An Adams County judge did not violate a man’s constitutional rights during the pandemic by holding a hearing with witnesses online, instead of in person, due to COVID-19-related concerns.

Juan Johnny Hernandez argued that the video testimony violated the clause of the Sixth Amendment guaranteeing the right of the criminally accused to confront witnesses against them. The Colorado Supreme Court had not previously determined whether that right extends to proceedings that occur before a trial.

Hernandez claimed to the justices that former District Court Judge Tomee Crespin was “one of, if not the only, Adams County District Court Judge who is requiring the use of WebEx for witness testimony,” wrote his attorneys, referring to the online videoconferencing platform. “[A]s unfortunate luck would have it, Mr. Hernandez was assigned to the courtroom of Judge Crespin, and as a result, he has lost his right to face-to-face confrontation.”

But in considering Hernandez’s appeal directly from the district court, the justices declined to explicitly outline the breadth of the right to confront witnesses in person. Instead, they only found the circumstances in Crespin’s courtroom sufficiently balanced public health protocols with an adequate means of questioning witnesses.

“Here, the trial court properly considered Hernandez’s rights while thoughtfully adjusting procedures,” wrote Justice Maria E. Berkenkotter, “so as to protect the health and safety of those appearing before it and — in turn — the community at large. We hold that the trial court did not violate Hernandez’s confrontation or equal protection rights by allowing the prosecution to appear, and its witnesses to testify, via a videoconferencing platform.”

The court executive for the 17th Judicial District told Colorado Politics that all district court judges in Adams and Broomfield counties were holding motions hearings over WebEx during the pandemic, not just Crespin, as the defense attorneys claimed.

Hernandez faces charges of attempted first degree murder and other related counts for shooting a male victim in the head in October 2019. Hernandez made a motion for immunity from prosecution according to Colorado’s “make my day” law, which authorizes the use of deadly physical force against an unlawful intruder. The person employing physical force has to reasonably believe their target intends to commit a crime and also intends to use physical force against them.

Around that time, Adams County was approaching a positivity rate of 8% for those tested for COVID-19. Prosecutors in the 17th Judicial District sought to hold the immunity hearing over WebEx, but Hernandez cited Sixth Amendment concerns. Crespin, in her decision, agreed to a mostly-virtual hearing and cited the chief judge’s directive at the time that judges “shall continue to conduct proceedings via remote technology wherever possible … . No judicial officer is required by this Order to hold any in-person proceedings.”

In the early days of the pandemic, the Supreme Court amended the Rules of Criminal Procedure to allow defendants to appear in court by audiovisual device for certain proceedings. Hernandez argued to the justices that because he did not consent to a virtual appearance, prosecutors were not allowed to present their witnesses that way either.

“WebEx provides a limited, two-dimensional picture of the courtroom; a viewer can see only where the camera is pointed, rather than the whole room available to an in-person spectator,” wrote Danielle M. McCarthy, an attorney for Hernandez, to the Supreme Court. “On WebEx, the public cannot see the faces of everyone participating in the hearing. Nor can the public see their body language, an essential element of human communication.”

Among other concerns, the defense worried that allowing online testimony might impair the court's ability to sequester certain witnesses, or spot someone who is coaching or assisting a witness out of view. In March, a virtual domestic violence hearing in Michigan went viral after the court discovered in real time that the accused perpetrator was testifying from the same apartment as the victim, in violation of a no-contact order.

The U.S. Supreme Court has determined the confrontation clause serves to deter witnesses from lying, force them to undergo questioning from the accused, and allow jurors to observe the witnesses and assess their credibility. Norma C. Izzo, a family law attorney in Phoenix, warned during the pandemic that technology can influence people's perceptions, citing studies that that showed mock jurors judged the credibility differently for live witnesses, remote witnesses, and even remote witnesses with varying camera angles.

Hernandez also claimed a hearing about “make my day” immunity was similar to a trial, and constitutional protections should apply. The government responded that Hernandez could still raise the immunity defense at trial, even if the judge declined to dismiss the charges during the pretrial hearing. Moreover, a virtual hearing during the pandemic would actually allow participants to see witnesses’ full faces, unobscured by masks.

The justices sided with the government, finding the rule about appearances “does not prohibit a court from allowing, over a defendant’s objection, a prosecution witness to appear by interactive video device during a public health crisis,” Berkenkotter wrote in the June 7 opinion.

An attorney for Hernandez responded that the ruling "will certainly provide some useful, and much-needed, guidance in the future." District Attorney Brian Mason said the pandemic necessitated creative means of conducting hearings that protected defendants' rights and public health, and "I’m pleased that the Supreme Court agrees that this practice was appropriate and correct.”

The Court's opinion was yet another reminder of the way the judicial system has interpreted longstanding legal rights in light of the public health emergency. A bill currently in the legislature would allow an extension of the right to a speedy trial, also guaranteed in the Sixth Amendment, to ostensibly help prosecutors and judges better handle the backlog of jury trials.

The case is People v. Hernandez.

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