Virtual court hearings are a new procedure in Colorado. It allows a defendant in a criminal case the opportunity to appear online for court, as opposed to in-person. Most courts use WebEx for virtual hearings. These hearings save people time off work, travel time and expense, and allow for more efficient proceedings throughout Colorado.
Recent Law Change Allowing Virtual Court
On July 15, 2021, the Colorado Supreme Court updated the Criminal Procedure Rules to allow defendants in criminal cases to appear virtually with the consent of the court. This rule change follows the emergency procedures enacted in 2000 due to COVID. These procedures are now a permanent part of Colorado Criminal Procedure. Defendants and their attorneys can now appear remotely for most types of proceedings, so long as the judge allows it and the defendant consents to it.
While the rules allow for this, many judges do not. Some courts require all defendants to appear in person despite the new rule. it is, therefore, important to determine before court whether a virtual appearance is allowed. Some judges only allow a party to appear virtually if represented by an attorney. Also, some judges will require an in-person appearance if a plea is entering, or if a person is being sentenced. Finally, the rules do not allow virtual appearance for testimonial hearings, such as preliminary hearings, motions hearings, or trials. If a person is scheduled for an in-person hearing, and they appear virtually, the judge could consider it a failure to appear and issue an arrest warrant.
Virtual hearings do not change the outcome of a case. This new process promotes efficiency in that plea offers are made before court as opposed to in court. An attorney can better prepare his or her client when discussions with prosecutors are had and plea bargains are extended before court. Virtual hearings also greatly benefit defendants who live outside Colorado, as well as defendants who live far from the courthouse. For example, a defendant that resides in Denver, but has a court case in Aspen can seek permission to appear virtually instead of making the commute.
Colorado Criminal Procedure Rule 43(e)
Colorado Criminal Procedure Rule 43(e) reads as follows.
(e) Presence of the Defendant by Interactive Audiovisual Device or Interactive Audio Device.
(1) As used in this Rule 43:
(I) “Interactive audiovisual device” means a television- or computer-based
audiovisual system capable of two-way transmission and of sufficient audio and
visual quality that persons using the system can view and converse with each other.
(II) “Interactive audio device” means a telephone- or computer-based audio system
capable of two-way transmission and of sufficient audio quality that persons using
the system can converse with each other.
(2) With the court’s approval, the defendant may be present within the meaning of this Rule 43 by
the use of an interactive audiovisual device or an interactive audio device for any proceeding that
does not involve a jury.
(3) The consent of the defendant shall be required prior to conducting any of the following types
of proceedings by the use of an interactive audiovisual device or an interactive audio device
pursuant to this subsection (e):
(I) Entry of guilty plea;
(II) Sentencing hearings;
(III) Probation and deferred sentence revocation hearings;
(IV) Preliminary hearings;
(V) Pre-trial motions hearings;
(VI) Hearings to modify bail;
(VII) Restitution hearings; and
(VIII) Crim. P. 35(b) and (c) hearings.
(4) The court shall advise the defendant of the following prior to any proceeding conducted
pursuant to subsection (e)(3) of this rule:
(I) The defendant has the right to appear in person;
(II) The defendant has the right to have his or her counsel appear with him or her
at the same physical location;
(III) The defendant’s decision to appear by use of an interactive audiovisual
device or an interactive audio device must be voluntary and must not be the result
of undue influence or coercion on the part of anyone; and
(IV) If the defendant is pro se, he or she has the right to request that the identity
and role of all individuals with whom he or she may have contact during the
proceeding be disclosed.(5) Every use of an interactive audiovisual device or an interactive audio device must comply with
the following minimum standards:
(I) If defense counsel appears, such appearance shall be at the same physical
location as the defendant if so requested by the defendant. If defense counsel does
not appear in the same location as the defendant, a separate confidential
communication line, such as a phone line, shall be provided to allow for private and
confidential communication between the defendant and counsel.
(II) Installation of an interactive audiovisual device or an interactive audio device
in the courtroom shall be done in such a manner that members of the public are
reasonably able to observe or listen to, and (where appropriate) participate in, the
hearing.
(III) Unless the court determines otherwise, parties must have the ability to
electronically transfer exhibits to the court, a witness, and each other during any
proceeding conducted by an interactive audiovisual device or an interactive audio
device pursuant to this subsection (e). Any exhibits electronically transferred to the
court shall be treated as if they had been submitted in person.