Waller test in Colorado

2020See Simmons, 797 F.3d at 414 ; Woods v. Kuhlmann, 977 F.2d 74 , 76–77 (2d Cir. 1992); see also United States v. Addison, 708 F.3d 1181 , 1187–88 (10th Cir. 2013); Davis v. Reynolds, 890 F.2d 1105 , 1109–10 (10th Cir. 1989). ¶25 Other courts require the full Waller analysis for partial closures.

2020See Simmons, 797 F.3d at 414 ; Woods v. Kuhlmann, 977 F.2d 74 , 76–77 (2d Cir. 1992); see also United States v. Addison, 708 F.3d 1181 , 1187–88 (10th Cir. 2013); Davis v. Reynolds, 890 F.2d 1105 , 1109–10 (10th Cir. 1989). ¶25 Other courts require the full Waller analysis for partial closures.

2025Whether the Closure Was Constitutional ¶31 We next apply the four Waller factors to determine whether this nontrivial closure violated Bialas's constitutional right to a public trial. ¶32 In Waller , the Supreme Court set forth a four-part test for trial courts to determine whether a courtroom closure complies with the Sixth Amendment. 467 U.S. at 48 .

2025The first Waller factor, accordingly, was not met. ¶34 Next, we consider the second and third Waller factors: whether the closure was no broader than necessary and whether the court considered any reasonable alternatives to closing the proceeding. 467 U.S. at 48 .

2018Regardless of whether excluding children is a compelling interest, only a substantial interest, or something less, the trial court’s closure did not satisfy the second and third Waller requirements.2 See United States v. Simmons, 797 F.3d 409, 414 (6th Cir. 2015) (Courts “that have distinguished between partial closures and total closures modify the Waller test so that the ‘overriding interest’ requirement is replaced by requiring a showing of a ‘substantial reason’ for a partial closure, but the other three factors remain the same.”) (emphasis added); see also Presley v. Georgia, 558 U.S. 209

2018Regardless of whether excluding children is a compelling interest, only a substantial interest, or something less, the trial court’s closure did not satisfy the second and third Waller requirements.2 See United States v. Simmons, 797 F.3d 409, 414 (6th Cir. 2015) (Courts “that have distinguished between partial closures and total closures modify the Waller test so that the ‘overriding interest’ requirement is replaced by requiring a showing of a ‘substantial reason’ for a partial closure, but the other three factors remain the same.”) (emphasis added); see also Presley v. Georgia, 558 U.S. 209

2020People v. Jones, 750 N.E.2d 524, 529 (N.Y. 2001).

2018Compare Galloway, 937 F.2d at 546 (“[A] different standard applies where the courtroom is only partially closed to the public . . . .”), with People v. Jones, 750 N.E.2d 524, 529 (N.Y. 2001) (“We believe that there is no need to adopt such an articulation of the Waller standard since Waller already 1 In arguing that a substantial interest exists, the Attorney General relies on section 19-1-106(2), C.R.S. 2017, and section 19-2-110, C.R.S. 2017, both of which allow the closing of a juvenile trial if it is in the best interests of the juvenile or the community.

2025Id. at ¶¶ 18-19 , 535 P.3d at 1003-04 . ¶9 Last, the division applied the Waller factors and concluded that the closure was not justified and thus violated Bialas's right to a public trial.

2023While we appreciate our colleague’s practical concerns, we believe they are best assessed on a case-by-case basis, if and when they may arise. 7 We note that, in the context of a partial closure, some courts have replaced the “overriding interest” component in factor one of the Waller analysis with the lower standard of a “substantial reason.” See People v. Jones, 2020 CO 45, ¶ 24 (collecting cases).

2020See Simmons, 797 F.3d at 414 ; Woods v. Kuhlmann, 977 F.2d 74 , 76–77 (2d Cir. 1992); see also United States v. Addison, 708 F.3d 1181 , 1187–88 (10th Cir. 2013); Davis v. Reynolds, 890 F.2d 1105 , 1109–10 (10th Cir. 1989). ¶25 Other courts require the full Waller analysis for partial closures.

2020See Simmons, 797 F.3d at 414 ; Woods v. Kuhlmann, 977 F.2d 74 , 76–77 (2d Cir. 1992); see also United States v. Addison, 708 F.3d 1181 , 1187–88 (10th Cir. 2013); Davis v. Reynolds, 890 F.2d 1105 , 1109–10 (10th Cir. 1989). ¶25 Other courts require the full Waller analysis for partial closures.

