¶12 Our review of a trial court's decision to close the courtroom involves a mixed question of fact and law. Rios, ¶ 17. We defer to the trial court's factual findings absent an abuse of discretion, but we review its legal conclusions de novo. Id.

¶13 Both the U.S. and Colorado Constitutions guarantee criminal defendants the right to a public trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. In Rios, we explained the importance of the right to a public trial and the purposes it serves. ¶¶ 19-20. One such purpose is to ensure the presence of interested spectators "for the benefit of the accused." Waller, 467 U.S. at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)). The presence of such spectators serves, among other things, to keep an accused's "triers keenly alive to a sense of their responsibility and to the importance of their functions." Id. (quoting Gannett Co., 443 U.S. at 380). This, in turn, provides a safeguard against any attempt to employ our courts as instruments of persecution. In re Oliver, 333 U.S. 257, 270 (1948).

¶14 However, the Supreme Court has emphasized that the purpose of the right to a public trial extends beyond the accused. "[I]n the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process-an essential component in our structure of self-government." Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982). For example, the right to a public trial maintains public faith and confidence in the justice system by allowing the public to see that the accused is fairly dealt with, ensuring that judges and prosecutors discharge their duties responsibly, encouraging witnesses to come forward, and discouraging perjury. Waller, 467 U.S. at 46. The right also "vindicate[s] the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 509 (1984).

¶15 With these purposes in mind, we turn to the facts of this case.

¶16 The People argue that the removal of Bialas's family from the physical courtroom did not constitute a closure because the public had free and contemporaneous access to observe the proceedings virtually. For the reasons we explain in our opinion in Rios, announced today, we disagree.

¶17 In Rios, we considered whether virtual access to observe courtroom proceedings alone could satisfy a defendant's Sixth Amendment right to a public trial. ¶ 25. To answer the question, we examined the purposes the right serves, including spectators' role in keeping the jury "keenly alive" to the importance of its function and to a sense of its responsibility. Id. at ¶ 27. We looked as well to its role in ensuring that judges and prosecutors carry out their duties responsibly, encouraging witnesses to come forward, and discouraging perjury. Id.

¶18 Ultimately, we concluded that "the Sixth Amendment right to a public trial is best understood as a trial that is open to the public, meaning that the public has a reasonable opportunity to be physically present to observe the proceedings." Id. at ¶ 28. That is to say, virtual access alone does not meet a defendant's public trial right. Id. at ¶ 36. We reach this conclusion for three reasons. First, this understanding hews most closely to the purposes of the right to a public trial. This connection is particularly striking as it pertains to the public's role in keeping the jury "keenly alive to a sense of their responsibility" and to the importance of their function by virtue of the public's presence. Waller, 467 U.S. at 46 (quoting Gannett Co., 443 U.S. at 380). As we noted in Rios, screens in a courtroom, no matter their number or the nature of their display, are an inadequate substitute for the physical presence of real spectators in the gallery and the powerful reminder that those spectators provide to jurors regarding the gravity of their role. ¶ 29. Plus, this virtual technology is typically not configured to allow jurors to see spectators due to the risk of disruption and potential mistrial.

¶19 Second, this reading comports with the ordinary understanding of the term "public," which is defined as "exposed to general view: open." Public, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/ public [https://perma.cc/9KAV-94U6]. The term "presence" is defined as "the fact or condition of being present." Presence, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/presence [https://perma.cc/ 3KKL-LJ59]. The term "present" is defined as "constituting the one actually involved, at hand, or being considered." Present, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/present [https://perma.cc/7VRZ-JQ9H]. As we explained in Rios, when read in tandem, these definitions support the understanding that a public trial involves the opportunity for spectators to be physically present to observe the proceedings. ¶ 30.

