CHAPTER 24

DISCOVERY

§ 24.01 In General

§ 24.02 Prosecution Disclosures Under Rule 16 - Material

Within the Prosecutor's Possession or Control

§ 24.03 - The Continuing Duty To Disclose

§ 24.04 - Witness Lists

§ 24.05 - Witness Statements

§ 24.06 - Trial Witnesses

§ 24.07 - V.R.E. 404, 609, and 804A Evidence

§ 24.08 - Documents and Physical Evidence

§ 24.09 - Exculpatory Evidence

§ 24.10 - Loss or Destruction of Evidence

§ 24.11 - Material That Need Not Be Disclosed

§ 24.12 - Practice and Procedure

§ 24.13 - Consequences of Prosecution Discovery Violations

§ 24.14 Discovery From the Defendant

§ 24.15 - Constitutional Objections to Discovery From the

Defense

§ 24.16 - Discoverable Material and Information

§ 24.17 - Consequences of Defense Discovery Violations

§ 24.18 Discovery From Third Persons

§ 24.19 - Documents and Information

§ 24.20 - Examinations and Experiments

§ 24.21 Claims of Privilege

§ 24.22 Contacting and Interviewing Witnesses

§ 24.23 Depositions

§ 24.24 - Depositions as of Right and by Court Order

§ 24.25 - Deposition Procedure

§ 24.26 - Evidentiary Uses of Depositions

§ 24.01

In General

Vermont's criminal procedure rules extend remarkably broad discovery rights to the defense, and quite generous rights to the state as well. Modeled on the ABA Minimum Standards{1} and on the federal rules,{2} Vermont's rules "go further than either source in the breadth of discovery accorded to the defendant. . . ."{3} Rule 16 gives defense counsel virtually complete access to material within the prosecutor's possession and control, subject to work product and other privilege limitations; Rule 15 grants a general right to take pretrial depositions in felony cases; and Rule 17 supplements these provisions with a broad subpoena power. The rules also provide substantial discovery rights to the prosecution, requiring the defense to give notice of certain defenses,{4} witnesses,{5} and reports;{6} giving the prosecutor access to the defendant's person for various nontestimonial identification procedures;{7} and permitting the state to take depositions of defense witnesses.{8} The system is meant to run more or less autonomously, with disclosures on request or automatically, and court control - in the form of protective orders, orders compelling disclosure, or sanctions{9} - only if necessary.

When supervision is requested, however, the trial court's discretionary authority is very broad; disclosures may be "denied, restricted, or deferred" on an unspecified "showing of cause"{10} which may take account of possible intimidation of witnesses and the rights of nonparties.{11} Any limitations, however, must be "carefully drawn to allow the maximum disclosure consistent with the interest sought to be protected."{12}

§ 24.02

Prosecution Disclosures Under Rule 16 - Material Within the Prosecutor's Possession or Control

Rule 16's various duties to disclose apply generally to material within the prosecutor's "possession or control."{13} The term extends beyond the prosecutor's files, to

material and information in the possession, custody, or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his office.{14}

It clearly covers police officers who are involved in the investigation of the case,{15} as well as files of police departments that "regularly report" to the prosecutor. It also covers child abuse investigatory reports prepared by the department of social and rehabilitation services (SRS), because that agency regularly reports to the prosecutor in criminal and juvenile delinquency cases, as well as CHINS proceedings;{16} and it includes at least some records in the possession of private expert witnesses.{17} It does not include out-of-state police officers who participate in the evaluation and investigation of a case but who neither act under the prosecutor's direction nor "report" to him in the sense of providing information.{18}

When the material is in the control of another state agency, the prosecutor should try to make it available to the defendant as a matter of "good practice."{19}

§ 24.03

- The Continuing Duty to Disclose

The duty to disclose is a continuing one. If the prosecutor comes across new discoverable material after an initial disclosure, she must "promptly notify" the defense (and the judge as well if the information is discovered during trial).{20}

§ 24.04

- Witness Lists

"[A]s soon as possible" after the Rule 5 hearing the prosecutor must, on defense request, give defense counsel the names and addresses of "all witnesses then known to him" and permit defense counsel to inspect and photocopy "their relevant written or recorded statements" within the prosecutor's "possession or control."{21} "All witnesses" means everyone with relevant evidence and is not limited to people whom the prosecutor intends to call at trial; the rule "in effect makes available to the defendant the prosecution's full investigative resources on the theory that justice is best served and speedy disposition of cases is encouraged if both sides have equal access to sources of potential evidence."{22} When the prosecutor's knowledge of a particular witness is an issue, the defendant has the burden to show it.{23}

Pursuant to the generally applicable continuing duty to disclose, new witnesses must be disclosed as soon as they are discovered.{24} When the prosecutor does not learn about a witness until the trial, the defense will be entitled to some leeway, "rang[ing] from a recess for interview or deposition purposes, to a continuance."{25}

§ 24.05

- Witness Statements

The witness's "relevant written or recorded statements" which counsel is entitled to inspect and copy do not include the witness's unrecorded oral statements, and a prosecutor hoping to circumvent disclosure obligations can probably do so by the simple expedient of not keeping written or other records of witness interviews. This tactic has its limits, however. The requirement of a writing does not apply to certain special cases{26} and it cannot excuse the failure to turn over exculpatory information, in whatever form, which the prosecutor has a constitutional duty not to suppress.{27}

The Defendant's Statements

The defendant's "written or recorded statements and the substance of any oral statements" (i.e., not only those statements that have been written down) must also be given to defense counsel within a reasonable time after a request,{28} along with the defendant's criminal record, if any.{29}

§ 24.06

- Trial Witnesses

A pared-down list of those witnesses whom the prosecutor "intends to call as witnesses at the hearing or trial," must then be furnished "within a reasonable time" after a request.{30} With the list of trial/hearing witnesses the prosecutor must also provide "any record of prior criminal convictions of any such witness[,]"{31} and any written or recorded statements that have not already been turned over.{32}

§ 24.07

- V.R.E. 404, 609, and 804A Evidence

a. Proof of Prior Crimes and Bad Acts

If the state "intends to offer evidence of other criminal offenses" under V.R.E 404(b),{33} or to prove a crime for impeachment under V.R.E 609,{34} it must give written notice seven days before trial, stating the evidence it wants admitted.{35} The notice requirement is meant to allow pretrial objections "so that trial counsel may plan their voir dire and openings accordingly."{36}

b. Hearsay Statements

V.R.E. 804a makes admissible certain hearsay statements of child complainants in sexual offense cases,{37} subject to a special notice requirement: if the state wants to use 804a evidence it must give written notice thirty days before trial, stating the name of each hearsay witness and the substance of the statement it wants admitted.{38}

