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Rule 5 – Appearance Before a Judicial Officer

May 14, 2021 | Criminal Procedure, Vermont

(a)In General. When a person arrested with or without 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 proceed 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 unit shall establish procedures and standards by which persons arrested with or without warrant other than during normal business hours may be released pending appearance under this rule. The procedures shall provide for setting conditions of release at any hour. Each court shall maintain a schedule that provides which judge, clerk or designee is available to set conditions of release on each date. The appearance of a person released under this subdivision shall be held as soon as possible after release.
(c)Initial Determination of Probable Cause. If the defendant was arrested without a warrant or appeared in response to a citation issued under Rule 3 and the prosecution is upon information, the judicial officer shall determine in the manner provided in Rule 4(b) for issuance of summons 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 probable cause, the judicial officer shall dismiss the information without prejudice and discharge the defendant. Upon conclusion of proceedings under this rule, the judicial officer shall file the indictment or information and affidavit or sworn statement in a unit having 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 the defendant and the minimum and maximum punishments for it and provide the defendant with a copy of the indictment or information and affidavit or sworn statement;
(2) Of the defendant’s 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 the defendant’s right to request the assignment of counsel at state expense if the defendant is financially unable to retain counsel; and of the defendant’s right to communicate with counsel, family, or friends;
(3) That the defendant is not required to make any statement or answer any questions at the present hearing or subsequently and that anything the defendant says may be used against the defendant;
(4) Of the general circumstances under which the defendant may secure pretrial release;
(5) If the defendant is not represented by counsel, of the nature and approximate schedule of further pretrial proceedings to be taken in the case and of the defendant’s rights to discovery; and,
(6) Pursuant to 13 V.S.A. § 8005(a), of the information required to be provided regarding collateral consequences of conviction.
(e)Advisement of Pretrial Risk Assessment and Needs Screenine: Use of Results Thereof. The judicial officer must inform an eligible defendant that:

(1) If the defendant participates in a pretrial risk assessment or needs screening, the results will be provided, in accordance with 13 V.S.A. § 7554c(e), to the defendant and his or her attorney, the prosecutor, and the court: and
(2) At arraigmnent, the court may order the defendant to:

(A) Meet with a pretrial services coordinator on a schedule set by the court;
(B) Participate in a needs screening with a pretrial services coordinator; and
(C) Participate in a clinical assessment by a substance abuse or mental health treatment provider and follow the recommendations of the provider; and
(3) The court may order the defendant to engage in pretrial services; and
(4) In accordance with 13 V.S.A. § 7554c(e), information provided by the defendant during the risk assessment or needs screening only may be used for determining bail, conditions of release, and appropriate programming for the defendant in the pending case; and
(5) Information provided by the defendant during the risk assessment or needs screening will be otherwise exempt from public inspection and copying as a public record; and
(6) The defendant will have use and derivative use immunity for information related to the present offense or offenses gained as a proximate result of the risk assessment or needs screening.
(f) Assignment of and Consultation With Counsel. No further proceedings shall be had until counsel has been assigned, if the case is an appropriate one for such assignment, and until the defendant and the defendant’s counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel.
(g)Determination of Arraignment Date. If the defendant is not discharged under subdivision (c), the judicial officer shall, upon consultation with the prosecuting officer and the defendant or the defendant’s counsel, set a date and time for arraignment which shall be within a reasonable time, but in no event less than 24 hours, after the time of such determination, except at the request of the defendant. The judicial officer may, if the defendant so requests, conduct the arraignment forthwith as part of the proceedings under this rule. Otherwise, the judicial officer shall either order the defendant to appear before him or her at a later date and time or order the defendant to appear for arraignment in the court having jurisdiction in the county where the offense occurred at the date and time set.
(h)Pretrial Release. If the defendant has been arrested and is not released upon citation under Rule 3(c) or discharged under subdivision (c) of this rule and the prosecuting officer does not stipulate to the release of the defendant on the defendant’s own recognizance, the judicial officer shall determine whether and on what conditions the defendant shall be released pending trial in accordance with the standards provided in Rule 46.
(i)Review of Probable Cause Determination. Upon request of the defendant, the judicial officer shall review the finding of probable cause. The review shall be solely on the affidavits or sworn statements taken pursuant to Rule 4(a), (b) or 5(c).

