Colorado § 18-1-402 - Presumption of innocence.

§ 18-1-402. Presumption of innocence.

Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.

Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-502.

ANNOTATION

I. General Consideration.

II. Presumption of Innocence.

III. Proof Beyond Reasonable Doubt.

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963).

Annotator's note. Since § 18-1-402 is similar to former § 40-2-20 C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The policy of the government is to punish only those who violate the law and to protect the innocent in all cases. Criminal prosecutions are not to be regarded or conducted as contests between individuals respecting civil rights, wherein advantages not reaching the merits may be gained by one party over another. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Legislature's competence to establish culpability and justification not impaired. Constitutional mandate requiring the prosecution to establish all essential elements of a crime beyond a reasonable doubt does not impair the legislature's competence to establish the statutory constituents of criminal culpability for various offenses and to formulate particular rules of justification or excuse for acts that otherwise might be criminally punishable. People v. Ledman, 622 P.2d 534 (Colo. 1981).

Accused presumed innocent until guilt proved beyond reasonable doubt. The prosecution in a criminal case must establish the guilt of the accused by proof beyond a reasonable doubt, and until the prosecution meets that burden, the accused is presumed to be innocent. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973); Vega v. People, 893 P.2d 107 (Colo. 1995).

Section provides foundation of criminal justice system. The presumption of innocence, coupled with proof of each element of the charge beyond a reasonable doubt, provides the foundation for a system of criminal justice. People v. Kanan, 186 Colo. 255, 526 P.2d 1339 (1974).

Component parts of due process of law. Proof beyond a reasonable doubt and presumption of innocence are principles of law applicable to criminal cases which have been so universally accepted and applied as to have become component parts of the term "due process of law". People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973).

The presumption of innocence has meaning independent of the concept of proof beyond a reasonable doubt which relates to the burden of proof. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973).

Language of the 2022 model jury instruction for the presumption of innocence, burden or proof, and definition of reasonable doubt does not lower the prosecution's burden of proof. In making this determination, the court looks at the record as a whole and asks whether there is a reasonable likelihood the jury applied the instructions in an unconstitutional manner. People v. Berumen, 2025 COA 93, 583 P.3d 1264.

The 2022 model jury instruction is an accurate statement of the law. The phrase "firmly convinced" correctly connotes a standard of "near certitude", one that is "highly probable" but stops short of absolute certainty. The phrase "real possibility" correctly directs the jury not to acquit the defendant because it can conceive of some fanciful possibility that the defendant is not guilty. People v. Berumen, 2025 COA 93, 583 P.3d 1264.

Combining in one instruction the instructions on presumption of innocence, burden of proof, and reasonable doubt did not amount to an abuse of discretion, where no prejudice has been shown. People v. Sharpe, 183 Colo. 64, 514 P.2d 1138 (1973).

II. PRESUMPTION OF INNOCENCE.

Purpose of presumption of innocence. The presumption of innocence was developed for the purpose of guarding against the conviction of an innocent person. It was not developed for the purpose of aiding the guilty to escape punishment. It is nevertheless perfectly plain that the presumption, together with the related rule on the burden of proof, in guarding against the conviction of an innocent person, may in some cases prevent the conviction of a person who is actually guilty. Thus, where the prosecution is unable to muster evidence sufficient to overcome the presumption, there will be an acquittal, even though the defendant is actually guilty. This is a calculated risk which society is willing to take. It does so because it regards the acquittal of guilty persons less objectionable than the conviction of innocent persons. The implication that society is just as anxious to convict the guilty as it is to acquit the innocent is false; otherwise there would be no presumption of innocence. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

Presumption of guilt raised by implications of defendant's prior criminality held prejudicial error. People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973).

It is not proper to raise a presumption of guilt on the ground that, having committed one crime, the depravity it exhibits makes it likely defendant would commit another. White v. People, 177 Colo. 386, 494 P.2d 585 (1972).

A presumption of guilt should not be generated against an accused by showing that he committed a crime indicative that he is a depraved person who likely would commit the crime for which he is being tried. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).

Prosecution's closing argument misstating the presumption of innocence was erroneous. Prosecution's statements in closing argument that defendant "sits here in front of you a guilty man" and that the presumption of innocence "we had when we started this case is gone" were flawed because a defendant retains a presumption of innocence throughout the trial process. The presumption remains until after a jury returns a guilty verdict. People v. McBride, 228 P.3d 216 (Colo. App. 2009).

