Vol. 39, No. 5
From the Courts
Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the court and has not been edited by the staff of The Colorado Lawyer.
Colorado Supreme Court Criminal Rules Committee
Notice of Request for Comments re
Proposed Amendments to C.R.Crim.P. 43(e)
Deadline for Comments: Friday, June 4, 2010, 5:00 p.m.
The Colorado Supreme Court requests written public comments by any interested person on proposed amendments to Crim. P. 43(e). An original and eight copies of the written comments should be submitted to Susan J. Festag, Clerk of the Supreme Court, 101 W. Colfax Ave., Ste. 800, Denver, CO 80202, no later than 5:00 p.m. on Friday, June 4, 2010. The Clerk will post written comments as they are received on the Colorado Supreme Court’s website.
The proposed amendments to Crim. P. 43(e) are set forth below in a clean, non-redlined version. The document also is available on the court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm. The proposed amendments are based on a recommendation by the Supreme Court Criminal Rules Committee.
By the Court:
Alex J. Martinez
Justice, Colorado Supreme Court
Colorado Rules of Criminal Procedure
Rule 43(e). Presence of the Defendant by Interactive Audiovisual Device
(a)-(d) [No change]
(e) Presence of the Defendant by Interactive Audiovisual Device.
(l) Definitions. As used in this Rule 43:
(I) "Interactive audiovisual device" means a television 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 with a minimum of disruption.
(2) A defendant may be present within the meaning of this Rule 43 by the use of an interactive audiovisual device, in lieu of the defendant’s physical presence, for the following hearings:
(I) First appearances pursuant to Crim.P. 5, for the purpose of advisement and setting of bail;
(II) Further appearances for the filing of charges or for setting the preliminary hearing;
(III) Hearings to modify bail;
(IV) Entry of pleas and associated sentencing hearings in misdemeanor, petty offense, and traffic cases where the offense charged is not included within those offenses enumerated in C.R.S. § 24-4.1-302 (I).
(3) Minimum standards. Every use of an interactive audiovisual device must comply with the following minimum standards, in addition to those set forth in Crim.P. 43(e)(l):
(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) No defendant shall be compelled to appear by interactive video device at a hearing pursuant to subsection (e)(2)(III) of this rule.
(III) Installation of the interactive audiovisual device in the courtroom shall be done in such a manner that members of the public are reasonably able to observe, and, where appropriate, participate in the hearing.
(IV) Any hearing held pursuant to Crim.P. 43(e)(2)(IV) shall be conducted with the written consent of the defendant. The court shall advise a defendant of the following prior to obtaining a defendant’s written consent and prior to any plea discussions being conducted:
(a) The rights enumerated in Crim.P. 5(2).
(b) The defendant has the right to appear in person and will not be prejudiced if he chooses to do so.
(c) The defendant has the right to have his or her counsel appear with him or her at the same physical location.
(d) The defendant’s decision to appear by use of an interactive audiovisual device is voluntary on the defendant’s part and is not the result of undue influence or coercion on the part of anyone.
(e) If the defendant is pro se, the identity and role of all individuals with whom the defendant may have contact through the interactive audiovisual device.
(V) An interactive audiovisual system used for hearings pursuant to Crim.P. 43(e)(2)(IV) shall include the ability to electronically transfer documents between the defendant and the court and such transferred documents shall be considered the same as originals.
(4) Nothing in this rule shall require a court to use an interactive audiovisual device.
(5) In the event of inclement weather or other exceptional circumstances, which would otherwise prevent a hearing from occurring under Crim.P. 5, the court may conduct the hearing by use of an interactive audiovisual procedure that does not comply with the minimum standards set forth in subsection (3).
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