CHAPTER 5

INITIATION OF THE CHARGE

§ 5.01 The Information: Filing and Probable Cause Finding

§ 5.02 Inquests

§ 5.03 Formal Requisites

§ 5.04 Sufficiency - Providing Notice of the Crime Charged

§ 5.05 - Time, Place, and Name

§ 5.06 - Pleading Statutory and Implicit Elements

§ 5.07 - Negating Exceptions

§ 5.08 - Accomplice Liability

§ 5.09 - Lesser Included Offenses and Attempts

§ 5.10 - Pleading Nonelement Allegations

§ 5.11 Duplicity

§ 5.12 Multiplicity

§ 5.13 Amendments

§ 5.14 Indictments - Grand Jury Proceedings

§ 5.15 - Sufficiency

§ 5.16 Timing of the Challenges

§ 5.17 The Rule 5 Hearing

§ 5.18 A Rule 5 Checklist - The Probable Cause Finding

§ 5.19 - Advice to the Defendant

§ 5.20 - Assignment of Counsel

§ 5.21 - Arraignment

§ 5.22 - Bail

§ 5.23 - Competency and Sanity Evaluation

§ 5.24 - Scheduling Orders

§ 5.25 Practice Pointers

§ 5.01

The Information: Filing and Probable Cause Finding

Any criminal charge can be initiated by indictment or information, at the prosecutor's option,{1} and the great majority of them are brought by information.

The prosecutor can file the information without prior court permission,{2} but a judicial probable cause determination must be made at or before the defendant's first court appearance. Typically the information is not filed until after the defendant has been arrested or cited,{3} and in such cases the probable cause finding must be made at the defendant's first day in court,{4} which must be scheduled "without unnecessary delay" when the defendant has been taken into custody.{5} When the defendant has not been arrested or cited, probable cause must be judicially found before issuance of a summons or arrest warrant.{6} The probable cause finding is indicated by the judge's signature on the information.{7}

The probable cause showing is almost always made in the form of an affidavit or affidavits filed with the information. Usually the affiant is a police officer.{8} The affidavits must demonstrate "substantial evidence" which may be partly or entirely hearsay, "provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."{9}

§ 5.02

Inquests

The filing of an information may be (but rarely is) preceded by an inquest, "an investigatory proceeding" conducted by the prosecutor and meant "to aid him in deciding whether prosecution is warranted in relation to a crime."{10} Unlike a grand jury, the inquest does not itself find probable cause, but merely helps the prosecutor to find it; it is "at most a discovery procedure."{11}

The procedure is roughly defined by statute.{12} The prosecutor{13} makes written application to a superior or district court judge, who "may institute and conduct" the inquest{14} and "issue necessary process to bring witnesses before him to give evidence in any matter there under investigation."{15} The prosecutor conducts the examination of witnesses.{16} The proceedings are stenographically recorded{17} and secret.{18}

The inquest procedure antedates and in some cases conflicts with the discovery provisions of the rules of criminal procedure.{19} In State v. Bleau{20} the Vermont Supreme Court disapproved the convening of an inquest in the middle of trial at which the prosecutor immunized a recalcitrant witness and took his testimony. Although the inquest statutes did not prohibit the tactic, the court said it would be disposed to reverse on a showing of "injustice to the defendant. . . ."{21} The trial in Bleau took place before promulgation of the rules of criminal procedure. In State v. Lapham,{22} a postrules case, the court went a step further, holding that an inquest conducted after the defendant had been charged by indictment or information conflicted with the new deposition rules,{23} and that "insofar as the use of inquest material obtained after indictment or information is in conflict with them, it [i.e., the statutory inquest procedure] is repealed."{24}

In view of its statutory holding, the court did not reach the constitutional question of whether a defendant has a right to be present and to cross-examine witnesses at an inquest convened after the investigation had "focused" on the defendant.{25}

An illegally conducted inquest may require suppression of the inquest testimony.{26} On the other hand, minutes of an illegally conducted inquest may be used as a basis for a subsequent perjury or false swearing prosecution.{27}

§ 5.03

Formal Requisites

V.R.Cr.P. 7(b) dispenses with most of the common law pleading formalities, but a charge of crime by indictment or information must still "be signed by the prosecuting officer on his oath of office"; and it must "commence with the words `By the authority of the State of Vermont' and conclude with the words `against the peace and dignity of the state[.]'" The requirement of an oath is intended to verify the prosecutor's probable cause finding.{28} The formal commencement and conclusion are constitutional requirements.{29} The "against peace and dignity" allegation, however, is only a formality and does not imply a substantive element of the offense charged; the state has no duty to prove that a victimless crime like private marijuana possession actually offends the public peace and dignity.{30}

The charge must also give an "official or customary citation" of the statute or other provision allegedly violated, and of any penalty section, but errors in these citations will not make the charge defective "if the error or omission did not mislead the defendant to his prejudice."{31}

§ 5.04

Sufficiency - Providing Notice of the Crime Charged

V.R.Cr.P. 7, modeled after the federal rule, is intended to avoid the rigid pleading technicalities with which the common law was sometimes obsessed. Its basic requirement is that the information or indictment set forth "a plain, concise, and definite written statement of the essential facts constituting the offense charged."{32} The principal constitutional purpose to be served under both the sixth amendment and chapter I, article 10{33} is providing fair notice of the "exact offense charged" so that the defendant can make "intelligent preparation for his defense."{34} The information must also be specific enough to "permit a plea in bar to a subsequent prosecution" for the same crime or crimes.{35}

The Vermont Supreme Court has adopted what it calls a "common sense approach,"{36} but the case law has generated its own anomalies and rigidities.