§ 24.08

- Documents and Physical Evidence

a. Grand Jury and Inquest Transcripts

The defense is entitled on request to "the transcript of any grand jury proceedings pertaining to the indictment of the defendant or of any inquest proceedings pertaining to the investigation of the defendant;"{39} and to notice of any grand jury or inquest proceedings that have not been transcribed.{40} The provision overrides prior statutory and decisional law requiring secrecy and permitting defense access only on a particularized showing of need.{41}

b. Tests and Examinations

The prosecution must turn over "any reports or statements of experts . . . including results of physical or mental examinations and of scientific tests, experiments, or comparisons. . . ."{42}

c. Physical and Documentary Evidence

V.R.Cr.P. 16(a)(2)(D) gives a right to discover real and documentary evidence of every description ("any books, papers, documents, photographs (including motion pictures and video tapes), or tangible objects, buildings or places or copies or portions thereof") if (1) it is "material to the preparation of the defense" or (2) the prosecutor "intends to use [it] in the hearing or trial" or (3) it was "obtained from or belong[s] to the defendant."{43}

§ 24.09

- Exculpatory Evidence

Rule 16(b)(2) requires the prosecutor to disclose "any material or information within his possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor." Disclosure of exculpatory evidence is also a requirement of due process,{44} which the rule was intended to implement.{45}

In United States v. Bagley{46} the United States Supreme Court sharply limited the due process disclosure requirement: the fourteenth amendment now forbids only the suppression of evidence that is deemed "material" in retrospect, that is, "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."{47} Rule 16 on its face imposes no such limitations{48} and appears to require disclosure of any evidence having an exculpatory tendency,{49} while the materiality of suppressed evidence would be relevant to the sanctions decision under Rule 16.2(g),{50} or a prejudice/harmless error judgment on appeal.{51} Even so, the Vermont Supreme Court wrote in the post-Bagley case of State v. Lewis that "the constitutional obligation to disclose and the obligation under the criminal rule are identical[,]" since both are based on Brady v. Maryland.{52}

Exculpatory evidence includes evidence that would tend to impeach or discredit the state's evidence.{53}

§ 24.10

- Loss or Destruction of Evidence

Once evidence comes within the prosecutor's control, "the duty of disclosure is operative as a duty of preservation[,]" even before a discovery request has been made, requiring "rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of a criminal investigation."{54} Cases of loss or destruction, the Vermont Supreme Court held in State v. Bailey, involve a "pragmatic balancing" of three factors: "(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial."{55} A determination of the prejudice to the defendant may be implicit in these criteria, but in any event findings as to prejudice are essential, and efforts must be made to recreate the lost evidence if possible.{56}

The three-factor test exists solely under the rules; the federal constitutional requirements are much less exacting. Due process imposes no duty on the state to preserve evidence unless it has "an exculpatory value that was apparent before the evidence was destroyed," and is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."{57} Even if the materiality requirement is met, loss or destruction does not violate due process unless the police acted in "bad faith."{58}

Some Vermont cases decided after Bailey have relied on these narrow due process holdings, and although they do not overrule Bailey explicitly they arguably do so sub silentio.{59} Rule 16's standard of materiality and the degree of fault which it allows, are open questions.

§ 24.11

- Material That Need Not Be Disclosed

a. Work Product

By rule the prosecutor need not disclose "work product" materials, a term which includes "legal research or . . . records, correspondence, reports or memoranda to the extent that they contain the mental impressions, conclusions, opinions, or legal theories of the prosecuting attorney, members of his legal staff, or other agents of the prosecution, including investigators and police officers."{60} The phrase "mental impressions, conclusions, opinions, or legal theories" should be construed narrowly, especially as it pertains to reports of police and investigators.{61}

b. Informants

The prosecutor must tell defense counsel if she has "any relevant material or information which has been provided by an informant;"{62} but she need not disclose the informant's identity except in certain cases.{63}

The identity of an informant ("a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer"){64} is generally privileged,{65} except that no privilege protects an informant who is going to be called as a witness for the state, or whose identity or "interest in the subject matter of his communication" has been disclosed "to those who would have cause to resent the communication."{66}

Notwithstanding the privilege, the defense is entitled, under V.R.E. 509(c)(2), to know the identity of any informant who can give relevant testimony on "any issue" in the case. The rule is broader than the corresponding federal rule,{67} and "any issue" includes testimony relating to the validity of a search warrant, for example, a claim of police perjury in the warrant application.{68} The disclosure obligation is also considerably broader than the federal due process requirements.{69}

Once it "appears" that an unidentified informant may be able to give relevant testimony, the burden to show that he cannot is on the state.{70} The defendant must make the threshold showing, however, which has to be "based on more than speculation or suspicion."{71} The state's showing can be made either by affidavit or testimony; it may be made in camera, in which case the judge can order that no counsel or party be present. If the judge finds a "reasonable probability" that the informant can give relevant testimony, and the state refuses to disclose his identity, the judge must grant "appropriate relief" on defense motion or sua sponte, ranging from a continuance to dismissal of the case.{72}

c. Other Privileged Evidence

Other claims of privilege{73} must be raised by a motion for a protective order, which may entail an in camera inspection of the disputed material.{74} Such requests to limit discovery are often made by the person claiming the privilege (or the prosecutor on the person's behalf), and the procedure is discussed below.{75}

§ 24.12

- Practice and Procedure

Technically speaking, most of the prosecutor's Rule 16 discovery is automatic and need not be specifically requested,{76} and courts often require discovery by a specified date, sua sponte, in the scheduling order issued at the Rule 5 hearing.{77} Even so, a formal written demand for discovery is usually desirable, and many counsel file form discovery demands tracking the language of the rules. While this shotgun approach may have advantages, counsel should also frame the request as specifically as possible, especially when seeking exculpatory evidence,{78} or when the request may invade a privilege,{79} and should update or specify an initial demand whenever new information comes to light.

Although Rule 16 does not explicitly require that all responses be in writing, in practice written responses are the norm. Oral notice may not be provable and "[c]ertainly one who gives notice which cannot be verified does so at his peril."{80}

§ 24.13

- Consequences of Prosecution Discovery Violations

a. The Range of Discretionary Sanctions

The rules grant trial judges broad discretion in regulating the discovery process and in fashioning sanctions for discovery violations.{81} Violation of a discovery rule or order justifies "such other order as [the court] deems just under the circumstances[,]"{82} and appropriate orders run the gamut from a brief recess to allow the opposing party time to digest and investigate a late disclosure,{83} to outright preclusion of the undisclosed evidence,{84} or even dismissal.{85} Willful violations "may subject counsel to appropriate sanctions by the court."{86}

Before imposing a sanction like witness preclusion, the judge must determine whether the violation has been prejudicial to the defense.{87} Before dismissing a case the judge must find that there are no productive alternatives and that anything less than dismissal would be prejudicial to the defendant.{88}

b. Review of Discovery Violations

The supreme court reviewing discovery violations on appeal will not reverse without a showing of prejudice, which it is emphatically the defendant's burden to establish.{89}

The nature of the violation plays a role: nondisclosures and delayed disclosures to gain tactical advantage are viewed more severely than inadvertent lapses.{90} But even a relatively blameless nondisclosure can result in reversal if the court sees it as prejudicial,{91} and conversely an intentional violation may incur no sanction at all in the absence of prejudice.{92} And the Vermont Supreme Court has taken a narrow view of prejudice in this, as in other contexts.

