Amicus Curiae Brief — Gerstein v. Pugh

Supreme Court brief1975

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FEB 27 lo?4

Gnited States

NO. 73-477

RICHARD E. GERSTEIN, State Attorney

for the Eleventh Judicia! Circuit of Florida,

in and for Dade County,

Petitioner,

v8.

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all others sim-

ilarly situated, and THOMAS TURNER and GARY

FAULK, on their own behalf and on behalf of all

others similarly situated, Respondents

BRIEF OF AMICUS CURIAE

DADE COUNTY BAR ASSOCIATION

PEARSON & JOSEFSBERG, P.A.

733, City National Bank Bldg.

Miami, Florida 33130

JEPEWAY, GASSEN & JEPEWAY

619 Dade Federal Building

Miami, Florida 33131

Counsel for Amicus Curiae

AUGUST, NIMKOFF & POHLIG

Ainsley Building

Miami, Florida 33132

Of Counsel

MIAMI REVIEW — 371-4853 — 377-372]

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INDEX

Page

INTEREST OF AMICUS CURIAE _.... 2

STATEMENT OF THE CASE AND OF THE

|. Od bh: Sane 3

QUESTIONS PRESENTED —__----. 3

ARGUMENT _.......- Secetenaet 4

CONCLUSION _..... 15

CERTIFICATE OF SERVICE -..... 2... | 15

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CITATIONS

Case

Armstrong v. Manzo,

380 U.S. 545 (1965)

Bell v. Burson,

402 U.S. 535 (1971)

Brown v. Fauntleroy,

442 F.2d 838 (D.C. Cir. 1971)

Cooley v. Stone,

414 .2d 1215 (D.C. Cir. 1969)

Coolidge v. New Hampshire,

403 U.S. 443 (1971)

Fuentes v. Shevin,

407 U.S. 67 (1972)

Goldberg v. Kelly,

397 U.S. 254 (1970)

Grannis v. Ordean,

234 U.S. 385 (1914)

Johnson v. United States,

333 U.S. 10 (1947) 2.

Mallory v. United States,

354 U.S. 449 (1957)

Page

_ 9-10

III

CITATIONS (cont’d)

Case Page

McNabb v. United States,

318 U.S. 332 (1942) 5-6, 11

Morrissey v. Brewer,

408 U.S. 471 (1972) See aoe ees 10

Pugh v. Rainwater,

483 F.2d 778 (5th Cir., 1973) — 5, 12

Pugh v. Rainwater,

332 F.Supp. 1107 (S.D. Fla. 1971) —.. _.. 6

Shadiwick ». Tampa,

407 U.S. 345 (1970) epee vena eaees 10, 11

Sniadach v. Family Finance Corp.,

395 U.S. 337 (1969) ©. eee. 4

Watts v. Indiana,

338 U.S. 49 (1949) 0 enn 12, 13

Wisconsin v. Constanti neau,

400 U.S. 433 (1971) WW . 4

Wong Sun v. United States,

371 U.S. 471 (1963) einen eee tS OC

in the

Supreme Court

ofthe

Gnited States

NO. 73-477

RICHARD E. GERSTEIN, State Attorney

for the Eleventh Judicial Circuit of Florida,

in and for Dade County,

Petitioner,

vs.

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all others sim-

ilarly situated, and THOMAS TURNER and GARY

FAULK, on their own behalf and on behalf of all

others similarly situated,

Respondents.

BRIEF OF AMICUS CURIAE

DADE COUNTY BAR ASSOCIATION

Ba at No ta a

pe terse errs ORLA NE EET I TET Ss ee aoe weaw bt PONISI EL TET EAE TIT Me AD eB

Peo ke ft teeny Sree ‘

Biisecsidns: ATR

INTEREST OF AMICUS CURIAE

Amicus Curiae, the Dade County Bar Association, is

the largest local Bar Association in the southeastern

United States. It has a deep and abiding interest in the

administration of criminal justice and vindication of con-

stitutional rights in Dade County, Florida. Prior to the

institution of this law suit, the Dade County Bar Associa-

tion attempted to obtain, through legislation, relief for

those persons incarcerated in Dade County without a

hearing. However, all efforts in the Florida legislature

proved to be fruitless.

Subsequently, the Board of Directors of the Dade

County Bar Association voted unanimously to seek per-

mission to intervene as Amicus Curiae, on the side of

the Respondents in the United States District Court for

the Southern District of Florida. The District Court per-

mitted the intervention, and Amicus Curiae filed Memo-

randa of Law and participated in argument. After the

Petitioner’s appeal to the United States Court of Appeals

for the Fifth Circuit, the Board of Directors again voted

unanimously to seek permission to intervene as Amicus

Curiae, which permission was granted. In the Fifth Cir-

cuit, Amicus Curiae filed a brief and participated in oral

argument. After this Court granted the Petitioner’s Pe-

tition for Writ of Certiorari, the Board of Directors again

voted unanimously for permission to participate as Amicus

Curiae.

Thus, the Dade County Bar Association has been

deeply involved in efforts to secure the Fourth, Fifth

and Fourteenth Amendments rights of the residents of

Dade County, even before the institution of this lawsuit.

hi RE RANMA Te OS FRNA AMAP ESE Nc OM oe

STATEMENT OF THE CASE

AND OF THE FACTS

Amicus Curiae adopts Respondents’ statement of the

ease and of the facts.

QUESTIONS PRESENTED

THE DUE PROCESS CLAUSES OF THE

FIFTH AND FOURTEENTH AMENDMENTS

MANDATE THAT A PERSON WHO IS

ARRESTED BY STATE OFFICERS IMME-

DIATELY BE TAKEN BEFORE A COM-

MITTING MAGISTRATE IN ORDER THAT

PROBABLE CAUSE MAY BE DETERMINED.

II.

THE FOURTH AND FOURTEENTH AMEND-

MENTS MANDATE THAT A PERSON WHO

IS ARRESTED BY STATE OFFICERS IMME-

DIATELY BE TAKEN BEFORE A COMMIT-

TING MAGISTRATE IN ORDER THAT PROB-

ABLE CAUSE MAY BE DETERMINED.

Ill.

THE FILING OF AN INFORMATION BY

THE PETITIONER DOES NOT OBVIATE

THE CONSTITUTIONAL RIGHT TO A PRE-

LIMINARY HEARING.

Beerwenrs: p AED ae Gt Hien

sein kt AE EERE TS A ORCL NY SAL ERLEA GEREN ALTE DEEL

ARGUMENT

THE DUE PROCESS CLAUSES OF THE

FIFTH AND FOURTEENTH AMENDMENTS

MANDATE THAT A PERSON WHO IS AR-

RESTED BY STATE OFFICERS IMMEDI-

ATELY BE TAKEN BEFORE A COMMIT-

TING MAGISTRATE IN ORDER THAT PROB-

ABLE CAUSE MAY BE VETERMINED.

The Fourteenth Amendinent provides that no state

shall deprive any person of liberty without due process of

law. The most fundamental aspect of due process of law

is the opportunity to be heard. Grannis v. Ordean, 234

U.S. 385 (1914). “It is an opportunity which must be

granted at a meaningful time and in a meaningful man-

ner.” Armstrong v. Manzo, 380 U.S. 545 (1965).

In recent years, this Court has ruled that a hearing

must be held prior to the deprivation of certain property

rights. In Fuentes v. Shevin, 407 U.S. 67 (1972), it ruled

that a hearing was required prior to the issuance of a

writ of replevin; in Bell v. Burson, 402. U.S. 535 (1971),

it ruled that a hearing was required before a driver’s

license and vehicle registration could be suspended; in

Wisconsin v. Constantineau, 400 U.S. 483 (1971). it ruled

that a hearing was required before the sale of liquor to an

individual for one year could be prohibited; in Goldberg

v. Kelly, 397 U.S. 254 (1970), it ruled that a hearing

was required before the termination of welfare benefits;

and in Sniadach v. Family Finance Corp., 395 U.S. 337

(1969), it ruled that a hearing was required before wages

could be garnished.

SAMS ERIC R URE IE 0 FA Ai AI ROIS TERRIER I SMA EN tad Re: ee Hea

Therefore, it is inescapable that due process of law

demands that a person be afforded a prompt preliminary

hearing after he has been arrested. As the Fifth Circuit

said: .

“Incarceration of an untried defendant for up to

a month without any scrutiny by a judicial of-

ficer of the basis of this incarceration is far more

odious to a sense of justice than the temporary

deprivation of property without a hearing. Yet

the Supreme Court has repeatedly held that such

deprivations of property are impermissible.”

(Pugh v. Rainwater, 483 F.2d 778, 787 (5th Cir.,

1973) )

The fact that most states have enacted .-”slation

which requires that an arrested person must be promptly

taken before a committing magistrate clearly demonstrates

the extent to which this policy is engrained in our concept

of due process of law. In McNabb v. United States, 318

U.S. 332 (1942), after pointing out that this type of legis-

lation appears on the statute books of nearly all the states,

this Court said that:

“The purpose of this impressively pervasive re-

quirement of criminal procedure is plain. A demo-

* eratic society, in which respect for the dignity of

all men is central, naturally guards against the

misuse of the law enforcement process. Zea! in

tracking down crime is not in itself an assurance

of soberness of judgment. Disinterestedness in

law enforcement does not alone prevent disregard

of cherished liberties. Experience has therefore

counselled that safeguards must be provided

against the dangers of the over-zealous as well as

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the despotic. The lawful instruments of.the crim-

inal law cannot be en:rusted to a single func-

tionary. The complicated process of criminal jus-

tice is therefore divided into different parts, re-

sponsibility for which is separately vested in the

various participants upon whom the criminal law

relies for its vindication. Legislation such as this,

requiring that the police must, with reasqnable

promptness show legal cause for detaining ar-

- rested persons, constitutes an important safe-

guard — not only in assuring protection for the

innocent, but also in securing conviction of the

guilty by methods that commend themselves to a

progressive and self-confident society.” (McNabb

v. United States, 318 U.S. at 343-344).

The statistics cited by the District Court confirm the

wisdom of McNabb. Between January 1, 1970,.e@md March

31, 1971, the petitioner decided not to file aireetnforme-

tions in 1,165 cases in which a person had been charged

or arrested as a result of police investigation. The ma-

jority of these “no actions” were the resuit os arrests on

charges lacking evidence to justify the filing of an in-

formation. The District Court’s conclusion is inescapable:

“Obviously, a judicial officer considering prob-

able cause on a preliminary hearing would have

promptly disposed of all of these cases with a

tremendous saving of human misery (to all those

who had been arrested on insuffficient evidence)

and of tax dollars (to the average citizen who is

paying for the cost of a vastly overcrowded jail

facility in Dade County, Florida).” (Pugh v. Rain-

water, 332 F.Supp. 1107, 1110 (S.D. Fla. 1971))

Il.

