Vt. R. Crim. P. 15

As amended through November 4, 2024

Rule 15 - Depositions

(a) When Taken. A defendant or the state, at any time after the filing of an indictment or information charging a felony, or charging a misdemeanor if authorized under subdivision (e)(4), may take the deposition of a witness subject to such protective orders and deposition schedule as the court may impose. No deposition may be taken after the date set by the court at arraignment or, if no date is set, more than 90 days after arraignment, except by leave of court granted for good cause shown.

(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, any Superior Judge may, for good cause shown, extend or shorten the time and may change the place of taking. The defendant shall not be physically present at the deposition except by agreement of the parties or upon court order for good cause shown. It shall be good cause if the court determines that it is reasonably likely that the deposition will be used as substantive evidence pursuant to subdivision (h). For the protection of the deponent, the court may impose conditions under which the defendant may be present including, but not limited to, use of screening or alternative methods of taping or recording which allow defendant limited observation of the deponent and the ability to confer with counsel. When a deposition is taken to preserve the testimony of a witness for use at a hearing or trial, a defendant shall have the right to be present subject to such protective orders as would be available at trial, including holding the deposition before a judge. Whenever a defendant in custody is to be present at a deposition, the court shall issue such transportation orders as may be required, and the officer having custody of the defendant shall be notified of the time and place set for the examination and shall produce the defendant pursuant to the provisions of the order.

(c) Payment of Expenses. Whenever a deposition is taken at the instance of the state, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expense of the taking of the deposition, the court may direct that the expenses of travel of the defendant and the defendant's attorney for attendance at the examination shall be paid by the state.

(d) How Taken.

(1)General. A deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that (i) in no event shall a deposition be taken of a party defendant without the defendant's consent and (ii) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The state shall make available to the defendant or the defendant's counsel for examination and use at the taking of the deposition any relevant written or recorded statement of the witness being deposed which is in the possession or control of the state and to which the defendant would be entitled at trial. Attorneys shall avoid discourteous, disrespectful, argumentative, repetitive, and irrelevant questioning and shall not harass or intimidate a deponent.

(2)Manner of Recording. A deposition shall be recorded stenographically unless the notice of taking states that it is to be recorded by other than stenographic means. A deposition recorded stenographically shall be transcribed only if a party or witness so requests. If a deposition is to be recorded nonstenographically, the notice of taking shall specify the method of recording; the equipment to be used; and the name, address, and employer of the operator of the equipment.

(3)Concurrent Recording. Any party or witness may at his or her own expense concurrently record a deposition by a method other than that being used by the party taking the deposition. All parties present and the witness shall be advised that the concurrent recording is being made. A person making a concurrent recording shall permit the parties and the witness to review the recording and shall furnish a duplicate to the witness or any party upon request and tender of the actual cost of the duplicate.

(4)Additional Conditions. Upon motion of a party or upon its own motion the court may impose such additional conditions upon the taking of a deposition as are necessary to assure that testimony to be recorded by nonstenographic means will be accurate and trustworthy and to protect the interests of the parties and the witness.

(e) Limitations.

(1)Repeat Depositions. No witness may be deposed more than once regarding the same offense, or multiple offenses arising out of the same incident, regardless of the stage of the case, without approval of the court for good cause shown and a showing that other means are not available to obtain the information sought. Such permission shall include limitations on the subject matter of further questioning.

(2)Multiple Defendants. No witness may be deposed more than once regarding different or multiple offenses arising out of the same incident and involving two or more different defendants, without approval of the court for good cause shown and a showing that other means are not available to obtain the information sought. In cases involving co-defendants, questioning shall be conducted in the alphabetical order of the defendants' last names unless otherwise agreed by the defendants. Repetitive questioning shall be avoided.

(3)Depositions of Law Enforcement Officers. Absent agreement of the parties or approval of the court for good cause shown, no deposition shall be taken of a law enforcement officer:

(A) who has been designated by the state as a person who performed only a ministerial function with respect to the case or whom the prosecutor does not intend to call at trial; and

(B) whose involvement with the case is fully set out in a police report or other statement prepared by the law enforcement officer and furnished to the defense; and

(C) who has been made available for a recorded in-person or telephonic interview.

(4)Misdemeanors. No depositions shall be taken in misdemeanor cases except by agreement of the parties or after approval of the court for good cause shown. In determining whether to allow a deposition in misdemeanor cases, the court may consider, among other things, the consequences to the defendant, the importance of the witness's testimony, the complexity of the issues involved, the complexity of the witness's expected testimony (e.g., experts), and any other opportunities available to the defendant to discover the information sought by the deposition.