First, a showing that the defense had some form of actual notice or knowledge will cut against a claim of prejudice,{93} as will notice to the defense of roughly equivalent evidence. In State v. Durling{94} the state's failure to list an oil deliveryman as a witness was nonprejudicial because it had given notice of the delivery slip which the deliveryman's testimony did no more than corroborate.

Second, the offer of a continuance will usually be enough to "cure" a tardy prosecution disclosure. The failure to disclose an important witness in State v. Connarn, which the court said would otherwise have been prejudicial, was cured by an order to produce the witness and an opportunity to depose him.{95} A less generous accommodation may also be sufficient,{96} or none at all if the defense fails to show prejudice.{97} Defense counsel's failure to take advantage of any offered opportunities to "mitigate damages" will count heavily against a claim of prejudice.{98}

Third, the defense has a duty to request sanctions or appropriate relief as soon as it learns of a discovery violation, and a failure to do so undermines any claim of prejudice.{99}

The generally unguided discretion to impose or withhold sanctions is limited in certain cases. Suppression of exculpatory evidence, when it violates the constitution, requires constitutionally adequate relief. The same is true when the loss or destruction of evidence violates due process.{100} The authorized sanctions for nondisclosure of an informant's identity are spelled out in V.R.E. 509(c)(2).{101}

§ 24.14

Discovery From the Defendant

Discovery in the other direction, from defendant to prosecutor, is governed by V.R.Cr.P. 12.1 and 16.1. As with Rule 16 discovery, the defense has a continuing duty to disclose discoverable material that it comes across in the course of the proceedings.{102}

§ 24.15

- Constitutional Objections to Discovery - From the Defense

The federal constitution imposes limits on a state's power to require criminal defendants to provide information that can be used to prosecute them, some of which - the privilege against self-incrimination, the right against unreasonable invasions of privacy interests and the rights against unreliably suggestive identification procedures - are discussed in other chapters.{103}

The state may also not impose a unilateral disclosure obligation on the defense, inasmuch as "discovery must be a two-way street."{104} Vermont's notice-of-alibi and insanity-defense rules explicitly acknowledge this requirement of reciprocal discovery,{105} and the rules as a whole "are generally reciprocal."{106}

Reciprocity does not require perfect symmetry, however, or a "level playing field."{107} The state is generally required to provide much more information than the defense is.{108} But the Vermont Supreme Court has also approved imbalances in the prosecution's favor. The defendant in State v. Percy,{109} raising an insanity defense to a sexual assault charge, sought to compel the complainant to submit to interviews by his psychiatric witnesses, inasmuch as the complainant had allowed interviews by the state's psychiatrists. Denying the defense this sort of access to the complainant did not deny the right to reciprocal discovery, the Vermont Supreme Court held, given other avenues of discovery (the right to discover the experts' opinions, and the right to depose the complainant).{110} On the other hand, blocking defense access to facts that a therapist has learned in the course of treatment while permitting the therapist to testify for the state, "using information and perceptions gained during therapy," could violate the principle of mutuality.{111}

§ 24.16

- Discoverable Material and Information

In general the defense has no duty to disclose material to the prosecutor in the absence of a specific statute or rule requiring disclosure.{112}

a. Witness Lists

The defendant must give the prosecutor, on request, the names and addresses of the people he intends to call as witnesses.{113} The defense has no duty to provide the prosecution with witness statements, and the prosecutor cannot require a defense investigator to divulge witness statements by subpoena or through the deposition process.{114}

Once listed, the prosecutor can interview a previously unlisted defense witness only in defense counsel's presence or by deposition.{115}

b. Notice of Alibi and Alibi Witnesses

By the date of the status conference, or ten days before trial, whichever is sooner, the defendant must give written notice of his or her intent to offer an alibi defense, including a statement of the specific place where the defendant claims to have been, and the names of witnesses on whom he or she intends to rely to prove the alibi.{116} An alibi defense, for purposes of this rule, is a claim that the defendant was at a place "so removed from the scene of the crime that it rendered his participation improbable, if not impossible."{117}

c. Notice of Insanity Defense and Witnesses

By the same date, a defendant who intends to raise an insanity defense must give notice, along with the names and addresses of his experts. A defendant who is not raising an insanity defense but is going to put on expert testimony "bearing on the issue of whether he had the mental state required for the offense charged" - that is, a diminished capacity defense - must give written notice of those witnesses as well. A defendant who intends to raise a defense of diminished capacity but who does not intend to support it with expert witnesses is under no disclosure obligation.{118}

d. V.R.E. 609 Evidence

V.R.Cr.P. 26, which imposes a number of notice requirements on the prosecutor,{119} also imposes one on the defense. As with the prosecution, the defense must give written notice seven days before trial of prior crimes which it intends to offer for impeachment of a witness under V.R.E. 609.{120}

e. Rape Shield Evidence

In sexual assault prosecutions the "rape shield" statute, 13 V.S.A. § 3255, regulates proof of the complaining witness's prior sexual conduct, prohibiting it outright or requiring court permission. If the defense intends to offer such evidence, it must give written notice prior to its introduction.{121}

f. Medical and Scientific Reports

"Subject to constitutional limitations," the court can require disclosure of various reports that the defense intends to use at a hearing or trial.{122} The court must protect against disclosure of work product, that is, "the mental impressions, conclusions, opinions, or legal theories of defendant's attorney or other representatives of the defendant."{123}

g. The Person of the Defendant

The defendant may also be subjected to various identification procedures: lineups, fingerprinting, blood sampling, and physical and mental examinations.{124} The prerequisites and procedures for nontestimonial identification procedures{125} and the procedures relating to mental examinations{126} are discussed elsewhere.

§ 24.17

- Consequences of Defense Discovery Violations

As with prosecution discovery violations{127} the court can order defense counsel who has violated a discovery rule to make the required disclosure, grant a continuance, "or enter such other order as it deems just under the circumstances[,]"{128} and can punish a willful violation with appropriate sanctions, including contempt.{129} A serious and prejudicial defense discovery violation may even warrant an order precluding the defense from introducing evidence;{130} indeed, the notice rules for alibi and insanity defense cases specifically call for witness preclusion, "except for good cause shown. . . ."{131}

Witness preclusion, however, directly infringes the defendant's sixth amendment right to present evidence,{132} as well as his state constitutional right "to call for evidence in his favor,"{133} and there are constitutional limits to this discovery sanction.{134} A judge considering preclusion should weigh "the defendant's right to offer testimony of favorable witnesses against `[t]he integrity of the adversary process . . . the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process.'"{135} The court should also consider whether the discovery violation was willful and designed to achieve unfair surprise, merely an oversight, or something in between.{136} Whether the defendant himself or herself was complicit in the violation may be relevant (or even essential) to a state constitutional claim, as the dissenters in Taylor v. Illinois argue it should be under the sixth amendment.{137}

§ 24.18

Discovery From Third Persons

A defendant who wants material that is in a third person's possession (and not in the prosecutor's "possession, custody or control" as that term is broadly defined),{138} must apply to the third person directly, generally by subpoena duces tecum.{139} In State v. Vincent,{140} the defendant demanded disclosure of the name of a rape crisis worker who had spoken with the complainant. Because he failed to establish that the prosecutor knew the worker's name, and because Rule 16(a)(1) only requires disclosure of "known" witnesses, the Vermont court held that the defendant had to apply directly to the representative of the rape crisis organization for the worker's name.