THE FOURTH AND FOURTEENTH AMEND-

MENTS MANDATE THAT A PERSON WHO

IS ARRESTED BY STATE OFFICERS IMME-

DIATELY BE TAKEN PEYORE A COMMIT-

TING MAGISTRATE IN ORDER THAT PROB-

ABLE CAUSE MAY BE DETERMINED.

The purpose of a prompt preliminary hearing is to

determine the existence of probable cause. In Mallory v.

United States, 354 U.S. 449 (1957), this court stated that:

“Tht next step (after arrest) in the proceeding

is to arraign the arrested person before a judicial

officer as quickly as possible so that he may be

advised of his rights and so that the issue of

probable cause be promptly determined . ad

(Mallory v. United States, supra at P. 454 ) (Pa-

renthesis added) ‘

In Wong Sun v. United States, 371 U.S. 471 (1963),

this court scrutinized an arrest made without a warrant,

and dealt with the question of whether the police officers

had probable cause to obtain an arrest warrant from a

judicial officer on the basis of the information they pos-

sessed when they arrested the defendant. Indeed, this court

even raised the question of whether the “probable cause”

requirements for arrests without warrant might ultimately

prove to be stricter than the requirements for arrests with

a warrant. In any event:

“They surely . . . cannot be less . . . Otherwise

a principal incentive now existing for the pro-

eine 6 = op ak IS OR Re iret rhe

Bicrticcvimcens SDR EAE HESS

WER REE eo ARES ARNON x

curement of arrest warrants would be

destroyed ...

* * *%

The arrest warrant procedure serves to insure

that the deliberate, impartial judgment of a judi-

cial officer will be interposed between the citizen

and the police, to assess the weight and credibility

of the information which the complainant officer

adduces as probable cause . . . To hold that an

officer may act in his own, unchecked discretion

on information too vague and too untested a

source to permit a judicial officer to accept it as

probable cause for an arrest warrant, would

subvert this fundamental policy.’ ” (Wong Sun v.

United States, supra at p.p. 479-482)

The classic explanation of the Fourth Amendment was

given by this Court in Johnson v. United States, 333 U.S.

10 (1947):

“The point of the Fourth Amendment, which

often is not grasped by zealous officers, is not

that it denies iaw enforcement the support of the

usual inferences which reasonable men draw from

evidence. Its protection consists in requiring that

those inferences be drawn by a neutral and de-

tached magistrate instead of being judged by the

officer engaged in the often competitive enter-

prise of ferreting out crime.” (Johnson v. United

States, supra, at p.p. 13-14)

Therefore, it is clear that the Fourth Amendment

validity of any arrest must be tested by the criteria which

would be employed by a judicial officer before issuing an

arrest warrant. The only way to test the validity of an

arrest is to present the arrested_person before a neutral

and detached judicial officer, who wiN then determine the

existence of “probable cause”. Thus; no person may be

arrested and incarcerated without a prompt judicial deter-

mination of probable cause. Cooley v. Stone, 414 F.2d 1215

(D.C. Cir. 1969) ; Brown v. Fauntleroy, 442 F.2d 838 (D.C.

Cir. 1971).

IIT.

THE FILING OF AN INFORMATION BY

THE PETITIONER DOES NOT OBVIATE

THE CONSTITUTIONAL RIGHT TO A PRE-

LIMINARY HEARING.

The Petitioner is not a neutral and detached magis-

trate. His position that his mere filing of an information

constitutes a conclusive finding of probable cause is totally

untenable.

In Coolidge v. New Hampshire, 403 U.S. 443 (1971),

New Hampshire law provided that a prosecuting attorney

could also issue a search warrant. Having obtained a

search warrant from the prosecutor, the police then

searched the petitioner’s automobile and obtained incrim-

inating evidence. This Court ruled that the search war-

rant was invalid. This Court stated that:

“We find no escape from the conclusion that the

seizure and search of the Pontiac automobile

cannot constitutionally rest upon the warrant is-

sued by the state official who is the chief investi-

gator and prosecutor in this case. Since he was

not the neutral and detached magistrate required

by the constitution, the search stands on no

firmer ground than if there had been no warrant

at all . . (Coolidge v. New Hampshire, supra,

403 U.S. at 453)

Therefore, this Court concluded that:

“|. . There could hardly be a more appropriate

setting than this for a per se rule of disqualifi-

cation rather than a case-by-case evaluation of all

the circumstances . . . The whole point of the

basic rule . . . is that prosecutors and policemen

simply cannot be asked to maintain the requi-

site neutrality with regard to their own investi-

gations — the ‘competitive enterprise’ that must

rightly engage their single-minded attention.”

(Coolidge v. New Hampshire, supra, at p. 450)

If a prosecutor cannot determine the existence of

probable cause for the issuance of a search warrant to

search an automobile, then certainly he cannot determine

the existence of probable cause for an arrest.

Two other recent decisions of this Court refute the

petitioner’s position that he is capable of acting in a neu-

tral and detached manner. In Morrissey v. Brewer, 408

U.S. 471 (1972), this court ruled that a parolee, after

arrest, could be returned to custody for violation of parole

conditions only after a hearing on probable cause before

someone not directly involved. In Shadwick v. Tampa, 407

U.S. 345 (1972), this Court set forth the criteria that must

be met for a magistrate to be capable of deciding the

existence of probable cause:

“ |, . An issuing magistrate must meet two

tests. He must be neutral and detached, and he

must be capable of determining whether probable

cause exists for the requested arrest or search.

This Court has long insisted that inferences of

probable cause be drawn by ‘a neutral and de-

tached magistrate instead of being judged by the

officer engaged in the often competitive enter-

prise of ferreting out crime.’ Johnson v United

States, . . . Giordenello v. United States ... In

Coolidge v. New Hampshire, supra, the Court last

Term voided a search warrant issued by the State

Attorney General ‘who was actively in charge of

the investigation and later was to be chief prose-

cutor at the trial.’ (Shadwick v. Tampa, supra,

at p. 350)

Moreover, as was pointed out earlier:

“The lawful instruments of the criminal law can-

not be entrusted to a single functionary. The com-

plicated process of criminal justice is, therefore,

divided into different parts, responsibility for

which is separately vested in the various partici-

pants upon whom the criminal law relies for its

vindication...” (McNabb v. United States,

supra, 318 U.S. at p. 348)

The petitioner’s contention that the mere filing of an

information eliminates the constitutional right to have

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probable cause determined by a neutral and impartial

magistrate would establish the petitioner as prosecutor,

judge and jury. This constitutes an obviously unconstitu-

tional and untenable mixing of functions which this Court

properly condemned in McNabb, and which the Fifth Cir-

cuit condemned in its opinion below:

“While a ‘magistrate might well arrive at the

same decision as to probable cause as the State

Attorney, we hold that due process abhors even

the appearance of such entanglement between the

prosecutorial and judicial functions as exists

under the Florida information prosecution system

...” (Pugh v. Rainwater, 483 F.2d at p. 787)

If the petitioner can obviate the constitutional right

to a preliminary hearing by the mere filing of an infor-

mation, then an attorney for a criminal defendant should

be able to file an affidavit stating that there is no prob-

able cause to detain his client, and thus have him released.

Defense counsel is as equally disinterested as is the Peti-

tioner, and can certainly provide as fair, impartial and.

accurate an assessment of the situation as can the Peti-

tioner.

Thus, the Petitioner’s position would undermine a

fundamental basic requirement of our accusatorial system

of criminal law. In Watts v. Indiana, 338 U.S. 49 (1949),

this Court summarized the essence of the accusatorial

system:

“The requirement of specific charges, their proof

bevond a reasonable doubt, the protection of the

accused from confessions extorted through what-

ever form of police pressures, the right to a

prompt hearing before a magistrate, the right to

assistance of counsel, to be supplied by govern-

ment when circumstances make it necessary, the

duty to advise the accused of his constitutional

rights — these are all characteristics of the ac-

cusatorial system and manifestations of its de

mands.” (Watts v. Indiana, supra, at pp. 54-55)

(Emphasis added)

ote 4

{penne il OTR G o

cna

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the judgment of the court below should be affirmed.

PEARSON & JOSEFSBERG, P.A.

733, City National Bank Bldg.

Miami, Florida 33130

Daniel S. Pearson

JEPEWAY, GASSEN & JEPEWAY

619 Dade Federal Building

Miami, Florida 33131

Louis M. Jepeway, Jr.

COUNSEL FOR AMICUS CURIAE

AUGUST, NIMKOFF & POHLIG

Ainsley Building

Miami, Florida 33132

OF COUNSEL

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore-

going was forwarded by mail to N. Joseph Durant, As-

sistant State Attorney, Counsel for Petitioner, 1351 N. W.

12th Street, Miami, Florida; Bruce Rogow, Esq., City

National Bank Building, Miami, Florida, Counsel for Re-

spondents; Phillip A. Hubbart, Public Defender, Counsel

for Respondents, 1351 N. W. 12th Street, Miami, Florida

33125, and Raymond Markey, Assistant Attorney General,

Counsel for Amicus Curiae, State of Florida, Office of

the Attorney General, Tallahassee, Florida, this_____

day of _ 1974, .

Attorney

Bade

ee oe oe re

TABLE OF CONTENTS

(I)

Page

The Interest of the mamicas Curiae 1

Argument a 1

I. Arrest Validstion 3

II. Optional Expedited Adversary Heating )

Conclusion 9

Appendix ...... so Bertone teareetipayeseyneesautaceues 11

Rule 3, V.R.CrP. neues re ae 11

Rule 4, V.R.Cr.P. 13

Rule 5, V.R.Cr.P. 18

Reporter’s Notes to Rule 5, v: R.Cr. P. 29

Rule 12, V.R.Cr.P. 31

Reporter’s Notes to Rule 12(e), V. R. CrP. 35

Rule 15 (a), V.R.Cr.P. 37

Rule 16, V.R.Cr.P. 38

TABLE OF AUTHORITIES CITED

Cases:

Mallory v. United States, 354 U.S. 449 (1957) 8

McNabb v. United States, 318 U.S. 322 (1943) 8

Miranda v. Arizona, 384 U.S. 436 (1966) 8

Pugh v. Rainwater, 483 F.2d 778 (1973) 7

Shadwick v. Tampa, 407 U.S. 345 (1971) ............ 8

United States v. Keeble, 459 F.2d 757 (8th Cir.

