CHAPTER I

INTRODUCTION

§ 1.01

§ 1.02 Statutes, Rules, and Case Law - Substantive Criminal Law

§ 1.03 - Rules of Criminal Procedure

§ 1.04 - Rules of Evidence

§ 1.05 - Case Law

§ 1.06 Resources - Libraries

§ 1.07 - Legislative History

§ 1.08 - New Law

§ 1.09 Courts - District and Superior Courts

§ 1.10 - Family Court

§ 1.11 - Supreme Court

§ 1.12 Prosecutors and Defense Lawyers

§ 1.13 Overview of the Process

§ 1.01

Criminal Law and the State Constitution

In the early 1980s the Vermont Constitution and its Declaration of Rights,{1} which had languished for years in the shadow of the federal Bill of Rights, began to play a significant role in the state's criminal procedure law. In a 1982 decision, State v. Badger,{2} the Vermont Supreme Court held that confessions and physical evidence taken from a suspect were suppressible under the state constitution as well as under federal law. Although federal precedents decided the case, the court wrote, a separate state constitutional analysis was "essential to [a] sound and final disposition[,]" in part because its decision on federal law grounds could be overturned on certiorari, but more importantly because the Vermont Constitution was "the fundamental charter of our state, and it is this Court's duty to enforce the constitution."

Although the Vermont and federal constitutions "have a common origin and a similar purpose," our constitution is not a mere reflection of the federal charter. Historically and textually, it differs from the United States Constitution. It predates the federal counterpart, as it extends back to Vermont's days as an independent republic. It is an independent authority, and Vermont's fundamental law.{3}

The court was free "to provide more generous protection to rights under the Vermont Constitution than afforded by the federal charter."{4}

Three years later, in State v. Jewett,{5} the court held that a state constitutional search and seizure argument had been inadequately briefed, directed rebriefing, and took the occasion to advocate a general reorientation of criminal procedure law in the direction of a new state constitutionalism. The law had become over-federalized ("All too often legal argument consists of a litany of federal buzz words memorized like baseball cards"),{6} and lately, in "the post-Warren counter-revolution[,]"{7} these made-in-Washington rights were in jeopardy. The new state constitutionalism, which was already well under way in other state jurisdictions (such as Oregon and New Hampshire), offered an "unparalleled opportunity" to Vermont lawyers. "We have an opportunity[,]" the court wrote, "to develop a sound jurisprudence of state constitutional law that will serve not only this generation of Vermonters but those who will come after us in the decades yet to be."{8}

The Jewett court invited use of historical sources, textual arguments, case law from other states with similar constitutional provisions, and economic and sociological materials.{9} Subsequent opinions have drawn on all these sources.

The historical approach has been hampered by a meager historical record.{10} Few contemporaneous records were kept of the state constitutional convention,{11} and the primary sources which do exist may not be readily available or particularly helpful.{12} Political and social histories of the time shed light on basic constitutional policies but can not be expected to resolve concrete textual questions.

Strict textual arguments carry less weight in constitutional analyses than they do for statutory texts. Apparently significant textual differences between the Vermont and federal charters may result in identical interpretations,{13} and identical texts may give rise to different interpretations.{14}

Decisions in other states with similar provisions have proved persuasive,{15} as have prudential arguments based on contemporary statistical materials.{16}

Badger and Jewett spawned a great deal of favorable commentary,{17} but it soon became clear that the Vermont Supreme Court had bitten off more than it could chew, at least all at once. With two important exceptions - search and seizure law and bail - the state constitution has not yet had a major impact on day-to-day criminal procedure: the Vermont Supreme Court often interprets the state constitution as providing no more rights than the federal;{18} deviations from the federal norm have been few and generally modest;{19} and the court that reached out to insist on rebriefing in Jewett commonly avoids state constitutional claims on a variety of waiver rationales, including that the issue was inadequately briefed.{20}