2015See Presley v. Georgia, 558 U.S. 209, 213-16 , 130 S.Ct. 721 , 175 L.Ed.2d 675 (2010) (reversing the defendant’s conviction where the trial court closed the courtroom during voir dire because it was “well settled” under Press-Enterprise, 464 U.S. 501 , 104 S.Ct. 819 , that, absent consideration of alternatives, the trial court could not constitutionally close voir dire); Anderson, 490 P.2d at 48 (“It is ... undisputed that the right to a public trial includes that stage of the proceedings which is devoted to the selection of a jury”). ¶37 Second, this closure was reversible plain eiTor because

2015See Presley v. Georgia, 558 U.S. 209, 213-16 , 130 S.Ct. 721 , 175 L.Ed.2d 675 (2010) (reversing the defendant’s conviction where the trial court closed the courtroom during voir dire because it was “well settled” under Press-Enterprise, 464 U.S. 501 , 104 S.Ct. 819 , that, absent consideration of alternatives, the trial court could not constitutionally close voir dire); Anderson, 490 P.2d at 48 (“It is ... undisputed that the right to a public trial includes that stage of the proceedings which is devoted to the selection of a jury”). ¶37 Second, this closure was reversible plain eiTor because

2025But even if it were, we conclude that the remaining Waller factors are not satisfied. ¶ 29 The record shows that the prosecutor suggested that the court split voir dire into two sessions.1 See Bucci v. United States, 662 F.3d 18, 26 (1st Cir. 2011) (“[E]ven if the courtroom were completely filled with prospective jurors, it would likely not justify the closure in this case.

2025But even if it were, we conclude that the remaining Waller factors are not satisfied. ¶ 29 The record shows that the prosecutor suggested that the court split voir dire into two sessions.1 See Bucci v. United States, 662 F.3d 18, 26 (1st Cir. 2011) (“[E]ven if the courtroom were completely filled with prospective jurors, it would likely not justify the closure in this case.

2025See Waller, 467 U.S. at 48 (holding that the trial court “must make findings adequate to support [a] closure”). “[I]f a court intends to exclude the public from a criminal proceeding, it must first analyze the Waller factors and make specific findings with regard to those factors.” United States v. Gupta, 699 F.3d 682, 687 (2d Cir. 2012).

2025See Waller, 467 U.S. at 48 (holding that the trial court “must make findings adequate to support [a] closure”). “[I]f a court intends to exclude the public from a criminal proceeding, it must first analyze the Waller factors and make specific findings with regard to those factors.” United States v. Gupta, 699 F.3d 682, 687 (2d Cir. 2012).

2024Id. (first citing Tinsley v. United States, 868 A.2d 867, 877-80 (D.C. 2005); and then citing State v. Ndina, 2009 WI 21, ¶ 86 ).

2024Id. (first citing Tinsley v. United States, 868 A.2d 867, 877-80 (D.C. 2005); and then citing State v. Ndina, 2009 WI 21, ¶ 86 ).

2024The fourth requirement was that the trial court “must make findings adequate to support the closure.” Id. (quoting Waller, 467 U.S. at 48 ). ¶ 29 In the Colorado Supreme Court’s next opportunity to address a Waller issue, the court said, in relatively sweeping fashion, “Under Waller, the public trial right is violated when a defendant objects to a closure and the court does not satisfy the four factors of the Waller test.” Stackhouse v. People, 2015 CO 48, ¶ 7 (emphasis added).

2024The fourth requirement was that the trial court “must make findings adequate to support the closure.” Id. (quoting Waller, 467 U.S. at 48 ). ¶ 29 In the Colorado Supreme Court’s next opportunity to address a Waller issue, the court said, in relatively sweeping fashion, “Under Waller, the public trial right is violated when a defendant objects to a closure and the court does not satisfy the four factors of the Waller test.” Stackhouse v. People, 2015 CO 48, ¶ 7 (emphasis added).

2020See, e.g., Cosentino v. Kelly, 926 F. Supp. 391, 395 (S.D.N.Y. 1996) (recognizing that “[t]he right to a public trial has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom,” but nonetheless analyzing a partial closure based on disruptive behaviors under Waller (quoting United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979))), aff’d, 102 F.3d 71 (2d Cir. 1996).

2020See, e.g., Cosentino v. Kelly, 926 F. Supp. 391, 395 (S.D.N.Y. 1996) (recognizing that “[t]he right to a public trial has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom,” but nonetheless analyzing a partial closure based on disruptive behaviors under Waller (quoting United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979))), aff’d, 102 F.3d 71 (2d Cir. 1996).

