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Rule 16 – Discovery by Defendant

May 14, 2021 | Criminal Procedure, Vermont

(a) Prosecutor’s Obligations. Except as provided in subdivision (d) of this rule for matters not subject to disclosure 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 with 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 substance of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one;
(B) the transcript of any grand jury proceedings pertaining to the indictment of the defendant or of any inquest proceedings pertaining to the investigation of the defendant;
(C) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
(D) any books, papers, documents, photographs (including 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 prosecuting 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 hearing or trial, together with any record of prior criminal convictions of any such witness; and
(F) any record of prior criminal convictions of the defendant.
(G) any other material or information not protected from disclosure under subdivision (d) of this rule that is necessary to the preparation of the defense.

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 or before the status conference, disclose in writing the foregoing items or state in writing that they do not exist.

(b) Same: Collateral or 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 (including wiretapping) of conversations to which the defendant was a party or of his premises.
(2) Disclose to defendant’s attorney any material or information within his possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor.
(c) Same: Scope. The prosecuting attorney’s obligations under subdivisions (a) and (b) of this rule extend to material and information in the possession, custody, or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his office.
(d) Matters Not Subject to Disclosure.

(1)Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the mental impressions, conclusions, opinions, or legal theories of the prosecuting attorney, members of his legal staff, or other agents of the prosecution, including investigators and police officers.
(2)Informants. Disclosure of an informant’s identity shall not be required except as provided in Rule 509(c) of the Vermont Rules of Evidence.
(3)Victim’s Residential Address or Place of Employment. Disclosure shall not be required of a victim’s residential address or place of employment unless the court finds, based upon a preponderance of the evidence, that nondisclosure of the information will prejudice the defendant.
(e) Videotapes. A copy of a videotape made of the alleged offense and subsequent processing shall be available for purchase by the defendant directly from the law enforcement agency responsible for initiating the action upon written request and advance payment of a $45.00 fee, except that no fee shall be charged to a defendant whom the court has determined to be indigent. A municipal or county law enforcement agency shall be entitled to all fees it collects for videotapes sold pursuant to this rule. Fees collected by the state for videotapes sold pursuant to this rule shall be deposited in the DUI enforcement special fund created under section 1220a of Title 23. The original videotape may be erased 90 days after:

(1) the entry of final judgment; or
(2) the date the videotape was made, if no civil or criminal action is filed.

Vt. R. Crim. P. 16

Amended Dec. 19, 1973, eff. Jan. 1, 1974; March 17, 1977, eff. May 1, 1977; Dec. 8, 1981, eff. March 1, 1982; Dec. 28, 1982, eff. April 1, 1983; 1999, No. 160 (Adj. Sess.), §32, eff. July 1, 2000; Amended effective July 21, 2008; May 10, 2016, eff. July 11, 2016.

Reporter’s Notes-2016 Amendment

New subdivision 16(d)(3) provides that the prosecuting attorney is not required to disclose to the defendant information as to the residential address or place of employment of the victim, unless the court finds, based upon a preponderance of the evidence, that nondisclosure of the information will prejudice the defendant. The amendment serves to implement the provisions of 13 V.S.A. § 5310, while expressly reserving the court’s authority to order that the state disclose the information where necessary to preserve a defendant’s due process and confrontation guarantees. In contrast to Vermont Rule 16, Federal Rule 16 makes no provision for disclosure of the addresses or places of employment of witnesses; the Jencks Act, 18 U.S.C. § 3500, provides for disclosure of certain prior statements of witnesses to the defendant after they have testified, for purposes of cross-examination.

Reporter’s Notes – 2008 Emergency Amendment

This emergency amendment to Rule 16(e) is made to conform with an amendment 23 V.S.A. § 1203(k). See 2007, No. 153, (Adj. Sess.), §2a.