§ 1.02

Statutes, Rules, and Case Law - Substantive Criminal Law

Vermont's substantive criminal law, the statutes defining crimes and punishments, is mostly collected in Title 13 of the Vermont Statutes, with drug offenses in Title 18, motor vehicle crimes in Title 23, and assorted provisions elsewhere. A list of crimes, by title and section, along with their punishments, is included in an appendix.{21}

The Title 13 statutes are a mixed bag, some dating from the early nineteenth century and drawn from English and Colonial legislation,{22} others of more recent vintage, derived from the Model Penal Code and other uniform acts.{23}

Many of the older statutes have been extensively redefined by case law; even for newer laws, if the text omits a mens rea element, case law usually reads one in.{24} In construing Model Code statutes, the Vermont Supreme Court looks to the Code commentaries and related (even if unenacted) portions of the Code for guidance,{25} and even non-Code provisions sometimes receive the benefit of Code definitions.{26}

Attempts at recodification have been unsuccessful. In the mid-'70s a committee chaired by Vermont's attorney general produced a Proposed Criminal Code based on the Model Penal Code, which was never enacted.{27} A second attempt at an across-the-board revision in 1987-88{28} also went nowhere.

§ 1.03

- Rules of Criminal Procedure

In 1973 Vermont adopted a set of rules similar in structure and substance to the Federal Rules of Criminal Procedure, with some provisions drawn from the American Bar Association's Criminal Justice Standards.{29} Case law and commentary under the federal rules, and in states which have adopted the same federal or ABA provisions, gives an "authoritative" gloss, which the Vermont Supreme Court often (but not invariably) adopts.{30} Federal treatises such as Wright's Federal Practice and Procedure, and Moore's Federal Practice are invaluable resources.

The major departures from the federal rules are Vermont's much more expansive pretrial discovery (V.R.Cr.P. 15-17) and the absence of sentencing guidelines.

Some important criminal procedure matters are covered elsewhere: the Title 13 statutes include bail procedures,{31} rights of appeal,{32} extradition,{33} inquests,{34} assorted procedural rights of the accused,{35} and (together with the civil commitment statutes of Title 18) hospitalization procedures.{36} Procedures special to DUI cases are set out in Title 23.

Title 12, which used to contain a general code of procedure, has been mostly superceded by the rules of criminal, civil, and appellate procedure, but it remains an important (if chaotic) source of procedural law in matters which the rules do not cover. Because the court-promulgated rules may not "abridge, enlarge or modify any substantive rights of any person provided by law[,]"{37} provisions of the Title 12 statutes may prevail over conflicting provisions of the rules.{38}

The supreme court's administrative orders, including speedy trial guidelines{39} and the rules governing assignment of counsel,{40} are included in an appendix to the probate rules.

§ 1.04

- Rules of Evidence

Like the rules of criminal procedure, the Vermont Rules of Evidence, promulgated in 1982, follow the structure and content of their federal counterparts quite closely, with some modifications taken from the Uniform Rules of Evidence and other sources.{41} Federal treatises such as Weinstein's Evidence are excellent research tools.

Pre-rules statutes dealing with evidentiary matters remain on the books and their provisions may sometimes conflict with the rules. For example, the patient privilege provisions of the rules{42} vary in significant respects from the statutory privilege.{43} Like the procedure rules, the court-promulgated rules of evidence were not intended to abridge or enlarge "substantive" rights, although it may sometimes be debatable whether a change is substantive or procedural.

§ 1.05

- Case Law

The Vermont Supreme Court is Vermont's only appellate court and the only court that publishes its opinions. They are officially reported in the Vermont Reports and are published also in West's Atlantic Reporter.

