Rules of Evidence Oct 25, 2011

Vermont Rules of Evidence


	Rule 101. Scope


	These rules govern proceedings in the courts of this State to the extent and with the exceptions stated in Rule 1101.


	Rule 102. Purpose and Construction


	These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.


	Rule 103. Rulings on Evidence


	(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and


	(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or


	(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.


	Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.


	(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.


	(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.


	(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 104. Preliminary Questions


	(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b); provided that in a criminal case if the court rules that a confession is voluntary, the confession may be admitted but the issue of voluntariness shall be submitted to the jury. In making a determination under this subdivision, the court is not bound by the rules of evidence except those with respect to privileges.


	(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.


	(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.


	(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.


	(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.


	Rule 105. Limited Admissibility


	When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.


	Rule 106. Remainder of or Related Writings or Recorded Statements


	When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.


	Rule 201. Judicial Notice of Adjudicative Facts


	(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.


	(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.


	(c) When discretionary. A court may take judicial notice, whether requested or not.


	(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.


	(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.


	(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.


	(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.


	Rule 301. Presumptions in Civil Cases


	(a) Effect. In civil actions and proceedings, except as otherwise provided by law, a presumption imposes on the party against whom it operates the burden of producing evidence sufficient to support a finding that the presumed fact does not exist, but a presumption does not shift to such party the burden of persuading the trier of fact that the presumed fact does not exist.


	(b) Prima facie evidence. A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this rule.


	(c) Submission to the jury and instructions.


	(1) If the evidence of the basic fact is such that no reasonable juror could find the nonexistence of that fact and if the party against whom the presumption operates has not met the production burden imposed on him by subdivision (a) of this rule, the court shall direct the jury to find the existence of the presumed fact.


	(2) If the evidence of the basic fact is sufficient to support a finding of the existence of that fact and if the party against whom the presumption operates has not met his production burden, the court shall submit the question of the existence of the basic fact to the jury and shall direct the jury to find the existence of the presumed fact if it finds the existence of the basic fact.


	(3) If the evidence of the basic fact is at least sufficient to support a finding of the existence of that fact and if the party against whom the presumption operates has met his production burden, the court shall submit the question of the existence of the presumed fact to the jury on the evidence as a whole without reference to the presumption; provided that, if the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact, it shall not submit that question to the jury.


	Rule 302. [Reserved]


	Rule 303. Presumptions in Criminal Cases


	(a) Presumptions in favor of the accused. In criminal cases, a presumption operating in favor of the accused is governed by the provisions of Rule 301.


	(b) Presumptions against the accused.


	(1) Effect. In criminal cases, except as otherwise provided by law, a presumption operating against the accused permits, but does not require, the trier of fact upon sufficient evidence of the basic fact to find the existence of the presumed fact; but a presumption does not shift to the accused the burden of producing evidence or of persuading the trier of fact that the presumed fact does not exist.


	(2) Prima facie evidence. A statute providing that a fact or group of facts is prima facie evidence of another fact or of guilt establishes a presumption within the meaning of this rule.


	(c) Presumptions against the accused: submission to the jury. When a presumption operates against the accused, the court may not direct the jury to find the presumed fact against him. If a presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic fact, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury, provided the basic fact is supported by substantial evidence or is otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact.


	(d) Presumptions against the accused: instructions. Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that if it finds the existence of the basic fact it may regard that fact as sufficient evidence of the presumed fact but is not required to do so. In addition if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence on all the evidence, must be proved beyond a reasonable doubt.


	Rule 401. Definition of "Relevant Evidence"


	"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.


	Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible


	All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute or by these rules or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.


	Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time


	Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


	Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes, Wrongs or Acts


	(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:


	(1) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;


	(2) Character of a victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;


	(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.


	(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 405. Methods of Proving Character


	(a) Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross-examination, inquiry is allowable into relevant specific instances of conduct.


	(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.


	Rule 406. Habit; Routine Practice


	Evidence of the habit or the routine practice of a person or organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.


	Rule 407. Subsequent Remedial Measures


	Whenever, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 408. Compromise and Offers To Compromise


	Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, the invalidity of, or the amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations, including mediation, is likewise not admissible. This rule does not require exclusion of any evidence otherwise obtainable from independent sources merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Amended Jan. 8, 1985, eff. March 7, 1985.


	Rule 409. Payment of Medical and Similar Expenses


	Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.


	Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements


	Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant or ward who made the plea or was a participant in the plea discussions:


	(1) a plea of guilty which was later withdrawn;


	(2) a plea of nolo contendere;


	(3) any statement made in the course of any proceedings under Rule 11 of the Vermont Rules of Criminal Procedure or comparable state or federal procedure regarding either of the foregoing pleas;


	(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel; or


	(5) in proceedings under Family Court Rule 6(d) any waiver or admission which was later withdrawn, any statements made in the course of proceedings under Family Court Rule 6(d) regarding a waiver or admission which was later withdrawn, or any statement made in the course of discussions with an attorney for the state which do not result in a waiver or admission or which result in a waiver or admission which was later withdrawn.

Amended Jan. 8, 1985, eff. March 7, 1985; Aug. 22, 1991, eff. Nov. 1, 1991.


	Rule 411. Liability Insurance

I. GENERAL PROVISIONS.

101. Scope.
102. Purpose and Construction.
103. Rulings on Evidence.
104. Preliminary Questions.
105. Limited Admissibility.
106. Remainder of or Related Writings or Recorded Statements.

II. JUDICIAL NOTICE.

201. Judicial Notice of Adjudicative Facts.

III. PRESUMPTIONS.

301. Presumptions in Civil Cases.
302. [Reserved.]
303. Presumptions in Criminal Cases.

IV. RELEVANCY AND ITS LIMITS.

401. Definition of "Relevant Evidence".
402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes, Wrongs or Acts.
405. Methods of Proving Character.
406. Habit; Routine Practice.
407. Subsequent Remedial Measures.
408. Compromise and Offers To Compromise.
409. Payment of Medical and Similar Expenses.
410. Inadmissibility of Pleas, Plea Discussions, and Related Statements.
411. Liability Insurance.
412. Inadmissibility of Statements Made by Ward To Guardian Ad Litem.