§ 5.05

- Time, Place, and Name

The charge must allege jurisdiction in Vermont,{37} venue in the county,{38} and a date within the applicable statute of limitations.{39} The identity of the defendant is also a required component of the pleading, but its omission is only a technical defect when the target of the pleading is identified in the affidavit.{40} All three items are invariably pleaded in some form in the information itself.{41}

§ 5.06

- Pleading Statutory and Implicit Elements

Stating "the essential facts constituting the offense charged" is said to require, as a constitutional minimum, a statement of the essential elements of criminal liability.{42} The practice in many counties has been to stick to the minimum, although the Vermont court has sometimes strongly encouraged a fleshing out of barebones charges.{43} But whatever fleshing-out may be required,{44} "[a]n information which omits an essential element of the crime charged is defective and cannot serve as the basis of a conviction."{45} The same is true when an information fails to allege an aggravating element allowing enhanced punishment,{46} or facts which would warrant recidivist penalties at sentencing.{47} In such cases, the information will support conviction of only the lesser offense.{48}

The statutory elements need not be pleaded in the exact language of the statute, so long as they are alleged in substance. A charge that the defendant attempted "sexual assault" against the victim by (inter alia) "forcibly restraining" her and "attempting to engage in sexual intercourse" was sufficient even though it did not allege the particular "sexual act" attempted{49} or explicitly allege the element of compulsion.{50}

But even this minimum requirement may not be enforced as to "implicit" elements of liability. Criminal statutes, especially older ones, often do not explicitly state all elements held to be essential for conviction. In particular, the required mental state is often left unstated in the statutory language and the court has defined the culpable mens rea by case law.{51} The Vermont Supreme Court has made a sharp distinction between these implicit elements and explicit "statutory" elements.

An information that omits an implicit element is not "jurisdictionally" defective. Absent a showing of prejudice, the court wrote in State v. Roy,{52} "where the relevant statute does not specify a knowledge or intent element, . . . the omission of such an implied element is not fatal, especially where the defendant has failed to object below."{53} On a narrow reading of these cases, the distinction between implicit and statutory elements relates less to the sufficiency of the charge than to counsel's duty to preserve an objection. Omission of a statutory element need not be objected to before trial and can be properly raised for the first time on appeal,{54} although when the claim is made for the first time in a collateral postconviction proceeding the defendant must demonstrate prejudice.{55} Roy holds that omissions of implicit elements must be objected to in a timely fashion but leaves ambiguous whether a timely objection should be sustained.{56} Subsequent cases give grounds to argue that the state may not have a duty to plead implicit elements. In State v. Stanislaw,{57} an information charged involuntary manslaughter without alleging any mental element. The trial court denied the defendant's motion to dismiss (for failure to state an offense) but allowed an interlocutory appeal. Agreeing that criminal negligence was an implicit element of the offense, the supreme court nevertheless held that the information (which failed to charge it) was not defective, inasmuch as it "set out the offense in the language of the statute" and "adequately informed defendant of both the charge against him and his alleged acts giving rise to that charge."{58}

Informations that omit implicit elements are relatively common while it is much rarer for a charge to drop a statutory element. The difference in treatment seems to be motivated by this difference in frequency. At any rate, the court has stated no principled basis for the distinction. Because the basic goal is to provide full and fair notice of the charge, a charge that omits an implicit case law element is no less dangerous than a charge that merely omits statutory language. Nor can the distinction be squared with the principle that an information "which omits an essential element of the crime charged . . . cannot serve as the basis of a conviction"{59} inasmuch as implicit elements are every bit as "essential" as statutory ones.

It is not always obvious whether an essential element is a "statutory" element or merely an implicit one. In State v. Francis{60} the defendant was charged with assault and robbery.{61} The "assault" element of this offense, the court held, incorporated the simple assault statutes,{62} which in turn spelled out various species of misdemeanor assault and their accompanying mental states. The statutory elements of the assault statute, the court held, are merely implied elements of the robbery statute, and so failure to plead them in a robbery prosecution does not fall within the rule of Kreth.{63} Similarly, an allegation of an attempt need not specifically allege the statutory elements of the attempt statute,{64} for example, that the defendant failed to complete the crime "by reason of being interrupted or prevented[,]" so long as the charge, read in connection with the affidavit of probable cause, gives fair notice of the crime.{65}

§ 5.07

- Negating Exceptions

Criminal statutes sometimes state a general prohibition and then allow exceptions. Early cases made a difficult distinction, for pleading purposes, between exceptions that were "part of the definition of the offense" and those that were "matters of excuse." {66} More recently the court has avoided such distinctions, stressing its "common sense approach" to matters of pleading and treating statutory exceptions in much the same way as it treats nonelement allegations.{67} Thus, in State v. DeLaBruere{68} defendants charged with violating the truancy statutes argued that the information was insufficient because it did not negate four statutory exceptions to the compulsory attendance law. The court rejected the challenge on the ground that the information had pleaded all statutory elements and sufficiently apprised the defense of the charge. The prosecution "does not have to make allegations of everything it will prove. Normally it is sufficient to allege the statutory elements without more, as long as the defendants are sufficiently apprised of the charges against them."{69} The charge must be read "in conjunction with the accompanying affidavit" which in this case provided all necessary detail, and "none of the statutory exceptions were involved in the case."{70}

§ 5.08

- Accomplice Liability

Accomplice liability is another exception to the rule that all essential elements of liability must be pleaded. By statute, a person who "aids in the commission of a felony shall be punished as a principal."{71} Similarly, a person "who is accessory before the fact by counseling, hiring or otherwise procuring an offense to be committed" can be charged and convicted "as if he were a principal offender. . . ."{72} The elements of accomplice{73} liability need not be pleaded, however. Accomplices may be charged as principals, at least "if they could be charged as such under the common law"{74} and so long as the shorthand does not deprive them of constitutionally adequate notice.{75}

§ 5.09

- Lesser Included Offenses and Attempts

By rule, a defendant "may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."{76} The charge of the greater offense, as a matter of law, puts the defense on notice of all "lesser-included offenses," as that term is very strictly defined by the Blockburger test.{77}

§ 5.10

- Pleading Nonelement Allegations

A barebones charge in statutory language is not enough to put the defendant on notice of the exact offense charged, or to permit intelligent preparation of a defense. When the statute contains generic terms, "it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species - it must descend to particulars."{78} "Simply put, a criminal complaint must do more than merely cite the statutory language in order to inform both defendant and the court of the conduct which violates the applicable statute."{79} The test is an objective one: "not a subjective inquiry as to what the accused actually understood, but [rather] a scrutiny of the charge, as made, to determine what offense is reasonably indicated by its language."{80}

In cases charged by information, however, the particulars need not be pleaded in the information so long as they are sufficiently stated in the affidavit of probable cause. The affidavit is "a required component of the complaint" and must be "read in connection therewith to determine whether the exact offense charged is `reasonably' indicated and sufficient to make possible `intelligent' preparation."{81}

The affidavit will not always perform this service, however. In State v. Phillips the defendant was charged with multiple counts of welfare fraud, all charges based on a single "shotgun" affidavit of probable cause alleging a jumble of illegal conduct, and information and affidavit together did not provide fair notice; "the defendant was required to sort out from the morass of claims not only the criminal conduct from the innocent but also to assign the allegedly criminal conduct to one or more of the three counts."{82}

Besides establishing time as a jurisdictional matter (i.e., within the statute of limitations), the charge must pinpoint the time exactly enough to allow the defendant a fair opportunity to present a defense "in light of the circumstances";{83} but the state discharges this obligation when it "advise[s] the defendant within reasonable limits under the totality of circumstances when the offense [is] alleged to have been committed."{84} The court has allowed very broad time allegations, approving charges of lewd and lascivious conduct during the "summer" of a particular year.{85} Allegations of place are treated the same way. If not alleged precisely in the information, the affidavit can supply the details,{86} and the prejudicial impact of an imprecise allegation will be judged by the type of defense presented.

