The Right to an Open Trial in Colorado

The right emerged historically from English common law.

The right began, not as a right of the accused, but as a way to reinforce the legitimacy of convictions by way of an open and public trial.

Today the right to a public trial is viewed as a key aspect of the American legal system. Our founding fathers viewed the right to a public trial guarantee as an important safeguard to our freedom and placed the right squarely in the Bill of Rights.

The right to an open trial is universally recognized as a benefit for the accused. In Colorado it is embodied in the Colorado Constitution.

The case most associated with this important right was decided in 1980. The U.S. Supreme Court in the 1980 case of Richmond Newspapers, Inc. v. Virginia, stated that “we have a long history of open criminal trials and that the fundamental right to attend criminal trials was implicit in the First Amendment.”

When a Trial Judge in Colorado closes a courtroom for a trial if the closure of that courtroom is unconstitutional it constitutes a violation of the Sixth Amendment and is known as a “structural error”of the trial.

Four years after the Richmond case, in Waller v. Georgia, 467 U.S. 39 (1984), the U.S. Supreme Court’s crafted a four-part test known today as the “Waller Tests.” Colorado follows the Waller Tests for the lawful or unlawful closing of a courtroom.

To resolve whether a Trial Court’s closure of a courtroom violates a Defendant’s rights under the Sixth Amendment, the Court must go through a Waller analysis.

But before we look at those tests, let’s take another look at the basic legal foundation of the right itself.

Both the United States and the Colorado Constitutions guarantee criminal defendants the right to a public trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16.

If a Defendant is unconstitutionally denied a public trial as noted above, this is considered a ” structural error.” A structural error affects the very framework within which a trial proceeds. This kind of error is not just a “process error,”structural errors are so fundamental to the right to a fair trial, they “require an automatic reversal without the need for an individualized analysis of how the error impairs the reliability of the judgment of conviction.” People v. Flockhart, 2013 CO 42, ¶ 17, 304 P.3d 227, 232.2

While a public trial is a fundamental right and is grounded in the Constitutions of both The US and Colorado, the right to a public trial is not absolute. There are situations where “the government’s interest in inhibiting disclosure of sensitive information” outweighs the right to a public proceeding. But “[s]uch circumstances will be rare” and the “the balance of interests must be struck with special care.”

In Waller, the Court mandated FOUR requirements that a Trial Court must meet in order to constitutionally validly close a courtroom.

First, “the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced.”

Second, “the closure must be no broader than necessary to protect that interest.”

Third, “the trial court must consider reasonable alternatives to closing the proceeding.”( “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Presley v. Georgia, 558 U.S. 209, 215 (2010))

Fourth, the trial court “must make findings adequate to support the closure.”

I often have clients ask me if it is “ok” for us to be in the courtroom. The answer I give is of course a loud “yes of course it is more than ok.” What follows is a more powerful and complete answer by a Weld County Judge some years ago:

A Weld County District Court Judge, Judge Thomas J. Quammen once said the following about an open courtroom:

Anybody can come in here and observe what is happening. This isn’t my court, this belongs to the people of the State of Colorado. . . .

The People have a right to know not only what the Court does, they have a right to know how the Court does it, they have a right to know how their prosecutors handle cases, and this is up for public review, up for public scrutiny.

Only in very, very defined areas do we take the drastic step of closing a courtroom.

…what happens here is public information and the people have a right out there to draw whatever conclusions that they want to about what happened, why it happened, and whether it should have happened or not have happened, but they can’t make those decisions, informed decisions unless they are informed.

The Sixth Amendment right to a public trial applies to the voir dire of prospective jurors said the United States Supreme Court in Presley v. Georgia , 528 U.S. __ (2010).

“Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” “The public has a right to be present whether or not any party has asserted the right.”

Trial courts must consider alternatives to limiting pubic access, even when no alternatives are offered by the parties.

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Never stop fighting never stop believing in yourself and your right to due process of law.

About The Author: H. Michael Steinberg Email The Author at [email protected]. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer we encourage you to look at our firm. Over the last 30 plus years H. Michael has mastered nearly every area of criminal law, procedure, trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.