V. PRIVILEGES.

501. Privileges Recognized Only as Provided; Statutory Privileges.
502. Lawyer-Client Privilege.
503. Patient's Privilege.
504. Husband-Wife Privilege.
505. Religious Privilege.
506. [Reserved.]
507. [Reserved.]
508. [Reserved.]
509. Identity of Informant.
510. Waiver of Privilege by Voluntary Disclosure.
511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege.
512. Comment Upon or Inference From Claim of Privilege: Instruction.

VI. WITNESSES.

601. Competency in General: Disqualification.
602. Lack of Personal Knowledge.
603. Oath or Affirmation.
604. Interpreters.
605. Competency of Judge as Witness.
606. Competency of Juror as Witness.
607. Who May Impeach.
608. Evidence of Character and Conduct of Witness.
609. Impeachment by Evidence of Conviction of Crime.
610. Religious Beliefs or Opinions.
611. Mode and Order of Interrogation and Presentation.
612. Writing or Object Used to Refresh Memory.
613. Prior Statements of Witness.
614. Calling and Interrogation of Witnesses by Court.
615. Exclusion of Witnesses.

VII. OPINIONS AND EXPERT TESTIMONY.

701. Opinion Testimony by Lay Witness.
702. Testimony by Experts.
703. Factual Bases of Opinion Testimony by Experts.
704. Opinion on Ultimate Issue.
705. Disclosure of Facts or Data Underlying Expert Opinion.
706. Court Appointed Experts.

VIII. HEARSAY.

801. Definitions.
802. Hearsay Rule.
803. Hearsay Exceptions: Availability of Declarant Immaterial.
804. Hearsay Exceptions: Declarant Unavailable.
804a. Hearsay Exception; Putative Victim Age 12 or Under; Person with a Mental Illness or Developmental Disability.
805. Hearsay Within Hearsay.
806. Attacking and Supporting Credibility of Declarant.
807. Testimony Where Victim Is a Minor, a Mentally Ill Person or a Mentally Retarded Person.

IX. AUTHENTICATION AND IDENTIFICATION.

901. Requirement of Authentication or Identification.
902. Self-authentication.
903. Subscribing Witness' Testimony Unnecessary.

X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS.

1001. Definitions.
1002. Requirement of Original.
1003. Admissibility of Duplicates.
1004. Admissibility of Other Evidence of Contents.
1005. Public Records.
1006. Summaries.
1007. Testimony or Written Admission of Party.
1008. Functions of Court and Jury.

XI. MISCELLANEOUS RULES.

1101. Applicability of Rules.
1102. Effective Date.
1103. Title.


	Rule 101. Scope



	These rules govern proceedings in the courts of this State to the extent and with the exceptions stated in Rule 1101.



	Rule 102. Purpose and Construction



	These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.



	Rule 103. Rulings on Evidence



	(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and



	(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or



	(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.



	Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.



	(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.



	(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.



	(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 104. Preliminary Questions



	(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b); provided that in a criminal case if the court rules that a confession is voluntary, the confession may be admitted but the issue of voluntariness shall be submitted to the jury. In making a determination under this subdivision, the court is not bound by the rules of evidence except those with respect to privileges.



	(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.



	(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.



	(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.



	(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.



	Rule 105. Limited Admissibility



	When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.



	Rule 106. Remainder of or Related Writings or Recorded Statements



	When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.



	Rule 201. Judicial Notice of Adjudicative Facts



	(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.



	(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.



	(c) When discretionary. A court may take judicial notice, whether requested or not.



	(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.



	(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.



	(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.



	(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.



	Rule 301. Presumptions in Civil Cases



	(a) Effect. In civil actions and proceedings, except as otherwise provided by law, a presumption imposes on the party against whom it operates the burden of producing evidence sufficient to support a finding that the presumed fact does not exist, but a presumption does not shift to such party the burden of persuading the trier of fact that the presumed fact does not exist.



	(b) Prima facie evidence. A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this rule.



	(c) Submission to the jury and instructions.



	(1) If the evidence of the basic fact is such that no reasonable juror could find the nonexistence of that fact and if the party against whom the presumption operates has not met the production burden imposed on him by subdivision (a) of this rule, the court shall direct the jury to find the existence of the presumed fact.



	(2) If the evidence of the basic fact is sufficient to support a finding of the existence of that fact and if the party against whom the presumption operates has not met his production burden, the court shall submit the question of the existence of the basic fact to the jury and shall direct the jury to find the existence of the presumed fact if it finds the existence of the basic fact.



	(3) If the evidence of the basic fact is at least sufficient to support a finding of the existence of that fact and if the party against whom the presumption operates has met his production burden, the court shall submit the question of the existence of the presumed fact to the jury on the evidence as a whole without reference to the presumption; provided that, if the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact, it shall not submit that question to the jury.



	Rule 302. [Reserved]



	Rule 303. Presumptions in Criminal Cases



	(a) Presumptions in favor of the accused. In criminal cases, a presumption operating in favor of the accused is governed by the provisions of Rule 301.



	(b) Presumptions against the accused.



	(1) Effect. In criminal cases, except as otherwise provided by law, a presumption operating against the accused permits, but does not require, the trier of fact upon sufficient evidence of the basic fact to find the existence of the presumed fact; but a presumption does not shift to the accused the burden of producing evidence or of persuading the trier of fact that the presumed fact does not exist.



	(2) Prima facie evidence. A statute providing that a fact or group of facts is prima facie evidence of another fact or of guilt establishes a presumption within the meaning of this rule.



	(c) Presumptions against the accused: submission to the jury. When a presumption operates against the accused, the court may not direct the jury to find the presumed fact against him. If a presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic fact, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury, provided the basic fact is supported by substantial evidence or is otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact.



	(d) Presumptions against the accused: instructions. Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that if it finds the existence of the basic fact it may regard that fact as sufficient evidence of the presumed fact but is not required to do so. In addition if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence on all the evidence, must be proved beyond a reasonable doubt.



	Rule 401. Definition of "Relevant Evidence"



	"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.



	Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible



	All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute or by these rules or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.



	Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time



	Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.



	Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes, Wrongs or Acts



	(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:



	(1) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;



	(2) Character of a victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;



	(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.



	(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 405. Methods of Proving Character



	(a) Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross-examination, inquiry is allowable into relevant specific instances of conduct.



	(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.



	Rule 406. Habit; Routine Practice



	Evidence of the habit or the routine practice of a person or organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.