§ 5.11

Duplicity

A duplicitous charge is one that alleges more than one crime in a single count. Such charges violate V.R.Cr.P. 8(a), which permits pleading of related offenses in a single information but requires that "each offense [be] stated in a separate count. . . ."{87} The main danger is that "[a] general verdict of guilty will not reveal whether the jury found the defendant guilty of one crime and not guilty of others, or guilty of all."{88}

This pleading error can take a number of forms. A one-count allegation that the defendant kidnapped a number of people, submitted to the jury on instructions that he could be found guilty if he kidnapped any one of them, "permitt[ed] the jury to convict defendant for kidnapping, without assuring its unanimity regarding the essential element of defendant's confinement of a particular person."{89} Similarly, in State v. McDermott,{90} a disorderly conduct information charging that the defendant acted "with intent to cause public inconvenience and annoyance and to recklessly create a risk thereof" - either of which would have constituted the crime - had to be submitted to the jury on instructions they it could find the defendant guilty of one of the two offenses by a special verdict, or in the absence of special verdicts it had to find him guilty of all offenses.{91}

The same concerns apply when the information as written seems to charge a single offense, but the evidence at trial shows more than one crime embraced within the general terms of the charge. In such cases, a guilty verdict will not guarantee jury unanimity as to any one offense, unless the state is required to "elect" before the case goes to the jury,{92} or jury instructions take care of the unanimity problem.{93} This requirement does not apply when the several crimes are a single "continuous transaction"{94} or "so closely related in time or circumstance as to constitute but one criminal transaction."{95}

§ 5.12

Multiplicity

Multiplicitous informations charge a single crime in more than one count. The danger to the defendant is that the jury will be prejudiced by the proliferation of charges,{96} and that multiple convictions or punishments will violate double jeopardy.{97} Even when multiple convictions would be prohibited the state may be free, in some circumstances, to plead multiple offenses.{98} "It is within the prosecutor's discretion to determine which overlapping criminal offenses established by the facts should be charged, and we will not interfere with the exercise of this discretion without a statement by the legislature that such an infringement is intended."{99}

§ 5.13

Amendments

An information can be amended before trial without leave of the court,{100} although an amendment that prejudices the defendant's ability to prepare a defense requires a continuance.{101}

Once trial has commenced, the prosecutor can amend only by leave of the court, and only if "no additional or different offense is charged" and "if substantial rights of the defendant are not prejudiced. . . ."{102} A charge of unlawful mischief for causing damage not exceeding $250{103} could not be amended after the trial started to allege violation of a different subsection for damage costing more than $250, regardless of whether the defendant was surprised, because the amendment changed an essential element.{104}

Conversely, even if the amendment does not change an element, an amendment should be disallowed if the change prejudices the defendant's right to prepare a defense. The court has been rather open-handed about such amendments, however. The information in State v. Verge{105} charged the defendant with burglarizing a building with the intent to steal liquor. At the end the of the trial the state was allowed an amendment that permitted it to argue that the defendant intended to steal money from a safe. The amendment was permissible, the court held, because "the portion of the information removed by the amendment was an unnecessary allegation" and "[c]uring this defect was permissible."{106} In another case the court allowed the state to amend the time allegation of a lewd and lascivious conduct charge from July 1, 1985, to some time "during the summer of 1985[,]" despite the fact that the defendant had prepared an alibi defense to the July 1 allegation.{107} In some cases, of course, switching theories of guilt by striking an "unnecessary" allegation may directly prejudice the defendant's claim of innocence.{108} For example, the state cannot change its date allegation after the defendant has presented an alibi defense targeted on the date alleged.{109}

§ 5.14

Indictments - Grand Jury Proceedings

Indictments, which must be brought by a grand jury, are rarely used in Vermont. The procedure is spelled out in V.R.Cr.P. 6.{110} Grand juries are selected and impanelled by the superior court, on request of the state's attorney, the attorney general, or the governor, and they sit for a maximum of six months unless the term is judicially extended.{111} The grand jury consists of eighteen to twenty-three "judicious" residents of the county and a vote of twelve or more is necessary for indictment.{112} The proceedings and testimony of witnesses are secret, except as otherwise ordered by the court,{113} but once a charge has been filed the defendant has an absolute right, on request, to a transcript.{114}

The procedure is seldom used and caselaw is almost nonexistent. Rule 6 is roughly modeled on federal procedure and federal precedents will be persuasive authority on many points.{115} Counsel should be alert, however, to the special protections of Vermont law. For example, although evidence taken in violation of the fourth amendment is admissible in federal grand jury proceedings,{116} evidence obtained in violation of chapter I, article 11 may well not be.{117}

§ 5.15

- Sufficiency

V.R.Cr.P. 7 makes no distinction between indictments and informations, and the court has not identified any constitutional differences in the standards for sufficiency. The discussion of the sufficiency of informations{118} should generally apply to indictments as well, with one important exception. In cases brought by information, the court has looked beyond the pleading itself to the affidavit of probable cause, which it characterizes as "a required component of the complaint . . . to determine whether the exact offense charged is `reasonably' indicated and sufficient to make possible `intelligent' preparation."{119} Indictments are not accompanied by such affidavits, and the constitutional duty to "descend to particulars"{120} arguably requires more fact-specific pleading in cases brought by indictment.{121}

§ 5.16

Timing of the Challenges

V.R.Cr.P. 12(b) allows any motion "which is capable of determination without the trial of the general issue" to be raised by pretrial motion, and the rule requires that "defects in the institution of the prosecution" and "defects in the indictment or information" be raised before trial, except for claims that the charge "fails to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding. . . ."{122} As noted above, the exception includes informations that omit an express statutory element of the offense,{123} and may be limited to that narrow class. Omission of implicit elements must be objected to by pretrial motion,{124} and objection to a failure to allege jurisdiction is also waivable, so long as subject matter jurisdiction is in fact established.{125}

