“Virtual Access Is Not Enough”: The Colorado Supreme Court Defines the Constitutional Floor for Public Criminal Trials in Rios v. People

“Virtual Access Is Not Enough”: The Constitutional Requirement of Physical Public Access to Criminal Trials After Rios v. People, 2025 CO 46

I. Introduction

In Rios v. People, 2025 CO 46, 572 P.3d 113 (Colo. 2025), the Colorado Supreme Court addressed a thoroughly modern question about an old constitutional guarantee: whether virtual public access to a criminal jury trial, without any opportunity for the public to be physically present in the courtroom, is sufficient to satisfy a defendant’s Sixth Amendment right to a public trial.

The case arose from an October 2020 felony jury trial held in Boulder County at the height of the COVID‑19 pandemic. To comply with public health restrictions and administrative orders, the district court:

  • Excluded all spectators from the physical courtroom; but
  • Provided public access through Webex livestreaming and live video/audio in an auxiliary courtroom.

Defendant Isaiah Ismael Rios objected, arguing that a trial conducted in a physically closed courtroom—no matter how broadly livestreamed—violated his Sixth Amendment and Colorado constitutional rights to a “public trial.” The court of appeals treated the restriction as a partial closure but found it justified under the U.S. Supreme Court’s four‑factor test in Waller v. Georgia, 467 U.S. 39 (1984).

The Colorado Supreme Court used this case to resolve three critical issues:

  1. Whether virtual access alone can satisfy the public trial right;
  2. Whether the total physical closure of the courtroom in Rios’s case was “trivial” or constitutionally significant; and
  3. Whether the closure, if nontrivial, was nonetheless constitutional under Waller.

The holding has broad implications for:

  • How courts may use remote technology (Webex, livestreaming, hybrid proceedings);
  • What trial courts must do, even in emergencies, when limiting physical access; and
  • How appellate courts should evaluate alleged public‑trial violations going forward.

II. Summary of the Opinion

A. The Core Holding

The majority, per Justice Berkenkotter, held:

  1. Virtual public access alone cannot satisfy the Sixth Amendment public trial right. The Constitution requires that the public have a reasonable opportunity to be physically present to observe critical criminal proceedings. Purely virtual access—even if free, contemporaneous, and broadly available—is not a constitutional substitute.
  2. The district court’s order completely closing the physical courtroom to the public was a total, nontrivial closure. Even though the proceedings were livestreamed, the exclusion of all spectators from the physical courtroom was intentional, lasted the entire trial, and therefore implicated the core purposes of the public‑trial guarantee.
  3. However, the closure was justified under the four‑factor test in Waller. Because the closure:
    • Was justified by an overriding interest (COVID‑19 public health and safety);
    • Was no broader than necessary in light of social distancing and public health limits;
    • Was adopted after the trial court considered and reasonably rejected alternatives (including a continuance); and
    • Was supported by adequate findings tied to pandemic‑related orders and health directives;
    it did not violate Rios’s constitutional right to a public trial.

Accordingly, the Colorado Supreme Court affirmed the judgment of the court of appeals and upheld Rios’s convictions.

B. The Concurrence in the Judgment

Justice Hart, joined by Justices Boatright and Samour, concurred in the judgment only, but disagreed with the majority’s core constitutional premise. In their view:

  • The Sixth Amendment protects a “public trial”, not a “public courtroom.”
  • Where proceedings are contemporaneously observable by the public (in person or virtually), and where participants know they are subject to public scrutiny, there is no “closure” in the constitutional sense.
  • Thus, on the unique facts of Rios’s trial—with Webex access and auxiliary‑room viewing—there was no closure at all, and hence no need to apply Waller.

The concurrence expressed concern that the majority’s insistence on some physical access as a constitutional minimum may unnecessarily constrain the future use of virtual technology in criminal proceedings.

III. Factual and Procedural Background

A. Charges and Initial Scheduling

Rios was charged in the Twentieth Judicial District (Boulder County) with sixteen counts, including:

  • First‑degree murder,
  • Assault,
  • Burglary, menacing, theft, and trespass,

stemming from a series of offenses over eighteen days. His jury trial was originally set for July 2020.