	Rule 407. Subsequent Remedial Measures



	Whenever, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 408. Compromise and Offers To Compromise



	Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, the invalidity of, or the amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations, including mediation, is likewise not admissible. This rule does not require exclusion of any evidence otherwise obtainable from independent sources merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.


Amended Jan. 8, 1985, eff. March 7, 1985.

	Rule 409. Payment of Medical and Similar Expenses



	Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.



	Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements



	Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant or ward who made the plea or was a participant in the plea discussions:



	(1) a plea of guilty which was later withdrawn;



	(2) a plea of nolo contendere;



	(3) any statement made in the course of any proceedings under Rule 11 of the Vermont Rules of Criminal Procedure or comparable state or federal procedure regarding either of the foregoing pleas;



	(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel; or



	(5) in proceedings under Family Court Rule 6(d) any waiver or admission which was later withdrawn, any statements made in the course of proceedings under Family Court Rule 6(d) regarding a waiver or admission which was later withdrawn, or any statement made in the course of discussions with an attorney for the state which do not result in a waiver or admission or which result in a waiver or admission which was later withdrawn.


Amended Jan. 8, 1985, eff. March 7, 1985; Aug. 22, 1991, eff. Nov. 1, 1991.

	Rule 411. Liability Insurance



	Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.



	Rule 412. Inadmissibility of Statements Made by Ward To Guardian Ad Litem



	Except as set forth in this rule, evidence of statements made by a ward to a guardian ad litem is not, in any civil or criminal proceeding, admissible against the ward who made the statement. Such a statement is admissible in any proceeding wherein any other statement made by the ward to the guardian ad litem has been introduced and the statement ought in fairness to be considered contemporaneously with it. This rule does not require exclusion of any evidence otherwise obtainable from independent sources merely because it was presented to the guardian ad litem by the ward.


Added Aug. 22, 1991, eff. Nov. 1, 1991.

	Rule 501. Privileges Recognized Only as Provided; Statutory Privileges



	(a) Privileges Recognized. Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court, no person has a privilege to:



	(1) Refuse to be a witness;



	(2) Refuse to disclose any matter;



	(3) Refuse to produce any object or writing; or



	(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.



	This rule shall not be construed to prevent the development at common law of other privileges.



	(b) Statutory Privileges. This subdivision applies to information which is protected by a statutory privilege and which: (1) was collected or recorded under a statute, rule or order requiring a report, disclosure or communication to a public agency, officer or employee; (2) was collected or recorded by a public agency, officer or employee in order to provide treatment or services to the privilege holder or to determine whether to charge the privilege holder with a crime or delinquent act; or (3) was communicated to a mediator, factfinder or arbitrator during a labor dispute or negotiation. The public agency, officer or employee or the mediator, factfinder or arbitrator who holds the information is presumed to have the authority to claim the privilege on behalf of the person privileged. Unless the statute provides to the contrary, the privilege does not extend to original information, documents or records when sought from original sources. No privilege exists in actions involving perjury, false statements, fraud in a return or report, or other failure to comply with the statute, rule or order in question. Rules 510 through 512 shall apply to privileges covered by this subdivision.


Amended Jan. 8, 1985, eff. March 7, 1985; Feb. 5, 1985, eff. March 7, 1985.

	Rule 502. Lawyer-Client Privilege



	(a) Definitions. As used in this rule:



	(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.



	(2) A "representative of the client" is (A) a person having authority to obtain professional legal services or act on advice rendered pursuant thereto, on behalf of the client, or (B) any other person who, while acting in the scope of employment for the client, makes or receives a confidential communication necessary to effectuate legal representation for the client. In case of a corporation, the officers and directors and those persons who have the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer are also "representatives of the client."



	(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.



	(4) A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.



	(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.



	(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer, or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.



	(c) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.



	(d) Exceptions. There is no privilege under this rule:



	(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;



	(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions;



	(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer;



	(4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;



	(5) Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.


Amended Aug. 10, 1995, eff. Dec. 1, 1995.

	Rule 503. Patient's Privilege



	(a) Definitions. As used in this rule:



	(1) A "patient" is a person who consults or is examined or interviewed by a physician, dentist, nurse, or mental health professional.



	(2) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.



	(3) A "dentist" is a person authorized to practice dentistry in any state or nation, or reasonably believed by the patient so to be.



	(4) A "nurse" is a person registered or licensed as a professional or practical nurse in any state or nation, or reasonably believed by the patient so to be.



	(5) A "mental health professional" is a qualifed person designated by the Commissioner of Mental Health and Mental Retardation or a physician, psychologist, social worker, or nurse with professional training, experience and demonstrated competence in the treatment of mental illness, or a person reasonably believed by the patient to be a mental health professional.



	(6) A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview; persons reasonably necessary for the transmission of the communication; or persons who are participating in diagnosis and treatment under the direction of a physician, dentist, nurse or mental health professional, including members of the patient's family or other participants in joint or group counseling sessions.



	(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person, including a person present to further the interest of the patient in the consultation, examination or interview, from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, dental, or emotional condition, including alcohol or drug addiction, among himself, his physician, dentist, nurse, or mental health professional, and persons who are participating in diagnosis or treatment under the direction of a physician, dentist, nurse, or mental health professional, including members of the patient's family.



	(c) Who may claim the privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician, dentist, nurse, or mental health professional at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.



	(d) Exceptions.



	(1) Mental health proceedings. There is no privilege under this rule in proceedings under that part of Title 18 of Vermont Statutes Annotated on mental health for any communications to or from a mental health professional while he is attending the patient.



	(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise or unless the state seeks to admit communications obtained in an examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.



	(3) Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, unless the state seeks to admit information obtained in the examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.



	(4) Dental identification. There is no privilege under this rule for information acquired by a dentist that is necessary for the identification of a patient.



	(5) Victims of crime under the age of 16. There is no privilege under this rule for information indicating that a patient who is under the age of sixteen years has been the victim of a crime.



	(6) Required reports. There is no privilege under this rule for any report of a patient's medical condition required to be made by statute;



	(7) Risk of harm to a child. In a proceeding under Family Court Rule 4 to determine parental rights or responsibilities or parent-child contact, and in any proceeding under Chapter 55 of Title 33, Vermont Statutes Annotated, there is no privilege under this rule if the court, after hearing, finds on the basis of evidence other than that sought to be obtained, that: (1) in any such case lack of disclosure of the communication would pose a risk of harm to the child as defined in 33 V.S.A. § 4912, or in a proceeding to terminate parental rights the communication would be relevant under 33 V.S.A. § 5540(3); (2) the probative value of the communication outweighs the potential harm to the patient; and (3) the evidence sought is not reasonably available by any other means.


