Must Utah courts conduct detailed colloquies for virtual trial waivers? Cedar City v. Braget Explained

In Cedar City v. Braget, the Utah Court of Appeals addressed whether trial courts must conduct detailed colloquies when defendants waive their right to appear by video at virtual trials. The case provides important guidance for practitioners handling virtual proceedings in Utah courts.

Background and Facts

Ashley Braget was charged with assault and contributing to the delinquency of a minor following an incident involving her teenage son and her husband. The day before trial, defense counsel filed a stipulated motion to convert the in-person bench trial to a virtual proceeding. At trial, Braget connected by phone with audio only, while the judge, attorneys, and prosecution witnesses appeared in person. After a private recess allowing counsel to consult with Braget, defense counsel confirmed they wished to proceed with trial.

Key Legal Issues

Braget raised two plain error claims: (1) the court violated her right to be present by failing to conduct an adequate inquiry into her waiver of video appearance, and (2) the court violated her confrontation rights by allowing prosecution witnesses to testify without explicit waiver. She also claimed ineffective assistance of counsel for failing to object to these alleged violations and for allowing her son to testify without video.

Court’s Analysis and Holding

The court rejected Braget’s plain error claims, finding the alleged errors would not have been obvious to the trial court. Citing State v. Robertson, the court noted that Utah law does not require detailed colloquies for all constitutional waivers, distinguishing waiver of counsel from other rights like the right to testify or confront witnesses. The court emphasized that “no detailed discussion . . . on the record” is typically required for Confrontation Clause waivers. While acknowledging a now-terminated COVID-19 administrative order that required specific procedures for virtual trials, the court found this did not establish clear constitutional requirements that would make any error obvious.

The court also rejected Braget’s ineffective assistance claims, finding no demonstrable deficient performance or prejudice. The court noted that proceeding with trial when the only corroborating witness failed to appear could have been a reasonable tactical decision.

Practice Implications

This decision clarifies that Utah courts need not conduct extensive colloquies for every constitutional waiver in virtual proceedings. However, practitioners should ensure clear communication with clients about technical capabilities and document their consultations. The court’s analysis suggests that preservation of error remains critical, as unpreserved claims face significant hurdles under plain error review. The decision also demonstrates the high bar for establishing ineffective assistance when the record lacks evidence of alternative strategies or their likely success.