When a defect need not be objected to pretrial it can be raised as late as the appeal, as in Kreth, but raising it for the first time in a collateral postconviction proceeding is too late, unless the defendant can demonstrate specific prejudice.{126} It can also be raised earlier, after trial and before verdict, or within thirty days after verdict by way of a motion in arrest of judgment.{127} When the defect is objected to after trial has started and before verdict, the prosecutor should not be able to fix his problem with an amendment adding the missing element.{128}

There is one peculiar exception to the rule that all "defects in the indictment or information" may be raised before trial. One constitutional prerequisite of an information is that it be specific enough to prevent a second prosecution for the same offense.{129} The court has rejected challenges of this sort as "speculative and anticipatory" and held that the proper time to raise them is "at the time such a [subsequent] charge is instituted. . . ."{130} These holdings are fundamentally misconceived. The rule that a charge of crime must be specific enough "to permit a plea in bar to a subsequent prosecution"{131} is not a requirement of double jeopardy law per se but rather a test of criminal pleading. If an information, with its supporting affidavit, does not rule out a subsequent prosecution for the same offense, it has failed to charge a crime with sufficient particularity, in violation of article 10 and the sixth amendment, whether or not a subsequent prosecution is ever brought.

§ 5.17

The Rule 5 Hearing

V.R.Cr.P. 5 governs the preliminaries of the prosecution. The Rule 5 hearing, the defendant's first appearance before a judicial officer after the filing of formal charges, and usually the defense lawyer's first contact with the case and the client, must be held "without unnecessary delay"{132} in all cases where the defendant has been taken into custody. The defendant may be held until normal business hours,{133} but a delay of longer than forty-eight hours presumptively violates due process.{134} For arrests after business hours and on weekends the rule requires courts to set up local rules for temporary release "at any hour[,]" with the Rule 5 hearing to be held "as soon as possible after release."{135}

The rule is modeled after the ABA Standards, which provide extensive commentary.{136} The hearing is conducted by a "judicial officer" who must be a district or superior court judge or an acting judge.{137} The proceedings must be recorded.{138} The defendant has a right to be present, but in misdemeanor prosecutions he or she can waive presence in writing.{139}

The Rule 5 proceeding accomplishes a number of important preliminaries, some of which are discussed more fully in later sections. What follows is a rough checklist of items that either must or may be dealt with at the Rule 5 hearing.

§ 5.18

A Rule 5 Checklist - The Probable Cause Finding

When the defendant has been arrested without warrant or cited to appear pursuant to Rule 3 and the prosecution is by information, the judge must make a probable cause determination.{140} The judge is supposed to determine probable cause "in the manner provided in Rule 4(b) for issuance of summons or warrant[,]"{141} that is, ex parte.{142} Rule 5(c) therefore gives defendants no right to contest the initial probable cause finding.{143}

Rule 5(h), however, requires the judge to review the initial probable cause finding on the defendant's request, and although this review is undertaken "solely on the affidavits or sworn statements" the rule contemplates that the defendant will be "heard" on the question.{144} Although the defendant has no right to call or cross-examine witnesses at this stage,{145} judges can and sometimes do allow such challenges.{146}

If probable cause is not found, the information must be dismissed without prejudice and the defendant discharged from any custody.{147}

§ 5.19

- Advice to the Defendant

Unless the requirement is waived (as it often is when counsel has been appointed), the judge, before taking any further action, must advise the defendant about the nature of the charge and its possible penalties, his rights to retain and be assigned counsel, his right not to make statements or answer questions without counsel, his right to communicate with family or friends, his right to bail, and, if he is not represented, the nature and approximate schedule of pretrial proceedings and discovery. The defendant must be given a copy of the charge.{148}

§ 5.20

- Assignment of Counsel

Once advice has been given and unless counsel has been waived, "[n]o further proceedings shall be had until counsel has been assigned, if the case is an appropriate one for such assignment, and until the defendant and his counsel have had an adequate opportunity to confer. . . ."{149}

§ 5.21

- Arraignment

The arraignment, the formal entry of a plea, may either be scheduled "within a reasonable time, but in no event less than 24 hours," after the probable cause determination, or else conducted at the Rule 5 hearing itself if the defendant requests it.{150} The arraignment is held in open court and consists of a formal reading of the charges (unless waived) and entry of a plea.{151}

§ 5.22

- Bail

If the defendant has been arrested, he or she may be released on personal recognizance on the prosecutor's agreement, or in the absence of an agreement the judge must determine "whether and on what conditions" the defendant should be released.{152}

§ 5.23

- Competency and Sanity Evaluation

When the defendant's mental state is in doubt, the judge can order a psychiatric evaluation, on request or sua sponte, on the question of his competency to stand trial or his sanity at the time of the offense.{153} The order can designate the psychiatrist and specify that the examination be conducted at the state hospital, a correctional center, or someplace else on an outpatient basis.{154}

An order for a custodial examination obviously interferes with the right to bail, and, despite the broad language of the commitment statutes, the judge should not commit the defendant for examination unless no less restrictive alternative will suffice.{155}

§ 5.24

- Scheduling Orders

The judge at the Rule 5 hearing may also issue a scheduling order, setting dates for completion of discovery and the filing of pretrial motions.{156}

§ 5.25

Practice Pointers

Defense counsel with no prior knowledge of the case will be at an obvious disadvantage vis-a-vis the prosecution. Rule 5(e), which allows counsel and his or her new client "an adequate opportunity to confer," provides some protection. Even so, counsel will generally have to make important decisions without much time to reflect on them.