Prosecutor's closing argument misstated its burden of proof of beyond a reasonable doubt where the prosecutor advised the jury during closing argument that it could acquit defendant only if it disbelieved everything one of the prosecution's witnesses said while testifying. People v. Cuellar, 2023 COA 20, 530 P.3d 1236.

Failure to instruct on the presumption of innocence constitutes a denial of due process of law and deprived defendant of his constitutional right to a fair trial. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973).

Failure to instruct the jury as to the presumption of innocence is plain error. People v. Aragon, 665 P.2d 137 (Colo. App. 1982).

Instruction on the presumption of innocence is salutary, in that it guarantees that the defendant's liberty will not be lost precipitously and that the state will be put to the proper test in securing a conviction in a criminal case. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973).

Instruction on presumption of innocence held inappropriate. Renfrow v. People, 176 Colo. 160, 489 P.2d 582 (1971); Brown v. People, 177 Colo. 397, 494 P.2d 587 (1972); English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

Recommended instruction on the presumption of innocence should read: "The law presumes every person charged with crime to be innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless and until, by the evidence introduced before you, you are convinced the defendant is guilty beyond a reasonable doubt." Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

Instruction was not erroneous. Zamora v. People, 175 Colo. 340, 487 P.2d 1116 (1971).

Submitting erroneous instruction requires reversal only if objected to. Submitting to the jury an erroneous instruction on the presumption of innocence would ordinarily require reversal, but only if the defendant objected to the instruction. People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973).

III. PROOF BEYOND REASONABLE DOUBT.

Law reviews. For comment on Jones v. People (146 Colo. 40, 360 P.2d 686 (1961)), see 34 Rocky Mt. L. Rev. 243 (1962).

The reasonable doubt which authorizes an acquittal is as to the defendant's guilt, not his innocence. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Prosecution bears initial burden of proof. Before the accused can be convicted of murder, or called upon to produce evidence in justification or mitigation of such an offense, the prosecution must make out such a case as will, under the law, sustain a verdict of guilty. Kent v. People, 8 Colo. 563, 9 P. 852 (1886).

Burden extends to all essential elements of crime. It is axiomatic that the burden of proof rests upon the prosecution throughout the trial to prove beyond a reasonable doubt the existence of all essential elements necessary to constitute the offense charged. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Prosecutor must establish fair account of transaction. The policy of the law, as evinced by the presumption of innocence and the doctrine of reasonable doubt, would require the public prosecutor to introduce such proof as will give a fair account of the transaction. This being done, it devolves upon the defendant to produce in evidence such matters of mitigation, justification or excuse, if any such exist, as may tend to explain his action and show the necessity therefor; otherwise a verdict of guilty must necessarily be returned against him. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

He cannot be compelled to search for and put in evidence all the facts connected with the transaction, or exculpatory facts in the prisoner's favor. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

All matters showing justification or excuse must be considered in favor of accused. When the circumstances surrounding the commission of the homicide are produced in evidence by the state, all matters, if any, which go to justify or excuse the killing must be considered in favor of the defendant; and if sufficient to manifest that the accused was justified or excused in committing the homicide, he is not bound to prove it by affirmative evidence in his own behalf. Kent v. People, 8 Colo. 563, 9 P. 852 (1886).

As to all facts in evidence properly constituting part of the res gestae, they are to be considered by the jury, in passing upon the question of guilt or innocence, without discrimination as to the rules of evidence, whether introduced by the prosecutor or the defendant. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

The rule relating to the res gestae applies to all defenses which traverse the averments of the indictment and go to the essence of the guilt charged against the accused. Within this class may be mentioned self-defense, provocation, heat of blood, and, generally, all matters growing out of the res gestae which go to justify, extenuate or excuse the crime charged, including the defense of alibi. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

The burden is never on the defendant to show that he did not commit the crime. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Defendant's only burden is to raise a reasonable doubt in the minds of the jury as to his guilt from all the evidence of the case. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Burden on accused to raise reasonable doubt of sanity. While up to the point of establishing an unjustifiable homicide the prosecution carries the burden of proof beyond a reasonable doubt, sanity is presumed. He who relies upon its absence must then produce evidence which will at least raise a reasonable doubt of its existence. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).