Amended Jan. 8, 1985, eff. March 7, 1985; Aug. 22, 1991, eff. Nov. 1, 1991; 1993, No. 222 (Adj. Sess.), § 24.

	Rule 504. Husband-Wife Privilege



	(a) Definition. A statement, letter, conversation, or other communication is "confidential" if it is made privately by any person and is not intended for disclosure to any other person.



	(b) General rule of privilege. Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.



	(c) Who may claim the privilege. The privilege may be claimed by the person who made the communication or by the spouse in his behalf. The authority of the spouse to do so is presumed.



	(d) Exceptions. There is no privilege under this rule in a proceeding in which one spouse is charged with a crime, or alleged to have committed a tort, against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person in the course of committing a crime against any of them. There is also no privilege under this rule in any other civil proceeding in which the spouses are adverse parties; or, in the discretion of the court, in any other proceeding where the interests of a child of either are involved.



	Rule 505. Religious Privilege



	(a) Definitions. As used in this rule:



	(1) "Member of the clergy" means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner.



	(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.



	(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in his or her professional character as spiritual adviser.



	(c) Who may claim the privilege. The privilege may be claimed by the communicant, by his or her guardian or conservator, or by his or her personal representative if such person is deceased. The person who was the member of the clergy at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the communicant.


Amended 2003, No. 43, § 4, eff. May 27, 2003.

	Rule 506. [Reserved]



	Rule 507. [Reserved]



	Rule 508. [Reserved]



	Rule 509. Identity of Informant



	(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.



	(b) Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.



	(c) Exceptions.



	(1) Voluntary disclosure; informant a witness. No privilege exists under this rule (A) if the identity of the informant or his interest in the subject matter of his communication has been disclosed by a holder of the privilege or by the informant's own deliberate action to those who would have cause to resent the communication, or (B) if the informant testifies as a witness for the government.



	(2) Testimony on relevant issue. If it appears in the case that an informant may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informant can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it determines that the matter cannot be resolved satisfactorily upon affidavit. If the court determines there is a reasonable probability that the informant can give the testimony, and the public entity elects not to disclose his identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required of him, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the informed public entity. All counsel and parties are permitted to be present at every state of proceedings under this paragraph except a showing in camera at which no counsel or party shall be permitted to be present.



	Rule 510. Waiver of Privilege by Voluntary Disclosure



	A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.



	Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege



	A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.



	Rule 512. Comment Upon or Inference From Claim of Privilege: Instruction



	(a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.



	(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.



	(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.



	Rule 601. Competency in General: Disqualification



	(a) General rule of competency. Every person is competent to be a witness except as otherwise provided by statute or in these rules.



	(b) Disqualification of witness. A person is disqualified to be a witness if the court determines that (1) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth.



	Rule 602. Lack of Personal Knowledge



	The testimony of a witness may be excluded or stricken unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.



	Rule 603. Oath or Affirmation



	Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.



	Rule 604. Interpreters



	An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.



	Rule 605. Competency of Judge as Witness



	A judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.



	Rule 606. Competency of Juror as Witness



	(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.



	(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received; but a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors.



	Rule 607. Who May Impeach



	The credibility of a witness may be attacked by any party, including the party calling him.



	Rule 608. Evidence of Character and Conduct of Witness



	(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.



	(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.



	The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.



	Rule 609. Impeachment by Evidence of Conviction of Crime



	(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or, if denied by the witness, if established by extrinsic evidence, but only if the crime:



	(1) Involved untruthfulness or falsification regardless of the punishment, unless the court determines that the probative value of admitting this evidence is substantially outweighed by the danger of unfair prejudice. This subsection (1) applies only to those crimes whose statutory elements necessarily involve untruthfulness or falsification; or



	(2) Was a felony conviction under the law of Vermont or was punishable by death or imprisonment in excess of one year under the law of another jurisdiction, under which the witness was convicted, and the court determines that the probative value of this evidence substantially outweighs its prejudicial effect.



	The court shall articulate on the record the factors considered in making its determination.



	(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 15 years has elapsed since the date of the conviction.



	(c) Effect of pardon, annulment, certificate of rehabilitation, or appeal. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence; or (3) the conviction is the subject of a pending appeal.



	(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for fair determination of the issue of guilt or innocence.


Amended Dec. 8, 1988, eff. March 1, 1989.

	Rule 610. Religious Beliefs or Opinions



	Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.



	Rule 611. Mode and Order of Interrogation and Presentation



	(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation orderly and effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.



	(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness, except that when the witness is a party, the scope of cross-examination includes any matter of consequence to the determination of the action. In the case of a nonparty witness, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.



	(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.



	Rule 612. Writing or Object Used to Refresh Memory



	(a) While testifying. If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.



	(b) Before testifying. If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.



	(c) Terms and conditions of production and use. A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of any appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.



	Rule 613. Prior Statements of Witness



	(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.



	(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).



	Rule 614. Calling and Interrogation of Witnesses by Court



	(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.



	(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.



	(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.



	Rule 615. Exclusion of Witnesses



	At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion; after a witness' testimony has been completed, however, the witness may remain within the courtroom, even if the witness subsequently may be called upon by the other party or recalled in rebuttal, unless a party shows good cause for the witness to be excluded. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.


Amended Dec. 8, 1988, eff. March 1, 1989.

	Rule 701. Opinion Testimony by Lay Witness



	If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 702. Testimony by Experts



	If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 703. Factual Bases of Opinion Testimony by Experts



	The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 704. Opinion on Ultimate Issue



	Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.



	Rule 705. Disclosure of Facts or Data Underlying Expert Opinion



	The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.



	Rule 706. Court Appointed Experts



	(a) Appointment. The court, on motion of any party or its own motion, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witness agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness should not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.



	(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. In civil cases or proceedings, the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.



	(c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.



	(d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.



	Rule 801. Definitions



	The following definitions apply under this Article:



	(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.



	(b) Declarant. A "declarant" is a person who makes a statement.



	(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.