(1972) | 8

Statutes:

United States Constitution |. 2,8

3 V.S.A. §153(a) 1

Rule 2, V.R.Cr.P. . . — 2

~ Rule 3, V.R.Cr.P. | : 5.3.7,9

(11)

Page

Rule 3(a), V.R.Cr.P. 3

Rule 3(b), °.’.R.Cr.P. 3,4

Rule 4, V.R.Cr.P. 4.7.9

Rule 4(a), V.R.Cr.P. . 3,4

Rule 4(b), V.R.Cr.P. 3,4

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

Rule 4(f), V.R.Cr.P. 5,8

Rule 5, V.R.Cr.P. 3,6,7,9

Rule 5 (a), V.R.Cr.P. 3,8

Rule 5(c), V.R.Cr.P. 3, 4,8

Rule 5(d), V.R.Cr.P. 5

Rule 5(f), V.R.Cr.P. 6,7

Rule 5(g), V.R.Cr.P. 5,8

Rule 12, V.R.Cr.P. 3,7,8

Rule 12(e), V.R.Cr.P. 3,5, 6

Rule 12(f), V.R.Cr.P. | 6,7

Rule 15, V.R.Cr.P. 5.7

Rule 15(a), V.R.Cr.P. 3,7

Rule 16, V.R.Cr.P. . . . 3,7

Amended Rule 3.131, 33 FSA. , 9

Rule 56, Federal Rules of Civil Procedure. 6

Rule 56, Vermont Rules of Civil Procedure... —Ss 6

Miscellaneous:

Reporter’s Notes to Vermont Rules of

Criminal Procedure, Professor L. Kinvin

Wroth (1973) . , . 3,5, 6,7,8

Forward, Vermont Rules of Crimina. Procedure,

Chief Justice Percival L.Shangraw. 3

Langrock, P. F., Vermont’s Experiment in Crimi-

nal Dace, §3 A.B.A.J. 732 (June 1967). 6

American Bar Association’s Minimum Standards

for Criminal Justice epaeehoterunteniavaienaueadenetnce BED

RENATO sR RACE BS ANI PERN OS SA ZED NEY RR LIRR HORE BAGEL tt OMR SION.

Gu the Supreme Court

of the United States

OcTOBER TERM, 1974

No. 73-477

RICHARD E. GERSTEIN, Petitioner

Us.

Rosert PuGu, et al., Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THE INTEREST OF THE AMICUS CURIAE,

KIMBERLY B. CHENEY

Kimberly B. Cheney is Attorney General of the State of

Vermont and is charged with supervision of all criminal

prosecutions in the State. 3 V.S.A. §153(a). He is also the

Chairman of the Vermont Supreme Court Criminal Rules

Advisory Committee that prepared the Vermont Rules of

Criminal Procedure which became effective on October 1,

1973. The decision in this case could have a substantial im-

pact on those Rules and practice in the State of Vermont in

the area of pre-trial criminal procedure.

ARGUMENT

Because the issue before this Court on Certiorari concerns

the procedure of prosecution upon information and the con-

stitutional necessity of preliminary hearings before a magis-

trate, the Attorney General of Vermont submits this brief

statement of his views amicus Curiae on that question.

(1) ae

The Florida procedural framework considered below dif-

fers considerably from that present in Vermont. The pur-

pose of this memorandum is thus twofold. The first is to

apprise the Court of Vermont practice in the hope that this

Court’s decision will not place the constitutional validity of

this procedure in doubt. The second is to suggest that the

unique procedure of Vermont should be considered as a vi-

able and sensible national model. However, as this brief can

only highlight the key features of Vermont practice, perti-

nent sections of the Vermont Rules of Criminal Procedure

(V.R.Cr.P.) and Reporter’s Notes are reprinted in the Ap-

pendix for the Court’s perusal in detail.

Vermont criminal procedure has recently undergone sub-

stantial revision. This stems from the promulgation by the

Vermont Supreme Court of the new Vermont Rules of

Criminal Procedure in January 1973. Following ratification

by the General Assembly these Rules became effective on

October 1, 1973.' The purpose of the new Rules was best

described by the then Vermont Chief Justice in January of

this year when he said:

The Rules of Criminal Procedure are an attempt

to create a new and streamlined code of criminal

procedure for Vermont, combining our own ex-

perience and the most advanced thinking in the

realm of procedural reform. The Purposes of the

rules are those set forth in Rule 2: “To provide for

the just determination of every criminal proceed-

ing... To secure simplicity in procedure, fairness: ,

in administration, and the elimination of unjusti-

fiable expense and delay.” Accordingly, the rules

' Discussion of the Vermont Rules in this brief is largely drawn from the

Reporter’s Notes annotating each Rule. These Notes were prepared by

Professor L. Kinvin Wroth of the University of Maine Law School who

was appointed Reporter in July 1971. Citations to specific Rules in

this brief import consideration of the body of the Rule and, where

appropriate, Professor Wroth’s commentary.

not only carry forward features of our present

customary and statutory practice which serve these

urposes, but also draw heavily upon the American

Bar Association’s Minimum Standards for Criminal

Justice, the Federal Rules of Criminal Procedure

and proposed amendments thereto, and procedural

codes of other states, all of which have the same

goals.

Forward by Chief Justice Percival L Shangraw,

pp. XXIX, V.R.Cr.P.

Pre-trial procedure and arrest upon information in Ver-

mont is governed principally by Rules 3, 4, 5, 12, 15 and 16,

V.R.Cr.P. Particularly relevant for purposes of this discus-

sion are Rules 3(a) (b), 4(a) (b), 5(a) (c), 12(e), 15(a)

and 16, V.R.Cr.P. (See Appendix).

|. Arrest Validation

Vermont Rules do not provide an automatic adversary

preliminary hearing where the prosecution is forced to pre-

sent a prima facie case. However, there is an independent

finding of probable cause to arrest. Thus, Vermont does not

suffer from the shortcoming of Florida practice perceived by

the Court of Appeals. Rules 4(b) and 5(c), V.R.Cr.P. and

Reporter’s Notes. In Vermont, 2 law enforcement officer

may arrest without warrant any person whom the officer has

probable cause to believe has committed a crime in his pres-

ence. He may also arrest without warrant a person who he

has probable cause to believe has committed or is committing

a felony. The degree of probable cause required is based on

the same evidence necessary for a summons or arrest warrant

in a prosecution by information. Rules 3(a), 4(b),

V.R.Cr.P. The arresting officer may issue the detained indi-

vidual a citation to appear before a judicial officer in lieu of

further detentioa. Otherwise, the arrestee: must be taken

before the nearest available judicial officer “without unneces-

sary delay.” An information and affidavit must be filed with

or made before the judicial officer at that time. Rule 3(b),

V.R.Cr.P. Once the warrantless arrestee is before the judicial

officer, the judicial officer determines whether there is prob-

able cause to believe an offense has been committed and that

the defendant has’ committed it. If no probable cause is

found, the information is dismissed and the defendant dis-

charged. Rule 5(c), V.R.Cr.P.

In a prosecution commenced by information, a State’s

Attorney cannot issue an arrest warrant himself but must

request a judicial officer to issue either a summons or arrest

warrant. He does so by presenting an information and

affidavit or sworn statement made before the judicial officer

as to probable cause. Rule 4(a), V.R.Cr.P. No summons or

warrant can issue upon information unless the court finds

that there is probable cause to believe that an offense has been

committed, and the defendant has committed it. This find-

ing must be based on substantial evidence and may include

reliable hearsay. During this proceeding the prosecutor and

any afhants may be required to appear personally and_ be

examined under oath. The record of proceedings becomes 1

part of the affidavit. Rule 4(b), V.R.Cr.P.

Even after a finding of probable cause, however, the judi-

cial officer is still encouraged to issue 2 summons, and may

only issue an arrest warrant in limited situafions. Rule 4(c),

V.R.Cr.P.’ As is the case with warrantless arrests under Rule

° If the offense charged is a misdemeanor, a summons must be issued un-

less the judicial officer finds that (a) the defendant has previously

failed to respond to a citation, summons, warrant, or other order of

the court, or (b)} the defendant has no ties to the community reason-

ably sufficient to assure his appearance or there is a substantial likelihood

he will refuse to respond to a summons, or (c) the whereabouts of the

defendant are unknown and a warrant is necessary in order to subject

him to the jurisdiction of the court, or (d) arrest is necessary to pre-

vent bodily injury to the person or to the person of another or harm to

)

3, the arrestee on a judicial warrant issued following the

filing of an information must be brought before the court

“without unnecessary delay”. Rule 4(f) (2) (c), V-R.Cr.P.

At that hearing, no new determination of probable cause is

made in the information case, nor is there an adversary pre-

liminary examination of probable cause for the warrantless

arrestee. ° ,

However, the arrestee on judicial warrant like the war-

rantless arrestee must be informed (a) of the charge against

him and the minimum and maximum punishments, and

provided with a copy of the information, (b) of his rights

relative to counsel, retained or appointed, (c) of his rights

relative to self incrimination and (d) how he may secure

pretrial release, the schedule of further trial proceedings and

of his rights relative to discovery and omnibus hearing. Rule

§5(d), V.R.Cr.P. Also at that time, the court must determine

the conditions of his pre-trial release. Rule 5 (g)*

ll. Optional Expedited Adversary Hearing

Rule 12(e) (1), V.R.Cr.P. provides that at any time after

arraignment the defendant may move for dismissal of the

information on the ground that the prosecution is unable to

make a prima facie case against him. This motion must be

heard at the omnibus hearing or upon completion of dis-

covery, whichever is later. Rule 12(e), V.R.Cr.P. Normal-

property. If the offense charged is a felony, a summons for appesiance

must be issued in lieu of arrest warrant unless there is reasonable cause

to believe that if not taken into custody the defendant will flee to

avoid prosecution, will fail to respond to the summons, o1 will cause

bodily injury to himself or to another or injury to property. Rule 4(c),

V.R.CeP.

* Vermont practice on pre-trial release parallels the American Baf Asso-

ciation’s Minimum Standards, encourages release on personal fecogni-

zance and provides alternatives other than cash bail. Rule §(g),

V.R.Cr.P. and Reporter’s Notes.

ly, if no expedited hearing is requested by defense counsel,

this omnibus hearing is held 30 days after arraignment and

arraignment is at least 24 hours after the Rule 5 hearing.

Rules 12(£) and 5(f), V.R.Cr.P. If at that omnibus hear-

ing, the prosecution fails to establish by affidavits, deposi-

tions, sworn oral testimony or other admissable evidence that

it has substantial, admissable evidence of the offense chal-

lenged sufficient to withstand a motion for judgment of

acquittal at trial, the court must dismiss the information and

discharge the defendant. Rule 12(e), V.R.Cr.P.

However, Vermont’s unique and speedy discovery pro-

cedure’ also interacts with Rules 12(e) and 5 to promote

judicial efficiency, narrow the issues and provide for rapid

disposition and release where appropriate. Rule 12(e) has

often been called a criminal motion for summary judgment

which parallels the similar device available in civil practice.

See Rule 56, Vermont Rules of Civil Procedure; Rule 56,

Federal Rules of Civil Procedure; Rule 12(e) (2), V.R.Cr.P.

and Reporter’s Notes. This is because a Rule 12(e) (1) mo-

tion may be made at any time after arraignment.