Many of the Vermont Supreme Court's opinions are not published or available except from the parties or the court on request. The court's assumption that these unpublished opinions say nothing new, and are not generally useful, is often not shared by counsel or by trial judges. Bail cases, in particular, are routinely decided by single-justice opinions distributed to the parties and no one else. Since the initiation of summary appeal procedures in the late 1980s,{44} the number and proportion of cases decided with unpublished opinions has grown significantly, a situation which tends to favor high-volume litigators (like public defenders and the attorney general) at the expense of smaller practitioners.

The same is true of lower court opinions, many of which deal with important and otherwise undecided questions. None are published, although the Vermont Bar Association Journal publishes excerpts of some.

§ 1.06

Resources - Libraries

Vermont has only two general purpose law libraries - the state library in the supreme court building in Montpelier, and the Vermont Law School library in South Royalton. In Burlington, limited legal research facilities are available at the Fletcher Library and in Middlebury at the Middlebury College Library. Large law firms in small towns often let small practitioners use their libraries as a courtesy.

§ 1.07

- Legislative History

Except for the generally uninformative senate and house journals, published in yearly volumes, legislative history in Vermont exists mostly in the form of transcripts of committee hearings, although these are available only for more recent statutes. Tracking them down involves a brief tour of the Montpelier area, and the following steps:

The Vermont Statutes Annotated give session law citations for each statute and statutory amendment. From the session law citation get the bill number from the House or Senate Journal for the session that enacted it.

The legislative council, an arm of the legislature with offices in the state capitol, is responsible for transcribing the tapes of the hearings. With the bill number they can find which committees considered the bill, the dates of the hearings, and the location of transcripts.

The transcripts are stored, some on microfilm, in the state's public records warehouse in Middlesex, where they can be read and photocopied.

Written materials - notes, drafts, letters, etc. - which were kept in connection with the committee's work, are stored in a "bill folder" available directly from the legislative council. Other legislative materials, including the original bill as introduced, are stored in the secretary of state's office in Montpelier.

§ 1.08

- New Law

a. Cases

There is about a six-month lag between the issuance of an opinion and its appearance in the Vermont Reports advance sheets. Counsel hoping to stay current can get slip opinions from the Vermont Department of Libraries, or subscribe to the Vermont Law Week, which despite its name is published about monthly. Recent Vermont Supreme Court opinions, along with selected district and superior court opinions, are digested in the Vermont Bar Journal's Law Digest (bimonthly).

The state department of libraries maintains an electronic bulletin board - free, open to the public, and accessible by modem - with the text of recent Vermont Supreme Court opinions. The opinions can be accessed by name or docket number, word-searched (although the program is not nearly as sophisticated as WestLaw or Lexis), and downloaded. The number and instructions can be obtained from the department of libraries.

b. Statutes and Rules

The department of libraries bulletin board also contains the text of recent bills and session laws. These can be searched, read, and downloaded like the cases.

Notice of proposed and promulgated changes in rules and administrative orders is sent to all members of the bar by the court administrator's office.

§ 1.09

Courts - District and Superior Courts

Vermont has two trial-level courts with general criminal jurisdiction, the district and superior courts. The district court is a unified state court divided into five territorial units, with courthouses in each of the state's fourteen counties.{45} The superior courts, which used to be called county courts, are still county institutions, with a courthouse in each county seat.{46} Each superior court consists of a presiding judge and two assistant judges,{47} or side judges as they are commonly called. The side judges, who are elected constitutional officers,{48} are a unique Vermont institution. They have always been nonlawyers, and although their powers in criminal and civil cases have been sharply curtailed by case law,{49} they have fierce adherents and still retain a role in deciding questions of fact,{50} as well as in sentencing and other "discretionary" decisions.{51}

Both courts have fully concurrent criminal jurisdiction over crimes in their respective venues.{52} As a practical matter, however, criminal cases are almost always prosecuted in district court, and the superior court's exposure to criminal law comes mainly from collateral civil proceedings, such as habeas corpus or petitions for postconviction relief, over which they have either exclusive jurisdiction or jurisdiction concurrent with the supreme court.{53}

Judges in both the district and superior courts "rotate" according to schedules fixed by the court administrator's office, the usual pattern being six months in a "home" court and six months "on the road."