	(d) Statements which are not hearsay. A statement is not hearsay if -



	(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him; or



	(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. A statement by a co-conspirator may only be admitted if the court finds that the declarant is unavailable and that there is sufficient indicia of reliability to show its trustworthiness.


Amended 1985, No. 183 (Adj. Sess.), § 8, eff. July 1, 1986.

	Rule 802. Hearsay Rule



	Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court or by statute.



	Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial



	The following are not excluded by the hearsay rule, even though the declarant is available as a witness:



	(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.



	(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.



	(3) Then-existing mental, emotional, or physical condition. A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.



	(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations.



	(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.



	(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12) or a statute or rule permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.



	(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.



	(8) Public records and reports. (A) To the extent not otherwise provided in (B), records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. (B) The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.



	(9) Records of vital statistics. Records or data compilations, in any form, of the fact of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.



	(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.



	(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.



	(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.



	(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.



	(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office.



	(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.



	(16) Statements in ancient documents. Statements in a document in existence 20 years or more whose authenticity is established.



	(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.



	(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination, or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.



	(19) Reputation concerning personal or family history. Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.



	(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.



	(21) Reputation as to character. Reputation of a person's character among his associates or in the community.



	(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. A judgment is not admissible under this rule during the pendency of an appeal therefrom.



	(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.



	(24) Statements of a putative victim who is a minor. [Repealed.]


Amended Jan. 8, 1985, eff. March 7, 1985; 1985, No. 82, § 7, eff. July 1, 1985; March 31, 2004, eff. July 1, 2004.

	Rule 804. Hearsay Exceptions: Declarant Unavailable



	(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant:



	(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or



	(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or



	(3) Testifies to a lack of memory of the subject matter of his statement; 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 his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.



	A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.



	(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:



	(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.



	(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.



	(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement of confession offered against the accused in a criminal case, made by a co-defendant or other person implicating both himself and the accused, is not within this exception.



	(4) Statement of personal or family history or concerning boundaries. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared; or (C) a statement as to boundaries of land.



	(5) [Reserved.]



	(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.


Amended July 2, 2004, eff. Oct. 1, 2004.

	Rule 804a. Hearsay Exception; Putative Victim Age 12 or Under; Person with a Mental Illness or Developmental Disability



	(a) Statements by a person who is a child 12 years of age or under or who is a person with a mental illness as defined in 18 V.S.A. § 7101(14) or developmental disability as defined in 18 V.S.A. § 8722(2) at the time the statements were made are not excluded by the hearsay rule if the court specifically finds at the time they are offered that:



	(1) the statements are offered in a civil, criminal, or administrative proceeding in which the child or person with a mental illness or developmental disability is a putative victim of sexual assault under 13 V.S.A. § 3252, aggravated sexual assault under 13 V.S.A. § 3253, aggravated sexual assault of a child under 13 V.S.A. § 3253a, lewd or lascivious conduct under 13 V.S.A. § 2601, lewd or lascivious conduct with a child under 13 V.S.A. § 2602, incest under 13 V.S.A. § 205, abuse, neglect, or exploitation under 33 V.S.A. § 6913, sexual abuse of a vulnerable adult under 13 V.S.A. § 1379, or wrongful sexual activity and the statements concern the alleged crime or the wrongful sexual activity; or the statements are offered in a juvenile proceeding under chapter 52 of Title 33 involving a delinquent act alleged to have been committed against a child 13 years of age or under or a person with a mental illness or developmental disability if the delinquent act would be an offense listed herein if committed by an adult and the statements concern the alleged delinquent act; or the child is the subject of a petition alleging that the child is in need of care or supervision under chapter 53 of Title 33, and the statement relates to the sexual abuse of the child;



	(2) the statements were not taken in preparation for a legal proceeding and, if a criminal or delinquency proceeding has been initiated, the statements were made prior to the defendant's initial appearance before a judicial officer under Rule 5 of the Vermont Rules of Criminal Procedure;



	(3) the child or person with a mental illness or developmental disability is available to testify in court or under Rule 807; and



	(4) the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.



	(b) Upon motion of either party in a criminal or delinquency proceeding, the court shall require the child or person with a mental illness or developmental disability to testify for the state.


Added 1985, No. 82, § 2, eff. July 1, 1985; amended Oct. 30, 1986, eff. March 1, 1987; 1993, No. 100, § 11; Oct. 23, 2002, eff. Jan. 1, 2003; 2009, No. 1, § 28, eff. July 1, 2009; No. 58, § 22, eff. July 2, 2009.

	Rule 805. Hearsay Within Hearsay



	Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.



	Rule 806. Attacking and Supporting Credibility of Declarant



	When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the statement admitted in evidence, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.



	Rule 807. Testimony Where Victim Is a Minor, a Mentally Ill Person or a Mentally Retarded Person



	(a) Application. This rule applies only to the testimony of a child age 12 or under or mentally ill or mentally retarded person as defined in 14 V.S.A. § 3061(4) or (5) in a proceeding:



	(1) in a prosecution for sexual assault under 13 V.S.A. § 3252 or aggravated sexual assault under 13 V.S.A. § 3253 alleged to have been committed against that child or mentally ill or mentally retarded person;



	(2) in a prosecution for lewd and lascivious conduct with a child under 13 V.S.A. § 2602 or incest under 13 V.S.A. § 205 alleged to have been committed against that child;



	(3) in a prosecution for abuse, neglect or exploitation under 33 V.S.A. § 6913 or lewd and lascivious conduct under 13 V.S.A. § 2601 alleged to have been committed against that mentally ill or mentally retarded person;



	(4) under chapter 55 of Title 33 involving a delinquent act alleged to have been committed against that child or mentally ill or mentally retarded person, if that delinquent act would be an offense listed in this subsection if committed by an adult;



	(5) in a civil action in which one of the parties or witnesses has been an alleged victim of causes of action alleging sexual assault, lewd and lascivious conduct or sexual activity as defined in 33 V.S.A. § 6902.



	(b) Who may move. The court may, on motion of any party, on its own motion or on motion of the attorney or guardian ad litem for the child or mentally ill or mentally retarded person order that the testimony of the child or mentally ill or mentally retarded person be taken by two-way closed-circuit television or by recorded testimony under this rule.



	(c) Finding a trauma. The court shall make an order for two-way closed-circuit television or recorded testimony under this rule only upon a finding that requiring the child or mentally ill or mentally retarded person to testify in court will present a substantial risk of trauma to the child or mentally ill or mentally retarded person which would substantially impair the ability of the child or mentally ill or mentally retarded person to testify.



