People v. Clemens, 401 P.3d 525

Defendant Bradley Clemens was charged with assault-related crimes; at trial he pleaded not guilty and elected not to testify.
During voir dire several prospective jurors (Jurors 7, 10, 12, among others) initially said they would be suspicious or might infer guilt if the defendant did not testify.
The trial judge gave a group instruction explaining that a defendant’s silence cannot be used as evidence of guilt and asked whether anyone would nonetheless convict for that reason; only some jurors (e.g., Juror 25) reiterated that they would.
Defense counsel moved to strike multiple jurors for cause, including Jurors 7, 10, and 12; the court excused some jurors but denied challenges for cause as to 7, 10, and 12, who were later removed by defendant’s peremptory strikes.
On appeal a division of the Colorado Court of Appeals held that silence alone cannot rehabilitate a juror and reversed; the Colorado Supreme Court granted certiorari.
The Colorado Supreme Court held that juror silence in response to rehabilitative group questioning can constitute evidence of rehabilitation when, under the totality of circumstances and voir dire context, the silence indicates the juror will follow the law and be impartial; it reversed the court of appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prospective juror’s silence in response to rehabilitative questions can constitute sufficient evidence of rehabilitation after the juror expressed a preconceived opinion about the defendant’s silence	People: Silence may be probative; courts may infer rehabilitation from silence when read in context of the whole voir dire	Clemens: Silence is insufficient; trial court must obtain an affirmative, individual retreat from a disqualifying stance	A juror’s silence can support a finding of rehabilitation when, under the totality of the circumstances, the context indicates the juror will follow the law and be impartial; trial court did not abuse discretion here
Whether any error in denying challenges for cause was harmless because the challenged jurors did not serve on the jury	People: N/A (court resolved earlier issue)	Clemens: (alternative) any erroneous denial would be harmless since defense used peremptories	Court: Did not reach harmless-error question because it found no error in the rehabilitation ruling

Carrillo v. People, 974 P.2d 478 (1999) (standard of review for challenges for cause; deference to trial court’s credibility and demeanor assessments)
People v. Young, 16 P.3d 821 (2001) (juror rehabilitation where follow-up questioning showed juror would decide on facts despite initial preconceived view)
People v. Vecchiarelli-McLaughlin, 984 P.2d 72 (1999) (trial court’s role in assessing juror rehabilitation emphasized)
People v. Drake, 748 P.2d 1237 (1988) (preconceived beliefs do not automatically require exclusion if court is satisfied juror can be impartial)
Nailor v. People, 612 P.2d 79 (1980) (requirement to excuse biased jurors to protect impartial jury right)
People v. Stewart, 55 P.3d 107 (2002) (abuse-of-discretion standard explained)
Carter v. Kentucky, 450 U.S. 288 (1981) (importance of Fifth Amendment privilege against self-incrimination)
United States v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004) (silence in response to group questioning construed as commitment to follow the law)