As emphasized in the Reporter’s Notes, a hearing on that

motion may be expedited in a clear case where there is a

dispositive issue that could end the matter. For example, an

issue of mistaken identity could be promptly resolved at the

Rule 5 hearing by a defense request for immediate arraign-

ment and cmnibus hearing. Rules 5(f), 12(e), (f) and

Reporter’s Notes. This is feasible because under the broad

criminal discovery permitted in Vermont, the defendant

may take the deposition of any witness immediately after the

* Vermont has pioneered in the concept of broad criminal discovery. See

for example P. F. Langrock, Vermont’s Experiment in Criminal Dis-

covery, 53 A.B.A.J. 732 (June 1967). This procedure complements

the expedited hearing potential provided in Rules 5(f) and 12(e),

V.R.Cr.P.

filing of the State’s Attorney’s information. Rules 15 (a)

and 16, V.R.Cr.P. In short, Vermont procedure is flexible

enough to permit immediate defense discovery and summary

disposition where appropriate. Moreover, this procedure re-

sults in economies of judicial, police and prosecuturial time

because adversary hearings are only conducted after defense

counsel, through discovery, has determined that there is a

genuine issue to be litigated.

In contrast to the practice in some jurisdictions, the failure

of Rule 12 to provide an automatic adversary preliminary

hearing is unique. However, this practice is based on the

assumption that the Vermont method is constitutionally

sufficient in view of the fact that the process of arrest valida-

tion, bail and binding the defendant over for trial are ade-

quately covered by Rules 3, 4, and 5, V.R.Cr. P. This as-

sumption is buttressed by the fact that the omnibus hearing

required by Rule 12(f) and the extensive discovery per-

mitted by Rules'15 and 16 further guard against unnecessary

detention. This is especially true in view of the means to

expedite this procedure discussed above. Rule 12, V.R.Cr.P.

and Reporter’s Notes.

With this background, we should compare Vermont prac-

tice with that encountered in the instant case. The primary

evil perceived by the Court of Appeals below, the practice

of considering the State’s Attorney a sufficient judge of

probable cause to arrest, does not exist in Vermont.” There

is judicial scrutiny, albeit ex parte, prior to arraignment."

Unlike the Florida situation, Vermont detentioners cannot

be held over 30 days (i.e. until arraignment) without a

judicial examination of the merits of their pre-trial release.’

® 483 F.2d 782, 787.

® Arraignment may be held as part of Rule 5 proceedings if the defend-

ants request. Otherwise, it is set for a later time. Rule 5(f), V.R.Cr.P.

* 423 F.2d 780, 782; Rules 3, 4, and 5, V.R.Cr.P. and Reporter’s Notes.

ee ee

This matter is explored at the Rule 5 hearing which must be

held “without unnecessary delay”. Rules 4(f) (2) (C) and

§(a), (c), (g), V-R.Cr.P. and Reporter’s Notes. See also

McNabb v. United States, 318 U.S. 322 (1943); Mallory v.

United States 354 U.S. 449 (1957); Miranda v. Arizona, 384

U.S. 436 (1966) at 463 n.32; United States v. Keeble, 459

F.2d 757 (8th Cir. 1972).

In short, the Vermont system is far superior to the pro-

cedural framework sustained in Shadwick v. Tampa, 407

U.S. 345, 92 $.Ct. 2119, 32 L.Ed.2d 783 (1971). In Shad-

wick, the petitioner challenged the issuance of warrants by

clerks of the Municipal Court on the theory that they were

not neutral and detached magistrates within the ambit of the

Fourth Amendment of the United States Constitution. This

Court disagreed, holding that the clerks were judicial officers.

It was explained that:

The warrant traditionally has represented an in-

dependent assurance that [an] .. . arrest will not

proceed without probable cause to believe that a

crime has been committed and that the person . . .

named in the warrant is involved in the crime.

Thus, an issuing magistrate must meet two tests.

He must be neutral and detached, and he must be

capable of determining whether probable cause

exists for the requested arrest ... This court long

has insisted that inferences of probable cause be

drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often

competitive enterprise, of ferreting out crime.

(Citations omitted] Id. at 350, 92 S.Ct. at 2122.

There is no question that Vermont practice surpasses the

standards of Shadwick, supra. Vermont procedure requires

a judge, rather than a court clerk to find probable cause for

an arrest, and the defense ‘may avail itself of the Rule 12

procedure.

It should also be noted that the distinction made in Florida

(Amended Rule 3.131, 33 F.S.A.) between felons and mis-

demeanants for purposes of the availability of probable cause

hearings does not exist in Vermont. Probable cause is deter-

mined by a judicial officer, either before or “‘without unnec-

essary delay” after every arrest, regardless of the classification

of the offense. This is true whether arrest is without warrant

or upon a judicial warrant following the filing of an infor-

mation. In fact, Vermont Rules strongly encourage the

issuance of a citation to appear in misdemeanor cases in lieu

of either a warrantless arrest or issuance of a warrant. Rules

3 and 4, V.R.Cr.P.

Finally, Vermont has no equivalent to the Florida practice

of delayed probable cause hearings in capital or life imprison-

ment cases, Amended Rule 3.131(b), 33 F.S.A. Once again,

it is the fact of a warrantless arrest or the potential for arrest

in an information situation which triggers the probable cause

hearing. The penalty or nature of the offense alleged plays

no part in the matter. Rules 3, 4, and 5, V.R.Cr.P.

: CONCLUSION

This brief was designed to acquaint the court with the

unique yet sound Vermont Rules of Criminal Procedure

dealing with prosecution upon information and arrest. The

paramount deficiency in Florida practice which impressed

the courts below, the absence of an impartial judicial deter-

mination of probable cause in information prosecutions, does

not exist in Vermont. Likewise, Vermont makes no distinc-

tion relative to the availability of a probable cause hearing

because the offense is denominated a felony or misdemeanor;

nor do the Vermont Rules establish a separate time frame for

capital offenses or those requiring life imprisonment.

In short, Vermont information practice comports with

the Constitution and has none of the evils perceived by the

courts below. Therefore, it is hoped that any relief framed

PERSE RIE Ts

cao on,

in this case will be sufficiently limited to avoid placing the

constitutionality of the present Vermont procedure in doubt.

Respectfully submitted,

KIMBERLY B. CHENEY,

Attorney General

of the State of Vermont

Amicus Curiae

ALAN W. Cook,

Assistant Attorney General

Of Counsel

APPENDIX

Rules 3, 4, 5, 12, 15(a), 16

VERMONT RULES OF CRIMINAL

AND

APPELLATE PROCEDURE

RULE 3. ARREST WITHOUT WARRANT; CITATION TO

APPEAR

(a) ARREST WITHOUT WarrRANT. A law enforcement

officer may arrest without warrant a person whom the officer

has probable cause to believe has committed a crime in the

presence of the officer. Such an arrest shall be made while

the crime is being committed or without unreasonable delay

thereafter. An officer may also arrest without warrant a

person whom the officer has probable cause to believe has

committed or is committing a felony. Probable cause shall

be based upon the same evidence required for issuance of a

summons or warrant under Rule 4(b).

(b) Same: Procepure. A person arrested without war-

rant shall either be released in accordance with subdivision

able judicial officer without unnecessary delay. The informa-

tion and affidavit or sworn statement required by Rule 4(a)

shall be filed with or made before the judicial officer when

the arrested person is brought before him.

(1) Mandatory Issuance. A law enforcement officer act-

ing without warrant who has grounds to arrest a person for

a misdemeanor shall, except as provided in paragraph (2) of

this subdivision, issue a citation to appear before a judicial

officer in lieu of arrest. In such circumstances, the law en-

forcement officer may stop and briefly detain such person

for the purpose of determining whether any of the excep-

iS Ne i aa tA a a

tions in paragraph (2) applies, and issuing a citation, but if

no arrest is made, such detention shall not be deemed an

arrest for any purpose. When a person has been arrested

without warrant, a citation to appear in lieu of continued

custody shall be issued as provided in this rule if (A) the

charge for which the arrest was made is reduced to a mis-

demeanor and none of the exceptions in paragraph (2) ap-

plies, or (B) the arrest was for a misdemeanor under one of

the exceptions in paragraph (2) and the reasons for the ex-

ception no longer exist.

(2) Exceptions. The citation required in paragraph (1)

of this subdivision need not be issued, and the person may be

arrested or continued in custody, if

(A) A person subject to lawful arrest fails to identiy

himself satisfactorily; or

(B) Arrest is necessary to obtain nontestimonial evidence

upon the person or within the reach of the arrested person; or

person arrested or to the person of another, harm to prop-

erty, or continuation of the criminal conduct for which the

arrest is made; or

(D) The person has no ties to the community reasonably

sufficient to assure his appearance or there is a substantial

likelihood that he will refuse to respond to a citation; or

(E) The person has previously failed to appear in response

to a Citation, summons, warrant or other order of court

issued in connection with the same or another offense.

(3) Discretionary Issuance in Cases of Felony. A law en-

forcement officer acting without warrant may issue a citation

to appear in lieu of arrest or continued custody to a person

charged with any felony where arrest or continued custody

is not patently necessary for the public safety and such facts

as the officer is reasonably able to ascertain as to the person’s

place and length of residence, family relationships, refer-

ences, past-and present employment, his criminal record, and °

other relevant matters satisfy the officer that the person will

appear in response to a Citation.

(4) Discretionary Issuance by Prosecuting Officer. A

prosecuting officer may issue a citation to appear to any

person whom the officer has probable cause to believe has

committed a crime. The citation shall be served as provided

for service of summons in Rule 4(f) (1) of these Rules.

- Probable cause shall be based upon the same evidence required

for issuance of a summons or warrant under Rule 4(b).

(5) Form. The citation to appear shall be dated and

signed by the issuing officer and shall state the name of the

person to whom it is issued and the offense for which he

would have been arrested or continued in custody. It shall

direct the person to appear before a judicial officer at a stated

time and place. .

(6) Filing Citation and Information with Judicial Officer.

A copy of the citation to appear, signed by the officer issuing

it, and the information and affidavit or sworn statement re-

quired by Rule 4(a), shall be filed with or made before the

judicial officer at the time for appearance stated in the cita-

tion.

RULE 4. SUMMONS OR ARREST WARRANT UPON

INDICTMENT OR INFORMATION

(a) APPLICATION TO JUDICIAL OFFICER. A prosecuting

officer may request a judicial officer to issue a summons or

arrest warrant for any defendant, not already arrested or

cited to appear for the same offense, who is named (1) in an

indictment presented on oath of the foreman of a grand

jury or (2) in an information presented on oath of the

prosecuting officer accompanied by an affidavit or affidavits

or. a sworn statement made before the judicial officer as to

probable cause. Any sworn statement so made shall be taken

‘

See aaa eRe De

down by a court reporter or recording equipment. The ,

prosecuting officer shall present with his application $uch -

information as reasonable investigation would reveal con-

cerning the defendant’s (i) residence, (ii) employment, (iii)

family relationships, (iv) past history of response to legal

process, and (v) past criminal record. At the time when

an information or indictment is presented to him, the judicial

officer shall make a minute thereon in writing, under his

official signature, of the date on which the same was pre-

sented.