§ 24.19

- Documents and Information

Subpoenas are issued on request by the clerk, "signed but otherwise in blank[,]"{141} and may command the person subpoenaed "to produce the books, papers, documents or other objects designated therein."{142} On motion the court can quash or modify a subpoena "if compliance would be unreasonable or oppressive."{143}

The rule functions as a valuable discovery device: the defendant can move for pretrial production of the subpoenaed material, and the judge can direct that it "be produced before the court at a time prior to the trial or prior to the time when [it is] to be offered in evidence" and permit the parties to inspect it.{144} Or the party issuing the subpoena "may simply make the subpoena returnable prior to the trial, leaving it to the producing party to move to quash or modify. . . ."{145} When pretrial production is objected to, the defendant must show "the evidentiary character and relevance of the material, its unavailability by other means, and its necessity for his trial preparation."{146}

§ 24.20

- Examinations and Experiments

The discovery rules do not give defendants the right to make third persons submit to the sort of procedures that defendants themselves may be called on to undergo, such as psychiatric examination or the nontestimonial procedures authorized by V.R.Cr.P. 16.1 and 41.1, but the constitution may require this sort of discovery in rare instances. The defendant in State v. Messier,{147} charged with sexual assault, claimed that another person was guilty and that hair samples would prove it. The Vermont Supreme Court held that the defense had no right under Rule 41.1 to require a sampling procedure (V.R.Cr.P. 41.1(k), permitting nontestimonial identification procedures on defense request, applies only to testing involving the defendant himself), and the case did not present "compelling circumstances" which might make such testing constitutionally required.{148} Similarly, the defendant in State v. Percy,{149} raising an insanity defense to a sexual assault charge, had no right to compel the complainant to submit to interviews by his psychiatric experts on reciprocal discovery grounds.{150} In a later case, however, the court foresaw that circumstances might require such an examination: for example, when the state's expert testifies that the victim suffers from posttraumatic stress disorder, and the defense disputes the diagnosis.{151}

§ 24.21

Claims of Privilege

Rule 16 does not require discovery of privileged material, at least in the absence of a constitutional obligation to disclose.{152} Discovery demands and subpoenas that are resisted on privilege grounds present difficult constitutional and logistical problems. For Rule 16 and 16.1 demands the dispute can be brought to the judge either by a motion for protective order by the resisting party, or by a motion to compel,{153} and for subpoenas by motion to quash or modify, or for a contempt order.{154}

As a matter of evidentiary law the burden of establishing the privilege is on the claimant,{155} and of course not all private or confidential information is legally privileged.{156

Even if the requested material is covered by a privilege, the defendant's due process right to disclosure of exculpatory evidence implies a limited right to discovery of evidence that is "material" to guilt or punishment, notwithstanding the privilege.{158} When the defendant has a basis for claiming that material evidence is being withheld, the United States Supreme Court held in Pennsylvania v. Ritchie, the trial judge must inspect the disputed evidence in camera and disclose it if the defendant turns out to be right.{159}

In State v. Percy, the Vermont Supreme Court held that Ritchie's discovery right applies only to evidence in the hands of the state, while conceding that in some circumstances (not specified), due process may require access to privileged information which is not in state custody.{160} With state custody a sine qua non, the Percy court saw the need for an in camera inspection depending on a number of additional factors: the strength of the defense showing of materiality,{161} the specificity of the defense request,{162} whether the privilege itself allows disclosure on court order,{163} and the importance the court attaches to the particular privilege involved.{164}

Whether the rights to present a defense and to "call for evidence in [one's] favor"{165} imply a broader right of access to privileged material is a question the Vermont Supreme Court has consistently avoided.{166}

§ 24.22

Contacting and Interviewing Witnesses

The discovery rules embody the principle that nobody "owns" a witness in a criminal case.{167} Neither side may "advise persons having relevant material or information (except the defendant) to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case."{168} Unreasonable interference with the other side's investigation is also an ethical violation.{169}

But there are exceptions to the rule of free and equal access.

In "appropriate circumstances" the trial judge can regulate a defendant's access to witnesses, so long as the restriction does not deny him a fair trial. Forbidding defense counsel from interviewing a rape complainant for one week after arraignment was permissible, or at least not prejudicial error, when counsel had ample subsequent opportunities for interviews and depositions.{170} Restrictions on pro se defendants (e.g., that they not contact the complainant) may have the incidental effect of blocking legitimate investigation. Presumably the prosecution and police can be similarly restricted in an appropriate case.

When the defense lists a previously unlisted witness as someone it intends to call at trial, the prosecution may interview that person only in defense counsel's presence or by formal deposition,{171} and the defense can properly warn the witness of this requirement without violating the rule against impeding the other side's investigation.{172}

§ 24.23

Depositions

Vermont is one of only five states that authorize discovery depositions in criminal cases.{173} The rule permitting them, V.R.Cr.P. 15, which originally granted a virtually unrestricted right to both sides, was amended in 1991 in response to complaints by prosecutors and victim advocates that defendants were abusing the process, particularly in sex offense cases. Depositions may now be taken as of right only in felony cases,{174} and subject to a number of very specifically stated restrictions and protections.

Most of Rule 15's restrictions and formalities can be dispensed with by agreement,{175} and a commonly used "standard stipulation" is attached as Appendix 12.

§ 24.24

- Depositions as of Right and by Court Order

Either side may take the deposition of a witness as of right in a felony case, but only by leave of the court for cause shown (or by agreement) in misdemeanors.{176}

In general a deposition requires no prior court approval. The party taking it serves written notice on the state (and any codefendants){177} and a subpoena on the witness. The 1991 amendments, however, define classes of witnesses who may be deposed only with court approval:

- Law enforcement officers who have been designated by the state as having performed only "ministerial" duties in the case, and who will not be called as witnesses, may be deposed only by prior court approval for good cause.{178}

- "Sensitive" witnesses, defined as any person under age sixteen and any alleged victim of certain sex offenses, can be deposed only if all parties and the witness agree on time, place, manner, and scope of the deposition, or by court order specifying the ground rules.{179} If the examination is going to involve material covered by the rape shield law,{180} the other side and the witness must be given advance notice.

- Medical personnel, social workers, and rape crisis workers who (1) assisted the alleged victim only after she was interviewed by the police, (2) have not participated in the investigation, and (3) are not going to testify for the state, may be deposed only by court order or by agreement (of the other side, the witness, and the alleged victim).{181}

- Witnesses who have already been deposed. No witness may be deposed more than once "regarding the same offense, or multiple offenses arising out of the same incident," either by a single defendant{182} or by codefendants{183} without a court order.