§ 1.10

- Family Court

Vermont's family court, established in 1991, has exclusive jurisdiction over juvenile delinquency proceedings and CHINS ("children in need of supervision") cases, as well as private divorce and child custody cases, enforcement of support proceedings, and abuse prevention proceedings.{54}

§ 1.11

- Supreme Court

The Vermont Supreme Court consists of a chief justice and four associate justices.{55} In recent years about half the justices have come from the superior courts and about half from the private bar and state government. In the two hundred-year history of the court none, so far as anyone can remember, has been Jewish or black, and all but one (Denise Johnson, appointed in 1990) have been male.

The court, which usually sits in Montpelier, is the state's only appeals court. It has a limited original jurisdiction{56} which it only exercises when relief is not obtainable in another forum.{57}

§ 1.12

Prosecutors and Defense Lawyers

The state's attorneys are elected county officials with jurisdiction over crimes committed in their counties.{58} The attorney general, a state elected official, has general supervisory and advisory powers over all prosecutions, and "the same authority throughout the state as a state's attorney."{59} The attorney general can prosecute cases that the state's attorney has decided not to, and vice versa.{60}

Defense services for indigents are funded and coordinated by the statewide office of the defender general,{61} through county public defender offices and a variety of contractual and "ad hoc" arrangements with private practitioners.{62}

§ 1.13

Overview of the Process

Because of its complexity criminal procedure is often likened to a maze, but it is a maze which has no single solution: the optimal path can be short or long, and no two long paths are the same. Except for minor cases that plead out quickly, and despite a heavy overlay of police and judicial routine, it is hard even to describe such a thing as an "average" case.

The first stage of a criminal case is usually a police investigation which can involve searches and seizures of physical evidence,{63} interrogations of the suspect,{64} and eyewitness identification procedures,{65} among other evidence-gathering techniques. Some of these activities may take place after a lawyer has entered the picture, and if so the lawyer can have a role in shaping the process (e.g., by advising the defendant at a police interrogation, or by insisting on fair lineup procedures). More commonly, however, the police have already completed their investigation before the formal charge is filed and before their suspect has representation. The lawyer faces faits accomplis, with the only remedy being a motion to suppress. Part I (Chapters 2 through 4) focuses on this investigatory stage.

The first steps of the court process usually begin with the Rule 5{66} hearing, and involve the important preliminaries of filing a charge,{67} assigning counsel,{68} entering a plea,{69} setting bail,{70} and determining competency when competency is in doubt,{71} all of which are the subjects of Part II (Chapters 5 through 8).

For some defendants - those charged with minor offenses and facing minor penalties, including most defendants who appear without counsel - this opening stage is the last stage before a quick change of plea and sentencing (discussed in Chapters 36 and 37); such cases are "tied up" at the first or second court appearance.

For most others, however, the Rule 5 hearing marks the beginning of the defense investigation, schedules a status conference, and starts the clock running on Rule 12's discovery and motion-filing deadlines.{72} Part III (Chapters 9 through 24) includes a chapter on discovery{73} and a series of mini-chapters covering the common and some of the uncommon pretrial challenges to the prosecution (such as motions to dismiss for lack of a prima facie case,{74} for lack of a speedy trial,{75} and on double jeopardy grounds{76}) and the manner in which the prosecution is being conducted (such as motions seeking a change of venue,{77} severance,{78} and recusal of the judge{79}).

Part IV (Chapters 25 through 35) covers the stages of trial proper, from voir dire through verdict, including chapters on the right to present and confront evidence,{80} the privilege against self-incrimination,{81} and assorted evidentiary topics.{82}

Sentencing and the postsentencing probation and parole stages are discussed in Part V (Chapters 36 through 39); and review procedures in the Vermont Supreme Court and in the superior courts, as well as various postverdict motions in the trial court, are the subjects of Part VI (Chapters 40 through 42).