B. COVID‑19 Court Shutdowns and Restart Orders

In March 2020, as COVID‑19 rapidly spread, the Chief Justice of the Colorado Supreme Court issued statewide orders:

  • Ceasing “normal operation” of state courts;
  • Suspending jury calls; and
  • Later extending the suspension of jury service into August 2020.

These orders, grounded in public‑health guidance, forced a cessation of criminal juries and created a growing backlog, all while statutory speedy‑trial rights remained intact. The Court elsewhere described this as a “catch‑22” for trial courts. See People v. Lucy, 2020 CO 68; People v. Hernandez, 2021 CO 45.

By July 24, 2020, the Chief Justice authorized a limited resumption of jury trials—on a case‑by‑case basis—subject to:

  • Chief‑judge approval in each district;
  • Compliance with executive orders and health‑department directives; and
  • Local plans to safely manage jury operations.

C. The Boulder Resumption Plan and Administrative Order 20‑110

In the Twentieth Judicial District, the Chief Judge issued Administrative Order 20‑110 and adopted a detailed Plan for Resuming Jury Trials Safely During COVID‑19 (the “Resumption Plan”). The Plan:

  • Incorporated guidance from the CDC, state and county health departments, and executive orders of the Governor;
  • Limited courthouses to 50% of fire‑code occupancy, maintained six‑foot distancing, and required masks;
  • Allowed only:
    • One county court trial and one district court trial per week,
    • Starting on different days to minimize building traffic;
  • Designated a single felony‑trial courtroom to simplify sanitizing and retrofitting;
  • Required that jurors sit in the public gallery to achieve social distancing, leaving no room for spectators; and
  • Mandated public access to trial proceedings via Webex livestreaming.

D. Pretrial Motions: Mistrial, Continuance, and Public Access

  1. Mistrial and reset
    Invoking Crim. P. 24(c)(4), which authorizes mistrials when a jury pool cannot safely assemble due to a public‑health crisis, Rios sought a mistrial and new date. The court granted the mistrial and rescheduled the trial for October 7, 2020.
  2. Motion to continue
    Rios moved to continue again, arguing that the pandemic made safe jury trials impossible and a fair trial unattainable. The court denied the motion, noting:
    • Successful resumption of smaller jury trials in the district without outbreaks, and
    • Successful felony jury trials elsewhere in the state.
  3. Objection to virtual‑only public access
    Rios objected to the plan to bar all public spectators from the courtroom and provide only virtual public access, claiming this violated his Sixth Amendment right. The court denied the motion, stating that the “constitutional grounds … are denied based upon procedures required by the health emergency.”
  4. Motion for an outdoor trial
    Rios proposed moving the trial outdoors. The court rejected the motion as legally unsupported and practically “impossible.”

E. The October 2020 Trial

Rios’s trial became the first felony jury trial in the Twentieth Judicial District after jury trials resumed. At the outset, the court announced:

  • Physical access to the courtroom would be restricted to trial participants because of the COVID‑19 emergency;
  • Public access would be:
    • Available via Webex livestream; and
    • Simultaneously broadcast in an auxiliary courtroom via live video and audio.

Rios renewed his objection to the public‑access arrangement; the court overruled it.

The trial complied with the Resumption Plan:

  • Jurors were spread throughout the gallery, six feet apart;
  • All participants wore masks;
  • Witnesses were sequestered, and the court verified before each witness’s testimony that they had not observed the proceedings on computer.

The jury convicted Rios of first‑degree murder and various related offenses.

F. Court of Appeals and Certiorari

On appeal, Rios argued that:

  • The exclusion of all spectators from the physical courtroom violated his public‑trial right; and
  • Virtual access did not cure that violation.

The court of appeals:

  • Held that the order was a nontrivial partial closure; but
  • Found the closure justified under Waller, given the overriding interest in preventing COVID‑19 transmission and the measures taken to preserve public access via Webex and the auxiliary courtroom.

The Colorado Supreme Court granted certiorari on a focused question: whether excluding all spectators from the physical courtroom while providing Webex and overflow‑room access violated the public‑trial right.