A court order is also required to depose out-of-state witnesses.{184} The prosecution has no duty to produce out-of-state witnesses for defense deposition, even if it intends to call them at trial.{185}

§ 24.25

- Deposition Procedure

a. Contents of the Notice

The notice of deposition must state (1) the time, place, and the name of the witness to be deposed;{186} (2) the method of recording, if by nonstenographic means, along with the equipment to be used and the name, address, and employer of the operator of the equipment;{187} and (3) the deponent's right to counsel, and (if the deponent is the alleged victim) his or her right to a victim advocate and to seek a protective order.{188}

b. Protective Orders

Once a deposition has been noticed, the other side can move for modifications, or for a protective order limiting the scope of the examination or the manner in which it may be taken, or (in extreme cases) blocking it altogether.{189} As with protective orders issued under Rule 16.2(d), the order should be "carefully drawn to allow the maximum disclosure consistent with the interest sought to be protected."{190}

c. Scope and Manner of Examination

"[T]he scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself."{191} Counsel are admonished to "avoid discourteous, disrespectful, argumentative, repetitive, and irrelevant questioning. . . ."{192}

In State v. Barrows,{193} the prosecutor subpoenaed a defense investigator to a deposition and asked him to reveal whether he had spoken to a particular witness and to hand over witness statements; the investigator refused and was found in contempt of court. On appeal, the Vermont Supreme Court held, not addressing the defendant's work-product and privilege objections, that because Rule 16.1 gave the state no right to witness statements, the state had no right to demand the same material by deposition.{194} The case arguably limits the scope of deposition questioning by both sides to subjects that are otherwise discoverable.

d. Method of Recording

Depositions can be tape-recorded, but the notice of deposition must give the particulars.{195} Otherwise they have to be stenographically recorded. The parties and the witness are free to "concurrently record" the deposition by any means they wish.{196}

e. Presence of the Defendant

The defendant may not be "physically" present at the deposition except by agreement or court order.{197}

f. Presence of Witness's Counsel and Victim's Advocate

By contrast, a witness at a deposition is entitled to the presence of counsel, who has standing to object to the questioning and to seek protective orders. The alleged victim may also insist on the presence of a "victim advocate."{198}

§ 24.26

- Evidentiary Uses of Depositions

All depositions can be used to impeach the deponent's testimony, just as any prior inconsistent statement is available for that purpose.{199} They may also be available for other purposes which would be allowed under the rules of evidence for nondeposition statements.{200}

Otherwise, substantive use of the deposition depends on three key preconditions, both of which have underpinnings in the defendant's right to confrontation: (1) the deponent is "unavailable" at trial or gives inconsistent testimony, (2) the defendant was either present at the deposition, or could have been present (by court order or stipulation),{201} and (3) the testimony was sufficiently confronted to be constitutionally admissible. The substantive admissibility, in lieu of live testimony, of depositions and other prior recorded statements is discussed more fully in another chapter.{202}

1. 2 ABA Standards for Criminal Justice ch. 11.

2. See F.R.Cr.P. 12.1, 12.2, 15, 16, 17.

3. V.R.Cr.P. 16, Reporter's Notes.

4. V.R.Cr.P. 12.1.

5. V.R.Cr.P. 16.1(c).

6. V.R.Cr.P. 16(b).

7. V.R.Cr.P. 16.1(a).

8. V.R.Cr.P. 15.

9. V.R.Cr.P. 16.2(d)-(g).

10. V.R.Cr.P. 16.2(d); State v. Vincent, 156 Vt. 259, 263-64 (1991).

11. State v. Vincent, 156 Vt. 259, 263-64 (1991) (judge properly refused to compel disclosure of identity of rape crisis counsellor, not a witness to crime, and defendant showed no particular need).

12. State v. Vincent, 156 Vt. 259, 264 (1991) (quoting the Reporter's Notes to V.R.Cr.P. 16.2 at 106).

13. See V.R.Cr.P. 16(a)(1),(2), (b)(2).

14. V.R.Cr.P. 16(c). The provision charges the prosecutor with responsibility for "information known to people within the prosecutor's scope of authority while discharging the prosecutor from responsibility for . . . information known to government employees `who have no connection with the prosecution and, for practical purposes, may be regarded as third parties.'" In re F.E.F., 156 Vt. 503, 510 (1991) (quoting the Commentary to ABA Standards for Criminal Justice, Standard 11-2.1(d) (1982)).

15. V.R.Cr.P. 16(c), Reporter's Notes. But see State v. Amarantes, 143 Vt. 348, 351 (1983) (highway median strip was not a place "within the prosecuting attorney's possession, custody or control" and defendant should have directed his request to department of public safety, i.e., the state police).

16. In re F.E.F., 156 Vt. 503, 509-12 (1991).

17. V.R.Cr.P. 16(a)(2)(C); State v. Dunbar, 152 Vt. 399, 408-09 (1989).

18. State v. Kiser, No. 91-262, slip op. 6-8 (Vt. May 8, 1992). To qualify as "reporting" under Rule 16(c), the police must have "some duty to provide the information" and reporting "voluntarily to meet discovery demands" does not qualify. Id. at slip op. 7-8.

19. State v. Amarantes, 143 Vt. 348, 351 n.* (1983) (quoting the Reporter's Notes to Rule 16). The prosecutor's failure in that case to direct a pro se defendant seeking access to a highway median strip to the proper agency was "discourteous and unprofessional. . . ." Id.

20. V.R.Cr.P. 16.2(b). See also 16(b)(2) (continuing duty to disclose exculpatory matter); State v. Shaw, 149 Vt. 275, 282-83 (1987). Rule 16.2(b) imposes the same continuing duty to disclose on defense counsel. For an egregious case of failure to disclose exculpatory evidence which surfaced during trial, see State v. Goshea, 137 Vt. 69 (1979).

21. V.R.Cr.P. 16(a)(1).

22. V.R.Cr.P. 16(a)(1), Reporter's Notes.

23. State v. Vincent, 156 Vt. 259, 263 (1991).

24. State v. Durling, 140 Vt. 491, 500 (1981); State v. Connarn, 138 Vt. 270, 272-73 (1980).

25. State v. Howe, 136 Vt. 53, 67 (1978); State v. Evans, 134 Vt. 189, 193 (1976).

26. See Rules 16(a)(2)(A) (prosecutor must divulge "the substance of any oral statements" made by defendant or codefendant); 16(a)(2)(C) ("reports or statements of experts"); 16(b) ("relevant material or information" of various descriptions).

27. See § 24.09, infra.

28. V.R.Cr.P. 16(a)(2)(A).

29. V.R.Cr.P. 16(a)(2)(F); State v. Hamlin, 143 Vt. 477 (1983).

30. V.R.Cr.P. 16(a)(2)(E). The general disclosure of witnesses required by Rule 16(a)(1) is meant to further the defense investigation; the list of trial witnesses required by Rule 16(a)(2)(E) is "an aid in planning trial strategy." Rule 16(a)(2)(E), Reporter's Notes.

