No Substitute for Presence: Colorado Supreme Court Holds Virtual-Only Access Cannot Satisfy the Sixth Amendment Public Trial Right, but COVID-Era Total Closure Was Justified Under Waller

Introduction

In Isaiah Ismael Rios v. People of the State of Colorado, 2025 CO 46, 572 P.3d 113, the Colorado Supreme Court confronted a quintessentially modern question about an old constitutional guarantee: does streaming or videoconference access alone satisfy a criminal defendant’s Sixth Amendment right to a “public trial” when the courtroom itself is closed to all spectators?

Rios was tried in October 2020, at the height of Colorado courts’ pandemic-era adaptations. To comply with then-applicable public health directives, the trial court seated jurors throughout the gallery and excluded all public spectators from the physical courtroom. The court instead provided contemporaneous public observation via Webex and live audio/video in an overflow courtroom. Over Rios’s objection, the trial proceeded, and he was convicted of first-degree murder and multiple related offenses.

On appeal, the court of appeals characterized the measure as a nontrivial partial closure but upheld it under the Supreme Court’s Waller v. Georgia framework. The Colorado Supreme Court took certiorari to answer whether virtual public access alone can satisfy the Sixth Amendment. In a split decision authored by Justice Berkenkotter, the Court held: virtual access alone is not a constitutional substitute for the public’s reasonable opportunity to be physically present in the courtroom. The Court nevertheless affirmed, concluding the total closure was justified under Waller’s four-part test given the overriding public health interests during COVID-19 and the absence of reasonable alternatives. A separate concurrence in the judgment by Justice Hart (joined by Justices Boatright and Samour) would have held that no “closure” occurred where contemporaneous virtual access was provided and participants were aware of public scrutiny.

Summary of the Opinion

The Court announced a clear doctrinal rule: the Sixth Amendment public trial right “is best understood as a trial that is open to the public,” which in practice requires “a reasonable opportunity to be physically present to observe the proceedings” (¶¶ 28, 33). Virtual access, even if free and contemporaneous, “is not a substitute for the physical presence of real spectators in the gallery” (¶ 29). Thus:

Closing the courtroom to all members of the public is a “total closure,” even if livestreaming or Webex access is provided (¶ 37–38).
Not all limits are closures: capacity limits—whether from fire code or pandemic social distancing—are not themselves closures if some reasonable in-person public access remains (¶¶ 34–35).
In hybrid settings (some physical seats plus a virtual feed), the virtual platform is an optional supplement that promotes transparency but is “not constitutionally required” (¶ 36).

Applying People v. Lujan’s triviality analysis, the Court deemed the closure here nontrivial because it was intentional and persisted for the full trial (¶¶ 39–40). It then applied Waller and held the total closure constitutional: the overriding interest (protecting trial participants amidst COVID-19) was compelling (¶¶ 42–43); the closure was no broader than necessary given CDC occupancy and distancing requirements (¶ 44); there were no reasonable alternatives (¶¶ 45–48); and the trial court’s findings—though not labeled under Waller—were substantively adequate (¶¶ 49–52). The judgment was affirmed (¶ 54).

The concurrence would have found no closure at all where critical proceedings are open to contemporaneous public scrutiny (including virtually) and the participants know they are being watched (¶¶ 60–61). It criticized the majority’s insistence on some measure of physical access as an unduly rigid constitutional demand that may hamper future innovations (¶ 67).

Analysis

Precedents Cited and Their Influence

Waller v. Georgia, 467 U.S. 39 (1984): The cornerstone framework. Waller requires closure orders to meet four criteria: (1) an overriding interest likely to be prejudiced; (2) no broader than necessary; (3) consideration of reasonable alternatives; and (4) adequate findings (¶ 24). The Court used Waller both to assess constitutionality and to structure its review of the pandemic closure.
In re Oliver, 333 U.S. 257 (1948): Emphasizes the public trial right’s historic purpose of preventing “secret tribunals” and ensuring fairness (¶¶ 18–20). Oliver’s articulation of openness undergirds the majority’s focus on the actual presence of observers.
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984): Highlight the public’s role as a systemic check that ensures accountability, enhances confidence, encourages witnesses, and discourages perjury (¶¶ 20, 27). These cases support the majority’s rationale that the “presence of interested spectators” serves multiple systemic functions beyond preventing secrecy (¶ 27).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980): Cited to note the historical understanding of open trials and to frame the Framers’ expectations around physical presence (¶ 31).
United States v. Haymond, 588 U.S. 634 (2019): Quoted for the proposition that constitutional guarantees do not diminish with technological change (¶ 31).
People v. Lujan, 2020 CO 26: Provides the “triviality” framework for determining whether a closure meaningfully implicates the public trial right (¶¶ 16, 23, 39). The Court applied Lujan’s factors to conclude the closure here was nontrivial (¶ 40).
People v. Jones, 2020 CO 45: Elaborates on triviality and intentionality; intentional closures during significant testimony are generally nontrivial (¶ 40).
People v. Turner, 2022 CO 50: Addresses partial closures (e.g., excluding a disruptive spectator), recognizes “safety of trial participants” as an overriding interest under Waller (¶ 43), and underscores substance-over-form in findings (¶ 52).
People v. Hernandez, 2021 CO 45, and People v. Lucy, 2020 CO 68: Provide pandemic context—trial courts faced a catch-22 balancing public health restrictions and the statutory speedy trial right; they had to protect all courtroom users while preserving constitutional rights (¶¶ 5, 21–22).
People v. Roper, 2024 COA 9: The Court approvingly cites Roper’s observation that if virtual access alone sufficed, all future trials could be conducted virtually “for any reason—or, indeed, for no reason whatsoever” (¶ 32). This supports the majority’s insistence on some reasonable physical access to the trial courtroom.