There is often a danger that the police will try to obtain information from the defendant after the Rule 5 hearing, in person or through informants, on the charge at hand or regarding other matters. The client should be advised of this risk, and instructed not to talk to anyone, even friends and relatives, about the crime charged or anything else that might incriminate him, without counsel's presence. Counsel should advise the court and the state's attorney at the Rule 5 hearing that his client has requested counsel's assistance and wants to deal with the police and other agents of the state only through counsel, and that inquiries of any sort should be directed to counsel.{157}

When eyewitness identification is an issue and there is a chance that an eyewitness is present in court, counsel should make sure that the Rule 5 hearing does not become a courtroom showup. Counsel can ask that the witness be excluded, waive the defendant's presence (as of right in misdemeanor cases), or ask for other protections.{158}

In cases that generate media interest, counsel may want to limit the media's access to proceedings or documents (in particular the probable cause affidavit) or to restrict what the prosecutor and police can publicly disclose.{159}

ENDNOTES

1. V.R.Cr.P. 7(a); State v. Johnson, No. 90-287, slip op. 18-19 (Vt. April 17, 1992). The fifth amendment right to grand jury indictment for "capital, or otherwise infamous crime[s]" is not binding on the states. Hodgson v. Vermont, 168 U.S. 262 (1897); Hurtado v. California, 110 U.S. 516 (1884). The Vermont Constitution also does not grant the right to a grand jury. State v. Johnson, No. 92-578, slip op. 18-19 (May 22, 1992); State v. Barr, 126 Vt. 112 (1966); State v. Stimpson, 78 Vt. 124 (1905).

2. V.R.Cr.P. 7(a).

3. V.R.Cr.P. 3. When an information is filed before arrest or citation, the defendant must be brought to court by a judicial summons or an arrest warrant. V.R.Cr.P. 4.

4. V.R.Cr.P. 5(c).

5. V.R.Cr.P. 3(b), 4(f)(2)(C). The phrase "without unnecessary delay" is taken from the federal rules and has a history of federal interpretation. See Reporter's Notes to Rule 3(b). Under the fourth amendment a judicial finding of probable cause must be made "promptly after arrest" when the defendant has been arrested without a warrant. Gerstein v. Pugh, 420 U.S. 103 (1975); Woodmansee v. Stoneman, 133 Vt. 449, 452-53 (1975). A delay of 48 hours will usually pass constitutional muster. Riverside County v. McLaughlin, 111 S. Ct. 1661, 1670 (1991).

6. V.R.Cr.P. 4(a),(b).

7. V.R.Cr.P. 4(a).

8. The rules also permit a sworn recorded statement before the judicial officer in lieu of an affidavit, V.R.Cr.P. 4(a), but the procedure is hardly ever used.

9. V.R.Cr.P. 4(b); 5(c). The language codifies the so-called Aguilar-Spinelli test of probable cause. See § 2.16, supra.

10. State v. Alexander, 130 Vt. 54, 61 (1971).

11. State v. Alexander, 130 Vt. 54, 61 (1971).

12. 13 V.S.A. §§ 5131-37.

13. Inquests may be initiated by the state's attorney or the attorney general. State v. Wheel, 155 Vt. 587, 593 (1990).

14. 13 V.S.A. § 5131.

15. 13 V.S.A. § 5132.

16. 13 V.S.A. § 5137.

17. 13 V.S.A. § 5133.

18. 13 V.S.A. § 5134; State v. Alexander, 130 Vt. 54, 60-61 (1971) (presence and participation of sheriff, sheriff's receipt of transcript, violated inquest statutes).

19. V.R.Cr.P. 15-17.

20. 132 Vt. 101, 105-06 (1974).

21. State v. Bleau, 132 Vt. 101, 106 (1974).

22. 135 Vt. 393 (1977).

23. V.R.Cr.P. 15(a),(b). See §§ 24.24-24.25, infra.

24. State v. Lapham, 135 Vt. 393, 398 (1977). The prosecutor in Lapham gave the inquest minutes to the defendant. This met with the court's approval because, although "contrary to the statutory provision of secrecy," it was "in accord with the requirement of the [discovery] rule." Id. at 399.

25. State v. Lapham, 135 Vt. 393, 398 (1977).

26. State v. Lapham, 135 Vt. 393, 398-99 (1977); State v. Bleau, 132 Vt. 101, 106 (1974); State v. Alexander, 130 Vt. 54, 61 (1971).

27. State v. Wheel, 155 Vt. 587 591-93 (1990) (claims of defective subpoena, lack of Miranda warnings, did not bar perjury prosecution); State v. Wheel, 148 Vt. 439, 440-41 (1987); State v. Ploof, 133 Vt. 304, 305 (1975) (defendant could not block perjury prosecution "because his testimony was heard by persons who should not have been present"). Cf. United States v. Wong, 431 U.S. 174 (1977) (rejecting similar claims in connection with grand jury testimony). The defendant can prevail only on a showing that the prosecutor used the inquest as a "perjury trap" to extract false testimony, and for no legitimate investigatory purpose. State v. Wheel, 155 Vt. at 594-97.

28. V.R.Cr.P. 7(b), Reporter's Notes.

29. Vt. Const., ch. II, § 39.

30. State v. Bell, 136 Vt. 144, 146 (1978). Omission of the phrase can be cured by amendment. State v. Amidon, 58 Vt. 524 (1885).

31. V.R.Cr.P. 7(b).

32. V.R.Cr.P. 7(b).

33. The sixth amendment guarantees the defendant's right "to be informed of the nature and cause of the accusation. . . ." Chapter I, article 10 states the same safeguard, "to demand the cause and nature of his accusation. . . ." The court has assumed that the state right is the same as the federal. State v. Phillips, 142 Vt. 283, 288 (1982); State v. Hastings, 133 Vt. 118, 119 (1974).

34. Hamling v. United States, 418 U.S. 87, 117 (1974); Russell v. United States, 369 U.S. 749, 764 (1962); State v. Francis, 151 Vt. 296, 308 (1989); State v. Phillips, 142 Vt. 283, 288 (1982); State v. Christman, 135 Vt. 59, 60 (1977).

35. Russell v. United States, 369 U.S. 749, 764 (1962); State v. Brown, 153 Vt. 263, 272 (1989); State v. McDermott, 135 Vt. 47, 50-51 (1977); State v. Margie, 119 Vt. 137, 141 (1956).

36. E.g., State v. DeLaBruere, 154 Vt. 237, 276 (1990).

37. The inadvertent omission of such an allegation is merely a technical shortcoming and not a "jurisdictional defect." State v. Joy, 149 Vt. 607, 613-15 (1988). The absence of jurisdiction in fact may be raised at any time. Id.; V.R.Cr.P. 12(b)(2).

38. See V.R.Cr.P. 18 (prosecution to be brought in county or territorial unit where crime occurred except as otherwise permitted).

