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Rule 50 – Calendar; Assignment; Continuances; Disqualification

May 14, 2021 | Criminal Procedure, Vermont

(a)Trial Calendars; Assignments. The Administrative Judge shall establish how criminal cases shall be scheduled in the Superior Courts. Except by consent of the parties, no case shall be tried unless it has appeared on a trial calendar issued not later than Tuesday of the week preceding the week in which the first case listed is assigned for trial.
(b)Continuances.

(1) Subject to the provisions of Rule 48(b)(1), an action may be continued by agreement of the parties unless the court finds that the continuance would not be in the interests of justice.
(2) A motion or stipulation for continuance shall be filed at least two days before the date the trial calendar is called. The court may require a defendant represented by counsel to join personally in writing or orally in any stipulation or motion for continuance if the effect of the continuance would be to delay the trial beyond 60 days after arraignment. The court may require that the stipulation or motion for continuance be filed on a form provided by the clerk. A stipulation or motion for continuance shall be accompanied by the reasons for the continuance and the date by which such reason will be removed. If the court orders a continuance, it shall specify the date to which the case is continued.
(3) The entry “continued” shall carry with it an enlargement of all former orders not complied with, executed, or expressly discharged. The court may continue the action on such conditions as to costs and other matters as may be fair and equitable.
(c)Affidavit in Support of Motion.

(1) Motions for continuance shall be accompanied by an affidavit stating the reason therefor and the time when such reason was first known. If the motion is founded on the absence of a witness, the affidavit shall state the name and place of residence of the witness; the substance of the testimony which he or she is expected to give, and the grounds for such expectation; and the measures taken to procure his or her attendance or deposition, to the end that the court may judge whether due diligence has been used for that purpose. If it is claimed that the witness is unable to attend court by reason of sickness, an affidavit of a reputable physician will be required, stating the disease, and the measure and character of the disability, and the probability ofthe witness being able to attend at a future term.
(2) The party objecting to the continuance shall not be permitted to contradict the statement of what the absent witness is expected to testify and the grounds of such expectation, but may by leave of court by affidavit, disprove any other fact stated in such affidavit. The court may refuse to continue the case when satisfied that such evidence would not be material on the trial, or is merely cumulative, or if the adverse party will admit for the purpose of the trial that the absent witness would, if present, testify as stated in the affidavit and will agree that the same shall be received and considered as evidence on the trial in like manner as if the witness were present and had so testified; and such agreement shall be in writing at the foot of the affidavit and signed by the party or the party’s attorney. The party consenting to the use of such affidavit may controvert the statements contained therein, or may impeach the witness the same as if he or she were present and examined in open court. The provisions of this subdivision shall apply, with necessary changes, when the motion is grounded on the want of any material document, thing, or other evidence.
(3) A party shall not be entitled to a continuance on the ground of the absence of a material witness whom it is in the power of such party to summon, except when such witness is sick or otherwise disabled from attending court, unless he shall have caused such witness to be regularly summoned to attend.
(4) Engagement of counsel in other trial courts will not be considered cause for continuance as a matter of right.
(5) Affidavits for continuance and in opposition to such motion shall remain on file.
(d)Disqualification.

(1) A motion for disqualification of a judge shall be made as soon as practicable after the cause or ground becomes known. A motion which is filed in violation of this paragraph shall not for this reason be denied but may, in the discretion of the court, render the attorney or party subject to sanctions.
(2) Motions for disqualification shall be accompanied by an affidavit, or a certificate of a party’s attorney subject to the obligations of Rule 49(d), stating the reason therefor and, when such reason was first known.
(3) The judge whose disqualification is sought shall either disqualify himself or herself or, without ruling on the motion, refer the motion to the Administrative Judge for Trial Courts or a designee thereof. The Administrative Judge or designee may refer the motion to another judge for decision or may rule on the motion even if the Administrative Judge, or the designee, is the subject of the motion but only if that judge cannot refer the motion to another judge for decision.
(4) A judge who has been determined to be disqualified by the terms of Rule 2.11 of the Code of Judicial Conduct for any reason other than personal bias or prejudice concerning a party may disclose on the record the basis of the judge’s disqualification and may advise the parties and their lawyers that they may consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. If the parties and lawyers do not agree to waive the disqualification, the judge shall immediately withdraw from the proceeding or, if a motion for disqualification has been filed, immediately grant or refer the motion.

Vt. R. Crim. P. 50

Amended Dec. 8, 1988, eff. March 1, 1989; April 13, 1995, eff. July 1, 1995; Dec. 11, 2014, eff. Feb. 13, 2015; amended Feb. 10, 2020, eff. April 13, 2020.

Reporters Notes-2020 Amendment

Rule 50(d)(4) is amended to update the cross reference to the Code of Judicial Conduct 2019, which became effective October 7, 2019.