Robbins: When are you entitled to a jury? | VailDaily.com
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Robbins: When are you entitled to a jury?

You can’t always get what you want.

You can’t always get what you want.

You can’t always get what you want.



But if you try sometimes, well, you just might find.

You get what you need.



— The Rolling Stones

We’re all familiar with the image: the buttoned-down, polished-up lawyer strutting before the jury, pleading his or her case before 12 rapt jurors, hanging on his or her every word. Or maybe they’re just bored.

But there are two things wrong with that image. First, one doesn’t always get a jury. And second, even when one does, 12 is not always the magic number. Gulp. Sometimes it’s a mere six!

When is one entitled to a jury?

First, let’s do some simple math.

Law is divided into two main tranches. There is civil law — private disputes between individuals — and criminal law, the body of law that relates to crime. Criminal law is a system of laws concerned with punishment. As civil law involves the peaceable settling of disputes between private parties, it is, by comparison, pastoral. Win or lose, no one goes to jail and, other than in black-humored metaphor, no one swings from the gallows.

For more than just our subject, the cleft between the two main tranches of the law is significant. In many, larger jurisdictions, the court itself is divided into the criminal and civil divisions. But, hey there, what about this jury stuff?

Let’s start with Article III, Section 2 and the Sixth Amendment to the United States Constitution which provide “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury” and “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

But, as broad as it might seem, the right isn’t as broad as those texts might suggest. Many defendants have to settle for bench trials, where the judge — and not a jury — decides whether the accused is guilty. According to the Supreme Court, the right to a jury trial right applies only when a “serious” offense is at hand — petty offenses (usually considered to be offenses where the penalty will not amount to more than six months) don’t invoke it. OK, so there’s that.

Another little wrinkle or two before we move on. Although the Bill of Rights only provides for a jury trial for defendants in federal courts, the right to a jury trial is so important, so fundamental to our way of justice, that it could not remain solely applicable in the federal courts. That’s why this Sixth Amendment right was extended to the states through the Due Process Clause of the 14th Amendment.

In criminal matters, the individual states too must provide jury trials if an offense is “serious” under the federal standard but they are also free to guarantee jury trials to defendants when the crimes fail to meet that standard if they so elect. As such, the federal standard is a floor which the states are free to “overreach.” In sum, unless the crime is petty, you get a jury of your peers.

What then about civil matters?

Well, it’s more complicated.

In Colorado, Rule of Civil Procedure Rule 38 speaks to it. Well, sorta, anyway. What the rule provides, in relevant part, is that “any party may demand a trial but jury of any issue triable by jury…” Um… OK? But what “issues are triable by a jury?”

It comes down to the Colorado Constitution and an understanding of the distinction between the law of law and the law of equity. Whether or not you are entitled to a jury trial depends on what type of relief the plaintiff is seeking.The main distinction that determines whether a person is entitled to a jury trial in a civil case is whether the action is seeking legal or equitable relief.

The schism between the two derives from the English common law from which our own legal system was spawned where there were previously two different court systems: courts of equity and courts of law. Modernly, however, most U.S. courts, including those of Colorado, are courts of “general jurisdiction” that hear cases in both equity and law. But, even courts of general jurisdiction still look to whether an action requests equitable relief or relief in law for determining whether a party has a right to a jury trial.

The main difference between cases in equity and in law is the type of relief requested. Speaking broadly, a lawsuit in “equity” seeks non-monetary relief — for example, an injunction or order from the court requiring a person take or stop a certain action. In lawsuits seeking equitable relief, there is no right to a jury trial. Accordingly, these types of cases are tried to the judge. In contrast, lawsuits based in law typically request money damages and the parties are entitled to jury trials in such cases.

The authority for all this comes from the Colorado Constitution, specifically Article 11, Section 23, which provides that “the right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts…, may consist of less than 12 persons, as may be prescribed by law.”

Under Colorado law, the right to a jury trial in civil cases is limited to cases:

  • Where a trial by jury is provided by constitution or by statute
  • In actions for the recovery of specific real or personal property
  • In actions for money claimed due on a contract or for breach of contract
  • And in actions for injuries to person or property

So what about this less-than-12-jurors stuff?

Every person accused of a felony in both the federal courts and in those of the state of Colorado has the right to be tried by a jury of 12 whose verdict must be unanimous. Every person accused of a misdemeanor in Colorado is entitled to be tried by a jury of six. In civil cases, in Colorado, as a matter or efficiency, economy, and frankly some interpretation, the number of jurors is also six. In federal court, the number may be six or 12.

So … do you always get what you want?

Hmmm. Sometimes, when it comes to juries, you just might find you get what you need.


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