The Colorado Supreme Court has issued its final guidance to trial judges around the state, describing when they may livestream proceedings in criminal cases and, in the process, taking a subtle jab at lawmakers' efforts to ensure public access more broadly.
The policy, known as a chief justice directive, recognizes certain types of hearings for which judges should allow livestreaming, but also places a default prohibition against livestreaming on others — including jury trials — unless judges evaluate specific criteria.
"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,” said Chief Justice Brian D. Boatright in a statement.
However, those who advocated for the Supreme Court to allow greater access were dissatisfied with the directive as issued.
"We’re disappointed that the final CJD did not adopt a presumption in favor of livestreaming of criminal court proceedings," said Steve Zansberg, who submitted comments to the Supreme Court on behalf of multiple press organizations.
Currently, there is a bill pending before the Colorado House of Representatives that would largely require judges to livestream any criminal proceeding that is open to the public, as long as the courtroom has streaming capability.
The chief justice directive appeared to criticize that effort to impose a more sweeping mandate legislatively.
Colorado Supreme Court Chief Justice Brian D. Boatright speaks to students at Pine Creek High School in Colorado Springs before the court held a Courts in the Community session on Thursday, Nov. 17, 2022. (The Gazette, Parker Seibold)
"There is no other mechanism to tailor the needs of everyone impacted by livestreaming court proceedings than to allow judicial discretion in determining when to expand or limit live streaming on a case-by-case basis," warned Boatright in the April 12 policy.
Earlier this year, the Supreme Court took the unusual step of publicizing a draft of the chief justice directive and inviting comments. More than 100 groups and individuals, many within the judicial branch, wrote to the court to support the policy or suggest modifications. Boatright, in an email to judicial employees, indicated the goal of the policy was to set "baseline expectations" given the rise in online proceedings during the COVID-19 pandemic.
The final directive differs from the draft in several key ways:
• The policy adds criminal cases involving juveniles to the list of proceedings that, by default, are not to be livestreamed
• Judges may consider requests from victims, parties to a case or "interested third parties" when deciding whether to restrict or expand livestreaming
• In deciding whether to stream a proceeding, judges must consider the level of public interest in a case, victims' rights under the law, the protections of the Americans with Disabilities Act, and other case-specific factors
• If technological problems prevent a judge from allowing virtual streaming, he or she should note the reason on the record for denying access
"We appreciate that the directive elevates the level of transparency the general public can expect from the legal system while attending to the potential harm and risks for crime victims," said Emily Tofte Nestaval, executive director of the Rocky Mountain Victim Law Center, who asked the Supreme Court to consider victim safety and privacy in its final guidance.
Chris Henderson, who leads the Office of the Child's Representative, said he applauds the addition of juvenile cases to the list of proceedings presumed not to be eligible for livestreaming. However, he is wary of the new requirement that trial judges consider the public's interest in a case when making decisions about streaming.
"OCR has concerns that this factor will outweigh others when courts are making difficult decisions about the live streaming of juvenile delinquency or direct file cases — cases which often involve the discussion of highly sensitive information about the personal circumstances of children charged with crimes," Henderson explained.
Others involved with the justice system endorsed the notion of livestreaming in general.
Denver District Attorney Beth McCann told the Supreme Court she hired a prosecutor who applied for a job after watching a trial virtually. Sumi Lee, the head of Judicial Diversity Outreach, noted the performance commissions that advise voters on whether to retain judges are better able to observe the judges in their jurisdiction through virtual access.
Denver's chief district court judge, Christopher J. Baumann, wrote to the Supreme Court in favor of loosening the restrictions on livestreaming trials. A version of his suggestion made it into the final policy.
Chief Judge Christopher J. Baumann of Denver
The directive is "a thoughtful balance between making the work of our criminal courts more accessible to the public and interested parties, and recognizing that the integrity and fairness of these proceedings must be preserved," Baumann said on Thursday.
The Supreme Court is also evaluating another chief justice directive that would better define when judges should allow the parties in civil and criminal cases to appear virtually.
