Physical Access, Not Livestreams: Colorado Supreme Court Affirms that Virtual-Only Access Cannot Satisfy the Sixth Amendment Public Trial Right (People v. Bialas)

Physical Access, Not Livestreams: Colorado Supreme Court Affirms that Virtual-Only Access Cannot Satisfy the Sixth Amendment Public Trial Right

Commentary on People v. Bialas, 2025 CO 45 (Colo. 2025)

Introduction

In People v. Bialas, the Colorado Supreme Court affirmed the court of appeals’ reversal of Michelle Re Nae Bialas’s convictions on the ground that her Sixth Amendment right to a public trial was violated when the trial court excluded all members of the public—including her family—from the physical courtroom for the remainder of her trial, while providing contemporaneous access via Webex and an auxiliary courtroom livestream. The majority, authored by Justice Berkenkotter, held that virtual access alone cannot satisfy the Sixth Amendment public trial guarantee and that a total exclusion of the public from the courtroom constitutes a nontrivial closure. Because the closure failed the four-part test set out in Waller v. Georgia, the Court affirmed the reversal for a new trial. Justice Hart dissented, joined by Justices Boatright and Samour, and would hold that contemporaneous virtual access, where participants know proceedings are publicly viewable, satisfies the Sixth Amendment.

Bialas sits alongside, and expressly relies on, the Court’s companion decision, Rios v. People, 2025 CO 46, announced the same day. Together, these opinions articulate a clear, forward-looking rule for Colorado: the public trial right requires a reasonable opportunity for spectators to be physically present in the courtroom; virtual access can supplement, but cannot replace, that physical openness.

Summary of the Opinion

The Court addressed a two-step inquiry: whether a courtroom closure occurred, and if so, whether the closure was trivial or constitutionally justified.

  • Closure occurred despite livestream: Relying on Rios, the Court held that providing free, contemporaneous virtual access does not, by itself, satisfy the Sixth Amendment. When the court excluded all spectators from the physical courtroom for more than half a day—including the remainder of the defendant’s testimony and all closing arguments—a closure occurred.
  • Nontrivial closure: Applying the triviality framework from People v. Lujan, the Court held the closure was nontrivial. It was intentional, substantial in duration, and covered critical proceedings central to the fairness of trial.
  • Unjustified under Waller: The closure failed all four Waller factors. There was no overriding interest in excluding Bialas’s family (misconduct was attributed to the victim’s family); the closure was broader than necessary; the court failed to consider reasonable alternatives; and the record lacked adequate findings.
  • Result: The Sixth Amendment was violated, and the court of appeals’ reversal was affirmed.

Analysis

Precedents Cited and Their Influence

  • Rios v. People, 2025 CO 46: The Court’s anchor precedent for the modern meaning of a “public trial.” Rios holds that the public trial right is “best understood as a trial that is open to the public, meaning that the public has a reasonable opportunity to be physically present to observe the proceedings.” Virtual access alone is insufficient. Bialas applies Rios’s holding directly.
  • Waller v. Georgia, 467 U.S. 39 (1984): Establishes the governing four-factor test to justify closure: (1) overriding interest likely to be prejudiced; (2) narrow tailoring; (3) consideration of reasonable alternatives; (4) adequate findings. The trial court in Bialas failed all four.
  • People v. Lujan, 2020 CO 26: Supplies the “triviality” analysis: duration, substance of proceedings, memorialization, intent, total/partial nature. Bialas’s closure was nontrivial, given its length, intentionality, and the pivotal proceedings excluded from public view.
  • People v. Jones, 2020 CO 45: Emphasizes the special significance of the defendant’s family in the courtroom as a visible reminder to jurors of their responsibility to treat the accused fairly. This supported the conclusion that excluding Bialas’s family during her testimony undermined trial fairness.
  • People v. Turner, 2022 CO 50: Clarifies that ejecting a particular person or group is itself a closure subject to Waller. The Bialas court relied on Turner to classify both the blanket exclusion and the targeted expulsion of families as closures.
  • People v. Hassen, 2015 CO 49: Reinforces that intentional closures during witness testimony are generally nontrivial given their potential to affect fairness. The Court analogized to Hassen in finding nontriviality here.
  • Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); In re Oliver, 333 U.S. 257 (1948); Gannett Co. v. DePasquale, 443 U.S. 368 (1979): These U.S. Supreme Court decisions emphasize the structural and societal functions of open trials, including public oversight, confidence in adjudication, and the educative/restraining effect on participants. Bialas uses these to explain why physical presence matters.
  • Illinois v. Allen, 397 U.S. 337 (1970): Recognizes trial courts’ authority to maintain order, including removing disruptive individuals. Bialas stresses, however, that such authority must be exercised in a manner consistent with Waller.
  • Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); United States v. Haymond, 588 U.S. 634 (2019): Support the historical understanding of the public trial right and the principle that constitutional guarantees do not shrink with technological change.