¶20 Third, and finally, the Framers saw great value in the benefits associated with a public trial. Waller, 467 U.S. at 49 n.9. The Framers, of course, could not have imagined a public trial that involved spectators who were not somehow physically present. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980); see also United States v. Haymond, 588 U.S. 634, 642 (2019) ("[T]he constitution's guarantees cannot mean less today than they did the day they were adopted."). And the Framers could not have imagined the bandwidth and connectivity issues that district courts around the state face from time to time. More importantly, changes in technology do not lessen constitutional protections. Thus, we reject the People's argument that the Sixth Amendment does not require the public to have access to a physical courtroom so long as it has the free and contemporaneous opportunity to virtually observe proceedings.^[3]

¶21 Because virtual access alone is not sufficient to meet a defendant's public trial right, we conclude that a closure occurred when the court excluded the Bialases and all other members of the public from the physical courtroom for the remainder of her trial.

¶22 We emphasize that it was not the court's initial order, which significantly limited the seating capacity in the courtroom due to the COVID-19 pandemic that forms the basis for our conclusion in this regard. The court's order left seats for spectators in the back of the gallery. This limit was based on the public health restrictions that required the jurors to spread out across the gallery and necessarily confined the public seating available in the courtroom. As we explained in Rios, that is not a closure. ¶ 33. During the COVID-19 pandemic, courtroom capacity was often limited by public health orders concerning permissible uses of indoor spaces. The inability of some members of the public to be physically present because of space limitations is not a closure. These limitations may exist due to health-related restrictions, as with the COVID-19 pandemic, or simply because-as with some high profile cases-there are more interested members of the public than there are available seats.

¶23 And, as we additionally observed in Rios, when a court offers hybrid proceedings-i.e., the courtroom remains open but there is only limited seating capacity, and the court offers access over a virtual platform-that is not a closure either, as long as the courtroom remains open. Id. at ¶ 36. In that instance, the virtual access options are merely additional means of viewing the proceeding that are not constitutionally required.

¶24 However, if a court totally excludes the public from the physical courtroom, that is a closure subject to a Waller analysis. Relatedly, if a court ejects a particular person or group of persons from the courtroom, that is also a closure subject to a Waller analysis. People v. Turner, 2022 CO 50, ¶ 18, 519 P.3d 353, 359.

¶25 Both types of closures were implicated here. The trial court ejected Bialas's and Bynum's families from the courtroom. It also closed the courtroom to all other spectators. Thus, there was a closure.

¶26 Our analysis, however, does not stop there. To implicate a defendant's right to a public trial, the courtroom closure must be nontrivial. Lujan, ¶ 23, 461 P.3d at 499.

¶27 The closure of a physical courtroom can violate a defendant's constitutional right to a public trial. Jones, ¶ 27, 464 P.3d at 741. But "the Sixth Amendment is not necessarily violated 'every time the public is excluded from the courtroom.'" Lujan, ¶ 16, 461 P.3d at 498 (quoting Peterson v. Williams, 85 F.3d 39, 40 (2d Cir. 1996)). "[S]ome closures are simply so trivial that they do not rise to the level of a constitutional violation." Id. To determine whether a closure is trivial, we consider (1) the duration of the closure, (2) the substance of the proceedings that occurred during the closure, (3) whether the proceedings were later memorialized in open court or placed on the record, (4) whether the closure was intentional, and (5) whether the closure was total or partial. Id. at ¶ 19, 461 P.3d at 498-99. This list of factors is nonexhaustive, and no single factor is dispositive. Id., 461 P.3d at 499. Further, under this standard, "we look to the closure at issue and consider whether it implicated the protections and values of the public trial right." Id. at ¶ 28, 461 P.3d at 500.

¶28 Applying this standard, we conclude that the closure here was nontrivial under the totality of the circumstances. In Lujan, this court concluded that the trial court's decision to close the courtroom to reread a limiting instruction to the jury "that it had previously read in open court" was trivial because it lasted "only a matter of minutes." ¶ 29, 461 P.3d at 500. However, here, the closure lasted for the rest of Bialas's testimony and all of the closing arguments.