(b) FrnpDING OF PROBABLE CAUSE UPON INFORMATION.

No summons or warrant shall be issued upon information

unless the judicial officer finds that there is probable cause to

believe that an offense has beer committed and that the

defendant has committed it. The finding of probable cause

shall be based upon substantial evidence, which may be hear-

say in whole or in part, provided that 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 informa-

tion furnished. Before ruling on a request for a summons or

warrant, the judicial officer may require the prosecuting

officer and afhiant or afhants to appear personally and may

examine under oath the affhant or afhants and any witnesses

the prosecuting officer may produce, provided that such

proceeding shall be taken down by a court reporter or re-

cording equipment, or the judicial officer shall promptly

make a summary of it. Such record or summary shall be

made part of the affidavit.

upon an information and finding of probable cause,

(1) If the offense charged is a misdemeanor, the judicial

officer shall issue a summons for the appearance of the de-

fendant before a judicial officer, unless he finds that

(A) The defendant has previously failed to respond to a

citation, summons, warrant, or other order of court issued in

connection with the same or another offense; or

(B) The defendant has no ties to the community reason-

ably sufficient to assure his appearance or there is a substantial

likelihood that he will refuse to respond toasummons; or __

the issuance of an arrest warrant is necessary in order to

subject him to the jurisdiction of the court; or

(D) Arrest is necessary to prevent bodily injury to the

person arrested or to the person of another or harm to prop-

erty.

(2) The judicial officer shall likewise issue a summons in

any case in which the prosecuting officer so requests.

(3) If the offense charged is a felony, the judicial officer

may issue a summons for the appearance of the defendant

unless there is reasonable cause to believe that, if not taken

into custody, the defendant will flee to avoid prosecution,

will fail to respond to the summons, or will cause bodily

injury to himself or to another or injury to property.

(4) The summons shall be issued to the prosecuting officer

for delivery to the person who is to make service and the

judicial officer shall file a copy of the summons and indict-

ment or information and affidavit or sworn statement in the

County Court or territorial unit of the District Court hav-

ing jurisdiction of the offense.

If the defendant fails to appear in response to the sum-

mons, a warrant may be issued on the basis of the same in-

dictment or information.

(d) IssuANCE OF ARREST WARRANT. Upon an indict-

ment or upon an information and finding of probable cause

in any case in which the judicial officer does not issue a

summons as provided in subdivision (c), he shall issue a

warrant for the arrest of the defendant to any law enforce-

ment officer authorized by these rules to execute it. The

ROEM NEIL ABT EON CIENT

rein ne

judicial officer shall file a copy of the warrant and the in-

dictment or information and affidayit or sworn statement in

the County Court or territorial unit of the District Court

having jurisdiction of the offense.

(e) Form.

(1) Summons. The summons shall be dated and signed

by the judicial officer. It shall be directed to the defendant

and shall summon him to appear before a judicial officer. at

a stated time and place. It shall describe in general terms the

offense charged in the indictment or information.

(2) Arrest Warrant. The arrest warrant shall be in the

same form as the summons, except that it shall be directed to

any law enforcement officer and shall contain the name of

the defendant or, if his name is unknown, any name or

description by which he can be identified with reasonable

certainty. It shall command that the defendant be arrested

and brought without unnecessary delay before the nearest

available judicial officer.

(f) SERVICE OR EXECUTION; RETURN.

(1) Service of Summons.

(A) By Whom. The summons may be served by any

person authorized by the Vermont Rules of Civil Procedure

to serve process in a civil action or by any law enforcement

officer. |

(B) Territorial Limits. The summons iy be served at

any place within the state of Vermont.

fendant by any means provided by the Vermont Rules of

Civil Procedure for service of process within the state in a

civil action. In addition, service may be by registered or

certified mail, return receipt requested, with instructions to

deliver to addressee only. Service by mail shall be complete

when the mail is delivered and the return receipt signed or

when acceptance is refused.

(D) Return. On or before the return day the person

to whom a summons was delivered for service shall make

return thereof, with the indictment or information and

affidavit or sworn statement, to the judicial officer before

whom the defendant was summoned to appear. If service

was by mail, the return shall consist of the return receipt or,

if acceptance was refused, an affidavit that upon notice of

such refusal a copy of the summons was sent to the defend-

‘ ant by ordinary first-class mail. At the request of the prose-

cuting officer made at any time while the indictment or

information is pending, a summons returned unserved, or a

duplicate thereof, may be delivered by the judicial officer to

any Officer or appropriate person for service.

(2) Execution of Warrant.

(A) By Whom. The warrant may be executed by any

law enforcement officer.

(B) Territorial Limits. The warrant may be executed at

any place within the state of Vermont.

of the defendant. The officer need not have the warrant in

his possession at the time of the arrest, but upon request he

shall show the warrant to the defendant as soon as practicable

and at that time shall deliver to the defendant a copy. of the

warrant. If the officer does not have the warrant in his

possession i the time of the arrest, he shall then inform the

defendant of the offense charged and of the fact’that a war-

rant has been issued. The officer executing the warrant shall

bring the defendant without unnecessary delay before the

nearest available judicial officer.

(D) Return. The officer executing a warrant shall make

return thereof, with the indictment or information and

affidavit or sworn statement, to the judicial officer before

whom the defendant is brought. At the request of the prose-

cuting officer, any unexecuted warrant shall be returned to

any judicial officer and cancelled by him. At the request of

the prosecuting officer made at any time while the indict-

ment or information is pending, a warrant returned unexe-

cuted and not cancelled, or a duplicate thereof, may be de-

livered by the judicial officer to any officer or appropriate

person for execution.

RULE 5. APPEARANCE BEFORE A JUDICIAL OFFICER

(a) IN GENERAL. When a person arrested with or with-

, Out a warrant, or served a citation or summons, is brought or

appears before a judicial officer as provided in Rules 3 and 4,

the judicial officer shall preceed in accordance with this rule.

All proceedings except those under subdivision (b) of this

rule shall be taken down by a court reporter or recording

equipment.

(b)., Temporary RELEASE PENDING APPEARANCE. The

presiding judge of each County Court and the judge of each

territorial unit of the District Court shall establish proce-

dures and standards by which persons arrested with or with-

out warrant other than during normal business hours may be

released pending appearance under this rule. Such appear-

ance shall be held as soon as possible after release.

the defendant was arrested without a warrant or appeared

in response fo a Citation issued under Rule 3 and the prosecu-

tion is upon information, the judicial officer shall determine

in the manner provided in Rule 4(b) for issuance of sum-

mons or warrant whether there is probable cause to believe

that an offense has been committed and that the defendant

has committed it. If the judicial officer does not find prob-

able cause, he shall dismiss the information without prejudice

and discharge the defendant. Upon conclusion of proceed-

ings under this rule, the judicial officer shall file the indict-

ment or information and affidavit or sworn statement in the

County Court or territorial unit of the District Court hav-

ing jurisdiction of the offense.

(d) STATEMENT BY THE JuDICIAL OFFIcER. The judicial

officer shall inform the defendant before taking any further

action under this rule

(1) Of the charge against him and the minimum and

maximum punishments for it and provide him with a copy

of the indictment or information and affidavit or sworn

statement;

(2) Of his right to retain and consult counsel before

making any statement or answering any questions at the

present hearing or subsequently; in an appropriate case, of

his right to request the assignment of counsel at state expense

if he is financially unable to retain counsel; and of his right

to communicate with counsel, family, or friends;

(3) That he is not required to make any statement or

answer any questions at the present hearing or subsequently

and that anything he says may be used against him;

(4) Of the general circumstances under which he may

secure pre-trial release; and,

(5) If he is not represented by counsel, of the nature and

approximate schedule of further pre-trial proceedings to be

taken in the case and of his rights to discovery and an omni-

bus hearing.

(e) ASSIGNMENT OF AND CONSULTATION WITH COUN-

sEL. No further proceedings shall be had until counsel has

been assigned, if the case is an appropriate one for such as-

signment, and until the defendant and his counsel have had

an adequate opportunity to confer, unless the defendant has

intelligently waived the right to be represented by counsel.

(f) DETERMINATION OF ARRAIGNMENT Date. If the

defendant is not discharged under subdivision (c), the judi-

cial officer shall, upon consultation with the prosecuting

officer and the defendant or his counsel, set a date and time

tates a zaiebd 100. at ented

Seis

5 ‘

pees 2 te edna

for arraignment which shall be within a reasonable time, but

in no event less than 24 hours, after the time of such deter-

mination, except at the request of the defendant. If the

judicial officer is a Superior or District Judge sitting in the

County Court or territorial unit of the District Court hav-

ing jurisdiction of the offense, he may, if. the defendant so

requests, conduct the arraignment forthwith as part of the

proceedings under this rule, or he may order the defendant

to appear before him at a later date and time. Otherwise, the

judicial officer shall order the defendant to appear for ar-

raignment in the court having jurisdiction at the date and

time set.

(g) Pre-trriac Revease. If the defendant has been ar-

rested and is not released upon citation under Rule 3(c) or

discharged under subdivision (c) of this rule and the prose-

cuting officer does not stipulate to the release of the defend-

ant on his own recognizance, the judicial officer shall deter-

mine whether and on what conditions the defendant shall be

released pending trial in accordance with the standards pro-

vided in Rule 46.

—Amended Dec. 19, 1973, eff. Jan. 1, 1974.

RULE 5. REPORTER'S NOTES

This rule departs significantly from Federal Rules 5 and

§.1. The rule is in part based upon ABA Minimum Standards

(Pretrial Release) §§4.1-4.5. It contains, however, several

features unique to these rules that to some extent reflect |

prior Vermont practice. Basically, the rule provides an ini-

tial appearance before a judicial officer for every defendant

whether cited or summoned to appear or afrested with or

without warrant. Note that a “judicial officer” for purposes

of this rule is a Superior or District Judge or an acting Dis-

trict Judge. Rule 54(c) (4). The function of the appear-

ance is to dispose of a variety of preliminary matters, includ-

{at

ing the determination of probable cause for those arrested

without warrant or cited to appear under Rule 3, a statement

to the defendant of the charge and his rights, assignment of

counsel, arraignment or the determination of a date for

arraignment, and the conditions of pretrial release under

Rule 46. Questions pertaining to the merits of the charge are

largely left to motion practice under Rule 12 and discovery

under Rules 15-16.2.