31. V.R.Cr.P. 16(a)(2)(E).

32. V.R.Cr.P. 16(a)(2)(E), Reporter's Notes.

33. See § 31.03, et seq., infra.

34. See § 31.08, infra.

35. V.R.Cr.P. 26(c). Later notice may be given in limited circumstances and no notice need be given "for evidence of offenses used in rebuttal." Id.

36. V.R.Cr.P. 26(c), Reporter's Notes to the 1989 Amendment.

37. See § 31.20, infra.

38. V.R.Cr.P. 26(d). Later notice may be given in limited circumstances.

39. V.R.Cr.P. 16(a)(2)(B).

40. V.R.Cr.P. 16(b)(1)(B).

41. V.R.Cr.P. 16(a)(2)(B), Reporter's Notes.

42. V.R.Cr.P. 16(a)(2)(C).

43. When property has been seized from the defendant pursuant to a search warrant, the defendant is also entitled to an inventory of what was taken. V.R.Cr.P. 41(d).

44. Brady v. Maryland, 373 U.S. 83 (1963).

45. V.R.Cr.P. 16(b)(2), Reporter's Notes (citing Brady). There is no federal constitutional right to pretrial disclosure of inculpatory evidence. Wetherford v. Bursey, 429 U.S. 545, 559 (1977). But see State v. Dunbar, 152 Vt. 399, 408 (1989) ("There can be no dispute that due process principles guarantee the right of a defendant to discover relevant evidence, whether favorable or harmful.").

46. 473 U.S. 667 (1985).

47. United States v. Bagley, 473 U.S. 667, 682 (1985). The test for ineffective assistance of counsel incorporates the same materiality requirement. See § 6.24, supra.

48. A catch-all clause of the rule, Rule 16(a)(2)(G), requiring disclosure of any other material "that is necessary to the preparation of the defense[,]" suggests a Bagley-like standard for nonexculpatory evidence.

49. State v. Gibbons, 146 Vt. 342, 344 (1985) (per curiam) ("In determining what evidence is favorable to an accused and material to either guilt or punishment, a prudent prosecutor will supply any evidence that is even arguably favorable to the defendant").

50. See § 24.13(a), infra.

51. See § 24.13(b), infra. Cf. United States v. Bagley, 473 U.S. 667, 704-09 (1985) (Marshall, J., dissenting).

52. State v. Lewis, 151 Vt. 38, 40 (1989).

53. Giglio v. United States, 405 U.S. 150 (1972) (promise of immunity in exchange for testimony); State v. Gibbons, 146 Vt. 342, 344 (1985) ("Impeachment evidence . . . is under the protective umbrella of Brady").

54. State v. Bailey, 144 Vt. 86, 95 (1984) (quoting United States v. Bryant, 439 F.2d 642, 651-52 (D.C. Cir. 1971) (court's emphasis)). See also State v. Smith, 145 Vt. 121, 126 (1984).

55. State v. Bailey, 144 Vt. 86, 95 (1984) (citing United States v. Bryant, 439 F.2d 642, 653 (D.C. Cir. 1971)). See also State v. Lewis, 151 Vt. 38, 40 (1989); State v. Smith, 145 Vt. 121, 126 (1984).

56. State v. Shaw, 154 Vt. 648, 649 (1990) (mem.) ("the lost evidence had been reconstructed credibly"); State v. Lewis, 151 Vt. 38, 40-41 (1989) (discarded draft of police report).

57. California v. Trombetta, 467 U.S. 479 (1984); State v. Seifert, 151 Vt. 66, 70 (1989).

58. Arizona v. Youngblood, 488 U.S. 51 (1988); State v. Seifert, 151 Vt. 66, 70 (1989).

59. See State v. Seifert, 151 Vt. 66, 70 (1989) ("unnecessary to engage in a lengthy discussion" of defendant's Bailey claim because case does not meet criteria of Arizona v. Youngblood and California v. Trombetta); State v. Lewis, 151 Vt. 38, 42 (1989). But see State v. Shaw, 154 Vt. 648 (1990) (mem.) (applying the Bailey three-factor test).

60. V.R.Cr.P. 16(d)(1). For the United States Supreme Court's views on the scope of work product, see generally Upjohn v. United States, 449 U.S. 383 (1981); United States v. Nobles, 422 U.S. 225 (1975); and Hickman v. Taylor, 329 U.S. 495 (1947).

61. Rule 16(d)(1), Reporter's Notes.

62. V.R.Cr.P. 16(b)(1)(A).

63. V.R.Cr.P. 16(d)(2); V.R.E. 509(a). See State v. Veburst, 156 Vt. 133, 139-43 (1991).

64. V.R.E. 509(a).

65. V.R.E. 509(a).

66. V.R.E. 509(c)(1).

67. F.R.E. 510.

68. State v. Veburst, 156 Vt. 133, 140 (1991).

69. McCray v. Illinois, 386 U.S. 300 (1966); Roviaro v. United States, 353 U.S. 53 (1957); V.R.Cr.P. 16(d)(2), Reporter's Notes to the 1983 Amendment.

70. V.R.E. 509(c)(2), Reporter's Notes.

71. State v. Veburst, 156 Vt. 133, 141-43 (1991).

72. V.R.E. 509(c)(2) and Reporter's Notes.

73. See, e.g., V.R.E. 502 (lawyer-client privilege); 503 (patient's privilege); 504 (husband-wife privilege); 505 (religious privilege).

74. V.R.Cr.P. 16.2(d).

75. § 24.21, infra.

76. The material covered in Rule 16(b) relating to informants, grand jury and inquest proceedings, electronic surveillance, and exculpatory evidence must be furnished without request. Rule 16(a) material must be furnished at or before the status conference even if no request is made.

77. See App. 31.

78. See United States v. Agurs, 427 U.S. 97 (1976) (required showing of materiality to establish suppressed-evidence claim depends in part on specificity of defense demand).

79. State v. Percy, 149 Vt. 623, 634-35 and n.5 (1988) (defendant made broad request for all mental health records rather than seeking specific records; defendant should use depositions and subpoenas to narrow the issue).

80. State v. Cheney, 135 Vt. 513, 515 (1977).

81. In re F.E.F., 156 Vt. 503, 515 (1991).

82. V.R.Cr.P. 16.2(g)(1); State v. Edwards, 153 Vt. 649 (1989).

83. See, e.g., State v. Burnham, 145 Vt. 161, 168-69 (1984) (offer of recess and opportunity to voir dire jury).

84. Cf. State v. Edwards, 153 Vt. 649 (1990) (preclusion of defense witnesses for violation of defendant's V.R.Cr.P. 16.1 discovery obligations); State v. Meyers, 153 Vt. 219, 224 (1989) (same).

85. In re F.E.F., 156 Vt. 503, 515-16 (1991).

86. V.R.Cr.P. 16.2(g)(2).

87. State v. Lewis, 151 Vt. 38, 40-41 (1989).

88. In re F.E.F., 156 Vt. 503, 516 (1991).

89. State v. Shaw, 149 Vt. 275, 283 (1987); State v. Lombard, 146 Vt. 411, 416 (1985); State v. Bevins, 140 Vt. 415, 418 (1981); State v. Cheney, 135 Vt. 513, 515-16 (1977); State v. Evans, 134 Vt. 189, 192 (1976).