¶29 Moreover, the closure was intentional. "[I]ntentional closures during more significant, and less fleeting, testimony are generally considered not trivial because of their potential to affect the fairness of the proceedings." Jones, ¶ 40, 464 P.3d at 744. For example, in People v. Hassen, 2015 CO 49, ¶ 16, 351 P.3d 418, 422, we concluded that a closure during two witnesses' testimony, which spanned twenty-seven pages of the transcript, was not trivial. Here, Bialas's testimony spanned twenty-seven pages, and the closing arguments spanned another thirty-four. Additionally, in Jones, we concluded that a closure lasting almost an entire afternoon during the ten-day trial was not brief, and therefore, nontrivial. ¶ 42, 464 P.3d at 744. The closure in this case included more than half a day in a four-day trial, further indicating that the closure was nontrivial.

¶30 On these facts, we conclude that the total exclusion of the public and the expulsion of Bialas's family from the courtroom for more than half a day were both nontrivial closures.

¶31 We next apply the four Waller factors to determine whether this nontrivial closure violated Bialas's constitutional right to a public trial.

¶32 In Waller, the Supreme Court set forth a four-part test for trial courts to determine whether a courtroom closure complies with the Sixth Amendment. 467 U.S. at 48. The test requires that (1) "the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced," (2) "the closure must be no broader than necessary to protect that interest," (3) "the trial court must consider reasonable alternatives to closing the proceeding," and (4) "it must make findings adequate to support the closure." Id.

¶33 We now turn to consider these factors, beginning with whether there was an overriding interest in closing the trial.^[4] Id. Although trial judges have discretion to control their courtrooms by removing distracting spectators, see Illinois v. Allen, 397 U.S. 337, 343 (1970), and the court's concern here regarding the improper conduct was well-founded, there is no evidence in the record that the threat of disruption in this case came from Bialas's family. Rather, all signs indicated that the problematic comments were made by the victim's family. Moreover, neither party sought to remove Bialas's family after the jurors indicated that they had not made the inappropriate comments. Thus, while the trial court's concern was understandable given the potential for a mistrial, there was no reason to exclude Bialas's family or to close the entire courtroom. The first Waller factor, accordingly, was not met.

¶34 Next, we consider the second and third Waller factors: whether the closure was no broader than necessary and whether the court considered any reasonable alternatives to closing the proceeding. 467 U.S. at 48. Here, the trial court could have made findings and properly removed the victim's family to prevent further disruption of the trial, to protect the jury from ex parte communications, and to prevent a (second) mistrial, but it did not do so. Instead, it imposed a "uniform rule," declining to "take sides as to who it is or what spectators get special preference over other spectators." But in applying a blanket rule, the court not only excluded the Bynums from the courtroom, it also excluded Bialas's family members and all other potential spectators from the opportunity to observe the proceedings in person. Perhaps the court viewed the available virtual public access as a reasonable alternative, but if so, it did not explain this on the record. And even so, as we have explained, virtual public access alone does not satisfy a defendant's right to a public trial. Because the court did not limit the scope of the closure or consider whether there were reasonable alternatives to entirely closing the courtroom, we conclude that the second and third Waller factors were not met.

¶35 Last, we turn to the fourth Waller factor-whether the court made findings adequate to support the closure. Id. We conclude that it did not. "[W]e gauge 'compliance by substance, not form.'" Rios, ¶ 52 (quoting Turner, ¶ 35, 519 P.3d at 362). Here, the court did not follow Waller in substance or form. Its findings were limited to its comment that it was not going to decide who caused the disruption. Therefore, we conclude that the fourth Waller factor was not satisfied.

¶36 Because the exclusion of Bialas's family and the entire public from the physical courtroom constituted a nontrivial closure that did not satisfy any of the Waller requirements, we conclude that the closure violated Bialas's right to a public trial.