The rule consolidates and makes mandatory a number of

- features of prior Vermont practice. Under the former mu- .

nicipal court practice, a defendant, upon arrest, was to be

brought forthwith before a justice of the peace or municipal

court. If. the offense charged was beyond the jurisdiction of

the municipal court, he was to be examined and bound over

to the County Court. See 13 V.S.A. §§5507-5508 (repealed

by Act No. 118 of 1973, §25), 5551-5553 (repealed by Act

No. 258 of 1971, §19). The Court had held that, at least in

felonies, probable cause was properly in issue in the binding-

over proceedings, which were treated as a kind of prelimi-

nary examination. In re Davis, 126 Vt. 142, 224 A.2d 905

(1966). In the District Court and County Courts, 13

V.S.A. 85653 (repealed by Act No. 118 of 1973, §25) re-

quired that a person arrested upon information be brought

“as soon as possible” before a judicial officer, which by statute

included a court clerk. The judicial officer was thereupon to

fix bail in accordance with 13 V.S.A. §7553a. The Public

Defender Act, 13 V.S.A. §§5234, 5235, required the giving -

of notice of the right to counsel and notification of the

Public- Defender at the earliest judicial appearance. Al-

though the practice under these provisions was not uniform,

in many courts these functions where possible were combined

with a probable cause hearing and arraignment in a single

proceeding not unlike that contemplated under Rule 5. See

In re Mahoney, 128 Vt. 462, 266 A.2d 444 (1970). The

Te a i ens een

Court recently held that a defendant arrested upon warrant

has the right to a probable cause hearing on motion before

trial. State v. Perry, 131 Vt. 75, 300 A.2d 615 (1973).

Rule 5(a) makes clear that proceedings under this rule

occur regardless of the means by which the prosecution has

been commenced. See Reporter’s Notes to Rules 3 and 4. A

verbatim record is required because of the importance of the

matters considered, especially the probable cause determina-

tion under subdivision (c), the judicial officer’s Miranda

warning under subdivision (d), the assignment of counsel

under subdivision (e), and arraignment or determination of

the date thereof under subdivision (f). See ABA Minimum

Standards (Pretrial Release) §4.3(c) cf; 13 V.S.A. $5234

dictment or information at the defendant’s appearance under

this rule as required by Rules 3(b), 3(c) (6), 4(£) (1) (D),

and 4(f) (2) (D), the defendant should be discharged with-

out prejudice to the prosecution, unless the prosecution shows

cause for a brief continuance to enable it to produce the ap-

propriate document. See Rule 48(b) (2). Cf. 13 V.S.A.

§5654 (repealed by Act No. 118 of 1973, §25). The de-

fendant may waive appearance under Rule 43 (c) (2).

Rule 5(b) provides for a procedure similar to that fol-

lowed in many District and County courts under prior Ver-

mont practice. Under Rules 3(b) and 4(f)(2)(C), a

- person arrested with or without warrant is to be brought

“before the nearest available judicial officer without unneces-

sary delay.” This phrase, taken from Federal Rule 5 (a), has

a long history of interpretation in the federal courts, which

will serve as a guide to its construction under these rules. For

a full discussion, see Reporter’s Notes to Rule 3(b). The

appearance under Rule § is the procedural step which ulti-

mately satisfies the requirement embodied in the phrase. It

may be difficult, however, to locate a judicial officer when an

PD BEE OH RR 5 ES GA ee

arrest Occurs late at night or on a weekend. Yet, the circum-

stances of a warrantless arrest may be such that the arresting

officer is unwilling to issue a citation, or the arrest may be

upon Warrant, giving the officer no such alternative. The

federal courts have held that it is not “unnecessary delay”

to defer the appearance until the regular business hours of

the magistrate, although some courts have reasoned that the

police may not continue interrogation during the prolonged

unavailability of a magistrate. Compare Williams v. United

States, 273 F.2d 781 (9th Cir.), cert. denied 362 U.S. 951

(1959), with Mitchell v. United States, 316 F.2d 354 (D.C.

Cir. 1963). See 1 Wright, Federal Practice and Procedure

§74, at pp. 97-99 (1969).

To alleviate the problem of continued detention during

the unavailability of a magistrate, which is the principal

target of the “unnecessary delay” rule, Rule 5(b) requires

the trial courts to provide for temporary release of persons

arrested other than during normal business hours. The exact

form of the procedures and standards to be established is left

to local practice and convenience. Possible procedures might

include delegation of the responsibility for temporary release

to the clerk or an arrangement for telephonic communica-

tion with a given judicial officer, who would agree to be “‘on

cali” for a particuiar area at a particular time. The siandards

to be applied should be based on those -found in Rules 3(c)

and 4(c) for the issuance of citations and summons, as well

as upon those contained in the Bail Act, 13 V.S.A. §7553a

(incorporated in these rules by Rule 46). As under those

provisions, release on conditions other than cash bail or bond

should be used if possible. See Reporter’s Notes to Rules

3(c), 4(c), and 46(a).

If the defendant is released on a temporary basis, the

“without unnecessary delay” requirement of Rules 3(b) and

4(f£) (2) (C) has been met, because its basic purpose — pre-

FMR EASE AORLE DY LEILA EE ENE RE 8 ROR RI EL Ripe ison yee ge BASEL PEICT SI TENN ED ONE HS BRS it enh

eG ate

vention of continuing interrogation of an uncounselled, un-

charged defendant—has been satisfied. Rule 5(b) neverthe-

less requires that the Rule 5 appearance be held “‘as soon as

possible after release.” In ordinary circumstances this should

be deemed to be at the commencement of the next regular

business hours of the nearest available judicial officer. If the

defendant is not reieased under Rule 5(b), either because

release is denied or because he cannot meet the conditions set,

the “without unnecessary delay” requirement still controls.

In line with the federal cases previously cited, such a defend-

ant’s appearance should be delayed only as long as absolutely

necessary and extreme caution should be used in any interro-

gation or other investigation carried out during the period

of delay.

Rule 5(c) provides the only consideration of the merits of

the charge Which will ordinarily be undertaken at the Rule

§ appearance. The proceeding under this subdivision is in-

tended to be an ex parte determination of probable cause

made by the judicial officer for persons cited to appear or ar-

rested without warrant under Rule 3. This determination is

to be made on exactly the same basis and in the same manner

as the probable cause determination under Rule 4(b) prior

to the issuance of a summons or arrest warrant. The purpose

of the determination, like the purpose of that under Rule

4(b), is only the evaluation of the existence of probable

cause at the time of the citation or arrest and the consequent

validation or invalidation of the actions of the law enforce-

ment officer involved. This provision, like the Rule 4(b)

determination, is not applicable to prosecutions upon indict-

ment, which embody their own probable cause determina-

tions. See Reporter’s Notes to Rule 4(b). Because of its

limited purpose, Rule 5(c) provides no opportunity for the

defendant to cross-examine witnesses or present evidence or

argument in his own behalf. At the conclusion of the Rule

PAA SATE F OE EI BT PO RAT EON

5(c) proceedings, the defendant is either discharged or re-

mains before the court ready for the remainder of the Rule

§ procedure as does the person summoned or arrested on

warrant after a preliminary probable cause determination.

Rule 5(c) thus serves only the purpose of assuring for all

defendants pretrial validation of the grounds for commence-

ing the prosecution. Such a proceeding is probably required

by the 4th and 14th Amendments, although the authorities

are by no means clear. In general, an illegal arrest without

more does not invalidate subsequent proceedings against a

defendant thereby in custody. Frisbie v. Collins, 342 U.S.

519 (1952); In re Greenough, 116 Vt. 271, 75 A.2d 569

(1950). Moreover, the United States Supreme Court has

held that in a state proceeding there is no constitutional re-

quirement that a preliminary examination precede the com-

mencement of proceedings by information. Lem Woon v.

Oregon, 229 U.S. 586:(1913). Recent lower federal court

cases suggest, however, that in cases of arrest without war-

rant an after-the-fact determination of probable cause is a

constitutional requirement. Pugh v. Rainwater, 332 F.Supp.

1107 (S.D. Fla. 1971); Brown v. Fauntleroy, 442 F.2d 838

(D.C. Cir. 1971); cf. Morrissey v: Brewer, 408 U.S. 471

(1972); cf. State v. Perry, supra.,

Regardless of constitutional requirements, the limited

probable cause determination provided by Rule 5 (c) is justi-

fied-as a matter of policy and administrative efficiency. An

early check on the validity of a citation or arrest not only

encourages careful police practices in an area where signifi-

cant invasions of privacy are involved but screens out at an

inexpensive preliminary stage cases which might later be

dismissed in any event as a result of the suppression of critical

evidence obtained pursuant to an illegal arrest. See Ker v.

California, 374 U.S. 23 (1963). If the state in fact has prob-

able cause at the time of the dismissal that was not apparent

SI tt 5 eth IO CRSESUO RERNA I is 5 Shia? Tod

at the time of the arrest, it may commence proceedings over

again by a proper citation or arrest.

The ex parte proceeding under Rule 5(c), with its arrest-

validation purpose, is not to be confused with the adversary

preliminary examination or hearing provided for in many

state procedural systems and by Federal Rules 5 and 5.1,

which may serve two further purposes: (1) As a binding-

over proceeding at which the state’s witnesses are subject to

the defendant’s cross-examination and the counterbalancing

effect of the defendant’s own witnesses, the preliminary ex-

amination acts as a screening device — eliminating cases in

which the state may have been able to establish probable

cause for arrest but cannot establish probable cause to hold

the defendant for trial. Cf. State v. Perry, supra. (2) The

examination also may have a discovery function, giving the

defendant a preliminary run-through of the state’s case and

what amounts to a free opportunity to depose the state’s

witnesses. See Weinberg and Weinberg, The Congressional

Invitation to Avoid the Preliminary Hearing, 67 Mich. L.

Rev. 1361, 1396-1399 (1969) 1 Wright, supra, §80, at pp.

137-140; cf. Coleman v. Alabama, 399 U.S. 1 (1970).

There is presumably no Federal or state constitutional

right to a preliminary examination serving these additional

purposes, at least where the prosecution is upon indictment

or information, as all prosecutions under these rules must

be. See Sciortini v. Zampano, 385 F.2d 132 (2d Cir. 1967),

cert. denied 390 U.S. 906 (1968). The amendment of Fed-

eral Rule 5(c), effective October 1, 1972, makes clear that

no examination is required in the federal system in prosecu-

tions upon indictment or information. Federal Rule 5.1,

promulgated at the same time, allows hearsay evidence to be

considered at examinations held in prosecutions upon com-

plaint, thus undermining the screening purpose even in such

cases. See Federal Advisory Committee’s Note, 56 F.R.D.