	(d) Recorded testimony. The testimony of the child or mentally ill or mentally retarded person may be taken outside the courtroom and recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only the court and the attorneys may question the child or mentally ill or mentally retarded person. In pro se proceedings, the court may modify the provisions of this subsection relating to the role of a pro se party. The court shall permit the person against whom the child, or mentally ill or mentally retarded person is testifying to observe and hear the testimony of the child or mentally ill or mentally retarded person in person and to confer personally with his or her attorney. Only the person against whom the testimony is directed, the attorneys, the court, persons necessary to operate the equipment and any person who is not a potential witness and whose presence the court finds would contribute to the welfare and well-being of the child or mentally ill or mentally retarded person may be present in the room with the child or mentally ill or mentally retarded person during the testimony. The persons operating the equipment shall be situated whenever possible in such a way that they can see and hear the child or mentally ill or mentally retarded person during the testimony, but the child or mentally ill or mentally retarded person cannot see or hear them. If the testimony is taken under this subsection, the court shall also ensure that:



	(1) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;



	(2) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and is not altered except as ordered by the court;



	(3) each voice on the recording is identified; and



	(4) each party is afforded an opportunity to view the recording before it is shown in the courtroom.



	(e) Two-way closed-circuit television. The testimony of the child or mentally ill or mentally retarded person may be taken in a room other than the courtroom and be televised by two-way closed-circuit equipment to be viewed by the finder of fact and others present in the courtroom. Only the persons necessary to operate the equipment and a person who is not a potential witness and whose presence the court finds would contribute to the welfare and well-being of the child or mentally ill or mentally retarded person may be present in the room with the child or mentally ill or mentally retarded person during the testimony.



	(f) Placing of the party against whom the testimony is directed. During the recording of testimony under subsection (d) of this rule the party shall be situated in such a way that the child or mentally ill or mentally retarded person can hear and see the party unless the court finds that requiring the child or mentally ill or mentally retarded person to hear and see the party presents a substantial risk of trauma to the child or mentally ill or mentally retarded person which would substantially impair the ability of the child or mentally ill or mentally retarded person to testify, in which case the court may order that the party be situated in such a way that the child or mentally ill or mentally retarded person cannot hear or see the party. During the taking of testimony by two-way closed-circuit equipment under subsection (e) the party's image shall be transmitted to the witness unless the court finds that requiring the witness to hear and see the party presents a substantial risk of trauma to the witness which would substantially impair the ability of the witness to testify, in which case the image of the party shall not be transmitted to the witness.



	(g) In-court testimony not required. If the court orders the testimony of a child or mentally ill or mentally retarded person to be taken under this rule, the child or mentally ill or mentally retarded person may not be required to testify in court at the proceeding for which the testimony was taken, unless otherwise ordered by the court for good cause shown.


Added 1985, No. 82, § 1, eff. July 1, 1985; amended 1993, No. 100, § 12; Oct. 23, 2002, eff. Jan. 1, 2003.

	Rule 901. Requirement of Authentication or Identification



	(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.



	(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:



	(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.



	(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.



	(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been authenticated.



	(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.



	(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.



	(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.



	(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.



	(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.



	(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.



	(10) Methods provided by statute or rule. Any method of authentication or identification provided by statute or by other rules prescribed by the Supreme Court.



	Rule 902. Self-authentication



	Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:



	(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.



	(2) Domestic public documents not under seal. (A) A document purporting to bear the signature in his official capacity of an officer or employee of the State of Vermont, or of any political subdivision, department, or agency thereof. (B) A document purporting to bear the signature in his official capacity of an officer or employee of any other entity included in paragraph (1) hereof, if accompanied by a certificate under oath of such person that he acts in that capacity or if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.



	(3) Foreign public documents. A document made authentic by treaty between the United States and a foreign country or, if no treaty applies, a document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.



	(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any statute of the United States or the State of Vermont or rule prescribed by the Supreme Court.



	(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.



	(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.



	(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.



	(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.



	(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.



	(10) Presumptions created by statute. Any signature, document, or other matter declared by any statute of the United States or of the State of Vermont to be presumptively or prima facie genuine or authentic.



	(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, made under oath, certifying that the record:



	(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;



	(B) was kept in the course of the regularly conducted activity; and



	(C) was made by the regularly conducted activity as a regular practice.



	A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.



	(12) Certified foreign records of regularly conducted activity. The original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:



	(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;



	(B) was kept in the course of the regularly conducted activity; and



	(C) was made by the regularly conducted activity as a regular practice.



	The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.


Amended March 31, 2004, eff. July 1, 2004.

	Rule 903. Subscribing Witness' Testimony Unnecessary



	The testimony of a subscribing witness is not necessary to authenticate a writing unless required by a statute of this state.



	Rule 1001. Definitions



	For purposes of this article the following definitions are applicable:



	(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.



	(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.



	(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."



	(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques, which accurately reproduces the original.



	Rule 1002. Requirement of Original



	To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.



	Rule 1003. Admissibility of Duplicates



	A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.



	Rule 1004. Admissibility of Other Evidence of Contents



	The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if -



	(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or



	(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or



	(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be subject to proof at the hearing, and he does not produce the original at the hearing; or



	(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.



	Rule 1005. Public Records



	The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.



	Rule 1006. Summaries



	The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.



	Rule 1007. Testimony or Written Admission of Party



	Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.



	Rule 1008. Functions of Court and Jury



	When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.



	Rule 1101. Applicability of Rules



	(a) Rules applicable. Except as otherwise provided in subdivision (b), these rules apply to all actions and proceedings in the courts of this state.



	(b) Rules inapplicable. The rules other than those with respect to privileges do not apply in the following situations:



	(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).



	(2) Grand jury. Proceedings before grand juries.



	(3) Miscellaneous proceedings. Proceedings for extradition or rendition; inquest proceedings; except as otherwise provided by statute or rule promulgated by the Supreme Court, sentencing or granting or revoking probation; finding probable cause for arrests without warrant and issuance of citations, warrants for arrest, criminal summonses, and search warrants.



	(4) Contempt. Those contempt proceedings in which the court may act summarily.



	(5) Small claims. Small claims proceedings.



	(6) Statutory exceptions. Proceedings in which all or part of the rules of evidence are made inapplicable by statute.