Vt. R. Crim. P. 5

Amended Dec. 19, 1973, eff. Jan. 1, 1974; Dec. 8, 1981, eff. March 1, 1982; Nov. 2, 1982, eff. Feb. 1, 1983; Jan. 14, 1985, eff. March 15, 1985; Jan. 14, 2009, eff. Feb. 1, 2009; Dec. 11, 2014, eff. Feb. 13, 2015; Dec. 21, 2015, eff. Jan. 1, 2016; May 10, 2016, eff. July 11, 2016; amended , Oct. 17, 2017, eff. Dec. 18, 2017.

Reporters Notes-2017 Amendment

Rule 5(e) was originally added in response to the passage of Act No. 195 of 2013 (Adj. Sess.), which estabhshed a system of pretrial risk assessments and needs screenings, codified in pertinent part at 13 V.S.A. § 7554c. The statute was again amended in enactment of Act No. 140 of 2015 (Adj. Sess.) to alter former language for court-ordered participation in pretrial risk assessment and needs screenings, and to prescribe that the results of pretrial assessments or screenings are to be provided directly to the defendant and his or her attorney, the prosecutor, and the court. Formerly, the statute and the rule provided that the prosecutor would receive the results, and thereafter provide them to the defendant, his or her attorney, and the court in the event that criminal charges were filed. The statute was amended yet again in Act No. 61 of 2017, § 3 to specify that the advisements are provided to “eligible” defendants (defined by amended subsection 13 V.S.A. § 7554c(b)(2) as defendants charged with any offense other than one for which a conviction requires registration as a sex offender or subjects the defendant to potential life imprisonment). The referenced statutory revisions also delete reference to the term pretrial “monitor,” substituting pretrial “services coordinator,” consistent with amendments vesting the pretrial services program, formerly under the auspices of the Department of Corrections, in the Office of the Attorney General.

The 2017 enactment clarifies that while the court may order a defendant to meet with a pretrial services coordinator and participate in a needs screening, to participate in a clinical assessment by a substance abuse or mental health treatment provider and follow the recommendations of the provider, and to otherwise participate in pretrial services, such orders are deemed to be in addition to conditions of release authorized by law, and do not serve to limit the discretion of the court to impose conditions of release authorized under 13 V.S.A. § 7554. However, a defendant’s failure to comply with such orders shall not constitute a violation of 13 V.S.A. § 7559 (criminal offense of violation of conditions of release).

The 2017 enactment amends § 7554c(e)(l) to provide further specificity as to the limitations upon the information secured in the course of a risk assessment or needs screening that may be divulged by a pretrial services coordinator. Finally, the amended statute, at § 7554c(e)(l), generally recasts the use and derivative use immunity grant as extending to “Information related to the present offense directly or indirectly derived from the risk assessment, needs screening, or other conversation with the pretrial services coordinator.” The statute retains the existing provision that “The immunity provisions of this subsection apply only to the use and derivative use of information gained as a proximate result of the risk assessment, [or] needs screening” and adds “other conversation with the pretrial services coordinator.”

The provisions of V.R.Cr.P. 5(e) are thus amended as indicated to comport with the referenced revisions of 13 V.S.A. § 7554c.

Reporter’s Notes-2016 Amendment

A new subdivision 5(e) is added, and former subdivisions (e), (t), (g), and (h) are now designated as (t), (g), (h), and (i) respectively. New subdivision 5(e) is added in response to the passage of Act No. 195 of2013 (Adj. Sess.), which establishes a system of pretrial risk assessments and needs screenings, which may be voluntarily engaged in by defendants in: (a) felony cases excepting listed crimes; (b) felony or misdemeanor drug offenses; (c) cases in which showing is made that a defendant has a substantial substance-abuse or mental-health issue, and (d) all other cases, with limited exceptions, where the defendant has been held, unable to make bail, for over 24 hours after lodging, or (e) in more limited circumstances, ordered by the court (and not voluntarily) as a condition of release under 13 V.S.A. § 7554. See 2013, No. 195 (Adj. Sess.), § 2, codified at 13 V.S.A. § 7554c. It is anticipated that the system will be phased in over a period of approximately ten months, beginning with defendants referenced in category (a). In most instances, defendants will be contacted by a pretrial monitor in the period between their citation and arraignment dates and offered the opportunity to participate voluntarily in a pretrial risk assessment or needs screening. Defendants may decline participation, as they choose. Defendants are notified that they have the right to advice of an attorney as to whether to participate or not, and are provided with contact information for the local public defender for such advice. The stated objectives of the legislation include provision of alternatives to traditional criminal justice response for people who, consistent with public safety, can effectively and justly benefit from those alternative responses, under an evidence-based approach to assessment and effective treatment and recovery.