IV. Legal Framework and Precedents

A. The Sixth Amendment Public Trial Right

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Colorado’s Constitution contains a parallel guarantee. See Colo. Const. art. II, § 16.

The U.S. Supreme Court has long emphasized that this right:

  • Emerges from English common‑law practice; see In re Oliver, 333 U.S. 257 (1948);
  • Protects against secret proceedings and “instruments of oppression” (Oliver);
  • Ensures that the accused is “fairly dealt with and not unjustly condemned”; see Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Waller, 467 U.S. at 46;
  • Promotes public faith in the justice system and accountability of judges and prosecutors; see Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982);
  • Encourages witnesses to come forward and discourages perjury; and
  • Vindicates victims’ and the community’s interest in seeing offenders “brought to account” in open proceedings; see Press‑Enterprise Co. v. Superior Court, 464 U.S. 501 (1984).

Colorado has recognized that the right applies not only to the trial itself but also to other critical proceedings, such as jury selection. See Stackhouse v. People, 2015 CO 48, ¶ 13, 386 P.3d 440, 444.

B. Closures, Partial Closures, and Triviality

The Court’s modern public‑trial jurisprudence rests on several key doctrines:

  1. Total vs. partial closures
    A “closure” occurs when state action prevents some or all of the public from observing proceedings in the physical courtroom:
    • Total closure: No member of the public has a reasonable opportunity to observe the proceedings in the courtroom.
    • Partial closure: Some subset of the public is excluded (for example, a particular spectator, or some portion of voir dire, or a segment reserved for sensitive testimony).
    See People v. Turner, 2022 CO 50, ¶ 26, 519 P.3d 353, 360 (exclusion of a disruptive spectator was a nontrivial partial closure).
  2. Trivial closures
    Not every closure amounts to a Sixth Amendment violation. Under People v. Lujan, 2020 CO 26, ¶¶ 16–19, 461 P.3d 494, 498, some closures are so trivial that they fall below constitutional concern. The triviality inquiry looks to:
    • Duration of the closure;
    • What proceedings occurred during the closure;
    • Whether the closed proceedings were later repeated or put on the record in open court;
    • Whether the closure was intentional; and
    • Whether it was total or partial.
    The key question is whether the closure implicated the purposes and values of the public‑trial right.
  3. Non‑absolute nature and the Waller test
    The public‑trial right is important but not absolute. In Waller v. Georgia, 467 U.S. 39 (1984), the U.S. Supreme Court created a now‑canonical four‑part test:
    To justify closing a courtroom, the party seeking closure must show that:
    1. There is an overriding interest likely to be prejudiced;
    2. The closure is no broader than necessary to protect that interest;
    3. The trial court considered reasonable alternatives to closing the proceeding; and
    4. The court made findings adequate to support the closure.
    If a nontrivial closure fails this test, it is a structural error requiring automatic reversal.

Colorado has previously applied these doctrines in cases such as:

  • People v. Hassen, 2015 CO 49 (standard of review for closure decisions is mixed: deferential for facts, de novo for law);
  • People v. Jones, 2020 CO 45 (discussing intentional vs. inadvertent closures and triviality);
  • Turner (exclusion of a disruptive spectator and Waller compliance);
  • Lujan (articulating the triviality standard);
  • People v. Roper, 2024 COA 9, 547 P.3d 1154 (court of appeals division cautioning that if virtual access alone sufficed, “all future trials could be conducted in this fashion … for no reason whatsoever”).

C. COVID‑19 Context and Related Cases

The Court’s decision also builds on its earlier pandemic‑era cases:

  • People v. Hernandez, 2021 CO 45, 488 P.3d 1055
    Recognized the need for courts to balance public health, defendants’ rights, and continued operations, and described the Chief Justice’s COVID‑19 orders as grounded in public‑health guidance.
  • People v. Lucy, 2020 CO 68, 467 P.3d 332
    Described the “catch‑22” created by unchanged statutory speedy‑trial deadlines amidst pandemic‑driven jury trial suspensions.
  • Companion and related Colorado decisions—such as People v. Bialas, 2025 CO 45—further refine how much physical access is constitutionally required and how virtual access interacts with, but cannot replace, that minimum.