ENDNOTES

1. Vt. Const. ch. I.

2. 141 Vt. 430 (1982).

3. State v. Badger, 141 Vt. 430, 448-49 (1982) (quoting State v. Brean, 136 Vt. 147, 151 (1978)).

4. State v. Badger, 141 Vt. 430, 449 (1982). Liberal judges in the federal courts expressed the same views. Justice Brennan wrote in an influential law review article:

5. 146 Vt. 221 (1985).

6. State v. Jewett, 146 Vt. 221, 223 (1985).

7. State v. Jewett, 146 Vt. 221, 223 (1985).

8. State v. Jewett, 146 Vt. 221, 229 (1985).

9. State v. Jewett, 146 Vt. 221, 225-27 (1985). The court's

treatment of these types of arguments in search and seizure cases is discussed in § 2.01.

10. See P. Teachout, Against the Stream: An Introduction to the Vermont Law Review Symposium on the Revolution in State Constitutional Law, 13 Vt. L. Rev. 13, 26-34 (1988).

11. See State v. Kirchoff, 156 Vt. 1, 5 (1991).

12. State v. Kirchoff, 156 Vt. 1, 32-33 (1991). The records of the early council of censors were published by the secretary of state's office in 1991.

13. See, e.g., State v. Kirchoff, 156 Vt. 1, 4-5 (1991) (holding that the state search and seizure protection of "possessions" was no broader than the fourth amendment's protection of "effects"); State v. Picknell, 142 Vt. 215, 225-28 (1982) (holding that the state constitutional self-incrimination privilege (defendant cannot "be compelled to give evidence against himself") was no broader than the federal fifth amendment (no person "shall be compelled . . . to be a witness against himself")).

14. P. Teachout, Against the Stream, 13 Vt. L. Rev. 13, 21-22 (1988).

15. See, e.g., State v. Oakes, 157 Vt. 171, 173 n.3 (1991) (joining other jurisdictions in rejecting the federal "good faith" exception to the warrant requirement).

16. State v. Oakes, 157 Vt. 171, 175-183 (1991) (concluding that current data do not support the United States Supreme Court's "cost-benefit analysis" of the exclusionary rule).

17. The Vermont Law Review devoted its Spring 1988 issue to the new state constitutionalism. 13 Vt. L. Rev. no. 1.

18. See, e.g., State v. Record, 150 Vt. 84 (1988). In right-to-confrontation cases, the court has said as a general matter that the state charter provides no more rights than the federal, and that "no separate analysis of Article 10 is required." State v. Roberts, 154 Vt. 59, 66 n.3 (1990).

19. See, e.g., State v. Brunelle, 148 Vt. 347, 349-55 (1987), discussed in § 3.27.

20. See, e.g., State v. Percy, 156 Vt. 468, 481 n.7 (1990) (state constitutional argument raised for first time in reply brief).

21. App. 18.

22. See, e.g., 13 V.S.A. § 2601 ("A person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00.").

23. See 13 V.S.A. §§ 1021 et seq. (punishing assaults and similar offenses in language derived from the Model Penal Code).

24. See § 34.09. But see State v. Searles, No. 91-038 (Vt. Jan. 15, 1993) (defendant's knowledge of victim's age is not an implicit element of sexual assault on a minor).

25. See, e.g., State v. Hoadley, 147 Vt. 49, 55 (1986) (Model Code definition of recklessness); State v. Watson, 138 Vt. 276, 280 (1980) (Model Code definition of negligence); State v. D'Amico, 136 Vt. 153, 156 (1978) (adopting Model Code authorization of diminished capacity defense).

26. State v. Stanislaw, 153 Vt. 517, 525 (1990) (Model Code definition of negligence applied to manslaughter statute); State v. Francis, 151 Vt. 296, 305-06 (1989) (Model Code definition of assault applied to assault and robbery statute).

