# Amicus Curiae Brief — Gerstein v. Pugh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0372%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 103 ## Text Se re aes eee > ee ee ee Sas See eh amen won SM A en Suprame Scur, UL. ’ 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] PRE WOR IS Lo Sie Ree ab ape SF a susie +> ee ' > ORES tL te et 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 LED OOL ARE Nhoghe 2 too oe a ‘Sapte be visi Beene ee iat ha II 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 2 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. OS 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 I, 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 I. 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 5 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 MPD Fath al i Rite 9 elie A SF hee dD He SiN PNT sual hPa SA TR iD 6 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)) 7 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 9 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- 10 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 11 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 ae Se ei EPR s+ PBL AEBS Sd EH ee eee SE 12 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- 13 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 14 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 By Daniel S. Pearson JEPEWAY, GASSEN & JEPEWAY 619 Dade Federal Building Miami, Florida 33131 By Louis M. Jepeway, Jr. COUNSEL FOR AMICUS CURIAE AUGUST, NIMKOFF & POHLIG Ainsley Building Miami, Florida 33132 By OF COUNSEL 15 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 i 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 2 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. 3 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- 4 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. 6 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. 7 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 9 (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, 10 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 (c) of this rule or shall be brought before the nearest avail- 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. (c) CITATION TO APPEAR BEFORE A JUDICIAL OFFICER. (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- 11 iS Ne i aa tA a a 12 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 (C) Arrest is necessary to prevent bodily injury to the 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- 13 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 14 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. (c) IssuANCE OF SUMMONS. Upon an indictment or 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 15 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 __ (C) The whereabouts of the defendant are unknown and 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 16 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. (C) Manner. The summons shall be served upon a de- 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. (C) Manner. The-warrant shall be executed by the arrest 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 18 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. (c) InrriAL DETERMINATION OF PROBABLE Cause. If 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 19 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 20 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 21 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 22 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 (c) (1). Of course, if the prosecution fails to present an in- 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 23 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 24 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 25 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 26 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. 27 143, 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 28 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 29 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 30 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. ee %: he SR RRS ihe got 31 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. | (c) Motion. Date. Except as otherwise provided in 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 32 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 33 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; (C) Make rulings on any motions or other requests then 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 34 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 35 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 36 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 37 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 ESR PTS ret RR are Pea py RESETS SAORI IORI 38 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; (C) any reports or .tatements of experts, made in con- 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- 39 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. (c) SAME: Scope. The prosecuting attorney’s obligations 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 Biomass