39. State v. Ross, 152 Vt. 462, 465 (1989). The exact time is not an essential element of most charges. State v. Infante, 157 Vt. 109, 111 (1991) (i.e., "not of the essence"); State v. Ross, 152 Vt. 462, 465 (1989); State v. Dunbar, 152 Vt. 399, 403 (1989) (lewd and lascivious conduct); State v. Bleau, 132 Vt. 101, 103 (1974) (receiving stolen property).

40. State v. Joy, 149 Vt. 607, 615-16 (1988).

41. See V.R.Cr.P., Forms 4-7. The form in general use is reproduced as Appendix 30.

42. V.R.Cr.P. 7(b), Reporter's Notes; State v. Kreth, 150 Vt. 406, 407-08 (1988).

43. State v. Phillips, 142 Vt. 283, 289 (1982). See also United States v. Russell, 369 U.S. 749, 765 (1962) (criminal charges must sometimes "descend to particulars").

44. See § 5.10, infra.

45. State v. Kreth, 150 Vt. 406, 408 (1988). See also State v. DeLaBruere, 154 Vt. 237, 276 (1990).

46. State v. Manning, 136 Vt. 436, 441-42 (1978) (omission of "noctanter" or nighttime element in burglary charge).

47. State v. Bradley, 145 Vt. 492 (1985) (failure to allege predicate offense in DLS prosecution).

48. State v. Williams, No. 91-611 (Vt. April 29, 1993) (mem.); State v. Manning, 136 Vt. 436, 442 (1978).

49. 13 V.S.A. § 3251(1).

50. State v. Brown, 153 Vt. 263, 272-73 (1989).

51. See, e.g., State v. Stanislaw, 153 Vt. 515 (1990); State v. Dennis, 151 Vt. 223 (1989); State v. Audette, 149 Vt. 218 (1988).

52. 151 Vt. 17 (1988).

53. State v. Roy, 151 Vt. 17, 29 (1988) (omission of scienter element in informations charging assault on a police officer). To the same effect see State v. Stanislaw, 153 Vt. 517, 525-26 (1990) (omission of mens rea allegation in charge of involuntary manslaughter); State v. Brown, 153 Vt. 263, 273-74 (1989) (omission of intent allegation in sexual assault prosecution); State v. Francis, 151 Vt. 296, 308-09 (1989) (omission of intent allegation in robbery charge); State v. Hurley, 150 Vt. 165, 171 (1988) (omission of intent allegation in sexual assault prosecution).

54. This was the case in State v. Kreth, 150 Vt. 406 (1988), and State v. Bradley, 145 Vt. 492 (1985). In State v. Manning, 136 Vt. 436 (1978), the court noticed the defect sua sponte.

55. In re Stevens, 146 Vt. 6, 8-10 (1985) (omission of "deadly weapon" allegation in aggravated assault information).

56. State v. Roy, 151 Vt. 17, 29 (1988). See also State v. Francis, 151 Vt. 296, 308-09 (1989).

57. 153 Vt. 517 (1990).

58. State v. Stanislaw, 153 Vt. 517, 526-27 (1990). See also State v. DeLaBruere, 154 Vt. 237, 277 (1990) ("Normally it is sufficient to allege the statutory elements of the offense without more, as long as the defendants are sufficiently apprised of the charges against them.").

59. State v. Kreth, 150 Vt. 406, 408 (1988).

60. 151 Vt. 296 (1989).

61. 13 V.S.A. § 608(a).

62. 13 V.S.A. §§ 1021, 1023.

63. State v. Francis, 151 Vt. 296, 309 (1989). The omission was not plain error because the parties "were well aware of which type of assault [was] involved . . . " and the defendant was therefore adequately informed of the charge. Id. at 309-10.

64. 13 V.S.A. § 9.

65. State v. Brown, 153 Vt. 263, 271-72 (1989).

66. State v. DeLaBruere, 154 Vt. 237, 277 (1990).

67. See § 5.10, infra.

68. 154 Vt. 237 (1990).

69. State v. DeLaBruere, 154 Vt. 237, 277 (1990) (citations omitted). See also State v. Williams, No. 92-179 (March 31, 1993) (failure to allege defendant not married to victim in sexual assault charge).

70. State v. DeLaBruere, 154 Vt. 237, 277 (1990) (citations omitted).

71. 13 V.S.A. § 3. See State v. Barr, 126 Vt. 112 (1966); State v. Orlandi, 106 Vt. 165 (1933).

72. 13 V.S.A. § 4.

73. Liability under both § 3 and § 4 is termed accomplice liability. State v. Hamlin, 146 Vt. 97, 110 (1985).

74. State v. Brown, 147 Vt. 324, 326 (1986). See also State v. Jaramillo, 140 Vt. 206, 208 (1981). Older cases to the contrary have not been followed. See State v. Mecier, 126 Vt. 260 (1969) (although evidence would support conviction as accomplice "respondent was not charged with being an accessory or aiding in the commission of the crime. . . ."). But see State v. Hamlin, 146 Vt. 97, 110 (1985) (failure to plead "alternate theory" of accomplice liability was held "harmless error" where state produced sufficient evidence to establish liability as principal).

75. See State v. Sears, 130 Vt. 379, 382 (1972) (a prosecution on an accomplice theory may require "special pleading").

76. V.R.Cr.P. 31(c). See State v. Young, 139 Vt. 535, 542-43 (1981) (judge could instruct on attempt on information charging completed offense).

77. Blockburger v. United States, 284 U.S. 299, 304 (1932). See V.R.Cr.P. 31(c), Reporter's Notes. The lesser crime is an included offense "only if each of its elements `is always a necessary element of' the greater offense." State v. Bourn, 139 Vt. 14, 16 (1980) (quoting Illinois v. Vitale, 100 S. Ct. 2260, 2267 (1980)). Blockburger phrases the test as "whether each provision requires proof of a fact which the other does not." 284 U.S. at 304. In a strange inversion of Blockburger the Vermont court held in State v. Cooley, No. 91-036 (Vt. Feb. 12, 1992) (mem., unpublished), that a defendant charged with reckless assault could be found guilty of intentional assault, inasmuch as the finding of intentional conduct "necessarily included a finding of recklessness. . . ." For applications of the test see § 14.06, infra (double jeopardy).

78. United States v. Russell, 369 U.S. 749, 765 (1962) (quoting United States v. Cruikshank, 92 U.S. 542, 558 (1876)). See also Hamling v. United States, 418 U.S. 87, 117-18 (1974).

