Proposed criminal records rule sets dangerous precedent


A Colorado judicial branch committee wants to make it harder for all of us to access criminal court records.

The 14-member Rules of Criminal Procedure Committee met mid-January to discuss a long-awaited draft rule that would change how and when courts are allowed to suppress and seal criminal court records. While the draft, posted online (, doesn’t say exactly what information could be hidden from the public, it lays out four guidelines to allow juges to seal records.

Specifically, the judge must decide there is: a compelling interest, a significant interest, a substantial interest or an over-riding interest “that would be served by making the court record inaccessible to the public or by allowing only a redacted copy of it to be accessible to the public.” The written court order describing the qualifying interest would also have to explain how there is a high risk of harm and find that there are no less-restrictive means of protecting an indentified interest than refusing to release or redacting the record.

Precisely how will that call be made? The short answer: We don’t know.

Here’s where things get outrageous: Under the rule, before a document can be hidden from public view, the sealing request has to go before the courts for a hearing. The problem is that the hearings must, according to the rule, take place behind closed doors.

The rule effectively bars the public from the legal process, from courtrooms we all own and maintain, and from monitoring the actions of judges, public defenders and prosecutors, all of whose salaries we pay.

Furthermore, only the judge can determine how long the gag order is in place and which parts of the records are included. It’s up to a single individual to decide if court records are open or not — essentially it’s sign, seal, quash and move on.

The draft rule creates a massive problem: It could limit public access to trials, to documents, to cases already tried.

If public access to documents is limited, so is access to determine fair trails and impartial justice.
Criminal court cases must be kept in the sunlight to make sure everyone is following the rule of law. The framers of our government saw fit to codify it in the Bill of Rights. Look up the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. …”
Read it again — a public trial.

There are times when pre-trial publicity may make an impartial jury difficult to find — and everyone deserves a right to a fair trial.

But to mandate that the hearing related to that judgment be conducted behind closed doors does a disservice to a critical public process. It also keeps judges from scrutiny by the very people who give them their jobs: the voters.

Criminal cases, including all the hearings and records related to them, must be kept open. It’s how the public ensures justice is properly served and holds the courts accountable. To deny constituents that right undermines the foundation of our legal system and sets a dangerous precedent — an extraordinary irony for a court system designed to make sure that dangerous precedents don’t happen.