Amended Jan. 8, 1985, eff. March 7, 1985.

	Rule 1102. Effective Date



	(a) Effective date of rules. These rules will take effect on April 1, 1983. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event former evidentiary principles apply.



	(b) Effective date of amendments. Amendments to these rules will take effect on the day specified in the order adopting them. They govern all proceedings in actions brought after they take effect and also all proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when they take effect would not be feasible or would work injustice, in which event the former rule or evidentiary principle applies.



	Rule 1103. Title



	These rules may be known and cited as the Vermont Rules of Evidence.



	Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.


	Rule 412. Inadmissibility of Statements Made by Ward To Guardian Ad Litem


	Except as set forth in this rule, evidence of statements made by a ward to a guardian ad litem is not, in any civil or criminal proceeding, admissible against the ward who made the statement. Such a statement is admissible in any proceeding wherein any other statement made by the ward to the guardian ad litem has been introduced and the statement ought in fairness to be considered contemporaneously with it. This rule does not require exclusion of any evidence otherwise obtainable from independent sources merely because it was presented to the guardian ad litem by the ward.

Added Aug. 22, 1991, eff. Nov. 1, 1991.


	Rule 501. Privileges Recognized Only as Provided; Statutory Privileges


	(a) Privileges Recognized. Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court, no person has a privilege to:


	(1) Refuse to be a witness;


	(2) Refuse to disclose any matter;


	(3) Refuse to produce any object or writing; or


	(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.


	This rule shall not be construed to prevent the development at common law of other privileges.


	(b) Statutory Privileges. This subdivision applies to information which is protected by a statutory privilege and which: (1) was collected or recorded under a statute, rule or order requiring a report, disclosure or communication to a public agency, officer or employee; (2) was collected or recorded by a public agency, officer or employee in order to provide treatment or services to the privilege holder or to determine whether to charge the privilege holder with a crime or delinquent act; or (3) was communicated to a mediator, factfinder or arbitrator during a labor dispute or negotiation. The public agency, officer or employee or the mediator, factfinder or arbitrator who holds the information is presumed to have the authority to claim the privilege on behalf of the person privileged. Unless the statute provides to the contrary, the privilege does not extend to original information, documents or records when sought from original sources. No privilege exists in actions involving perjury, false statements, fraud in a return or report, or other failure to comply with the statute, rule or order in question. Rules 510 through 512 shall apply to privileges covered by this subdivision.

Amended Jan. 8, 1985, eff. March 7, 1985; Feb. 5, 1985, eff. March 7, 1985.


	Rule 502. Lawyer-Client Privilege


	(a) Definitions. As used in this rule:


	(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.


	(2) A "representative of the client" is (A) a person having authority to obtain professional legal services or act on advice rendered pursuant thereto, on behalf of the client, or (B) any other person who, while acting in the scope of employment for the client, makes or receives a confidential communication necessary to effectuate legal representation for the client. In case of a corporation, the officers and directors and those persons who have the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer are also "representatives of the client."


	(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.


	(4) A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.


	(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.


	(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer, or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.


	(c) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.


	(d) Exceptions. There is no privilege under this rule:


	(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;


	(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions;


	(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer;


	(4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;


	(5) Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.

Amended Aug. 10, 1995, eff. Dec. 1, 1995.


	Rule 503. Patient's Privilege


	(a) Definitions. As used in this rule:


	(1) A "patient" is a person who consults or is examined or interviewed by a physician, dentist, nurse, or mental health professional.


	(2) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.


	(3) A "dentist" is a person authorized to practice dentistry in any state or nation, or reasonably believed by the patient so to be.


	(4) A "nurse" is a person registered or licensed as a professional or practical nurse in any state or nation, or reasonably believed by the patient so to be.


	(5) A "mental health professional" is a qualifed person designated by the Commissioner of Mental Health and Mental Retardation or a physician, psychologist, social worker, or nurse with professional training, experience and demonstrated competence in the treatment of mental illness, or a person reasonably believed by the patient to be a mental health professional.


	(6) A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview; persons reasonably necessary for the transmission of the communication; or persons who are participating in diagnosis and treatment under the direction of a physician, dentist, nurse or mental health professional, including members of the patient's family or other participants in joint or group counseling sessions.


	(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person, including a person present to further the interest of the patient in the consultation, examination or interview, from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, dental, or emotional condition, including alcohol or drug addiction, among himself, his physician, dentist, nurse, or mental health professional, and persons who are participating in diagnosis or treatment under the direction of a physician, dentist, nurse, or mental health professional, including members of the patient's family.


	(c) Who may claim the privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician, dentist, nurse, or mental health professional at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.


	(d) Exceptions.


	(1) Mental health proceedings. There is no privilege under this rule in proceedings under that part of Title 18 of Vermont Statutes Annotated on mental health for any communications to or from a mental health professional while he is attending the patient.


	(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise or unless the state seeks to admit communications obtained in an examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.


	(3) Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, unless the state seeks to admit information obtained in the examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.


	(4) Dental identification. There is no privilege under this rule for information acquired by a dentist that is necessary for the identification of a patient.


	(5) Victims of crime under the age of 16. There is no privilege under this rule for information indicating that a patient who is under the age of sixteen years has been the victim of a crime.


	(6) Required reports. There is no privilege under this rule for any report of a patient's medical condition required to be made by statute;


	(7) Risk of harm to a child. In a proceeding under Family Court Rule 4 to determine parental rights or responsibilities or parent-child contact, and in any proceeding under Chapter 55 of Title 33, Vermont Statutes Annotated, there is no privilege under this rule if the court, after hearing, finds on the basis of evidence other than that sought to be obtained, that: (1) in any such case lack of disclosure of the communication would pose a risk of harm to the child as defined in 33 V.S.A. § 4912, or in a proceeding to terminate parental rights the communication would be relevant under 33 V.S.A. § 5540(3); (2) the probative value of the communication outweighs the potential harm to the patient; and (3) the evidence sought is not reasonably available by any other means.

Amended Jan. 8, 1985, eff. March 7, 1985; Aug. 22, 1991, eff. Nov. 1, 1991; 1993, No. 222 (Adj. Sess.), § 24.


	Rule 504. Husband-Wife Privilege


	(a) Definition. A statement, letter, conversation, or other communication is "confidential" if it is made privately by any person and is not intended for disclosure to any other person.


