Rule Change 2021(16)
Colorado Rules of Criminal Procedure
July 15, 2021
Rule 43. Presence of the Defendant
(a)–(d) [NO CHANGE]
(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.
COMMENT [NO CHANGE]
Amended and Adopted by the Court, En Banc, July 15, 2021, effective immediately.
By the Court:
Carlos A. Samour Jr.
Justice, Colorado Supreme Court