Colorado § 18-3-408 - Jury instruction prohibited.

§ 18-3-408. Jury instruction prohibited.

In any criminal prosecution under sections 18-3-402 to 18-3-405, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405, the jury shall not be instructed to examine with caution the testimony of the victim solely because of the nature of the charge, nor shall the jury be instructed that such a charge is easy to make but difficult to defend against, nor shall any similar instruction be given. However, the jury shall be instructed not to allow gender bias or any kind of prejudice based upon gender to influence the decision of the jury.

Source: L. 75: Entire part R&RE, p. 631, § 1, effective July 1. L. 90: Entire section amended, p. 925, § 8, effective March 27.

ANNOTATION

Section not unconstitutional. This section does not operate to deprive a defendant of due process of law by prohibiting the exercise of trial court discretion with respect to giving this instruction, nor does it violate the constitutional requirement of separation of powers by interfering with the rule-making power of the Colorado supreme court. People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980).

This section does not violate the constitutional requirement of separation of powers (art. III, Colo. Const.) by interfering with the rule-making power of the court established in § 21 of art. VI, Colo. Const. People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

Failure to instruct the jury on gender bias was not a "structural defect" or plain error requiring reversal of third degree sexual assault conviction where gender bias was not raised during the trial and the jury was instructed sympathy or prejudice should not influence its decision. People v. Johnson, 870 P.2d 571 (Colo. App. 1993).

Where the case involved a homosexual act and the defendant's theory of the case was consent, omission of a gender bias instruction did not rise to the level of plain error. Defendant erroneously equated gender bias with bias against homosexuals, and the record provided no reason to believe the jury would confuse the two concepts. In addition, the trial court instructed the jury not to allow prejudice to influence its decision. Further, omission of the instruction was not a structural error and did not require reversal because it was harmless beyond a reasonable doubt. People v. Hoskay, 87 P.3d 194 (Colo. App. 2003).