V. The Court’s Legal Reasoning

A. Standard of Review

Whether a courtroom closure violates the public‑trial right is a mixed question of law and fact:

  • Factual findings—such as what restrictions were imposed and why—are reviewed for abuse of discretion.
  • Legal conclusions—such as whether a closure occurred, whether it was trivial, and whether Waller is satisfied—are reviewed de novo.

See Hassen, 2015 CO 49, ¶ 5; Pena‑Rodriguez v. People, 2015 CO 31 (rev’d on other grounds).

B. Does Virtual Access Alone Satisfy the Public Trial Right?

1. The Majority’s Answer: No

The majority framed the central question as whether “free, contemporaneous virtual access” alone, without an opportunity to observe from the physical courtroom, can satisfy the Sixth Amendment. It rejected the State’s argument that the Constitution is satisfied whenever proceedings are not conducted in secret and the public can watch via livestream.

Instead, the Court defined the right this way:

The Sixth Amendment right to a public trial 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.

The majority grounded this conclusion in three main considerations:

  1. Purposes of the right
    The Court emphasized that the public‑trial right serves multiple functions beyond preventing secret tribunals:
    • Keeping jurors “keenly alive” to their responsibilities through the presence of interested spectators (quoting Waller, which in turn quoted Gannett Co.);
    • Ensuring accountable behavior by judges and prosecutors;
    • Encouraging witnesses to come forward and deterring perjury.
    The majority stressed that “screens in a courtroom … are an inadequate substitute for the physical presence of real spectators in the gallery” as a reminder of the gravity of the jury’s role. Moreover, virtual configurations ordinarily do not allow jurors to see any remote spectators, undercutting the argument that their presence has the same psychological effect.
  2. Ordinary meaning of “public” and “presence”
    Relying on dictionary definitions, the Court reasoned that “public” (“exposed to general view: open”) and “presence” (“the fact or condition of being present”) naturally refer to physical, not purely virtual, spectatorship. In context, the Court read these terms to require an opportunity for members of the public to be actually present in the courtroom.
  3. Historical understanding and technological change
    The majority noted that the Framers “could not have imagined” public trials without physical attendance, nor modern bandwidth and connectivity problems. Crucially, it pointed out that:
    Changes in technology do not lessen constitutional protections.
    Thus, the fact that livestreaming technology now exists cannot be used to contract the Sixth Amendment baseline to something less than a trial open to physical attendance.

In rejecting the People’s position, the Court cited with approval the court of appeals in People v. Roper, which warned that if virtual access were sufficient by itself, “all future trials could be conducted in this fashion for any reason—or, indeed, for no reason whatsoever.” The majority concluded that this result was inconsistent with the Framers’ intent and the purposes of the public‑trial guarantee.

2. The Court’s Important Limiting Principle: “Reasonable Opportunity,” Not Unlimited Seats

While the Court insisted on some opportunity for physical attendance, it simultaneously rejected the defendant’s broader contention that the Constitution requires courts to offer:

  • Unlimited physical seating for all interested members of the public; or
  • An alternative physical venue (e.g., a larger hall or arena) whenever courtroom capacity is exceeded.

The Court stressed practical realities:

  • All courtrooms are subject to physical size constraints and fire‑code limits.
  • Not every interested member of the public can be accommodated in high‑profile trials.

Such limitations on capacity are not closures:

Just because … one hundred people want to personally observe a high‑profile criminal case, it does not follow that some of them are excluded by the court if there is only room for sixty spectators … These are not courtroom closures.

The Court extended this reasoning directly to COVID‑19‑era social‑distancing limits:

  • CDC distancing rules and public‑health directives reduced gallery capacity.
  • The resulting inability of some spectators to sit in the courtroom due to those limits is treated as a capacity constraint, not a constitutional closure.

Thus, for example, if a courtroom could seat only 12 socially distanced spectators during the pandemic, and 70 members of the public wished to attend, the exclusion of 58 due to capacity is not a closure.

