PEOPLE v. DISTRICT COURT FOR COUNTY OF JEFFERSON
439 P.2d 741 (1968)
Supreme Court of Colorado, En Banc.
March 18, 1968.
In the Snyder case the court was reviewing a conviction for murder under the laws of Massachusetts. Upon motion of the district attorney the court permitted the jury, in the company of the lawyers and the judge, to view the scene of the crime. The trial judge, however, denied the defendant the right to accompany the jury in alleged violation of his right to be present at every step of the trial. It is interesting to note that the United States Supreme Court held that it was not a denial of due process, but noted:
"* * * It is one thing to say that the prevailing practice is to permit the accused to accompany the jury, if he expresses such a wish. It is another thing to say that the practice may not be changed without a denial of his privileges under the Constitution of the United States * * *." (Emphasis added.)
I think the practice which has prevailed in this state for many years by virtue of both court decision and legislation in reference to the burden of proof in criminal cases, where the defendant pleads not guilty by reason of insanity, is one that can be changed by the legislature without a denial of due process.
I would go further and say that the practice has been the law of this state, but like most laws it is one subject to change by the legislature.
To me an examination of the procedure heretofore followed and that contemplated by the statute invalidated in these proceedings clearly shows that there is no undue hardship placed upon the defendant by shifting the burden of proof.
Under earlier statutes it was within the discretion of the trial court to try the sanity issue and the substantive offense at the same time. '35 C.S.A. c. 48, § 509, as amended Laws 1951; C.R.S. '53, 39-8-3 and (1), Supp.; Castro v. People, 140 Colo. 493, 346 P.2d 1020; Martinez v. People, 124 Colo. 170, 235 P.2d 810.
Under those circumstances there was justification for placing the burden of proof as to both issues upon the people. Otherwise, the jury could very easily become confused to the prejudice of the defendant.