2021 CO 45
Colo.2021Background
- Hernandez was charged after an October 2019 incident with attempted first-degree murder and related offenses and filed a pretrial "make my day" (MMD) immunity motion under § 18-1-704.5 in July 2020.
- The COVID-19 pandemic prompted statewide and local court restrictions and this court amended Crim. P. 43 to permit a defendant to appear by interactive audiovisual device during a public health crisis (the "Public Health Crisis Exception").
- The prosecution sought, and the trial court—citing the chief judge's administrative order and local COVID-19 conditions—authorized the prosecution and three police witnesses to appear and testify remotely via WebEx, while requiring Hernandez and his counsel to be physically present (Hernandez did not consent to remote appearance).
- Hernandez objected, arguing remote witness testimony violated his Sixth Amendment confrontation right, his public-trial right, and Crim. P. 43; he also argued unequal treatment because other divisions were holding in-person proceedings.
- The Colorado Supreme Court, exercising original jurisdiction under C.A.R. 21, reviewed whether allowing live videoconference testimony at an MMD hearing (given COVID-19 health concerns and the trial court’s findings) violated confrontation, public-trial, or equal protection rights.
- The Court discharged the rule to show cause, holding the trial court did not violate Hernandez’s confrontation or equal-protection rights and that Hernandez waived his public-trial objection.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Hernandez) | Held |
|---|---|---|---|
| Whether live witness testimony by videoconference at an MMD hearing violates the Confrontation Clause | Remote testimony permissible where important public policy (public health) justifies departure from face-to-face and reliability safeguards are preserved | Remote testimony denies face-to-face confrontation and is inconsistent with Crim. P. 43; defendant cannot be forced to accept remote witnesses if he refuses remote appearance | Court: No violation here — face-to-face not absolute; trial court made detailed COVID-19 findings and ensured oath, live cross-exam, and demeanor observation, satisfying reliability concerns |
| Whether Crim. P. 43 forbids remote testimony by witnesses when the defendant does not consent to remote appearance | Rule 43 governs defendant’s presence; it is silent as to witnesses so it does not bar a court from allowing remote witness testimony during a public-health emergency | Rule 43(f) (Public Health Crisis Exception) should be read to protect defendant from remote testimony by others when he declines remote appearance | Court: Crim. P. 43 addresses defendant presence only; its plain language does not prohibit permitting prosecution witnesses to appear remotely over objection during a public-health crisis |
| Whether the hybrid remote proceeding violated the defendant’s public-trial right (courtroom closure) | Proceeding remained public and accessible consistent with rule amendments and administrative orders | Hybrid/virtual format effectively closed the courtroom and deprived defendant of a public hearing | Court: Hernandez waived this claim by failing to raise a specific public-trial objection below |
| Whether assigning the case to a division using virtual proceedings denied equal protection | Use of remote proceedings was a district-level, discretionary response to COVID-19 and served legitimate public-health objectives | Assignment to a division conducting virtual hearings singled out Hernandez for disparate treatment versus similarly situated defendants | Court: No equal protection violation — no suspect class identified, rational-basis review applies, and discretionary use of videoconferencing was rationally related to public-health and judicial-economy objectives |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (1990) (face-to-face confrontation is a preference, not absolute; one-way testimony allowed when important public policy is served and reliability is ensured)
- United States v. Gigante, 166 F.3d 75 (2d Cir. 1999) (two-way video testimony permitted for terminally ill witness to protect health while preserving confrontation safeguards)
- Wood v. People, 255 P.3d 1136 (Colo. 2011) (MMD immunity hearing is analogous to a preliminary hearing; pretrial immunity denials may require C.A.R. 21 review)
- Waller v. Georgia, 467 U.S. 39 (1984) (public-trial right protects the accused and extends to certain pretrial proceedings)
- People v. Jones, 464 P.3d 735 (Colo. 2020) (public-trial right benefits the accused and the public’s oversight function; applies to pretrial suppression hearings)
- Bernal v. People, 44 P.3d 184 (Colo. 2002) (Confrontation Clause issues reviewed de novo)