2020See, e.g., Cosentino v. Kelly, 926 F. Supp. 391, 395 (S.D.N.Y. 1996) (recognizing that “[t]he right to a public trial has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom,” but nonetheless analyzing a partial closure based on disruptive behaviors under Waller (quoting United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979))), aff’d, 102 F.3d 71 (2d Cir. 1996).

2020See, e.g., Cosentino v. Kelly, 926 F. Supp. 391, 395 (S.D.N.Y. 1996) (recognizing that “[t]he right to a public trial has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom,” but nonetheless analyzing a partial closure based on disruptive behaviors under Waller (quoting United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979))), aff’d, 102 F.3d 71 (2d Cir. 1996).

2020See, e.g., Cosentino v. Kelly, 926 F. Supp. 391, 395 (S.D.N.Y. 1996) (recognizing that “[t]he right to a public trial has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom,” but nonetheless analyzing a partial closure based on disruptive behaviors under Waller (quoting United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979))), aff’d, 102 F.3d 71 (2d Cir. 1996).

2020See, e.g., Cosentino v. Kelly, 926 F. Supp. 391, 395 (S.D.N.Y. 1996) (recognizing that “[t]he right to a public trial has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom,” but nonetheless analyzing a partial closure based on disruptive behaviors under Waller (quoting United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979))), aff’d, 102 F.3d 71 (2d Cir. 1996).

2020See Simmons, 797 F.3d at 414 ; Woods v. Kuhlmann, 977 F.2d 74 , 76–77 (2d Cir. 1992); see also United States v. Addison, 708 F.3d 1181 , 1187–88 (10th Cir. 2013); Davis v. Reynolds, 890 F.2d 1105 , 1109–10 (10th Cir. 1989). ¶25 Other courts require the full Waller analysis for partial closures.

2020See Simmons, 797 F.3d at 414 ; Woods v. Kuhlmann, 977 F.2d 74 , 76–77 (2d Cir. 1992); see also United States v. Addison, 708 F.3d 1181 , 1187–88 (10th Cir. 2013); Davis v. Reynolds, 890 F.2d 1105 , 1109–10 (10th Cir. 1989). ¶25 Other courts require the full Waller analysis for partial closures.

2019However, the proponent of a courtroom closure must demonstrate not only an overriding interest but also “a substantial probability that the identified interest will be prejudiced by an open courtroom.” Hassen, ¶ 12 (quoting People v. Echevarria, 989 N.E.2d 9, 15-16 (N.Y. 2013)). ¶ 15 Here, the prosecutor only cursorily suggested that the girlfriend was hesitant to testify, and he did not link her supposed hesitation to the statement the mother had made nearly four years earlier.

2019However, the proponent of a courtroom closure must demonstrate not only an overriding interest but also “a substantial probability that the identified interest will be prejudiced by an open courtroom.” Hassen, ¶ 12 (quoting People v. Echevarria, 989 N.E.2d 9, 15-16 (N.Y. 2013)). ¶ 15 Here, the prosecutor only cursorily suggested that the girlfriend was hesitant to testify, and he did not link her supposed hesitation to the statement the mother had made nearly four years earlier.

2018Compare Galloway, 937 F.2d at 546 (“[A] different standard applies where the courtroom is only partially closed to the public . . . .”), with People v. Jones, 750 N.E.2d 524, 529 (N.Y. 2001) (“We believe that there is no need to adopt such an articulation of the Waller standard since Waller already 1 In arguing that a substantial interest exists, the Attorney General relies on section 19-1-106(2), C.R.S. 2017, and section 19-2-110, C.R.S. 2017, both of which allow the closing of a juvenile trial if it is in the best interests of the juvenile or the community.

2015Maj. op. ¶ 1 (relying on Anderson v. People, 176 Colo. 224 , 490 P.2d 47, 48-49 (1971) (holding that a defendant waives his public trial right by failing to object to closure)). ¶24 Although the majority observes that “the United States Supreme Court’s precedent on the right to an open trial has evolved” in the decades since this court decided Anderson, the majority concludes that our decision in Anderson remains good law because it was not abrogated by the Supreme Court’s more recent decisions in Waller and Presley, which held that closure of the courtroom over a defendant’s objection without

2015Maj. op. ¶ 1 (relying on Anderson v. People, 176 Colo. 224 , 490 P.2d 47, 48-49 (1971) (holding that a defendant waives his public trial right by failing to object to closure)). ¶24 Although the majority observes that “the United States Supreme Court’s precedent on the right to an open trial has evolved” in the decades since this court decided Anderson, the majority concludes that our decision in Anderson remains good law because it was not abrogated by the Supreme Court’s more recent decisions in Waller and Presley, which held that closure of the courtroom over a defendant’s objection without