3. Hybrid Proceedings and the Role of Virtual Access

The Court also clarified how virtual access interacts with physical access:

  • When a courtroom is physically open to some members of the public, and the court also provides virtual access (e.g., via Webex), the virtual feed is an additional means of public access—not a constitutional requirement.
  • Virtual access, while promoting transparency and access to justice, is not itself part of the Sixth Amendment entitlement. Therefore:
    • If a virtual spectator loses connectivity,
    • Or is muted or removed for disruptive behavior,
    no Sixth Amendment violation occurs, so long as physical access remains reasonably available.

By contrast, when the courtroom is entirely closed and only virtual viewing is allowed, the public‑trial right is implicated, and the closure must be judged under the Waller standard.

C. Was There a Closure Here, and Was It Trivial?

1. Identifying the Closure

In Rios’s case, the trial court:

  • Excluded all members of the public from the physical courtroom for the entire trial; and
  • Allowed only trial participants (judge, jury, parties, witnesses, and staff) to be present.

Although Webex viewing and auxiliary‑courtroom streaming were provided, the Supreme Court held that:

Because the public trial right requires that spectators have the opportunity to view the proceedings in the physical courtroom, free contemporaneous virtual public access to the proceedings does not replace public access to the physical courtroom.

Accordingly, the restriction was a total closure as a matter of constitutional doctrine.

2. Triviality Analysis

The Court then asked whether the closure was “trivial” under Lujan. It emphasized:

  • The closure was intentional, not inadvertent.
  • It lasted for the entire duration of the jury trial.
  • It concerned the core critical proceedings of a felony trial (including evidence presentation and deliberations context), not a brief sidebar or administrative moment.

The pandemic context and public‑health justifications were highly relevant to whether the closure was justified under Waller, but not to whether it was “trivial.” That latter question focuses on impact on the public‑trial values, not the closure’s necessity.

Because an intentional, entire‑trial, total exclusion of the public from the courtroom “implicate[d] the protections and values of the public trial right,” the Court concluded the closure was nontrivial.

D. Was the Nontrivial Closure Justified Under Waller?

Having found a nontrivial closure, the Court turned to the Waller test. All four factors were satisfied.

1. Overriding Interest

The Court found “no real question” that the closure was justified by an overriding interest: the need to protect jurors and participants from contracting or spreading COVID‑19 in the midst of a global pandemic.

The record showed that:

  • The court was following:
    • CDC guidance on indoor operations and distancing;
    • State and county health directives; and
    • Administrative Order 20‑110 and the Resumption Plan.
  • The judge repeatedly identified health and safety as his concern, citing the need to seat jurors in the gallery with six‑foot spacing.

The Court rejected Rios’s effort to recharacterize the closure as primarily motivated by a desire to move the case quickly. While trial‑management concerns were present, the Court found that the overriding concern was compliance with health directives and the mitigation of COVID‑19 risks.

The opinion also linked this factor to earlier COVID‑19 decisions and to Turner, which recognized that ensuring the “safety of trial participants” can justify limited exclusions.

2. Narrow Tailoring (No Broader Than Necessary)

Applying the second Waller factor, the Court concluded that the closure was no broader than necessary under the circumstances.

  • The courtroom’s physical capacity was tightly constrained by:
    • 50% occupancy limits;
    • Six‑foot distancing; and
    • Masking requirements.
  • Jurors had to occupy the gallery to maintain distancing—leaving no safe space for any spectators.

Given these constraints, the trial court could not simultaneously:

  • Comply with public‑health directives,
  • Seat a full 12‑person felony jury along with alternates, parties, counsel, and staff, and
  • Maintain even a small in‑person public gallery.

In that context, completely closing the physical gallery to spectators while providing livestreaming and an overflow room was not broader than necessary to protect the overriding interest.

3. Consideration of Reasonable Alternatives

The third factor required the court to consider reasonable alternatives to closure.