Legal Reasoning

The Court’s reasoning proceeds in a methodical sequence:

  1. Defining the public trial right in the digital age: Echoing Rios, the Court emphasizes that the Sixth Amendment’s purposes are best served by actual public presence. Physical spectators keep jurors “keenly alive” to the gravity of their task, help ensure responsible conduct by judges and prosecutors, and facilitate witness cooperation while deterring perjury. Virtual spectators are not visible to jurors and lack the palpable, in-room accountability that physical attendees provide.
  2. Closure versus capacity limits and hybrid proceedings:
    • Not a closure: Limiting seats due to health orders or space constraints (including COVID-era distancing) is not a closure if some physical access remains. Likewise, a hybrid model—open courtroom with limited seating plus virtual overflow—is not a closure.
    • Closure: Total exclusion of the public from the physical courtroom, or ejecting a group (such as a defendant’s family), is a closure requiring Waller analysis.
  3. Nontriviality under Lujan: The closure here was intentional and spanned a significant portion of the trial (more than half a day), including the rest of defendant’s testimony and all closing arguments—moments central to fairness. Those facts place this closure well outside the “trivial” category.
  4. Application of Waller’s four factors:
    • Overriding interest: Although preventing juror exposure to improper comments is a valid concern, the record showed the misconduct came from the victim’s family, not Bialas’s. There was no overriding interest in excluding Bialas’s family or in closing the courtroom entirely.
    • Narrow tailoring: The court imposed a blanket ban instead of narrowly addressing the source of the problem. Removing the specific misbehaving spectators or restructuring seating would have targeted the risk without a total closure.
    • Reasonable alternatives: The trial court did not consider alternatives on the record. Even if it implicitly considered livestreaming a substitute, Rios rejects substituting virtual access for physical openness.
    • Adequate findings: The record contains no Waller-compliant findings—only a statement declining to determine who was at fault and opting for a “uniform rule.” Substantively and formally, Waller was not satisfied.

The Court therefore concludes that the Sixth Amendment was violated and affirms the reversal for a new trial. Notably, the Court underscores that its holding does not outlaw the use of videoconferencing or livestreaming—those tools remain valuable supplements. What the Constitution requires is that they not be the only means of public access when the physical courtroom is otherwise closed.

Impact

Bialas, paired with Rios, marks a significant clarification of public-trial doctrine in Colorado and offers concrete guidance for courts managing disruptions and limited capacity.