90. See State v. Connarn, 138 Vt. 270, 273 (1980) (late disclosure of witness condemned as "gamesmanship"); State v. Goshea, 137 Vt. 69 (1979). Cf. In re F.E.F., 156 Vt. 503, 515 (1991) (intentional nondisclosure "motivated by a desire to test the validity of the order").

91. State v. Hamlin, 143 Vt. 477, 482 (1983).

92. State v. Shaw, 154 Vt. 648 (1990) (mem.); State v. Connarn, 138 Vt. 270, 273 (1980); State v. Cheney, 135 Vt. 513, 515-16 (1977) (failure to list witness raised appearance of unfairness but defendant showed no prejudice).

93. State v. Burnham, 145 Vt. 161, 167-69 (1984) (state failed to include witness on list but advised defense of witness's existence; failure involved no bad faith); State v. Bevins, 140 Vt. 415, 418 (1981) (state failed to disclose defendant's criminal record but defendant and his attorney were aware of it); State v. Cheney, 135 Vt. 513, 516 (1977) (names of unlisted witnesses revealed at voir dire a week before trial).

94. 140 Vt. 491, 499-500 (1982).

95. State v. Connarn, 138 Vt. 270, 273 (1980). See also State v. Burnham, 145 Vt. 161, 168-69 (1984) (offer of recess and opportunity to voir dire jury). Cf. State v. Howe, 136 Vt. 53, 67 (1978); State v. Evans, 134 Vt. 189, 193 (1976) (defense should have opportunity to interview witnesses not disclosed until trial regardless of prosecution fault).

96. See State v. Miller, 146 Vt. 164, 173-74 (1985) (witness statement not disclosed until day of testimony; continuance refused but defense could recall witness after midtrial investigation).

97. State v. Cheney, 135 Vt. 513, 515-16 (1977).

98. See State v. Miller, 146 Vt. 164, 174 (1985) (defense counsel waived cross-examination); State v. Burnham, 145 Vt. 161, 168-69 (1984) (defense did not voir dire jury); State v. Connarn, 138 Vt. 270, 273 (1980) (defense counsel declined offer of continuance).

99. State v. Lombard, 146 Vt. 411, 416-17 (1985) (defense did not object or request continuance when it learned identity of witnesses).

100. See § 24.10, supra.

101. See § 24.11(b), supra.

102. V.R.Cr.P. 12.1(d); 16.2(b).

103. See §§ 2.36-2.39 (seizure of body and behavior evidence); chapter 3 (interrogations); chapter 4 (eyewitness identification procedures).

104. State v. Percy, 149 Vt. 623, 636 (1988) (quoting Wardius v. Oregon, 412 U.S. 470, 475 (1973)).

105. V.R.Cr.P. 12.1(a)-(c).

106. State v. Percy, 149 Vt. 623, 637 (1988) (citing Mayer v. Moeykens, 494 F.2d 855, 859 (2d Cir.), cert. denied, 417 U.S. 926 (1974)).

107. State v. Barrows, No. 92-053, slip op. 8 (Vt. May 15, 1992).

108. State v. Barrows, No. 92-053, slip op. 6 (Vt. May 15, 1992).

109. 149 Vt. 623 (1988).

110. State v. Percy, 149 Vt. 623, 636-38 (1988).

111. State v. Dunbar, 152 Vt. 399, 409-10 (1989). See also State v. Ross, 152 Vt. 462, 466 (1989) ("[w]e foresee that there will be cases when it is appropriate either to allow examination of a victim by the defense expert or to prohibit the State from providing its expert testimony").

112. State v. Barrows, No. 92-053, slip op. 4-5 (Vt. May 15, 1992).

113. V.R.Cr.P. 16.1(c).

114. State v. Barrows, No. 92-053 (Vt. May 15, 1992).

115. State v. Barrows, No. 92-053 (Vt. May 15, 1992). See § 24.22, infra.

116. V.R.Cr.P. 12.1(a),(b).

117. State v. Boivin, 154 Vt. 339, 340-41 (1990) (defendant who claimed he was no more than 30 feet from scene of crime was not raising alibi defense and had no duty to give notice).

118. V.R.Cr.P. 12.1(a),(b).

119. See § 24.07, supra.

120. V.R.Cr.P. 26(c). The other notice requirements of Rule 26(c) and (d) apply only to the prosecutor.

121. 13 V.S.A. § 3255(b). For the scope of the shield law, see § 31.21, infra.

122. V.R.Cr.P. 16.1(b): "reports or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements of experts which the defense intends to use at the hearing or trial."

123. V.R.Cr.P. 16.1(b). See generally United States v. Nobles, 422 U.S. 225 (1975).

124. V.R.Cr.P. 16.1(a).

125. See §§ 2.36-2.38.

126. See § 8.03.

127. See § 24.13, supra.

128. V.R.Cr.P. 16.2(g)(1).

129. V.R.Cr.P. 16.2(g)(2); State v. Bushey, 147 Vt. 140, 144-45 (1986).

130. State v. Edwards, 153 Vt. 649 (1990); State v. Meyers, 153 Vt. 219, 224 (1989) (mem.).

131. V.R.Cr.P. 12.1(e).

132. See § 29.07, infra.

133. Vt. Const., ch. I, art. 10.

134. See Taylor v. Illinois, 484 U.S. 400 (1988) (approving witness preclusion in an egregious case); State v. Edwards, 153 Vt. 649 (1990) (mem.) (approving it in a less egregious case).

135. State v. Edwards, 153 Vt. 649, 649 (1990) (mem.) (quoting Taylor v. Illinois, 484 U.S. 400, 414-15 (1988)).

136. Taylor v. Illinois, 484 U.S. 400, 415 (1988).

137. Taylor v. Illinois, 484 U.S. 400, 425-36 (1988).

138. See § 24.02, supra.

139. See State v. Roy, 151 Vt. 17, 34 (1989) (demand for confidential state police investigation file which prosecutor could not obtain; proper procedure was to attempt to subpoena the records); State v. Percy, 149 Vt. 623, 634-35 (1988) (demand that state disclose names of mental health professionals who treated sexual assault complainant; nonprivileged material accessible by deposition or subpoena). Cf. State v. Amarantes, 143 Vt. 348 (1983) (request for access to highway median strip should have been directed to state police). The degree to which the prosecutor has possession or control of third-party information also has a bearing on the defendant's due process right to privileged material. State v. Dunbar, 152 Vt. 399, 408-09 (1989) (state called complainant's psychotherapist as witness; unlike the treating therapist in Percy, the state had some "control" over its witness). See § 24.15 (right to reciprocal discovery).

140. 156 Vt. 259 (1991).