27. See B. Stern, Revising Vermont's Criminal Code, 12 Vt. L. Rev. 307, 309 (1987).

28. B. Stern, Revising Vermont's Criminal Code, 12 Vt. L. Rev. 307, 308-09 (1987).

29. V.R.Cr.P. 1, Reporter's Notes.

30. See V.R.Cr.P., Foreword; State v. Desjardins, 144 Vt. 473 (1984) (adopting federal case law interpretation of former F.R.Cr.P. 35).

31. 13 V.S.A. §§ 7551 et seq. See chapter 7 (bail).

32. 13 V.S.A. §§ 7401, 7403.

33. 13 V.S.A. §§ 4941 et seq.

34. 13 V.S.A. §§ 5101 et seq.

35. See, e.g., 13 V.S.A. §§ 6501 (right to present and confront evidence), 6556 (right against second trial after acquittal).

36. 13 V.S.A. §§ 4801 et seq.; 18 V.S.A. ch. 181, 206.

37. 12 V.S.A. § 1.

38. See J. Dooley, The Regulation of the Practice of Law, Practice and Procedure, and Court Administration in Vermont - Judicial or Legislative Power, 8 Vt. L. Rev. 211 (1983). Compare State v. Corliss, 145 Vt. 169, 172 (1984) (rule that state must move for permission to appeal prevails over statute granting appeal as of right).

39. A.O. 5.

40. A.O. 4.

41. V.R.E. 1, Reporter's Notes.

42. V.R.E. 503.

43. 12 V.S.A. § 1612.

44. See § 40.24.

45. 4 V.S.A. § 436; A.O. 2.

46. 4 V.S.A. § 111.

47. 4 V.S.A. § 112.

48. Vt. Const. ch. II, § 50.

49. State v. Dunkerley, 134 Vt. 523 (1976), held that side judges could not decide questions of law. In Soucy v. Soucy Motors, Inc., 143 Vt. 615 (1983), the Vermont Supreme Court held that a side judge's participation in an equity case gave rise to a jurisdictional defect, voiding the judgment.

50. State v. Hunt, 145 Vt. 34, 40 (1984); V.R.Cr.P.

54(c)(1)(ii).

51. See State v. Hamlin, 146 Vt. 97, 110-12 (1985) (sentencing); State v. Hunt, 145 Vt. 34 (1984) (decision to reject plea agreement).

52. 4 V.S.A. §§ 114 (superior court), 439-40 (district court).

53. See §§ 41.01-41.06.

54. 4 V.S.A. § 454.

55. 4 V.S.A. § 4(a).

56. 4 V.S.A. § 2(b); V.R.A.P. 21.

57. See V.R.A.P. 21 (petition for extraordinary relief in supreme court must allege "why there is no adequate remedy by . . . proceedings for extraordinary relief in the County Courts"); In re K.F., 151 Vt. 211, 214 n.3 (1989). Cf. V.R.A.P. 8(a) (application for stay or injunction pending appeal must allege why application to lower court would be impracticable).

58. 24 V.S.A. § 361.

59. 3 V.S.A. §§ 152-153.

60. State's Attorney v. Attorney General, 138 Vt. 10 (1979).

61. 13 V.S.A. §§ 5251 et seq.

62. The organization of criminal defense services in Vermont is discussed in § 6.11.

63. See chapter 2.

64. See chapter 3.

65. See chapter 4.

66. V.R.Cr.P. 5.

67. See chapter 5.

68. See chapter 6.

69. See § 5.21, chapter 36.

70. See chapter 7.

71. See chapter 8.

72. § 9.01.

73. See chapter 24.

74. See chapter 10.

75. See chapter 12.

76. See chapter 14.

77. §§ 17.02-17.04.

78. See chapter 21.

79. See chapter 20.

80. See chapter 29.

81. See chapter 30.

82. See chapter 31.