(5)Depositions of Minors in Cases Involving Sexual Assault or Serious Bodily Injury..

(A) No deposition of a victim under the age of 16 shall be taken in a prosecution under 13 V.S.A. §§ 2601 (lewd and lascivious conduct), 2602 (lewd and lascivious conduct with a child), 3252 (sexual assault), 3253 (aggravated sexual assault), or 3253a (aggravated sexual assault of a child), or 13 V.S.A. § 1304(b) (cruelty to a child involving serious bodily injury) except by agreement of the parties or after approval of the court pursuant to subparagraph (B) of this paragraph (5).

(B) The court shall not approve a deposition under this subdivision unless the court finds that the testimony of the child is necessary to assist the trial, that the evidence sought is not reasonably available by any other means, and that the probative value of the testimony outweighs the potential detriment to the child of being deposed. In determining whether to approve a deposition under this subdivision, the court shall consider the availability of recorded statements of the victim and the complexity of the issues involved.

(C)

(i) If a deposition is taken pursuant to this paragraph (5), the court shall issue a protective order to protect the deponent from emotional harm, unnecessary annoyance, embarrassment, oppression, invasion of privacy, or undue burden of expense or waste of time. The protective order may include, among other remedies, the following:

(I) that the deposition may be taken only on specified terms and conditions, including a designation of the time, place, and manner of taking the deposition;

(II) that the deposition may be taken only by written questions;

(III) that certain matters not be inquired into, or that the scope of the deposition be limited to certain matters;

(IV) that the deposition be conducted with only such persons present as the court may designate; or

(V) that after the deposition has been taken, the tape or transcription be sealed until further order of the court. The restrictions of 13 V.S.A. § 3255(a) shall apply to depositions taken pursuant to this paragraph (5).

(ii) If a deposition is taken pursuant to this paragraph (5), the court shall appoint an attorney to represent the child for the purposes of the deposition.

(f) Protection of Deponents.

(1)Deponent's Counsel and Victim Advocate. A deponent may have counsel present at the deposition and may make legal objections to questions. The deponent shall be treated as a party at hearings on motions pertaining to the deposition. A victim of an alleged crime may have a victim advocate present during the deposition. The deponent may apply to the court for a protective order if the deponent believes that he or she is being subjected to harassment or intimidation. A subpoena issued pursuant to V.R.Cr.P. 17, or other notice of the deposition given to the deponent, shall include notice that the deponent may have the assistance of counsel and the victim advocate as provided herein and seek a protective order as provided in paragraph (3).

(2)Depositions of Sensitive Witnesses. A person under the age of 16 who is a victim in a prosecution for an offense other than one listed in paragraph (e)(5), or any person aged 16 or older who is a victim in a prosecution under 13 V.S.A. § 2601 (lewd and lascivious conduct), 3252 (sexual assault), or 3253 (aggravated sexual assault) shall be considered a sensitive witness. Prior to taking the deposition of a sensitive witness, the party seeking to take the deposition shall consult with the other parties and the deponent in an effort to reach an agreement on the time, place, manner and scope of the taking of the deposition. If an agreement cannot be reached, the party seeking to take the deposition shall so advise the court and specify the matters which are in dispute. The court shall then issue an order regulating the taking ofthe deposition including, in its discretion, a requirement that the deposition be taken in the presence of a judge or special master. The restrictions of 13 V.S.A. § 3255(a) shall apply to depositions. If a party taking a deposition proposes to ask about information that falls within 13 V.S.A. § 3255(a)(3)(A)-(C), the party shall notify the other parties and the deponent of this intent prior to seeking agreement on the scope of the deposition.

(3)Protective Orders. At the request of a party or deponent, and for good cause shown, the court may make any protective order which justice requires to protect a party or deponent from emotional harm, unnecessary annoyance, embarrassment, oppression, invasion of privacy, or undue burden of expense or waste of time. Such orders may include, among other remedies, the following:

(1) that the deposition may be taken only on specified terms and conditions, including a designation of the time, place, and manner of taking the deposition;

(2) that the deposition may be taken only by written questions;

(3) that certain matters not be inquired into, or that the scope of the deposition be limited to certain matters;

(4) that the deposition be conducted with only such persons present as the court may designate;

(5) that after the deposition has been taken, the tape or transcription be sealed until further order of the court;

(6) that the deposition not be taken. In ruling on such request, the court may consider, among other things, the age, health, level of intellectual functioning, and emotional condition of the witness, whether the witness has knowledge material to the proof of or defense to any essential element of the crime, whether the witness has provided a full written, taped, or transcribed account of his or her proposed testimony at trial, whether the witness's testimony will relate only to a peripheral issue in the case, or whether an informal interview or telephone conference with the witness will suffice for the purposes of discovery in the case.