The record showed that the judge:

  • Implemented virtual viewing and an auxiliary‑courtroom stream as alternatives to in‑person gallery attendance;
  • Considered and rejected Rios’s proposal for an outdoor trial as both lacking legal basis and practically “impossible”; and
  • Denied a continuance, reasoning that:
    • Jury trials had already been suspended for six months;
    • Only one felony jury trial at a time was permitted in the district, creating a significant backlog;
    • There was substantial uncertainty about when (or whether) conditions would materially improve, particularly pre‑vaccine; and
    • Further delay risked prejudice to the prosecution, whose witnesses included elderly individuals and at least one person diagnosed with dementia.

On appeal, Rios suggested additional alternatives (convention centers, arenas, performing arts venues), but:

  • These were not raised to the trial court at the time; and
  • There was no record evidence that such venues were available, affordable, or could be rendered secure and suitable for a felony jury trial.

In light of the pandemic context and resource constraints, the Supreme Court found no “reasonable alternative” that the trial court had failed to consider. The third Waller factor was thus satisfied.

4. Adequate Findings

The fourth factor asks whether the trial court made findings sufficient to support the closure. The Court emphasized that:

  • Compliance is judged by substance, not form; the judge need not cite Waller by name so long as the record reveals the reasons for closure. See Turner, ¶ 35.
  • This closure was not a spur‑of‑the‑moment response to an isolated disruption but part of a longer‑term, carefully planned reopening of jury trials amid a public‑health emergency.

Looking at the full record, the Court found:

  • Multiple pretrial orders and comments expressly tying restrictions to:
    • The “health emergency”; and
    • The requirement that jurors occupy the benches to maintain social distancing.
  • A clear explanation on the first day of trial that:
    Public access to the physical courtroom will be restricted due to the health emergency and the fact that the jury will be sitting in all of the benches, maintaining six‑foot spacing pursuant to health directives and the chief judge’s order.
    and that public access would instead be via Webex and an auxiliary courtroom feed.

Taken together, these statements were more than sufficient to show:

  • What the closure consisted of;
  • Why it was imposed (COVID‑19 safety and compliance with health directives); and
  • How it related to the court’s overriding interest in health and safety.

Thus, the fourth Waller factor was also met.

Because all four Waller prongs were satisfied, there was no violation of the public‑trial right, and no structural error requiring reversal.

VI. The Concurrence’s Alternative Approach

A. “Public Trial” vs. “Public Courtroom”

Justice Hart, joined by Justices Boatright and Samour, concurred only in the judgment, fundamentally disagreeing with the majority’s premise that the Sixth Amendment requires a physical audience.

In their view:

  • The Constitution guarantees a public trial, not a public courtroom.
  • The purposes of the public‑trial guarantee—preventing secrecy, promoting fairness, increasing public confidence, and ensuring victim and community visibility—can be served equally (or even better) through virtual access in some circumstances.

B. The Concurrence’s Two‑Part Test

The concurrence proposed a more functional test for determining whether there has been a “closure” at all. Under this approach, there is no closure if:

  1. Critical proceedings are open to contemporaneous public scrutiny
    Whether that scrutiny is in‑person or virtual is immaterial; what matters is that members of the public can watch in real time, for free, without undue barriers.
  2. Participants know the proceedings are subject to contemporaneous public scrutiny
    So long as jurors, lawyers, witnesses, and the judge are aware that the public could be watching (e.g., via livestream in an overflow room or online), they are “keenly alive” to their responsibilities in the same way as in a traditional open courtroom.

If both conditions are satisfied, the trial is “public” in the constitutional sense, and Waller is never triggered.

C. Critique of the Majority’s Reliance on “Presence” and Dictionaries

The concurrence objected to:

  • The majority’s emphasis on the word “presence” from mid‑20th‑century cases and treatises, noting that those authorities were written before virtual viewing was even conceivable.
  • The majority’s dictionary‑based reasoning about “public” and “presence,” arguing that modern synonyms—“broadcast,” “publicized,” “available,” “unrestricted”—better capture what it means for proceedings to be “public” in the contemporary sense.

In Justice Hart’s view, virtual access often makes trials more public than ever before, given that:

  • Livestreaming can reach far more people than a courtroom gallery; and
  • Observers can watch from anywhere, not just those able to travel to the courthouse and fit in limited seating.

