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National Crime Victim Law Institute

People v. Holmes, No. 12CR1522 (Colo. Arapahoe Cnty. Dist. Ct. Aug. 28, 2013) (order).

September 10, 2013

Defendant is charged with shooting and killing or injuring a large number of victims in a movie theater.  The state filed 166 charges against defendant, naming 82 different victims.  Pursuant to state rule of evidence 615, defendant moved the court to sequester all of the state’s witnesses from all pretrial hearings, as well as from the trial itself.  The state separately moved the court to allow victims to be present during all critical stages of the criminal justice process, relying on victims’ unqualified state constitutional right to be present.  The court observed as a preliminary matter that defendants do not have a constitutional right to exclude witnesses from the courtroom, but that the victims’ state constitutional right to attend judicial proceedings “may never be enforced at the expense of the defendant’s constitutional right to a fair trial.”  The court then held, however, that excluding victims from the courtroom during critical stages of the criminal case is not necessary to protect defendant’s fair trial rights, as defendant will be able to cross-examine testifying victims, highlight their presence in the courtroom during other testimony, and examine any statements that are inconsistent with recorded statements of the victims that were provided to defendant.  The court further held that the term “victims” is defined to include “anyone who was inside one of the two adjacent movie theaters at the time of the shooting”—expressly rejecting a narrower definition that would have included only the individuals named in a charge—and that the victims have the right to be present at all critical stages of the proceedings.  The court then granted the state’s motion to permit victims to be present at all critical stages of the criminal case, including the trial, pretrial hearings on motions concerning evidentiary matters or pre-plea or post-plea review, and any sentencing hearing, and all other state witnesses were ordered sequestered from the courtroom other than during their testimony.