Legal Reasoning

1) Standard of Review

Courtroom closure issues present mixed questions of law and fact: factual findings are reviewed for abuse of discretion; legal conclusions are reviewed de novo (¶ 17).

2) What the Sixth Amendment Requires

The Court reframed the constitutional baseline with notable specificity. The Sixth Amendment public trial guarantee entails a trial “open to the public,” meaning the public must have a reasonable opportunity to be physically present to observe the proceedings (¶¶ 28, 33). The majority gave three reasons:

Functional fit with the right’s purposes: Physical presence uniquely keeps jurors “keenly alive” to their responsibilities and helps ensure responsible conduct by all participants. Screens are an “inadequate substitute,” and jurors ordinarily cannot see remote spectators because two-way functionality is generally disabled to avoid disruption (¶ 29; see also ¶ 22).
Ordinary meaning: The Court leaned on dictionary definitions of “public,” “presence,” and “present,” concluding that “public trial” naturally includes physical presence (¶ 30).
Constitutional fidelity despite technological change: The Framers could not have conceived of “public” trials without physical presence, and technological advances cannot diminish constitutional protections (¶ 31).

3) Defining “Closure” versus “Capacity Limits”

The Court carefully delineated important categories:

Total closure: When state action prevents any member of the public from contemporaneously observing the proceedings in the physical courtroom, even if a virtual feed is provided (¶¶ 33, 37–38).
Partial closure: When state action excludes one or more individuals from an otherwise available reasonable opportunity for physical observation (¶ 33; see Turner).
Capacity limits (not closures): Physical and regulatory constraints (fire code, social distancing) that limit the number of in-person spectators are not closures if some reasonable in-person access remains (¶¶ 34–35).
Hybrid access: When some physical seats are available, virtual access is a permissible transparency supplement, not a constitutional replacement—and its interruption does not create a Sixth Amendment violation (¶ 36).

4) Application to Rios: Nontrivial Closure

Under Lujan, the Court considered the closure’s duration (entire trial), intent (affirmatively ordered), scope (total), and whether proceedings were memorialized. It concluded the closure was nontrivial because it directly implicated the values of public trial—especially seeing that jurors and participants understood they were being observed by physically present citizens (¶¶ 39–40).

5) Constitutionality Under Waller

Overriding interest: Protecting jurors and trial participants from contracting or spreading COVID-19, in conformity with CDC and local public health directives, constituted an overriding interest (¶¶ 42–43).
Narrow tailoring: Distancing and occupancy rules left no space for public seating; jurors occupied the gallery; masks and other precautions were mandated. Given the constraints, the scope of closure was no broader than necessary (¶ 44).
Reasonable alternatives: The court considered and used alternatives (Webex; auxiliary courtroom stream). Other proposed alternatives (moving to arenas/convention centers or outdoor trial) were not raised with evidence of feasibility, safety, security, or funding and were not reasonable in the pandemic context. A continuance was also unreasonable given the backlog, uncertain duration of restrictions, pre-vaccine conditions, and potential prejudice to the prosecution’s elderly/dementia-affected witnesses (¶¶ 45–48).
Adequate findings: Although the court did not cite Waller by name, its orders and on-the-record explanations tied the closure to the health emergency and operational plans, which is sufficient. The Supreme Court emphasized “compliance by substance, not form” (¶¶ 49–52).

Because all four Waller factors were satisfied, no Sixth Amendment violation occurred (¶ 53).

Impact and Prospective Significance

A. A New Constitutional Baseline in Colorado

The decision establishes a definitive rule: virtual access alone cannot satisfy the Sixth Amendment public trial right. The public must have a reasonable opportunity to be physically present in the trial courtroom for critical proceedings. This is a substantial doctrinal clarification for Colorado and will likely be cited by other jurisdictions addressing similar questions post-pandemic.