D. Concerns About Rigid Physical‑Access Requirements

The concurrence also expressed forward‑looking concerns:

  • Technological use in courts will likely continue to expand, particularly for efficiency and access‑to‑justice reasons.
  • Absolute statements that there must always be some physical spectators in the courtroom may hinder future innovations and create unsustainable doctrinal lines (e.g., how many seats must be reserved for the public? One? Six? None in a Zoom‑only proceeding?).
  • Given that Colorado law now requires free livestreaming of criminal proceedings in many circumstances, § 13‑1‑132(3.5)(a), C.R.S., the concurrence worried that treating virtual access as constitutionally insufficient undervalues this statutory commitment to transparency.

In sum, the concurrence would have held that there was no closure at all in Rios’s case because:

  • Critical proceedings were contemporaneously viewable by the public, both in an auxiliary courtroom and online; and
  • Participants knew their actions were subject to that observation.

Thus, the concurrence would have rejected Rios’s public‑trial claim without needing to apply Waller.

VII. Complex Concepts Simplified

A. “Public Trial” vs. “First Amendment Access”

  • Sixth Amendment public‑trial right: A right held by the defendant to insist that certain parts of the criminal process be open to public observation.
  • First Amendment right of access: A right held by the press and the public, recognized by cases like Richmond Newspapers and Press‑Enterprise, to attend criminal proceedings under many circumstances.

They overlap significantly but are distinct. Rios addresses only the defendant’s Sixth Amendment right—not whether the public or the press has an independent First Amendment right to challenge closures.

B. Total vs. Partial Closure

  • Total closure: No member of the public can be in the courtroom for a critical proceeding. This triggers the full Waller “overriding interest” test.
  • Partial closure: Some members of the public are excluded, but others can attend (e.g., excluding a disruptive spectator, or clearing the courtroom for a single sensitive witness while allowing certain observers). Some jurisdictions use a slightly lower standard (“substantial reason”) for partial closures; Colorado has not resolved this distinction statewide, but Rios involves a total closure.

C. Trivial Closure Doctrine

A closure is “trivial” when, under the totality of circumstances, it does not meaningfully threaten:

  • The fairness of the trial, or
  • The public‑trial purposes (deterrence of misconduct, transparency, etc.).

Examples might include:

  • A brief, inadvertent closure where the record shows no substantive proceedings occurred; or
  • A momentary locking of the courtroom door, promptly corrected, which does not affect any critical testimony or rulings.

Rios’s entire‑trial, intentionally ordered closure clearly exceeded this “trivial” category.

D. Structural Error vs. Harmless Error

  • Trial errors (e.g., improper admission of evidence) can often be evaluated for “harmlessness”—whether the error likely affected the outcome.
  • Structural errors (e.g., denial of counsel, biased judge, or unjustified denial of a public trial) undermine the basic framework of the trial and are not subject to harmless‑error analysis.

An unjustified, nontrivial courtroom closure that fails Waller is a structural error, requiring automatic reversal and a new trial.

E. “Overriding Interest” and Alternatives

Under Waller:

  • An overriding interest is something weighty and specific, like:
    • Protecting a witness from threats or trauma;
    • Safeguarding an ongoing undercover investigation; or
    • Preventing serious public‑health harms (as in Rios).
  • “Reasonable alternatives” require the court to actually think through whether there is a less‑restrictive option (e.g., partial closure, limited use of screens, delayed broadcasting, anonymization, postponement) that would adequately protect the interest without fully excluding the public.

The trial court does not have to adopt every suggestion the parties make, but it must seriously consider the realistic options available in context.

VIII. Implications and Future Impact

A. Constitutional Floor: Physical Access Required

The most significant doctrinal impact of Rios is the establishment of a clear constitutional floor in Colorado:

Virtual public access, standing alone, can never satisfy the Sixth Amendment public trial right. There must be a reasonable opportunity for at least some members of the public to attend in person, unless a closure is justified under Waller.

This has several concrete consequences:

  • Courts may not decide, for reasons of convenience, cost, or efficiency alone, to conduct criminal jury trials entirely behind closed doors with only a livestream.
  • Even where livestreaming is broadly available, complete exclusion of the public from the courtroom for critical proceedings will be treated as a closure subject to strict scrutiny under Waller.