(4)Self-represented defendants. A self-represented defendant defendant in a prosecution for an offense listed in paragraph (e)(5) or (f)(2) shall not be permitted to depose the victim directly. In such a case, the court shall appoint counsel for the defendant for purposes of the deposition.

(g) Medical and Social Service Agency Workers. Medical personnel, mental health professionals, social workers, counselors, therapists and workers from organizations assisting battered men and women and sexual offense victims who have provided aid or service to the victim of the alleged crime only subsequent to the initial interview of the alleged victim by law enforcement officers, who have not participated in the criminal investigation, and who will not testify at trial or other hearing, may be deposed only by order of the court upon good cause shown or by agreement of the parties, the alleged victim and the proposed deponent. Such persons who have participated in the criminal investigation or will testify at trial shall be made available for deposition by the defense and their records, as relevant to their testimony or to the investigation, shall be produced.

(h) Use. Any deposition may be used by any party as substantive evidence in the case if (1) the deponent is unavailable for trial, as defined in subdivision (j) of this rule, or the witness gives testimony at the trial or hearing inconsistent with the witness's deposition; and (2) either by court order or agreement of the parties the defendant could have been physically present at the deposition, whether or not the defendant was actually present. Any deposition may also be used for the purpose of contradicting or impeaching the testimony of the deponent as a witness. The court may allow a deposition based on a concurrent recording to be used at trial provided that the deposition meets all requirements of this rule. If only a part of a deposition is offered in evidence by a party, an adverse party may require the other party to offer all parts of it which are relevant to the part offered, and any party may offer other parts.

(i) Objections to Admissibility. Objections to receiving in evidence any deposition or part thereof may be made as provided in civil actions.

(j) Unavailability. "Unavailable" as a witness includes situations in which the deponent:

(1) is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the deponent's statement; or

(2) persists in refusing to testify despite an order of the judge to do so; or

(3) testifies to a lack of memory of the subject matter of the deposition; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of the deposition has been unable to procure the deponent's attendance by process or other reasonable means. A deponent is not unavailable as a witness if the deponent's asserted unavailability is due to the procurement or wrong doing of the proponent of the deposition for the purpose of preventing the witness from attending or testifying.

(k) Commission To Examine Witness Out of State. When an issue of fact is joined upon an information or indictment, on application of the defendant or prosecuting attorney the court may grant a commission to depose material witnesses residing out of the state as provided in this rule, and the prosecuting attorney may join in such commission and name material witnesses to be examined on the part of the state.

(l) Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties, including the agreement of the deponent as provided in subdivision (f)(2) and the agreement of the victim of the alleged crime and care provider as provided in subdivision (g).

Vt. R. Crim. P. 15

Amended Dec. 8, 1981, eff. 3/1/1982; Oct. 31, 1983, eff. 2/1/1984; 1985, No. 82, §6, eff. 7/1/1985; June 25, 1991, eff. 9/3/1991; 2009, No. 1, § 26; Jan. 14, 2010, eff. 1/14/2010; 2009, No. 66 (Adj. Sess.), § 1, eff. 7/1/2011; Dec. 11, 2014, eff. 2/13/2015; Jan.1, 2024, eff. 7/1/2024.

Reporter's Notes-2010 Amendment

V.R.Cr.P. 15 was amended by §26 of Act No. 1 of 2009, An Act Relating to Improving Vermont's Sexual Abuse Response System. By virtue of § 53(b) of the Act, the amended rule was effective July 1, 2009. The present amendments are intended only to conform the style of internal references to the style of the Criminal Rules.

The legislative amendment added V.R.Cr.P. 15(e)(5), requiring agreement of the parties or court approval for a deposition of a victim under the age of 16 in prosecutions for lewd and lascivious conduct and sexual assault; setting standards for the court to apply in approving such a deposition; requiring a protective order with terms designed "to protect the deponent from emotional harm, unnecessary annoyance, embarrassment, oppression, invasion of privacy, or undue burden of expense or waste of time"; and requiring appointment of an attorney for the child for purposes of the deposition.

V.R.Cr.P. 15(f) was amended to adapt its protective order provisions to other provisions of the Act and to provide that a pro se defendant may take the deposition of a victim of an offense covered by the amended rule through counsel appointed for the defendant for that purpose.

Section 27 of the Act requires the Court Administrator and other relevant state departments, and invites the Vermont Bar Association and American Civil Liberties Union, to report to the Senate and House Judiciary Committees in January 2011 on the effect of the amended rule on disposition of cases covered by it. By virtue of Section 27a, the amended rule sunsets on July 1, 2011.

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