141. V.R.Cr.P. 17(a).

142. V.R.Cr.P. 17(c). The court form is reproduced in Appendix 31.

143. V.R.Cr.P. 17(c).

144. V.R.Cr.P. 17(c).

145. V.R.Cr.P. 17(c), Reporter's Notes.

146. V.R.Cr.P. 17(c), Reporter's Notes. As to objections on the grounds of privilege, see § 24.21, infra.

147. 146 Vt. 145 (1985).

148. State v. Messier, 146 Vt. 145, 154-55 (1985).

149. 149 Vt. 623 (1988).

150. State v. Percy, 149 Vt. 623, 636-38 (1988). The court did not decide whether the restriction denied the defendant's right under chapter I, article 10 of the state constitution to "call for evidence in his favor." Id. at 638.

151. State v. Ross, 152 Vt. 462, 466-67 (1989). The defendant is also not ordinarily entitled to a psychiatric examination of the complainant under the sixth amendment confrontation clause. State v. Gabaree, 149 Vt. 229, 231-32 (1988).

152. "Although the rule does not state this proposition directly, we agree that it is the logical interpretation of the rule." In re F.E.F., Nos. 89-228 and 89-229, slip op. 13 (Vt. May 17, 1989).

153. V.R.Cr.P. 16.2(d)-(g).

154. V.R.Cr.P. 17(c),(g).

155. State v. Curtis, 157 Vt. 275, 277 (1991); State v. Emerson, 150 Vt. 128, 129 (1988); State v. Springer, 139 Vt. 471, 474 (1981).

156. In State v. Shaw, 149 Vt. 275, 283 (1987), the Vermont Supreme Court held that private diary entries of the complainant in a sexual assault prosecution were discoverable witness statements under Rule 16. In In re F.E.F., 156 Vt. 503, 512-15 (1991), the court held that communications to a social worker were not covered by the patient privilege and could be subpoenaed, notwithstanding statutory confidentiality provisions.

157. [Reserved.]

158. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987); State v. Roy, 151 Vt. 17, 33 (1989); State v. Percy, 149 Vt. 623, 634 (1988). The right is not based on the sixth amendment's confrontation clause, which allows the defense to invade privileges but applies only to the trial itself. Pennsylvania v. Ritchie, 480 U.S. at 51-54; State v. Percy, 149 Vt. at 633. Cf. Davis v. Alaska, 415 U.S. 308 (1974).

159. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). See State v. Dunbar, 152 Vt. 399, 409 (1989); State v. Percy, 149 Vt. 623, 634 (1988).

160. State v. Percy, 149 Vt. 623, 635 (1988). It may be enough to show that the privileged material is in the hands of a witness who is going to testify as an expert for the state. State v. Dunbar, 152 Vt. 399, 409 (1989).

161. State v. Percy, 149 Vt. 623, 635 (1988). In State v. Roy, 151 Vt. 17, 34-35 (1989), the Vermont court held that the defendant made an insufficient showing of need for state police investigatory files, in part because he failed to establish how the evidence would be admissible or how it would lead to admissible evidence.

162. State v. Percy, 149 Vt. 623, 635 (1988). See also State v. Roy, 151 Vt. 17, 33-34 (1989). The defense should use available discovery to "to narrow the issue and develop a specific justification for acquiring the information." Percy, 149 Vt. at 635.

163. The confidentiality statute in State v. Roy, 151 Vt. 17, 35 (1989), made no provision for court access to state police investigatory files. Compare In re F.E.F., 156 Vt. 503, 514 (1991) (confidentiality statute "riddled with exceptions").

164. In State v. Percy, 149 Vt. 623, 635 (1988), the court wrote that it was "particularly solicitous of the need of a victim of a sexual assault to seek and receive mental health counselling without fear that her statements will end up in the public record[,]" and that it would not "require the victim to forego counselling or risk disclosure absent the most compelling justification. . . ." See also State v. Wright, 154 Vt. 512, 525 (1989) (weak defense showing of need for medical records; denial of request upheld in light of "the especially private nature of gynecological records").

165. Vt. Const. ch. I, art. 10.

166. See State v. Dunbar, 152 Vt. 399, 411 (1989); State v. Percy, 149 Vt. 623, 638-39 (1988).

167. State v. Messier, 146 Vt. 145, 155 (1985).

168. V.R.Cr.P. 16.2(a).

169. State v. Messier, 146 Vt. 145, 155 (1985); V.R.Cr.P. 16.2(a), Reporter's Notes; Code of Professional Responsibility, D.R. 7-104, 7-109.

170. State v. Messier, 146 Vt. 145, 155-56 (1985).

171. V.R.Cr.P. 16.1(c).

172. V.R.Cr.P. 16.2(a), Reporter's Notes.

173. State v. Kiser, No. 91-262, slip op. 4 (Vt. May 8, 1992). The others are Florida, New Hampshire, North Dakota, and Texas. Id.

174. V.R.Cr.P. 15(e)(4).

175. V.R.Cr.P. 15(l).

176. V.R.Cr.P. 15(a),(e)(4).

177. V.R.Cr.P. 15(b).

178. V.R.Cr.P. 15(e)(3).

179. V.R.Cr.P. 15(f)(2).

180. 13 V.S.A. § 3255(a).

181. V.R.Cr.P. 15(g).

182. V.R.Cr.P. 15(e)(1).

183. V.R.Cr.P. 15(e)(2).

184. V.R.Cr.P. 15(k). The procedure, which involves a specially appointed "commission" and a fair amount of red tape, is spelled out in V.R.C.P. 28(b). See Reporter's Notes to former V.R.Cr.P. 15(h).

185. State v. Kiser, No. 91-262, slip op. 4-5 (Vt. May 8, 1992).

186. V.R.Cr.P. 15(b).

187. V.R.Cr.P. 15(d)(2).

188. V.R.Cr.P. 15(f)(1).

189. V.R.Cr.P. 15(f)(3).

190. V.R.Cr.P. 15(f)(3), Reporter's Notes (quoting State v. Vincent, 156 Vt. 259, 264 (1991)).

191. V.R.Cr.P. 15(d)(1). The state must make the witness's relevant written or recorded statements available to the defense if the statements have not already been provided under Rule 16(a)(1).

192. V.R.Cr.P. 15(d)(1).

193. No. 92-053 (Vt. May 15, 1992).

194. State v. Barrows, No. 92-053, slip op. 6-7 (Vt. May 15, 1992).

195. V.R.Cr.P. 15(d)(2).

196. V.R.Cr.P. 15(d)(3).

197. V.R.Cr.P. 15(b).

198. V.R.Cr.P. 15(f)(1).

199. V.R.Cr.P. 15(h); State v. Lupien, 135 Vt. 30, 32-33 (1977).

200. Cf. State v. Miller, 146 Vt. 164, 170-71 (1985) (prior inconsistent statement in deposition could not be used as substantive evidence before adoption of V.R.E. 801(d)(1)(A) permitting such use).

201. V.R.Cr.P. 15(h). For the definition of unavailability, see V.R.Cr.P. 15(j) and V.R.E. 804(a).

202. See § 29.03, infra.