13 V.S.A. § 7554c(e)(1) provides that information secured in consequence of either a voluntary or court-ordered risk assessment or needs screening must be used solely for purposes of determining bailor conditions of release and appropriate programming for the defendant in the pending case. Per amendment ofV.R.P.A.C.R. 6(b)(35), effective January 1,2015, the results of the pretrial screening or assessment that are filed with the court are exempt from public inspection and copying. Use and derivative use immunity is accorded to information gained as a proximate result of the risk assessment or needs screening. Rule 5(e) makes provision for explicit advisement to the defendant of the nature, purposes and use of pretrial risk screenings and needs assessments, the consequences of participating therein, and the exemption from public disclosure of information gained therein, at the time of the defendant’s initial appearance before a judicial officer under Rule 5. Rule 5(e)(5) explicitly references the statutory grant of use and derivative use immunity of 13 V.S.A. § 7554c(e)(l). “Pending case” as used in Rule 5(e)(3) refers to the charge or charges in the case in which Rule 5 advisements are being provided upon initial appearance before the judicial officer.

Reference to “county” in newly designated subdivision 5(g) is amended to reference “unit,” consistent with changes in nomenclature necessitated by the Judicial Restructuring Act, Act 154 of2009 (Adj. Sess.).

References to prosecuting “officer” in newly designated subdivisions 5(g) and (h) are amended to reference prosecuting “attorney,” consistent with restyling of the rules to implement the Judicial Restructuring Act.

Reporter’s Note-2016 Emergency Amendment

Rule 5 is amended consistent with the Unifonn Collateral Consequences of Conviction Act (DCCCA), 2013, No. 181 (Adj. Sess.), § 1, which is in pertinent part codified at 13 V.S.A. §§ 80028005, and effective January 1, 2016.

Pursuant to 13 V.S.A. § 8005(a), Rule 5 now provides that when an individual receives notice that the individual is charged with an offense, typically at initial appearance before a judicial officer for arraignment, the court must provide either oral or written notice to the defendant that upon a plea of guilty or conviction by other means, there may be additional legal consequences in addition to jailor prison, home confinement, probation, and fines, including:

(A) being unable to get or keep some licenses, pennits, or jobs; (B) being unable to get or keep benefits such as public housing or education; (C) receiving a harsher sentence if [the defendant is] convicted of another offense in the future; (D) having the government take [the defendant’s] property; (E) being unable to serve in the military or on a jury; (F) being unable to possess a fireann; and G) being unable to exercise [the] right to vote if [the defendant] move[s] to another state.

Id. § 8005(a)(l). Further, the UCCCA requires that the defendant be notified at this juncture that the law may provide ways to obtain some relief from these collateral consequences; and of the specific established Internet address at which the defendant may obtain further infonnation about the consequences of conviction. Id. § 8005(a)(3) and (4). The act also requires notice to a defendant that ifhe or she is not a United States citizen, a guilty plea or conviction may result in deportation, removal, exclusion from admission to the United States, or denial of citizenship. Id. § 8005(a)(2). Advisement and colloquy are already required as to deportation/immigration/citizenship application consequences in the acceptance of a plea of guilty or nolo contendere per Rule 11(c)(7). The statute, and present amendment, require that this advisement also be provided at the initial appearance governed by Rule 5.

The UCCCA expressly provides that the collateral consequences rights advisements may be given either orally on the record, or in a writing provided to the defendant. 13 V.S.A. § 8005(a). As with other Rule 5 rights and advisements, the amendment contemplates that an explicit recitation of collateral consequences advisements by the court may be waived orally on the record, or in writing.

Reporter’s Notes – 2009 Emergency Amendment

Rule 5(f) is amended to provide for regional arraignments. This amendment would allow the court to take appropriate steps to reduce the costs of transporting defendants for their first appearance and arraignment in court by ordering the defendant to appear in the court nearest the correctional center in which the defendant is detained.