B. Guidance for Trial Courts in Emergencies

At the same time, Rios provides a realistic roadmap for handling emergencies, including future public‑health crises:

  • Overriding interest: Genuine, well‑documented health and safety concerns can justify substantial restrictions on courtroom access.
  • Capacity and configuration limits: Courts may treat pandemic‑era distancing and capacity caps like any other space constraint; they do not count as “closures” so long as at least some members of the public can attend in person.
  • Documentation and planning:
    • Written administrative orders and detailed resumption plans, grounded in public‑health guidance, help satisfy Waller’s “overriding interest” and “adequate findings” prongs.
    • Trial judges should articulate on the record why specific arrangements are necessary (e.g., jurors occupying the gallery, limits on spectators, reliance on virtual feeds), and what alternatives were considered and rejected.

C. Use of Virtual Technology Going Forward

Rios does not limit the use of virtual technology; it limits what technology can constitutionally replace. Key points:

  • Livestreaming and virtual platforms are strongly encouraged as supplements that broaden public access and enhance transparency.
  • Colorado’s statutory requirement of free livestreaming for criminal proceedings fits neatly within this framework: it imposes a higher statutory norm, while the Constitution sets the floor.
  • The opinion preserves the possibility of extensive virtual participation (e.g., remote witnesses, remote argument, remote defendants in some contexts), so long as:
    • Critical proceedings remain physically open in some reasonable measure, or
    • Any closure meets Waller.

However, the concurrence’s warning is notable: as courts experiment with fully remote trials (for example, in low‑risk misdemeanors or in future emergencies), Rios will serve as a check, requiring courts to think carefully about how to preserve some avenue of physical access—or, if not, how to justify closing it.

D. Appellate Litigation and Structural Error

On appeal, defendants challenging public‑trial violations will need to:

  1. Identify a closure—total or partial—rather than mere capacity limits or one‑off virtual glitches;
  2. Show that the closure was nontrivial in light of the Lujan factors; and
  3. Argue that the closure did not satisfy Waller—for example, because:
    • No real overriding interest existed;
    • The closure swept more broadly than necessary;
    • Reasonable alternatives were ignored; or
    • The trial court made inadequate findings.

If all three showings are made, reversal will follow as a matter of structural error. Rios therefore both expands defendants’ ability to argue that virtual‑only access constitutes a closure and clarifies how trial courts can insulate justified closures from reversal.

E. National Significance

Although Rios is a Colorado decision, its reasoning will likely influence other jurisdictions grappling with:

  • Post‑COVID evaluations of emergency trial practices;
  • The constitutional limits of Zoom‑only or livestream‑only trials; and
  • The integration of technological access into long‑term criminal‑justice systems.

The sharp division between the majority and concurrence will also provide a template for future national debates: whether the Constitution is best understood as protecting physical presence or effective transparency, even when delivered through a screen.

IX. Conclusion

Rios v. People is a landmark in Colorado’s public‑trial jurisprudence and an important post‑pandemic precedent nationally. The decision establishes a clear rule:

  • The Sixth Amendment public‑trial right requires a reasonable opportunity for physical public attendance at critical criminal proceedings.
  • Virtual access—no matter how robust—can augment but cannot substitute for this constitutional minimum.

At the same time, Rios affirms that:

  • Emergency closures can be constitutional when they satisfy Waller’s exacting four‑factor test; and
  • COVID‑19‑driven closures, carefully grounded in public‑health directives and documented with clear findings, can survive appellate scrutiny even when they entail total exclusion of spectators from the courtroom.

The majority’s historical and textual approach cements physical presence as a core feature of the public‑trial guarantee, while the concurrence’s functional view underscores the growing importance of virtual transparency. Together, the opinions in Rios delineate both the enduring constitutional bedrock of public criminal trials and the evolving landscape of courtroom technology—reminding courts that innovation must proceed without eroding fundamental rights.

Case Details

Year: 2025
Court: Colorado Supreme Court

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