“We’ve heard loud and clear that throughout the pandemic, the public has come to appreciate and expect the ability to remotely observe proceedings in criminal cases,” Colorado Supreme Court Chief Justice Brian Boatright said in a press release from the Colorado Judicial Branch.
House Bill 23–1182, signed by Gov. Jared Polis June 7, “requires all courts in Colorado to provide remote access for the public to observe any criminal court proceeding conducted in open court.”
This bill serves “the purpose of letting the public know what judges are doing and what particular courts are doing; what the lawyers in cases are doing … prosecutors and defense counsel,” said Sen. Bob Gardner representing District 12.
The bill was sponsored by Reps. Elisabeth Epps and Javier Mabrey, Sen. Rhonda Fields and Gardner.
According to Gardner, before the pandemic, there was a lot of resistance to cameras in the courtroom including remote participation or remote observation. There were also concerns about how much the equipment would cost and how easy it would be to obtain and install.
In a press release by the Colorado Judicial Branch, former Colorado Supreme Court Chief Justice Nathan Coats entered an order regarding the operation of courts during the pandemic.
“While the timely administration of justice is the cornerstone of our judicial system, protection of public health and safety and the wellbeing of our judicial staff is of paramount importance,” said Coats. “We can no longer continue with normal business operations, but in the interest of all Coloradans, we are also unable to cease operating entirely. Balancing those factors, I entered today’s order.” During the pandemic, Colorado courts adapted by introducing or expanding remote proceedings and using technology to maintain public access.
But what Gardner observed during the pandemic was the public wanted access to observe court proceedings and it was proven technologically possible.
The Colorado Judicial Branch published a notice addressing instructions and considerations in virtual courtrooms. “During the COVID-19 Global Pandemic, the 14th Judicial District has implemented virtual courtrooms through WebEx in order to continue to provide essential judicial services to the public,” the information stated.
A training module was available for attorneys and all court hearing participants. There were also printable WebEx guidelines available. If you were a party to a case in the 14th District, you could observe or participate virtually by clicking the assigned Judge’s name.
“It was not a massive undertaking that we hadn’t already gotten to work [on] during the pandemic and ought to just keep continuing,” added Gardner.
What Gardner saw after the pandemic, was some of the camera use subsided and judges were returning to the way they did things before, shutting their cameras off completely. But other judges kept them on.
Gardner further explained judges differ in their attitudes about cameras in the courtroom. Some don’t want cameras in their courtroom on a routine basis because there are problems that come with it. But some feel that because cameras were implemented during the pandemic and it was successful, those cameras should stay in the courtroom as the public showed interest.
HB23-1182 states if a court doesn’t have existing staff or technology to grant remote access and observation to the public, but later obtains it, it has 90 days to comply with the act. The bill also requires courts to post links for remote observation on their respective websites.
According to the First Regular Session documents, the bill was introduced on Feb. 8, to “maximize transparency and accessibility of criminal court proceedings.” The documents stated that in 2020, the Colorado Judicial Branch expanded the remote excess of criminal court proceedings.
“If judges allow remote access, it will increase the ability of members of the public to observe criminal courts in action, which would be a positive thing,” Denver District Attorney Beth McCann told Law Week via email.
McCann added that crime victims should be able to observe proceedings without being present in the court with a defendant or traveling to the court and waiting before their case is called.
Like all bills, there is always opposition. This bill was no different.
Pushback came from various organizations against chief justice directives proposed by Colorado’s judicial branch. One directive addressed if parties involved in judicial proceedings should be required to attend in person or remotely in state trial courts. The other directive set rules for live-streaming that many courts implemented after the pandemic hit in 2020.
“We write to urge your honor to please revise the proposed Chief Justice Directive on Live Streaming Coverage of Criminal Court Proceedings in the Trial Courts,” said Steve Zansberg in a public comments letter to Boatright. Zansberg is a First Amendment Lawyer and president of the Colorado Freedom of Information Coalition.
On behalf of the Colorado Broadcasters Association, the Colorado Press Association and the CFOIC, requested revisions to the directive were laid out in the letter.
After undergoing revisions by process of the judicial department, a new chief justice directive was created. Chief Justice Directive 23-02, addressed large concerns of considerations including whether the presumption should be the court is open by video or closed.
“Chief Justice Directive 23-02 … removes the presumption of live streaming from evidentiary hearings trials, bench conferences, in camera hearings, problem-solving dockets, and juvenile cases,” wrote Emily Nestaval in a letter, sharing support of the amended language in HB23-1182 and the new chief justice directive. Nestaval is the executive director of the Rocky Mountain Victim Law Center.
“These measures provide important protection to the privacy of all participants in those cases.”
According to HB23-1182, criminal proceedings aren’t required to provide remote access if “The court does not have the technology available to do so; the court has ordered that the public is excluded from the proceeding; technology, staffing, or internet issues limit or prevent remote observation; or after a request or on the court’s own motion, the court makes findings that: the remote observation of live proceedings risks compromising the safety of any person, the defendant’s right to a fair trial, or the victim’s rights; and there is no less restrictive alternative that preserves the public interest in remote observation.”
“This [Chief Justice Directive] will create as much consistency as we believe possible while allowing judicial officers enough flexibility to decide when circumstances in a specific case, or even in a specific hearing, do not favor live streaming,” added Boatright.
HB23-1182 also requires courts to take the necessary steps to ensure no audio or visuals of privileged or confidential information are shared improperly, as well as if a court proceeding has a sequestration order, to take steps to comply with that order.
The concern, Gardner explained, is if there is a proceeding going on and there is a group of witnesses for a criminal trial, there could be other potential witnesses who might be able to listen to their testimony. “They could send their friend into the courtroom to take notes.”
One of the risks could be “a witness might listen to another witness’s testimony and be influenced by that for their own testimony,” McCann added. “There are also safety concerns if a witness is testifying against someone he/she knows.”
HB23-1182 grants courts the ability to not offer remote access in those specific circumstances or to take certain precautions such as asking for identification of all parties listening to the proceeding, McCann explained.
“[It’s] crucial that the bill gives the court discretion to limit video access in some cases and situations where justice and the safety of individuals require it,” John Walsh told Law Week via email. Walsh is a partner at WilmerHale and co-chair of the firm’s white-collar defense and investigations practice.
According to the final fiscal note by the legislative council staff, HB23-1182 officially took effect Aug. 7 with no referendum petitions filed at this time.
Gardner told Law Week that his team is proud of getting this bill passed and doing it in a way they believe is workable and makes remote access available to any member of the public anywhere in the world.
“I think we’re proudest of being on the cutting edge of this new openness and availability to watch and observe court proceedings,” added Gardner.