2015Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999); People v. Hassen, 2015 CO 49, ¶ 7 , 351 P.3d 418 ; Hugos v. People, 2012 CO 63, ¶ 10 , 288 P.3d 116, 119 ; accord maj. op. ¶ 7. , ¶23 Despite the.importance of the fundamental constitutional .right to a public trial and its role in preserving the fairness of the proceeding, and despite the majority’s recognition that the erroneous deprivation of this right is structural error, maj. op. ¶7, the majority holds that a defendant’s failure to object to a courtroom closure “affirmatively waives” his right to a public tri

2015Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999); People v. Hassen, 2015 CO 49, ¶ 7 , 351 P.3d 418 ; Hugos v. People, 2012 CO 63, ¶ 10 , 288 P.3d 116, 119 ; accord maj. op. ¶ 7. , ¶23 Despite the.importance of the fundamental constitutional .right to a public trial and its role in preserving the fairness of the proceeding, and despite the majority’s recognition that the erroneous deprivation of this right is structural error, maj. op. ¶7, the majority holds that a defendant’s failure to object to a courtroom closure “affirmatively waives” his right to a public tri

2015Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999); People v. Hassen, 2015 CO 49, ¶ 7 , 351 P.3d 418 ; Hugos v. People, 2012 CO 63, ¶ 10 , 288 P.3d 116, 119 ; accord maj. op. ¶ 7. , ¶23 Despite the.importance of the fundamental constitutional .right to a public trial and its role in preserving the fairness of the proceeding, and despite the majority’s recognition that the erroneous deprivation of this right is structural error, maj. op. ¶7, the majority holds that a defendant’s failure to object to a courtroom closure “affirmatively waives” his right to a public tri

2015Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999); People v. Hassen, 2015 CO 49, ¶ 7 , 351 P.3d 418 ; Hugos v. People, 2012 CO 63, ¶ 10 , 288 P.3d 116, 119 ; accord maj. op. ¶ 7. , ¶23 Despite the.importance of the fundamental constitutional .right to a public trial and its role in preserving the fairness of the proceeding, and despite the majority’s recognition that the erroneous deprivation of this right is structural error, maj. op. ¶7, the majority holds that a defendant’s failure to object to a courtroom closure “affirmatively waives” his right to a public tri

2015See Waller, 476 U.S. at 48, 106 S.Ct. 1683 (holding that the party seeking closure must advance an overriding interest likely to be prejudiced; closure must be no broader than necessary; the court must consider reasonable alternatives; and the court must make adequate findings to support the closure).

2015See Waller, 476 U.S. at 48, 106 S.Ct. 1683 (holding that the party seeking closure must advance an overriding interest likely to be prejudiced; closure must be no broader than necessary; the court must consider reasonable alternatives; and the court must make adequate findings to support the closure).

2015See Robinson v. State, 410 Md. 91 , 976 A.2d 1072 , 1082 n.6 (2009) (noting that if it were true “that the right to a public trial cannot be waived by the defendant’s ‘inaction’ ” but rather required knowing, voluntary, and intelligent waiver, then a “defendant’s refusal to make an ‘intelligent and knowing' waiver of the right would preclude a trial judge from ever closing a courtroom, no matter the circumstances warranting closure”).

2015See Robinson v. State, 410 Md. 91 , 976 A.2d 1072 , 1082 n.6 (2009) (noting that if it were true “that the right to a public trial cannot be waived by the defendant’s ‘inaction’ ” but rather required knowing, voluntary, and intelligent waiver, then a “defendant’s refusal to make an ‘intelligent and knowing' waiver of the right would preclude a trial judge from ever closing a courtroom, no matter the circumstances warranting closure”).

2013Indeed, the trial court stated that it wished the issue had been brought up earlier so that it "could have been fully vetted instead of doing it sort of on the run." Understandably, in ordering the total closure of the courtroom, the trial court neither mentioned nor applied the four Waller factors. ¶ 12 However, as discussed below, because the court did not apply Waller and the record does not otherwise indicate that the Waller factors were satisfied, see Whitman, 205 P.3d at 379 (concluding the record supported the closure under the Waller factors despite the trial court's failure to apply W

2013Indeed, the trial court stated that it wished the issue had been brought up earlier so that it "could have been fully vetted instead of doing it sort of on the run." Understandably, in ordering the total closure of the courtroom, the trial court neither mentioned nor applied the four Waller factors. ¶ 12 However, as discussed below, because the court did not apply Waller and the record does not otherwise indicate that the Waller factors were satisfied, see Whitman, 205 P.3d at 379 (concluding the record supported the closure under the Waller factors despite the trial court's failure to apply W