Colorado officials move toward standardizing remote access to court hearings

May 13—Colorado officials are working on standardizing remote access to court hearings, as what started out as an emergency fix during the COVID pandemic has become an accepted practice in courtrooms across the state.

When in-person court appearances were first canceled in the spring of 2020 due to the rapid spread of the coronavirus, many jurisdictions turned to streaming court proceedings to avoid having multiple people in courtrooms while still allowing for cases to continue.

And while in-person court hearings have been back for quite some time, remote access to proceedings has remained in place in most jurisdictions, including Boulder County.

"Certainly the pandemic required us to take extreme steps to keep the justice system functioning even at a basic level," Boulder County District Attorney Michael Dougherty said. "There were some lessons that were the silver lining of that challenging period."

While no longer needed for attorneys and defendants in most cases, the remote hearings have made it easier for family and friends to tune into proceedings, inmates to attend hearings while in custody in other counties, and defendants who are not in Boulder County to virtually attend certain hearings.

"The important part of that to me, is some of the court appearances we have are very, very short," Dougherty said. "But if people are required to appear or are invested in a case, they can appear by video instead of in person."

Dougherty also said the technology allows the public in general to monitor court proceedings, which was always possible but not always practical prior to remote access.

"For members of the public, including the media, to have access to court proceedings without having to come down to the courthouse for every single appearance allows the community to have greater access and more transparency," Dougherty said.

"To me, it's so important that the justice system be transparent and available to all. Obviously, every trial is open to the public, but in this day and age there is no reason not to extend that further and make it open to the public through the use of livestreaming."

Creating statewide standard

But while most in the justice system have agreed the use of video access has been a positive development, its roots as an emergency stop-gap during the pandemic meant it developed quickly and without much statewide guidance.

Individual jurisdictions based their virtual courtroom policies on their respective technological capabilities, COVID restriction guidelines and chief judges' rulings, leading to inconsistent access across the state.

With virtual court proceedings looking more and more like a large part of the justice system going forward, different governing bodies have put forward attempts at creating a statewide standard for use of remote access.

Colorado House Bill 23-1182 passed the Legislature and is awaiting Gov. Jared Polis signature after being introduced by three Democrats and a Republican.

The bill requires that, except in certain instances, "All courts in Colorado to provide remote access for the public to observe any criminal court proceeding conducted in open court."

The bill also states that, "If a court does not have the sufficient existing staff or technology to allow remote observation to the public but later obtains such staff or technology, the bill requires the court to comply with the bill within 90 days after obtaining the necessary staff or technology."

Judicial discretion

Meanwhile, Colorado Supreme Court Chief Justice Brian D. Boatright also issued a directive that goes into effect on Monday that also sets out guidelines for online access.

It was not immediately clear if the bill or the directive would take precedence, but Dougherty said having some sort of state framework in place would help, moving forward.

"I do think there is a significant benefit to having direction from the state, whether from the state justice or the Legislature," Dougherty said. "I think there are some things that can be dealt with on a case-by-case basis, but generally speaking, I think there should be a standardized approach."

Specifically, judges would get more guidance on the different factors to consider when weighing whether to not live stream a hearing or trial.

Dougherty said the negative impact of airing certain cases would outweigh even public interest in the proceedings.

"For instance, if we have a child sex abuse case, I'm not sure it's in everyone's best interest that we can have people watching online as a victim testifies about sex abuse," Dougherty said. "I also think we want to make sure things aren't being recorded improperly."

Boatright in his directive also outlined continuing concerns about live-streaming impacting a defendants' right to a fair trial and stressed the need for judges to still use their discretion.

"There is no other mechanism to tailor the needs of everyone impacted by live streaming court proceedings than to allow judicial discretion in determining when to expand or limit live streaming on a case-by-case basis," Boatright wrote.

"This live streaming directive seeks to create consistency and transparency and further open most of the day-to-day business of Colorado's criminal courts to the public, while allowing each trial court the discretion not to live stream proceedings where the public's interest is outweighed by the interests of the parties and witnesses."

Dougherty said officials will have to be "thoughtful" moving forward, but said a statewide guideline was a step in the right direction.

"We're not showing anything more than what people could see if they came down to the courthouse," Dougherty said. "We're simply taking a really important and positive step of expanding that access so more people can view it. We want to build trust in the justice system, so the more people that can have access the better."