  • Physical access is indispensable: Courts cannot satisfy the Sixth Amendment by livestream alone. When disruptions occur, judges must preserve some physical access for the public (including, presumptively, the defendant’s family) unless a properly supported Waller analysis justifies otherwise.
  • Hybrid is fine; substitution is not: Hybrid access—limited in-person seating plus virtual overflow—is constitutionally sound so long as the courtroom remains physically open. But closing the courtroom and pointing to a livestream is a closure requiring Waller’s strict scrutiny.
  • Family presence matters: Echoing Jones, the Court reaffirms the uniquely protective role of a defendant’s family. Their exclusion demands serious justification and careful tailoring.
  • Structured courtroom management: Trial courts retain broad authority to maintain order (Allen). Bialas signals practical, Waller-compliant steps:
    • Identify and remove only the disruptive individuals.
    • Reconfigure seating, reposition jurors, or add supervision to prevent further contact.
    • Give clear admonitions and warnings, with escalation only if needed.
    • Reserve limited seats for the defendant’s family if necessary to preserve the fairness signal their presence conveys.
    • Make explicit findings on the record addressing Waller’s four factors before restricting access.
  • Structural consequences: A nontrivial, unjustified closure typically constitutes structural error. The upshot is significant appellate risk and the prospect of retrial if Waller is not scrupulously followed.
  • Beyond COVID-era issues: While the case arises from pandemic-era constraints, the rule is not time-limited. It applies equally to high-profile trials and other circumstances producing overflow crowds or episodic disruptions.
  • Technological planning: Courts should continue using livestreams to expand access but design them as supplements. Camera placement and streaming settings should not be relied upon to “signal” openness to jurors, who ordinarily should not see virtual observers during jury trials.

Complex Concepts Simplified

  • Public trial right (Sixth Amendment): The accused is entitled to a trial open to the public to safeguard fairness, accountability, and public confidence. In Colorado, this means the public must have a reasonable opportunity to attend in person.
  • Closure: Any action that excludes the public from the courtroom, whether fully (no one allowed in) or partially (ejecting a person or group, such as family members). Capacity limits that still allow some spectators are not closures.
  • Hybrid access: The courtroom remains physically open with limited seating while providing a livestream for overflow. Hybrid access is permissible and often desirable.
  • Nontrivial closure: A closure that meaningfully touches core trial functions—especially when intentional, of significant duration, and covering critical proceedings (like testimony and closings). Trivial closures (brief, inadvertent, and inconsequential) do not violate the Sixth Amendment.
  • Waller test: Before closing a courtroom, a judge must (1) identify an overriding interest at risk, (2) narrowly tailor the closure, (3) consider reasonable alternatives, and (4) make adequate findings on the record.
  • Overriding interest vs. substantial reason: Some jurisdictions apply a lesser standard to “partial” closures. The Colorado Supreme Court in Bialas expressly declined to decide between the standards because the closure failed even under Waller’s more rigorous requirements.
  • Structural error: A profound defect affecting the framework of the trial, not subject to harmless-error analysis. Unjustified courtroom closures typically fall in this category and require reversal.

The Dissent

Justice Hart’s dissent argues that no closure occurred because the proceedings remained subject to contemporaneous public scrutiny through Webex and livestream, and participants knew they were being observed. In her view, when (1) critical proceedings are open to real-time public viewing (in-person or virtual) and (2) participants are aware of such scrutiny, the defendant’s public trial right is protected. She would not require physical attendance to meet the Sixth Amendment’s demands and therefore would not find a constitutional violation on these facts.

The dissent highlights an ongoing national conversation about the extent to which technology can replicate or replace physical openness. The majority’s answer, informed by history, purpose, and practicality, is a firm “no”—technology can supplement openness but not substitute for it.

Conclusion

People v. Bialas, in tandem with Rios, sets a clear and consequential rule for Colorado: virtual access alone does not satisfy the Sixth Amendment right to a public trial. If the physical courtroom is closed, Waller’s rigorous four-part test governs—and broad, prophylactic bans prompted by the misconduct of a few will rarely suffice. The decision underscores the constitutional premium placed on the visible, in-person presence of the public—especially the defendant’s family—as a structural guarantee of fairness and accountability. For trial courts, Bialas is both a warning and a roadmap: preserve physical access where at all possible; if restrictions are necessary, tailor them narrowly, consider alternatives, and make detailed findings. For litigants, Bialas reaffirms the robust remedial consequence of unjustified closures: reversal and a new trial.

Case Details

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