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Rule 23 – Trial by Jury or by the Court

May 14, 2021 | Criminal Procedure, Vermont

(a) Trial by Jury; Waiver. The defendant may in a signed writing or in open court, with the consent of the prosecuting attorney and the court entered of record, waive a jury trial in offenses not punishable by death. The court shall not accept the defendant’s waiver of the right to trial by jury without first, by addressing the defendant personally in open court, informing that person of, and determining that the person understands, the following:

(1) That the jury consists of 12 members of the community, and that the defendant may participate in their selection;
(2) That before the defendant can be convicted, all 12 members of the jury must agree on the defendant’s guilt;
(3) That where a jury is waived, the court alone decides guilt or innocence in accordance with the facts and the law.
(b) Jury of Less Than Twelve. The parties may stipulate in writing that the jury shall consist of any number less than twelve with the approval of the court.
(c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
(d)Jury Separation; Conduct of Trial.

(1) The court may allow the jury to separate during the trial. After the composition of the jury is determined, the court shall proceed without unreasonable delay to the impaneling of the jury, the opening statements and the reception of evidence. Unless the parties consent in a signed writing filed with the court or on the record in open court to a longer delay, trial must commence not more than 48 hours after jury selection in the case of a felony for which the penalty may be life imprisonment , and not more than 30 days after jury selection in any other case.
(2) If the commencement of trial is delayed more than 24 hours, the court must provide appropriate instruction to the jurors of their obligation to avoid outside influences that might adversely affect their ability to serve fairly and impartially, and result in their discharge from service at the trial.
(3) If the commencement of trial is delayed more than 24 hours, the court shall afford the parties an opportunity upon request to conduct a supplemental examination of the jurors as provided in Rule 24(a) related solely to issues arising from the period of separation and may exercise challenges for cause as provided in Rule 24(b) before the jury is sworn.

Vt. R. Crim. P. 23

Amended Dec. 19, 1973, eff. Jan. 1, 1974; Oct. 31, 1983, eff. Feb. 1, 1984; Jan. 20, 1992, eff. March 2, 1992; April 13, 1995, eff. July 1, 1995; Dec. 18, 2007, eff. Feb. 19, 2008; amended June 13, 2018, effective August 13, 2018.

Reporter’s Notes-2018 Amendment

These amendments respond to the Supreme Court’s decision in State V. Breed, 2015 VT 43, 198 Vt. 574, 117 A.3d 829, where the Court outlined the better practice when there may be delay after the jury has been chosen but before trial. The Court wrote:

the better practice is for the trial court to: (1) confirm that the parties are in fact consenting to a longer delay; (2) emphasize that the jurors are to avoid any news and not research the case during any separation period between jury selection and trial; (3) question the jurors . about anything they may have heard or learned about the case following a separation period; (4) ensure that the parties are offered an opportunity to examine the jurors following a separation period; and (5) inquire whether either party has any challenges for cause based on any such examination.

Id. 114. The Court also has suggested in State v. Abdi, 2012 VT 4, Tl 25, 191 Vt. 162, 45 A.3d 29, that although Vermont courts “routinely admonish jurors not to consult outside sources, it may well be time to consider a stronger and more technology-specific admonition” than the standard instructions now used.

Rule 23(d) is amended to provide for three paragraphs.

Paragraph (d)(1) adds a requirement to the existing text of the rule to provide that consent to a delay of commencement of trial beyond those times prescribed in the rule must be given in a signed writing filed with the court or on the record in open court. Reference to the penalty of death in this subdivision is deleted, as for all practical purposes, such has been abolished in Vermont. There is only one remaining codified offense prescribing this penalty-treason ( 13 V.S.A. ยงยง 3401, 3485 ). In the unlikely event of a state prosecution of this charge, it is anticipated that the procedures prescribed by this rule would be followed.

Paragraph (d)(2) adds a requirement that, in the event that commencement of trial is delayed for more than 24 hours, the court must provide an appropriate instruction, as suggested in Breed, to avoid external influences that might serve to adversely affect the jurors ability to serve fairly and impartially, and result in their discharge from service at trial. While the referenced text from Breed provides guidance, the exact language of the admonition to be given to the chosen jurors is left to the discretion of the trial judge, in consideration of the particular circumstances of the case and length of separation.

The judicial admonition to jurors prescribed in the amended language of paragraph (d)(2) is specific to the period of separation from voir dire to commencement of trial and supplements those instructions to be provided as to juror prohibitions at trial itself.

Paragraph (d)(3) is amended to clarify that while parties are entitled to conduct supplemental voir dire of jurors as to issues arising from the period of separation, and to exercise challenges for cause that may then be revealed, a party must initiate a request for supplemental voir dire. The existing language of the rule is also amended to delete reference to limiting supplemental voir dire solely to such issues, to enable the trial court in its discretion to permit supplemental voir dire that may be warranted for specific cause, including circumstances that may have arisen during the period of separation, while preventing any reopening or repetition of voir dire that is not warranted at the time of the scheduled commencement of the trial.