Section 16 CRIMINAL PROSECUTIONS - RIGHTS OF DEFENDANT.

• Jurisdiction: Colorado

Section 16. Criminal prosecutions - rights of defendant.

In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Source: Entire article added, effective August 1, 1876, see L. 1877, p. 31.

Editor's note: In a United States supreme court case (Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed. 2d 977 (1964)) the court held that "where the investigation is no longer a matter of general inquiry into an unsolved crime, but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer and the police have not effectively warned him of his absolute constitutional right to remain silent" such suspect had been denied his constitutional rights and his confession was not admissible.

In Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), the Colorado supreme court held the Escobedo case did not apply where accused made a voluntary confession to a friend prior to police interrogation as the Escobedo case was concerned with police tactics during interrogation.

In Ruark v. People, 158 Colo. 110, 405 P.2d 751 (1965), the Colorado supreme court held the Escobedo case did not apply retrospectively to entitle one to relief in case that had been previously decided.

Cross references: For duty of court to inform an accused of his right to counsel and the nature of the charges against him, see Crim. P. 5(a)(2) and § 16-7-207; for accused's right to compel attendance of witnesses, see § 16-9-101; for dismissal of criminal case for failure to bring to trial within time period, see Crim. P. 48(b)(1) and (b)(5); for self-incrimination and double jeopardy, see § 18 of this article; for right to trial by jury in criminal cases, see § 23 of this article; for due process in criminal proceedings, see § 25 of this article.

ANNOTATION

I. General Consideration.

II. Right to Appear and Defend in Person and By Counsel.

A. Right to Be Present.

B. Waiver of Right to Appear and Be Present.

C. Right to Testify.

D. Right to Defend in Person.

E. Right to Counsel.

F. Waiver of Right to Counsel.

G. Miranda Rights and Exclusion of Evidence for Violation.

H. Right to Counsel During Line-up.

I. Effective Assistance of Counsel.

III. Right to Demand Nature and Cause of Accusation.

IV. Right of Confrontation; Right to Compel Attendance of Witnesses.

A. Right to Confrontation and Cross-Examination.

B. Disclosure of Informant's Identity; Personal Safety Exception.

C. Admissibility of Evidence.

D. Right to Compel Attendance.

V. Right to Speedy Public Trial.

A. Right to Speedy Trial.

B. Right to Public Trial.

C. Right to Speedy Appeal.

VI. Right to Impartial Jury; Venue.

A. Right to Impartial Jury.

B. Venue and Pretrial Publicity.

VII. Right to Unanimous Jury Verdict.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Report of the Denver Bar Association's Committee on the Administration of Criminal Justice in Colorado", see 2 Den. B. Ass'n Rec. 2 (Feb. 1925). For note, "Right of a Federal Prisoner to a Speedy Trial on a State Charge", see 12 Rocky Mt. L. Rev. 214 (1940). For note, "A Non-Judicial Dissent to Amendment of Canon 35", see 34 Dicta 55 (1957). For article, "One Year Review of Criminal Law and Procedure", see 35 Dicta 26 (1958). For article, "Municipal Penal Ordinances in Colorado", see 30 Rocky Mt. L. Rev. 267 (1958). For article, "Incriminating Evidence: What to do With a Hot Potato", see 11 Colo. Law. 880 (1982). For article, "Some Observations on the Swinging Courthouse Doors of Gannett and Richmond Newspapers", see 59 Den. L.J. 721 (1982). For article, "Standards of Effectiveness of Criminal Counsel", see 12 Colo. Law. 264 (1983). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with rights of accused, see 63 Den. U. L. Rev. 343 (1986). For a discussion of Tenth Circuit decisions dealing with criminal procedure, see 66 Den. U. L. Rev. 739 (1989). For a discussion of Tenth Circuit decisions dealing with questions of criminal procedure, see 67 Den. U. L. Rev. 701 (1990). For article, "Crawford at Two: Testimonial Hearsay and the Confrontation Clause", see 35 Colo. Law. 47 (May 2006). For article, "Pro Se Defendants and the Appointment of Advisory Counsel", see 35 Colo. Law. 29 (Dec. 2006).