143, 149-150, 152-154 (1972). It is improbable that the

Supreme Court would impose more rigorous requirements

upon state courts. Prior Vermont decisions requiring an

adversary post-arrest probable cause hearing should be read

as reflecting the Court’s concern for a proper review of

probable cause to arrest under the former system permitting

an arrest warrant to issue upon the state’s attorney’s informa-

tion and oath alone. In re Davis, supra; State v. Perry, supra.

In any event, the Vermont rules supply alternative means

for meeting the needs which are the object of these two

further purposes of the preliminary examination. (1) The

screening purpose of the examination is served by various

motions to dismiss available under Rule 12, including espe-

cially the motion to dismiss for failure to make out a prima

facie case provided under Rule 12(e). By that motion the

defendant can challenge the factual or legal sufficiency of the

prosecution’s evidence in advance of trial. See Reporter’s

Notes to Rule 12(e). The motion must be made after ar-

raignment and in the usual case is to be heard at the omnibus

hearing under Rule 12(f), in order to allow time for the

completion of discovery. This procedure, however, may be

conducted at the time of the Rule 5 appearance or shortly

thereafter in a clear case with a single dispositive issue, such

as a question of mistaken identity. Rule 5(f) permits the

arraignment to be heid at the Rule 5 hearing with the con-

sent of the defendant. Under Rule 12(f) (1), on motion

for cause shown the court has power to alter the usual 30-day

time period between arraignment and the omnibus hearing.

The defendant thus in a proper case may immediately upon

arraignment join motions for relief under Rule 12(e) and

for an immediate omnibus hearing under Rule 12(f) (1),

asserting the ripeness and dispositive nature of the issue he

presents as cause for the latter motion. (2) The discovery

purpose of the preliminary examination is satisfied by the

os Cat ak x ati

liberal deposition and discovery procedure available to the

defendant under Rules 15 and 16 as implemented through

the omnibus hearing provided by Rule 12(f). See Reporter’ s

Notes to Rules 12(f), 15, 16.

Rule 5(d) is based upon Federal Rule 5(c) and ABA

Minimum Standards §4.3(b), (c). The judicial officer’s

statement is the first formal presentation of the charge to the

defendant and thus “should take place in such physical sur-

roundinzs and with such unhurried and quiet dignity as are

appropriate to the administration of justice.” ABA Mini-

mum Standards §4.3(a). To inform the defendant of the

charge and give him a copy of it, as provided in paragraph

(1), is a necessary preliminary to his formulation of a plea

and taking any other defensive steps. A similar requirement

existed under prior law. 13 V.S.A. §6551 (repealed by Act

No. 118 of 1973, §25). Paragraph (2) implements the re-

quirement of the Public Defender Act, 13 V.S.A. §5234,

that the defendant be informed of the right of an indigent

to counsel at state expense. Although many defendants may

have learned of this right at a prior stage in the proceedings

by virtue of the warnings required of the police under

Miranda v. Arizona, 384 U.S. 436 (1966), a further warning

by the judicial officer is essential to bring home the right to

counsel for defendants appearing upon citation or summons

and to assure that the right to counsel for all subsequent

stages of the proceedings is understood even by defendants

already warned. The requirement of 13 V.S.A. §5234 that

the Public Defender be notified of an unrepresented defend-

ant continues independent of the rule. Note that by virtue

of Argersinger v. Hamlin, 407 U.S. 25 (1972), and 13

V.S.A. §{£201(a) (4), as amended, the right to counsel at-

taches whenever imprisonment may be imposed upon convic-

tion. See Reporter’s Notes to Rule 44.

Rule 5(d) (3) provides for the balance of the Miranda

warning. As with notification of the right to counsel, it is

essential that all defendants, whether previously warned or

not, understand that their Fifth Amendment rights continue

through the formal, judicial stages of the proceedings. See

1 Wright, supra, §78. Paragraphs (4) and (5) are added to

make sure that on the practical level the defendant under-

stands the context in which he must exercise his rights. It

is particularly important to the workings of the pretrial

release system under Rule 46 and 13 V.S.A. §7553a that the

defendant be aware of its availability and terms. Further,

the defendant without a lawyer must have a clear under-

standing of the procedural steps that are to follow, so that he

may either obtain counsel or properly prepare for his own

defense.

Rule 5(e) is based upon ABA Minimum Standards §4.3

(d). As prior Vermont law recognized, the right to counsel.

can be effective only if adequate time for consultation is

allowed. See Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.

1968). Cf. In re Clarence Robinson, 125 Vt. 343, 215 A.2d

$25 (1965). Under the rule, assignment of and consultation

with counsel must be allowed before any further steps are

taken at the Rule 5 hearing. If the arraignment itself is to be

held at the hearing, as permitted by Rule 5 (f), counsel must

be present, for arraignment is a “critical stage.” Hamilton

v. Alabama, 368 U.S. 52 (1963); White v. Maryland, 373

U.S. 59 (1963). The decision as to when to plead is so inter-

twined with the decision what to plead that counsel must be

assigned prior to the Rule 5(f) determination. See ABA

Minimum Standards (Pleas of Guilty) §1.3, Commentary.

Likewise, the Supreme Court has indicated that a preliminary

hearing at which bail is set is a “critical stage,” in part be-

cause of the importance of a lawyer’s arguments on the right

to and conditions of release. See Coleman v. Alabama, 399

PERN IATE RPO. REIL RELI BY PRERENDER IEE FANT HET PANES REE ORE pC eR EN EN CoN

sb aa Catia

U.S. 1 (1970). The assignment of counsel must thus precede

the release hearing under Rule 5 (g) as well.

Rule 5(£) makes clear that the arraignment is in form a

proceeding separate from the Rule 5 hearing. See Rule 10

and Reporter’s Notes thereto. The rule reflects practice un-

der 13 V.S.A. §6551 (repealed by Act No. 118 of 1973,

$25), which allowed the defendant to defer his plea until at

least twenty-four hours after receiving a copy of the indict-

ment or information. The delay could be waived, however.

In re Robinson, 125 Vt. 343, 215 A.2d 525 (1965). Accord-

ingly, the common practice was for the arraignment to be

held at the bail hearing. Under the rule, if the judicial officer

before whom the defendant appears is a judge of the court in

which the offense will be tried, the defendant may request

that the arraignment be held immediately as part of the Rule

§ hearing. If the defendant does not request immediate ar-

raignment, the judicial officer is to set a place, date, and time

for arraignment according to the mutual convenience of the

parties and the court. The time set may be within twenty-

four hours only if the defendant requests it.

Under Rule 5(g), the pretrial release hearing. required

under Rule 46 and 13 V.S.A. §7553a is to be held as part of

the Rule 5 appearance. See ABA Minimum Standards $4.3

(e). At this hearing, conditions of release pending trial will

be set for arrested defendants released temporarily under

Rule 5 (b), as well as for those who have remained in custody

pending appearance. A defendant who has appeared in re-

sponse to a citation or summons, however, ordinarily need

not be subject to conditions of release pending trial. The re-

lease decision resulting in the issuance of the citation or

summons will be the basis for the defendant’s continued re-

lease, unless the state moves under Rule 46(b) to have con-

ditions of release imposed for cause shown. See Reporter’s

Notes to Rule 46.

%: he SR RRS ihe got

RULE 12. PLEADINGS AND MOTIONS BEFORE TRIAL;

OMNIBUS HEARING

(a) PLEADINGs AND Motions. Pleadings in criminal pro-

ceedings shall be the indictment and the information, and the

pleas of not guilty, guilty and nolo contendere. All other

pleas, and demurrers and motions to quash are abolished, and

the defenses and objections raised before trial which hereto-

fore could have been raised by one or more of them shall be

raised only by motion to dismiss or to grant appropriate

relief, as provided in these rules.

(b) PretriaL Motions. Any defense, objection, or re-

quest which is capable of determination without the trial of

‘the general issue may be raised before trial by motion. Unless

otherwise ordered for cause under subdivision (g) of this

rule, the following must be raised prior to trial if then

known to the party:

(1) Defenses and objections based on defects in the insti-

tution of the prosecution; or

(2) Defenses and objections based on defects in the in-

dictment or information Yother than that it fails to show

jurisdiction in the court or to charge an offense, which objec-

tions shall be noticed by the court at any time during the

pendency of the proceeding) ; or

(3) Motions to suppress evidence on the ground. that it

was illegally obtained; or

(4) Requests for discovery under Rule 16 or 16.1; or

(5) Request for a severance of offenses or defendants

under Rule 14. |

these rules or as otherwise ordered by the court, all motions

and other requests prior to trial shall be made at or before

the omnibus hearing provided in subdivision (f) of this rule.

(d) RULING ON Motion. A motion made before trial

i ae I ti

shall be determined at the omnibus hearing, but the court,

if neither party would be prejudiced, may order that it be

deferred for determination at the trial of the general issue

or until after verdict. Where factual issues are involved in

determining a motion, the court shall state its essential find-

ings on the record. ,

(e) MoTION To Dismiss FOR Lack OF PriMa Facie CAsE.

(1) Motion. The defendant may, at any time after ar-

raignment, move for dismissal of the indictment or informa-

tion on the ground that the’ prosecution is unable to make

out a prima facie case against him. The motion shall specify

the factual elements of the offense which the defendant con-

tends cannot be proven at trial.

(2) Hearing and Determination. The motion shall be

heard at the omnibus hearing or, if discovery is not then

complete, upon the completion of discovery. At the hearing,

if the prosecution does not establish by affidavits, depositions,

sworn oral testimony, or other admissable evidence that it

has substantial, admissible evidence as to the elements ot the

offense challenged by the defendant’s motion, or a lesser in-

cluded offense, sufficient to prevent the grant of a motion

for judgment of acquittal at the trial, the court shall dismiss

the indictment or information without prejudice and dis-

charge the defendant. If the prosecution has sufficient evi-

dence of a lesser included offense, the court shall enter an

order dismissing the offense charged and specifying the lesser

included offense remaining for trial. The defendant may

cross-examine witnesses and introduce affidavits or further

evidence in his own behalf. Any question of law determin-

ative of the issues raised by the defendant’s motion that

could be raised by motion under subdivision (b) of this rule

shall be determined at the hearing held under this subdivision.

(3) Form of Affidavits. Affidavits offered by either party

shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify. Sworn

or certified copies of all papers or parts thereof referred to

in the affidavits or offered independently shall be filed and

served with the motion.

(f) Omnispus HEaRING.

(1) Hearing; Date. Upon request of a Party, upon the

court’s own motion, or when necessary to dispose of pending

motions, an omnibus hearing shall be held in any case in

which a plea of not guilty is entered. Unless otherwise

ordered by the court on motion for cause shown, the omnibus

hearing shall be held 30 days after the defendant is arraigned.