The killing having been established, the defendant had the burden of proving the effect of his mental condition as a mitigating circumstance in the perpetration of the killing. Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961); Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964).

Burden of establishing defendant's capacity to form specific criminal intent. Once some evidence from either the prosecution or the defense raises the issue of impaired mental condition, the burden devolves upon the prosecution to establish beyond a reasonable doubt the defendant's capacity to form the specific intent required for the offense as well as the defendant's guilt as to all essential elements of the crime charged against him. People v. Ledman, 622 P.2d 534 (Colo. 1981).

The accused is not required by this section to prove circumstances of mitigation or excuse beyond a reasonable doubt, or to the extent of satisfactorily establishing his defense. Kent v. People, 8 Colo. 563, 9 P. 852 (1886); Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Nor by a preponderance of evidence. When the killing is proved the burden does not devolve on the accused to show anything to the satisfaction of the jury by a fair preponderance of the evidence. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889).

In a substantial number of cases insanity is the only defense relied upon and as a practical matter the accused could be deprived of essential and time-honored safeguards and could be required to establish his innocence by a preponderance of the evidence, if provisions requiring proof of sanity by a preponderance of the evidence were upheld. People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968).

Defense need only raise reasonable doubt of guilt. The accused is only required to prove excuse or mitigation as any other facts are required to be proved; and if the matters relied on be supported by such proof are such as would produce a reasonable doubt in the minds of the jury as to the guilt of the prisoner, when the whole evidence concerning the transaction comes to be considered by the jury, the rule of law is that there must be an acquittal. Kent v. People, 8 Colo. 563, 9 P. 852 (1886); Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

The accused has the burden of showing circumstances of mitigation or circumstances that justify or excuse the homicide. If the showing be sufficiently strong to create a reasonable doubt of the guilt of the accused as to any grade of offense included in the indictment, the accused is entitled to the benefit thereof. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889).

It is not incumbent upon the defendant to prove anything to the satisfaction of the jury; rather, it is sufficient if he, by any evidence in the case, succeeds in raising a reasonable doubt in the minds of the jury of the truth of any essential element of the charge against him. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Due process of law requires prosecution to establish all essential elements of crime beyond a reasonable doubt. People v. Ledman, 622 P.2d 534 (Colo. 1981).

The test for determining whether a trial court's statements to a jury lowered the prosecution's burden of proof is whether there is a reasonable likelihood that the jury understood the court's statements, in the context of the instructions as a whole and the trial record, to allow a conviction based on a standard lower than beyond a reasonable doubt. Tibbels v. People, 2022 CO 1, 501 P.3d 792; Pettigrew v. People, 2022 CO 2, 501 P.3d 813.

As part of its reasonable doubt instruction, the court should inform the jury that it may consider a lack of evidence in the case. However, omitting "lack of evidence" language did not impermissibly lower the prosecution's burden of proof where there was no basis to believe the jury acted in an unconstitutional way and the absence of an express direction did not amount to a prohibition. People v. Melara, 2025 COA 48, 572 P.3d 619.

Prejudice inevitable when instruction reduces prosecution's obligation of proof. Prejudice to the defendant is inevitable when the court instructs the jury in such a way as to reduce the prosecution's obligations to prove each element of its case beyond a reasonable doubt. People v. Kanan, 186 Colo. 255, 526 P.2d 1339 (1974).

During voir dire, the court's description improperly added additional commentary to the reasonable doubt standard that trivialized the prosecution's burden of proof and imparted an incorrect instruction to the jurors. This error was structural and requires reversal of the conviction. Proper jury instruction on reasonable doubt at the close of trial did not cure the court's error. People v. Knobee, 2020 COA 7, 490 P.3d 543.

Instruction on reasonable doubt held fair statement of its legal meaning. People v. Focht, 180 Colo. 259, 504 P.2d 1096 (1972).

Instructions held erroneous. Any instruction, whatever its language, which in effect imposes upon the defendant the burden of affirmatively showing that no crime has been committed constitutes reversible error, since it clearly deprives him of the benefit of a reasonable doubt as to his guilt which may arise from all the evidence. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).