Annotator's notes. (1) In People v. Parada, 188 Colo. 230, 533 P.2d 1121 (1975), the Colorado supreme court determined that the United States supreme court, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 694 (1966), substituted a "custodial interrogation" requirement for the "focus of the investigation" test which had been enunciated in the Escobedo case.

(2) For other annotations concerning legal counsel or the indigent, see § 18-1-403 and Crim. P. 44. For other annotations concerning speedy trials, see § 18-1-405 and Crim. P. 48.

This section is congruent to the sixth amendment to the United States Constitution. Lucero v. People, 173 Colo. 94, 476 P.2d 257 (1970).

Defendant's guilty plea was unconstitutional since he was illiterate, was told by the interpreter to sign the plea advisement form without having it read to him, had difficulty hearing the interpreter during the plea hearing, was pro se, and lacked the knowledge or understanding of the criminal justice system and process. The guilty plea was not made based on a voluntary and intelligent choice among alternative courses of action. Sanchez-Martinez v. People, 250 P.3d 1248 (Colo. 2011).

The terms "criminal prosecution" and "criminal cases", as used in the constitution, refer to cases which, at the time of the adoption of the constitution, were recognized as criminal or cases which are thereafter made criminal by statute. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S.Ct. 1703, 26 L. Ed. 2d 69 (1970).

This section does not apply to contempt proceedings either of a civil or criminal nature. Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892); People ex rel. Attorney Gen. v. News-Times Publ'g Co., 35 Colo. 253, 84 P. 912 (1906), appeal dismissed for lack of jurisdiction, 205 U.S. 454, 27 S.Ct. 556, 51 L. Ed. 879 (1907); Guiraud v. Nevada Canal Co., 79 Colo. 289, 245 P. 485 (1926).

This section confers rights for the benefit of accused. The provisions of this section to the effect that in criminal prosecutions the accused shall have the right to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed", confer a right solely for the benefit of the accused. Vigil v. People, 135 Colo. 313, 310 P.2d 552 (1957).

And such rights may be waived. The right to trial by jury, the right to counsel, the right not to incriminate one's self, and related matters are known as alienable constitutional rights or as rights in the nature of personal privilege for the benefit of the person who may seek their protection. Such rights, whenever assertable, may be waived. Geer v. Alaniz, 138 Colo. 177, 331 P.2d 260 (1958).

Defendant is entitled to a fair trial, but not a perfect trial. People v. Sanchez, 184 Colo. 25, 518 P.2d 818 (1974).

Aim of a criminal trial is that the guilty shall not escape nor the innocent suffer an unjust conviction. People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974).

Constitutional guaranties protected by this section relate to trial and not to proceedings thereafter unless a new trial is granted. Agnes v. People, 104 Colo. 527, 93 P.2d 891 (1939).

Summary procedure in police courts may not override constitutional rights. While summary procedure in police court cases has been countenanced from the standpoint of expediency, expedience may not over-ride the constitution and dethrone rights guaranteed thereunder. City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958).

When sanctions imposed for violation of a municipal ordinance are penal in nature, defendant is entitled to all rights accorded one in a criminal proceeding. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S.Ct. 1703, 26 L. Ed. 2d 69 (1970).

Municipal power to imprison is criminal sanction. In prosecutions for violation of municipal ordinances, even though considered as in the nature of civil actions, where the effects and consequences are criminal in fact, the power to imprison is a criminal sanction. City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958).

Denial of motion for preliminary hearing held not error. People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973).

This section, by its terms, relates to "criminal prosecutions" only. People in Interest of A.M.D., 648 P.2d 625 (Colo. 1982).

Protection of innocent and preservation of integrity of society. Both the United States and the Colorado Constitutions accord an accused substantive and procedural rights that are binding on the government in a criminal prosecution. Such procedures as are found in this section have been constitutionalized not only to protect the innocent from an unjust conviction but, of equal importance, to preserve the integrity of society itself by keeping sound and wholesome the process by which it visits its condemnation on a wrongdoer. People v. Ger-many, 674 P.2d 345 (Colo. 1983).

Preliminary hearing to determine probable cause issues should be conducted without regard to whether or not evidence meets standards of constitutional admissibility. People v. Connelly, 702 P.2d 722 (Colo. 1985).

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