(2) Same; Checklist. At the omnibus hearing the court,

on its own motion, using an appropriate check-list form,

should

(A) Ensure that standards regarding provision of counsel

have been complied with;

(B) Ascertain whether discovery has been completed (in-

cluding compliance by the prosecution with the require-

ments of Rule 16(a) (2) ) and whether additional discovery

will be sought and make necessary orders to expedite all

discovery;

pending and ascertain whether any additional motions or

requests will be made at the hearing or continued portions

thereof;

(D) Ascertain whether there are any procedural or con-

stitutional issues which should be considered;

(E) Upon agreement of counsel, or upon a finding that

the trial is likely to be protracted or otherwise unusually

complicated, set a time for a pretrial conference;

(F) Upon the defendant’s request, permit him to change

his plea;

(G) Ask the defendant whether he intends to offer evi-

Pit ia

dence of an alibi defense and, if he does, to state for the

record or supply to the prosecuting attorney at such later

time as the court may direct, the specific place or places at

which the defendant claims to have been at the time of the

alleged offense and the names and addresses of the witnesses

upon whom he intends to rely to establish such alibi;

(H) Ask the defendant whether he intends to rely upon

the defense of insanity at the time of the alleged crime, or

to introduce expert testimony relating to a mental disease,

defect, or other condition bearing upon the issue of whether

he had the mental state required for the offense charged, and,

if he does, to state for the record, or supply to the prosecut-

ing attorney at such later time as the court may direct, the

names and addresses of the witnesses whom he intends to call

to testify in order to establish such defense or defenses; and

(1) If the defendant states his intention to offer evidence

of an alibi defense, direct the prosecuting attorney within

such time thereafter as the court shall order to inform the

defendant of the names and addresses of. those upon whom

the state intends to rely to establish defendant’s presence at

the scene of the alleged offense.

(3) Conduct.of Hearing. Any and all issues may be

raised by counsel or the court without prior notice and may

be-informally disposed of at the hearing. If additional dis-

covery, investigation, or preparation, or’ evidentiary hearing

or formal presentation is necessary for the fair and orderly

determination of any issue, the hearing shall be continued

from time to time until all matters raised are properly dis-

posed of.

(4) Binding Effect of Stipulations. Stipulations made by

any party or his counsel at the hearing are binding upon the

parties at the trial unless set aside or modified by the court in

the interests of justice.

(5) Memorandum. At the conclusion of the ati a

summary memorandum should be dictated into the record

or prepared by the court and placed on file, indicating dis-

closures made, rulings and orders of court, stipulations, and

any other matters determined or pending.

(g) Errect oF Famure To Raise Issues. Failure by the

defendant to present any of the defenses, objections, or re-

quests required by subdivision (b) of this rule to be made °

prior to trial, or to raise any other pretrial errors or issues of

which the party has knowledge, at the times provided in

subdivisions (c) and (e) of this rule shall, except as other-

wise provided in these rules and subject to constitutional

limitations, constitute waiver thereof. The court for cause

shown may grant relief from the waiver.

(h) Recorps. All proceedings at any hearing conducted

under subdivision (e) or (f) of this rule or by order of

court, including any findings of fact and conclusions of law

that are made orally, shall be taken down by a court reporter

or recording equipment.

(i) EFFECT OF DETERMINATION OF Motion. If the

court grants a motion based on a defect in the institution of

the prosecution or in the indictment or information, it may

also order that the defendant be held in custody or that the

conditions of his release be continued for a specified time

pending the filing of a new indictment or information.

Nothing in this rule shall be deemed to affect the provisions

of any statute relating to periods of limitations.

RULE 12(e), REPORTER’S NOTES

Rule 12(e) is unique to these rules and changes prior prac-

tice. In contrast to the Federal Rules and the procedural sys-

tems of many states, the Vermont Rules do not provide an

automatic preliminary hearing at which the defendant may

require the prosecution to present a prima facie case before

he is bound over for trial. Rules 4(b) and §(c) assure that

the constitutional requirement of an independent finding of

probable cause to arrest is met. The Vermont Rules, how-

ever, proceed on the assumption that there is no constitu-

tional right to a further probable cause hearing as a basis

for the binding over, at least where procedures such as the

release system provided by Rules 3, 4, and 46; the omnibus

hearing required by Rule 12(f); and the broad discovery

allowed by Rule 16 are available to prevent unwarranted

detention and trial. See Reporter’s Notes to Rule 5(c). Fur-

ther, an automatic preliminary hearing would serve no useful

purpose in light of the availability of the omnibus hearing

and discovery. Rule 12(e), by contrast to the. automatic

procedure, provides a narrow form of preliminary hearing,

available only on motion, for issues that may be dispositive of

the case. Arrest validation and discovery are left to other

devices. Under these rules, the defendant is entitled to a full

presentation of the prosecution’s case only when such a

presentation may lead to dismissal of the indictment or in-

formation. The Rule 12(e) hearing is thus narrower in

scope than the probable cause hearing permitted on motion

in prior practice. See In Re Davis, 126 Vt. 142, 224 A.2d

905 (1966); State v. Perry, 131 Vt. 75, 300 A.2d 615

’ (1973), discussed in Reporter’s Notes to Rule 5(c). For the

form of motion, see Official Form 21.

Rule 12(e) (1) specifies that defendant’s motion is to be

grounded on the prosecution’s inability to make out a prima

facie case and is to state the factual elements in which the

prosecution’s case is deficient. While there is no sanction

- against the filing of frivolous or dilatory motions, there is

little advantage to the defense in so doing. The motion is, by

virtue of Rule 12(e) (2), ordinarily to be heard at the omni-

bus hearing and may be opposed simply by affidavits if the

prosecution so wishes. If the defendant has no substantial

basis for his motion, the making of it will neither delay

LE LONIGE ALE LY OLE LE IG GES EI AE RE BT ENR ET RIN I 8

proceedings nor cause the prosecution the time and expense

of a full presentation. Moreover, under Rules 15 and 16, the

defendant, prior to the omnibus hearing, can obtain any

information about the prosecution’s case which a full pres-

entation would provide.

Under Rule 12(e) (1), the motion may be made at any

time after arraignment. While ordinarily the motion will

not be heard until the omnibus hearing, 30 days later, hearing

may be expedited under Rules 5(f) and 12(f) (1) ina clear

case with a single dispositive issue such as a question of mis-

taken identity. See Reporter’s Notes to Rule 5 (c).

Rule 12(e) (2) is in some respects similar to Civil Rule

56, providing for summary judgment. The prosecution need

only show that it has enough evidence to go to the jury on

the issue raised by the defendant — that is, that taking the

evidence in its most favorable construction to the state it

reasonably tends to show defendant’s guilt beyond a reason-

able doubt. See Reporter’s Notes to Rule 29. Moreover, the

Prosecution may establish its case by affidavits of witnesses

as to their potential testimony. See Rule 12(e) (3) (taken

from Civil Rule 56(e)). Also, the rule allows the court to

narrow the issues by dismissing the offense charged but

specifying a lesser included offense for trial. In contrast to

the Civil Rule, however, either party may call witnesses and

offer real evidence, and the defendant may force the state to

a greater degree of proof by cross-examining the state’s wit-

nesses or calling them as hostile witnesses. Finally, Rule 12

(e) (2) allows questions of law to be decided by the same

expeditious procedure.

RULE 15. DEPOSITIONS

(a) WHEN Taken. A defendant or the state, at any

time after the filing of an indictment or information, may

take the deposition of a witness, provided that no deposition

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may be taken more than 30 days after arraignment, or after

the date set for the omnibus hearing if that date is later,

except by leave of court granted for cause shown.

RULE 16. DISCOVERY BY DEFENDANT

(a) ProseEcuToR’s OBLIGATIONS. Except as provided in

subdivision (d) of this rule for matters not subject to dis-

closure and in Rule 16.2(d) for protective orders, upon a

plea of not guilty the prosecuting attorney shall upon request

of the defendant made in writing or in open court at his

appearance under Rule 5 or at any time thereafter

(1) Disclose to defendant’s attorney as soon as possible

the names and addresses of all witnesses then known to him,

and permit defendant’s attorney to inspect and copy or

photograph their relevant written or recorded statements,

within the prosecuting attorney’s possession or control.

(2) Disclose to defendant’s attorney and permit him to

inspect and copy or photograph within a reasonable time the

following material or information within the prosecuting

attorney’s possession, custody, or control:

(A) any written or recorded statements and the sub-

stance of any oral statements made by the defendant, or

made by a co-defendant if the trial is to be a joint one;

(B) the transcript of any grand jury proceedings per-

taining to the indictment of the defendant or of any inquest

proceedings pertaining to the investigation of the defendant;

nection with the particular case, including results of physical

or mental examinations and of scientific tests, experiments,

or comparisons;

(D) any books, papers, documents, photographs (includ-

ing motion pictures and video tapes), or tangible objects,

buildings or places or copies or portions thereof, which are

material to the preparation of the defense or which the prose-

cuting attorney intends to use in the hearing or trial or

which were obtained from or belong to the defendant;

(E) the names and addresses of all witnesses whom the

prosecuting attorney intends to call as witnesses at the hear-

ing or trial, together with any record of prior criminal con-

victions of any such witness; and

(F) any record of prior criminal convictions of the de-

fendant.

The fact that a witness’ name is on a list furnished under

subparagraph (2) (E) of this subdivision and that he is not

called shall not be commented upon at trial.

If no request is made, the prosecuting attorney shall, at

the omnibus hearing, disclose the foregoing items or state on

the record that they do not exist.

(b) Same: CoLLaTERAt. OF ExcULPATORY MATTER. The

Prosecuting attorney shall, as soon as possible, after a plea of

not guilty,

(1) Inform defendant’s attorney,

(A) if he has any relevant material or information which

has been provided by an informant;

(B) if there are any grand jury or inquest proceedings

which have not been transcribed; and

(C)-if there has been any electronic surveillance (includ-

ing wiretapping) of conversations to which the defendant

was a party or of his premises.

(2) Disclose to defendant’s attorney any material or in-

formation 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.

under subdivisions (a) and (b) of this rule extend to ma-

terial and information in the possession, custody, or control

of members of his staff and of any others who have Partici-

pated in the investigation or evaluation of the case and who

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either regularly report, or with reference to the particular

case have reported, to his office.

(d) Matters Nort Susject To Disclosure.

(1) Work Product. Disclosure shall not be required of

legal research or of. records, correspondence, | reports, or

memoranda to the extent that they contain the mental im-

pressions, conclusions, opinions, or legal theories of the prose-

cuting attorney, members of his legai staff, or other agents

of the prosecution, including investigators and police officers.

(2) Informants. Disclosure of an informant’s identity

shall not be required where his identity is a prosecution

secret, unless a failure to disclose will infringe the constitu-

tional rights of the defendant, or the identity of the inform-

ant is a material fact in a defense to be offered by defendant.

Disclosure shall not be denied hereunder of the identity of

witnesses to be produced at a hearing and trial.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.