Criminal Law Newsletter

Publication year1979
8 Colo.Law. 1963
Colorado Lawyer

1979, October, Pg. 1963. Criminal Law Newsletter


Vol. 8, No. 10, Pg. 1963

Criminal Law Newsletter

Closure of Pretrial Hearings in Criminal Proceedings

This column examines separately the most recent leading cases at the state and federal levels and considers them in the context of each other. The purpose of this analysis is to facilitate a thorough conception of what the present state of the law is in Colorado concerning closure to the public and the news media of pretrial proceedings in criminal cases. The following analysis is also intended to provide an understanding of how consistent state and federal law can co-exist in light of recent court decisions.

Colorado Case Law

We first examine the case law of Colorado. The Colorado Supreme Court, in Sergent v. People(fn1) reviewed a defendant's allegation of prejudicial pretrial publicity pertaining to extensive news coverage of a homicide in rural San Juan County. The Court's decision established the standard to be used in evaluating to what extent pretrial publicity can be said to operate as a denial of a fair trial to a defendant.

In the absence of massive publicity that could be said to have contaminated the community, the defendant must establish a nexus between the publicity and the alleged denial of a fair trial. See, Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, (1962); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Corbett v. Patterson, 272 F. Supp. 602 (D.C. Colo. 1967). Here the voir dire amply demonstrates the absence of any opinions that they may have received from the news media to the end that the case could be determined on the law and on the evidence.(fn2)

Therefore, in evaluating pretrial publicity to determine when and to what extent prejudice may arise and become so extensive and pervasive to constitute a denial of a fair trial, the Court placed the burden on the moving defendant to establish an evidentiary nexus between the publicity and the alleged denial of a fair trial. The Court inferred that the voir dire of the prospective jurors is a satisfactory vehicle in this determination standard

Five months later, on July 24, 1972, the Supreme Court readdressed these issues.(fn3) In considering the defendant's motion for closure of a pretrial suppression hearing, to which the People objected, the Court adopted the ABA standards


relating to pretrial hearings which utilizes the "no substantial likelihood" test.(fn4) Briefly stated, this test or standard provides that a defense motion for pre-trial closure should be granted unless there was "no substantial likelihood" that, by leaving the hearing open to the public, interference with the defendant's right to a fair trial would result.

The court again considered pretrial closure issues in its decision of March 12, 1979, in Star Publishing Corporation, v. County Court.(fn5) This case concerned the closure to the news media, but, not the public, of a preliminary hearing. The Court, in balancing First Amendment and Sixth Amendment principles, stated:

This Court has continually recognized the fundamental nature of First Amendment rights and...

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