that authority. Wiegand v. County Court Magistrate, 937 P.2d 880 (Colo. App. 1996).

In response to the COVID-19 global pandemic, many courts are allowing defendants to appear for some proceedings by using an "interactive audiovisual device" such as Cisco WebEx. It is important to note that Crim. P. 43 describes in detail the requirements that apply to different proceedings.

Pursuant to Crim. P. 43, a defendant may be present within the meaning of this Rule 43 by the use of an interactive audiovisual device, in lieu of the defendant's physical presence, for the following hearings:

(I) First appearances pursuant to Crim.P. 5, for the purpose of advisement and setting of bail, including first appearances on probation or deferred sentence revocation complaints;
(II) Further appearances for the filing of charges or for setting the preliminary hearing;
(III) Hearings to modify bail;
(IV) Entry of pleas and associated sentencing or probation violation hearings in misdemeanor, petty offense, and traffic cases where the offense charged is not included within those offenses enumerated in C.R.S. 24-4.1-302 (I).
(V) Waivers of preliminary hearing;
(VI) Restitution hearings;
(VII) Appeal bond hearings;
(VIII) Crim.P. 35(B) hearings.

This rule does not require a court to use an interactive audiovisual device. In fact, if the court finds that a public health crisis exists, it may require the defendant and counsel to appear by contemporaneous audio communication (such as by phone) at arraignment and any proceeding listed in subsections (e)(2)(I), (II), (III), (V), (VI), (VII), and (VIII) of this rule. Crim. P. 43(f). Again, it is important to note that Crim. P. 43 describes in detail the requirements that apply to different proceedings.

§ 1.4.2—Mandatory Advisement — Crim. P. 5

Crim. P. 5(c)(2) imposes on the judge, at the defendant's first appearance, the duty to inform the defendant of, and to make certain that the defendant understands, the basic rights applicable upon the initiation of the formal criminal proceedings. These rights include the privilege against self-incrimination and the right to counsel, including the right to the appointment of counsel at state expense if the defendant is indigent. People v. Heintze, 614 P.2d 367 (Colo. 1980). The notice must also be sufficient to advise the defendant of the charges, to give the defendant a fair and adequate opportunity to prepare a defense, and to ensure that the defendant is not taken by surprise by evidence offered at the time of trial. People v. Cooke, 525 P.2d 426 (Colo. 1974).

The advisement required by Crim. P. 5(c)(2) consists of the matters described in Crim. P. 5(a)(2)(I) through (VII). C.R.S. § 16-7-207 contains virtually identical language. Pursuant to the provisions of the rules, it is the duty of the judge to inform the defendant and make certain that the defendant understands:

(I) The defendant need make no statement and any statement made can be and may be used against the defendant[;]
(II) The right to counsel;
(III) If indigent, the defendant has the right to request the appointment of counsel or consult with the public defender before any further proceedings are held;
(IV) Any plea the defendant makes must be voluntary and not the result of undue influence or coercion;
(V) The right to bail, if the offense is bailable, and the amount of bail that has been set by the court;
(VI) The nature of the charges;
(VII) The right to a jury trial;
(VIII) The right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged was committed by the defendant.

Crim. P. 5(a)(2).

A person charged with misdemeanor DUI is not entitled to a preliminary hearing. However, (VIII) is necessary for a proper felony DUI advisement. If the court is giving an advisement to a group that includes persons who are under investigation for both misdemeanors and felonies, (VIII) should be given.

Colorado no longer requires a pretrial conference before the court can appoint counsel in misdemeanors, petty offenses, or cases arising from a violation of C.R.S. title 42. C.R.S. §§ 16-5-501, 16-7-207, and 16-7-301; Crim. P. 5(c)(2); Rothgery v. Gillespie County, 554 U.S. 191 (2008). The court may appoint counsel in any case in which the charged offense includes the possibility of a jail sentence. No longer may the district attorney file a written statement that a jail sentence is not being sought and thereby deprive the court of the ability to appoint counsel.

Some defendants want to plead guilty at their first appearance in order to expedite matters. The court is not obligated to accept a guilty plea. United States v. Carrigan, 778 F.2d 1454 (10th Cir. 1985), and the ABA Standards suggest that some interval should elapse between the first appearance and the entry of the plea, particularly to permit the defendant a realistic opportunity to consult with counsel. ABA Standards for Criminal Justice, § 14-1.3 (1999).

The rights that are part of the required Crim. P. 5 advisement are discussed in more detail in the following sections.

The Right to Silence

Crim. P. 5(c)(2) and 5(a)(2)(I) and C.R.S. § 16-7-207(1)(a) require that the defendant be advised and understand that he or she need make no statement and that any statement made can be used against him or her.

Immunity from compulsory self-incrimination is a privilege at the core of our constitution. The existence of the privilege is one of the outstanding and distinctive features of the common-law system of jurisprudence and one of the highest protections to the liberty of the citizens of a free democracy. The courts always have been, and should be, zealous in preserving the privilege. In so doing, however, they ought not to give it more than its due significance. It is to be respected rationally for its merits, not worshipped blindly as a fetish. People v. Clifford, 98 P.2d 272, 274 (Colo. 1939); People v. Schneider, 292 P.2d 982 (Colo. 1956). The privilege against self-incrimination operates to protect the accused against compulsory testimony not only at the trial but also in other proceedings. Clifford, 98 P.2d at 274; Schneider, 292 P.2d at 986.

The privilege against self-incrimination is specifically limited to testimonial compulsion. Lanford v. People, 409 P.2d 829 (Colo. 1966); Serratore v. People, 497 P.2d 1018 (Colo. 1972); People v. Osorio-Bahena, 312 P.3d 247 (Colo. App. 2013), reh'g denied, cert. dism'd (2013). It does not, for example, create a right to refuse to participate in a line-up or other non-testimonial procedures pursuant to Crim. P. 41.1. In People v. Ortega, 2015 COA 38, the Colorado Court of Appeals held, as a matter of first impression, that a trial court's requiring a defendant to read an excerpt from a drug buy transcript, in order to allow the jury an opportunity to compare the defendant's way of speaking with that of the person on a recording of a drug buy, did not violate the defendant's Fifth Amendment right against self-incrimination.

A trial court's failure to refer to the privilege against self-incrimination does not invalidate a subsequent guilty plea on constitutional grounds. People v. Wade, 708 P.2d 1366 (Colo. 1985); People v. Marsh, 516 P.2d 431 (Colo. 1973). Similarly, the failure of the trial court to advise the defendant of his or her right to testify and that the defendant's silence at trial could not be used against him or her does not render a defendant's guilty plea invalid. People v. Alexander, 797 P.2d 1250 (Colo. 1990); People v. Malouff, 721 P.2d 159 (Colo. App. 1986).

The Right to Counsel

Crim. P. 5(c)(2) and 5(a)(2)(II) and (III) and C.R.S. § 16-7-207(1)(b) and (c) require that the defendant be advised of, and understand, the right to counsel and, if indigent, the right to court-appointed counsel. Crim. P. 44, Appearance of Counsel, is also relevant to advisement proceedings.

The right to counsel is fundamental to our criminal justice system. It is guaranteed by the Sixth Amendment to the U.S. Constitution and by article II, section 16 of the...

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