B. Practical Guidance for Trial Courts

Preserve some physical access where feasible: Reserve a reasonable number of seats for the public in the courtroom where critical proceedings occur. Capacity limits imposed by law or safety are permissible, but total exclusion triggers Waller scrutiny.
Differentiate capacity from closure: If capacity must be limited (fire code, security, distancing), document the constraints. A limit is not a closure if some reasonable in-person access exists.
Make a robust record: If any closure is contemplated, make explicit Waller findings on each factor. The Court will review substance over form, but explicit, contemporaneous findings are the safest course.
Consider and memorialize alternatives: Evaluate less-restrictive options (adjusting seating, staggered attendance, overflow rooms with physical sightlines if possible, schedule adjustments) and explain why they are feasible or not.
Use virtual access as a supplement: Streaming and Webex can expand transparency and access to justice, but they are not constitutionally required and cannot replace physical access.
Witness sequestration and juror exposure: As in Rios, ensure witnesses are screened for exposure to streamed content; explain these safeguards on the record.

C. Litigation Strategy for Counsel

Defense: Timely object to any total closure; propose concrete, feasible alternatives; build a record on the triviality factors and Waller deficiencies; emphasize structural error consequences if Waller is unmet.
Prosecution: If closure is necessary, marshal detailed facts showing an overriding interest; explain why the scope is narrow; document alternatives considered and rejected; ensure adequate findings are entered.

D. Pandemic-Era Trials and Retroactivity

Rios will guide appellate review of pandemic-era trials. Total closures coupled with contemporaneous virtual access are not, standing alone, constitutional; they must satisfy Waller. However, where record evidence mirrors Rios—documented public health imperatives, unavailability of feasible alternatives, and adequate findings—convictions are likely to be affirmed.

E. Hybrid and Remote Proceedings Going Forward

The Court welcomes hybrid openness but warns it is not a constitutional substitute. Importantly, if the courtroom is open and a virtual spectator loses a connection or is removed for misconduct, no Sixth Amendment violation occurs (¶ 36). This will reassure courts adopting livestreaming under Colorado’s statutory regime (see concurrence referencing § 13-1-132(3.5)(a), C.R.S. (2024)) that technical issues in the supplemental feed do not jeopardize convictions.

F. The Hart Concurrence: A Competing Vision

Justice Hart’s concurrence in the judgment articulates a different test: no closure occurs if (1) critical proceedings are open to contemporaneous public scrutiny (in-person or virtual), and (2) participants know they are being scrutinized (¶¶ 60–61). The concurrence emphasizes modern transparency—livestreaming may be more publicly accessible than limited courtroom seating—and warns that a rigid physical-access requirement could hamstring the courts as more proceedings migrate online (¶ 67). It also questions administrability: how many seats are enough to render access “reasonable” (¶ 66)?

While not controlling, the concurrence flags future fault lines: how to operationalize “reasonable opportunity” in small courtrooms; whether an auxiliary in-person viewing room is ever sufficient; and how to address virtual-first innovations. The majority’s standard leaves room for case-by-case development.

Complex Concepts Simplified

Sixth Amendment public trial right: A criminal defendant’s right to have “critical proceedings” open to public observation, historically understood as physical access, which promotes fairness, accountability, and confidence in the justice system.
Total closure vs. partial closure:
- Total closure: No member of the public can observe proceedings in the physical courtroom.
- Partial closure: Some members are excluded from an otherwise open courtroom (e.g., excluding a disruptive spectator).
Capacity limits (not closures): Legal or physical constraints limiting the number of seats available. These are permissible if some physical public access remains.
Triviality (Lujan): Some closures are too minor to implicate the right. Courts consider duration, intent, scope, and whether proceedings were later placed on the record.
Waller test:
- Overriding interest likely to be prejudiced by openness.
- Closure no broader than necessary to protect that interest.
- Consideration of reasonable alternatives to closure.
- Adequate findings supporting closure.
A nontrivial closure that fails Waller is structural error, requiring automatic reversal without a harmless-error inquiry.
Hybrid access: Providing both physical seats and a virtual feed. Helpful for transparency, but only physical access is constitutionally required.

Conclusion

Rios v. People supplies a pivotal clarification: the Sixth Amendment’s public trial right requires more than a livestream. Courts must, where reasonably possible, provide the public an opportunity to be physically present in the courtroom for critical proceedings. Virtual access may augment transparency but cannot replace physical presence. At the same time, the Court recognizes the practical realities of courtroom capacity and emergency conditions: limits grounded in safety are not “closures,” and when a total closure is truly necessary, it can survive if the Waller criteria are carefully met and well documented.

This decision will shape courtroom practices across Colorado, providing a constitutional compass for the continued integration of technology without diluting core trial rights. It also leaves open questions—highlighted by the concurrence—about how to calibrate “reasonable” physical access in an era of evolving hybrid and virtual proceedings. For now, the controlling principle is clear: no substitute for presence, unless a closure is justified, narrowly tailored, and supported by robust findings.