79. State v. Phillips, 142 Vt. 283, 289 (1982).

80. State v. Phillips, 142 Vt. 283, 288-89 (1982) (quoting State v. Christman, 135 Vt. 59, 60-61 (1977)). See also State v. Sims, No. 90-436, slip op. 12 (Vt. Nov. 8, 1991).

81. State v. Christman, 135 Vt. 59, 61 (1977). See also State v. Sims, No. 90-436, slip op. 12 (Vt. Nov. 8, 1991); State v. Stanislaw, 153 Vt. 517, 526 (1990); State v. Phillips, 142 Vt. 283, 289 (1982).

82. State v. Phillips, 142 Vt. 283, 289-90 (1982). But see State v. Sims, No. 90-436, slip op. 12-13 (Vt. Nov. 8, 1991) (where two identical charges of sexual assault, supported by a single affidavit of probable cause, were held to provide adequate notice of two charged offenses).

83. State v. Ross, 152 Vt. 462, 465 (1989).

84. State v. Dunbar, 152 Vt. 399, 403 (1989). The exact time is not an essential element of most charges. State v. Infante, 157 Vt. 109, 111 (1991); State v. Ross, 152 Vt. 462, 465 (1989). I.e., "not of the essence." Dunbar at 403.

85. State v. Ross, 152 Vt. 462, 465 (1989); State v. Dunbar, 152 Vt. 399, 404-04 (1989). Both Ross and Dunbar involved child victims, crimes which are "often hard to identify as happening on a particular date." Ross at 465. The court would probably not be so generous in other kinds of prosecutions.

86. State v. Christman, 135 Vt. 59, 61 (1977).

87. V.R.Cr.P. 8(a); State v. Couture, 146 Vt. 268, 270 (1985).

88. State v. Couture, 146 Vt. 268, 270 (1985) (quoting C. Wright, Federal Practice and Procedure § 142 at 475 (2d ed. 1982)). Compare Griffin v. United States, 112 S. Ct. 466 (1991) (general verdict of guilty in multiple-object conspiracy case).

89. State v. Couture, 146 Vt. 268, 272 (1985).

90. 135 Vt. 47 (1977).

91. State v. McDermott, 135 Vt. 47, 52 (1977). In State v. Verge, 152 Vt. 93 (1989), the court allowed another option: "the trial court may instruct the jury that it may convict if it achieves unanimity on any version or both versions of the offense charged, unless the defendant requests special verdicts."

92. See State v. Holcomb, 156 Vt. 251, 253 (1991); State v. Shaw, 149 Vt. 275, 284 (1987); State v. Corliss, 149 Vt. 100, 102-03 (1987); State v. Bonilla, 144 Vt. 411, 413-414 (1984); State v. Bailey, 144 Vt. 86, 98 (1984).

93. But see Schad v. Arizona, 111 S. Ct. 2491 (1991) (murder instructions not requiring agreement on premeditation or felony-murder theories did not violate federal due process).

94. State v. Bailey, 144 Vt. 86, 98 (1984).

95. State v. Vincent, 156 Vt. 259, 264 (1991); State v. Holcomb, 156 Vt. 251, 255 (1991); State v. Bonilla, 144 Vt. 411, 414 (1984).

96. United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981).

97. Of course, a multicount information will not be multiplicitous if multiple convictions punishments do not violate double jeopardy law. See State v. Perry, 151 Vt. 637, 639-41 (1989) (double jeopardy does not bar joint prosecution for DUI with serious injury resulting, and aggravated assault, arising out of the same accident); State v. Poirier, 142 Vt. 595, 599 (1983) (approving joint prosecution for manslaughter and "DUI fatal"). See § 14.06, infra (double jeopardy).

98. See State v. French, 139 Vt. 320 (1981) (prosecutor could charge kidnapping and sexual assault, even though multiple punishments might be barred if the kidnapping was merely incidental to the sexual assault).

99. State v. Perry, 151 Vt. 637, 641 (1989).

100. V.R.Cr.P. 7(d), Reporter's Notes; State v. Beattie, 157 Vt. 162, 169-70 (1991). Trial begins when the jury is impanelled and sworn, not at voir dire. Id., at 170.

101. State v. Holden, 136 Vt. 158, 159-60 (1978) (error not to grant continuance after late amendment); State v. Bleau, 132 Vt. 101, 104 (1974) (late amendment making minor change in time and date allegations did not require continuance); State v. Beattie, 157 Vt. at 170 (defendant not prejudiced by late amendment).

102. V.R.Cr.P. 7(d). The rule specifically lists various "defects of form" such as misspellings and typographical errors, but also includes matters of substance, like "misstatement of the time or date of an offense. . . ."

103. 13 V.S.A. § 3701(c).

104. State v. Verge, 152 Vt. 93, 96 (1989). See also State v. Woodmansee, 124 Vt. 387, 390 (1964) (prerules decision disapproving amendment of a burglary charge from breaking and entering with intent to commit larceny, to breaking and entering with intent to commit arson). But see State v. Burclaff, 138 Vt. 461, 463-65 (1980) (reluctantly approving a midtrial amendment of an information which charged escape from furlough to a charge of escape from work release).

105. 152 Vt. 93 (1989).

106. State v. Verge, 152 Vt. 93, 95 (1989).

107. State v. Dunbar, 152 Vt. 399, 403-04 (1989). The defendant "had no vested right" in his alibi. Id. at 403.

108. See Stirone v. United States, 361 U.S. 212 (1960); United States v. Mollica, 849 F.2d 723 (2d Cir. 1988) (deletion of technically unnecessary "to wit" clause prejudiced the defense).

109. When the state alleges a specific date "and the defendant raises a defense based on that date, it is improper for the court to decline to instruct the jury they must find the offense to have occurred on that date[,]" at least if "the State's evidence points exclusively to a specific date. . . ." State v. Infante, 157 Vt. 109, 112 (1991).

110. The rule supercedes 13 V.S.A. §§ 5601-05.

111. V.R.Cr.P. 6(a),(h). The jury selection statutes (4 V.S.A. §§ 951 et seq.) and rules (Rules Governing Qualification, List, Selection and Summoning of All Jurors, included in the same volume as the probate rules) spell out the procedures. Challenges to the array, or to individual grand jurors, may be brought by pretrial motion to dismiss under V.R.Cr.P. 12(b)(2). V.R.Cr.P. 6(b), Reporter's Notes. See ch. 19, infra (challenges to jury selection procedures).

112. V.R.Cr.P. 6(a),(g).

113. V.R.Cr.P. 6(c),(d),(f). See Greenwood v. Wolchik, 149 Vt. 441, 442-43 (1988); State v. Lapham, 135 Vt. 393, 399-400 (1977). Unauthorized disclosures by court reporters are punishable as criminal offenses under 13 V.S.A. § 5606.

114. V.R.Cr.P. 16(a)(2)(B); V.R.Cr.P. 6(f), Reporter's Notes. See § 24.08, infra.

115. V.R.Cr.P. 6, Reporter's Notes.

116. United States v. Calandra, 414 U.S. 338 (1974).

117. State v. Oakes, 157 Vt. 171, 174 and n.4 (1991). See § 2.08, supra.

118. § 5.04, supra.

119. State v. Christman, 135 Vt. 59, 61 (1977).

120. United States v. Russell, 369 U.S. 749, 765 (1962).

121. Rule 7 also makes no distinction between indictments and informations with regard to amendments. V.R.Cr.P. 7(d). See § 5.13, supra. Federal law, by contrast, absolutely prohibits amendments that alter an essential element of the offense, as violating the defendant's right to the protections of a grand jury. See, e.g., United States v. Mollica, 849 F.2d 723, 728-29 (2d Cir. 1988). Recognizing the Vermont prosecutor's power to charge by information, Rule 7(d) treats an amended indictment as if it were a "supplemental information." V.R.Cr.P. 7(d), Reporter's Notes.

122. V.R.Cr.P. 12(b)(1),(2).

123. State v. Kreth, 150 Vt. 406 (1988).

124. See § 5.06, supra.

125. State v. Joy, 149 Vt. 607, 613-15 (1988).

126. In re Stevens, 146 Vt. 6, 8-10 (1985).

127. V.R.Cr.P. 34; State v. Phillips, 142 Vt. 283, 290 (1982). The rule allows the same relief for plea convictions.

128. See V.R.Cr.P. 7(d) (prohibiting amendments that charge an "additional or different offense" after trial has commenced); § 5.13, supra.

129. Russell v. United States, 369 U.S. 749, 764 (1962); State v. Brown, 153 Vt. 263, 272 (1989); State v. McDermott, 135 Vt. 47, 50-51 (1977). See § 5.04, supra.

130. State v. Nash, 144 Vt. 427, 435 (1984). See also State v. DeLaBruere, 154 Vt. 237, 278 (1990); State v. Ross, 152 Vt. 462, 465-66 (1989).

131. State v. McDermott, 135 Vt. 47, 51 (1977).

132. V.R.Cr.P. 3(b) (warrantless arrests), 4(f(2)(C) (arrests pursuant to warrant). The phrase incorporates the federal caselaw and implies an exclusionary rule. See V.R.Cr.P. 3(b), Reporter's Notes.

133. V.R.Cr.P. 5(b), Reporter's Notes (citing federal decisions).

134. Riverside County v. McLaughlin, 111 S. Ct. 1661, 1670 (1991). See § 5.01, supra.

135. V.R.Cr.P. 5(b). Nighttime and weekend bail procedures are discussed in § 7.06, infra.

136. See ABA Standards for Criminal Justice § 10-4.1 to 10-4.4.

137. V.R.Cr.P. 5, Reporter's Notes; V.R.Cr.P. 54(c)(4).

138. V.R.Cr.P. 5(a).

139. V.R.Cr.P. 5(a), Reporter's Notes, V.R.Cr.P. 43(a),(c).

140. V.R.Cr.P. 5(c). When the defendant is brought to court by arrest warrant or judicial summons, a probable cause determination must have already been made pursuant to V.R.Cr.P. 4(b). According to the Reporter's Notes to Rule 5(c), no probable cause finding need be made for cases charged by indictments "which embody their own probable cause determinations."

141. V.R.Cr.P. 5(c).

142. V.R.Cr.P. 5(c), Reporter's Notes.

143. The federal due process clause is also satisfied by an ex parte judicial probable cause finding. Gerstein v. Pugh, 420 U.S. 103 (1975).

144. V.R.Cr.P. 5, Reporter's Notes to the 1983 Amendment.

145. V.R.Cr.P. 5, Reporter's Notes to the 1983 Amendment.

146. The right to a full scale challenge to the evidentiary basis of the prosecution's charge must await a motion to dismiss for lack of a prima facie case pursuant to V.R.Cr.P. 12(d), which must be filed later but may be expedited in a clear case. V.R.Cr.P. 5(c), Reporter's Notes. See § 10.01, infra.

147. V.R.Cr.P. 5(c).

148. V.R.Cr.P. 5(d).

149. V.R.Cr.P. 5(e). Assignment and waiver of counsel are discussed in chapter 6, infra.

150. V.R.Cr.P. 5(f). In order to take the defendant's plea, the presiding judicial officer must be assigned to a court "having jurisdiction of the offense. . . ."

151. V.R.Cr.P. 10. If the defendant wants to plead guilty or nolo contendere at arraignment (rarely a good idea), the plea must conform to the requirements of Rule 11. See §§ 36.10-36.13, infra. If the defendant refuses to enter any plea, the judge will enter a not guilty plea for him pro forma.

152. V.R.Cr.P. 5(g). Because the bail determination, like arraignment, is a critical stage of the proceeding, counsel must be assigned before the release hearing. Coleman v. Alabama, 399 U.S. 1 (1970); V.R.Cr.P. 5(e), Reporter's Notes. Bail procedures are discussed in chapter 7, infra.

153. 13 V.S.A. § 4814. Competency and sanity evaluations are discussed in chapter 8, infra.

154. 13 V.S.A. § 4815(a). Examination at the state hospital can entail a 60-day commitment order, although the period can be shortened by court order. 13 V.S.A. § 4814(b),(c). See App. 11.

155. See §8.03, infra; In re Newchurch, 807 F.2d 404, 408-09 (5th Cir. 1986).

156. A typical pretrial scheduling order will set dates for the prosecutor's discovery obligations (names and addresses of witnesses, disclosure of discoverable materials in the state's possession, disclosure of exculpatory information, and record checks of witnesses), for defense counsel to furnish a witness list, for the filing of pretrial motions, for completion of depositions before the status conference, and a date for the status conference. See App. 31.

157. See § 3.22, supra; McNeil v. Wisconsin, 111 S. Ct. 2204, 2209 (1991).

158. See § 4.09, supra.

159. See generally chapter 22, infra.