	(b) General rule of privilege. Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.


	(c) Who may claim the privilege. The privilege may be claimed by the person who made the communication or by the spouse in his behalf. The authority of the spouse to do so is presumed.


	(d) Exceptions. There is no privilege under this rule in a proceeding in which one spouse is charged with a crime, or alleged to have committed a tort, against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person in the course of committing a crime against any of them. There is also no privilege under this rule in any other civil proceeding in which the spouses are adverse parties; or, in the discretion of the court, in any other proceeding where the interests of a child of either are involved.


	Rule 505. Religious Privilege


	(a) Definitions. As used in this rule:


	(1) "Member of the clergy" means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner.


	(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.


	(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in his or her professional character as spiritual adviser.


	(c) Who may claim the privilege. The privilege may be claimed by the communicant, by his or her guardian or conservator, or by his or her personal representative if such person is deceased. The person who was the member of the clergy at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the communicant.

Amended 2003, No. 43, § 4, eff. May 27, 2003.


	Rule 506. [Reserved]


	Rule 507. [Reserved]


	Rule 508. [Reserved]


	Rule 509. Identity of Informant


	(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.


	(b) Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.


	(c) Exceptions.


	(1) Voluntary disclosure; informant a witness. No privilege exists under this rule (A) if the identity of the informant or his interest in the subject matter of his communication has been disclosed by a holder of the privilege or by the informant's own deliberate action to those who would have cause to resent the communication, or (B) if the informant testifies as a witness for the government.


	(2) Testimony on relevant issue. If it appears in the case that an informant may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informant can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it determines that the matter cannot be resolved satisfactorily upon affidavit. If the court determines there is a reasonable probability that the informant can give the testimony, and the public entity elects not to disclose his identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required of him, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the informed public entity. All counsel and parties are permitted to be present at every state of proceedings under this paragraph except a showing in camera at which no counsel or party shall be permitted to be present.


	Rule 510. Waiver of Privilege by Voluntary Disclosure


	A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.


	Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege


	A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.


	Rule 512. Comment Upon or Inference From Claim of Privilege: Instruction


	(a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.


	(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.


	(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.


	Rule 601. Competency in General: Disqualification


	(a) General rule of competency. Every person is competent to be a witness except as otherwise provided by statute or in these rules.


	(b) Disqualification of witness. A person is disqualified to be a witness if the court determines that (1) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth.


	Rule 602. Lack of Personal Knowledge


	The testimony of a witness may be excluded or stricken unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.


	Rule 603. Oath or Affirmation


	Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.


	Rule 604. Interpreters


	An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.


	Rule 605. Competency of Judge as Witness


	A judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.


	Rule 606. Competency of Juror as Witness


	(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.


	(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received; but a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors.


	Rule 607. Who May Impeach


	The credibility of a witness may be attacked by any party, including the party calling him.


	Rule 608. Evidence of Character and Conduct of Witness


	(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.


	(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.


	The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.


	Rule 609. Impeachment by Evidence of Conviction of Crime


	(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or, if denied by the witness, if established by extrinsic evidence, but only if the crime:


	(1) Involved untruthfulness or falsification regardless of the punishment, unless the court determines that the probative value of admitting this evidence is substantially outweighed by the danger of unfair prejudice. This subsection (1) applies only to those crimes whose statutory elements necessarily involve untruthfulness or falsification; or


	(2) Was a felony conviction under the law of Vermont or was punishable by death or imprisonment in excess of one year under the law of another jurisdiction, under which the witness was convicted, and the court determines that the probative value of this evidence substantially outweighs its prejudicial effect.


	The court shall articulate on the record the factors considered in making its determination.


	(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 15 years has elapsed since the date of the conviction.


	(c) Effect of pardon, annulment, certificate of rehabilitation, or appeal. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence; or (3) the conviction is the subject of a pending appeal.


	(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for fair determination of the issue of guilt or innocence.

Amended Dec. 8, 1988, eff. March 1, 1989.


	Rule 610. Religious Beliefs or Opinions


	Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.


	Rule 611. Mode and Order of Interrogation and Presentation


	(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation orderly and effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.


	(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness, except that when the witness is a party, the scope of cross-examination includes any matter of consequence to the determination of the action. In the case of a nonparty witness, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.


	(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.


	Rule 612. Writing or Object Used to Refresh Memory


	(a) While testifying. If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.


	(b) Before testifying. If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.


	(c) Terms and conditions of production and use. A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of any appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.


	Rule 613. Prior Statements of Witness


	(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.


	(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).


	Rule 614. Calling and Interrogation of Witnesses by Court


	(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.


	(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.


	(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.


	Rule 615. Exclusion of Witnesses


	At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion; after a witness' testimony has been completed, however, the witness may remain within the courtroom, even if the witness subsequently may be called upon by the other party or recalled in rebuttal, unless a party shows good cause for the witness to be excluded. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Amended Dec. 8, 1988, eff. March 1, 1989.


	Rule 701. Opinion Testimony by Lay Witness


	If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 702. Testimony by Experts


	If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 703. Factual Bases of Opinion Testimony by Experts


	The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 704. Opinion on Ultimate Issue


	Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.


	Rule 705. Disclosure of Facts or Data Underlying Expert Opinion


	The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.


	Rule 706. Court Appointed Experts


	(a) Appointment. The court, on motion of any party or its own motion, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witness agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness should not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.


	(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. In civil cases or proceedings, the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.


	(c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.


	(d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.


	Rule 801. Definitions


	The following definitions apply under this Article:


	(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.


	(b) Declarant. A "declarant" is a person who makes a statement.


	(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.


	(d) Statements which are not hearsay. A statement is not hearsay if -


	(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him; or


	(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. A statement by a co-conspirator may only be admitted if the court finds that the declarant is unavailable and that there is sufficient indicia of reliability to show its trustworthiness.

Amended 1985, No. 183 (Adj. Sess.), § 8, eff. July 1, 1986.


	Rule 802. Hearsay Rule


	Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court or by statute.


	Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial


	The following are not excluded by the hearsay rule, even though the declarant is available as a witness:


	(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.


	(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.


	(3) Then-existing mental, emotional, or physical condition. A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.


	(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations.


	(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.


	(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12) or a statute or rule permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.


	(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.


	(8) Public records and reports. (A) To the extent not otherwise provided in (B), records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. (B) The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.


	(9) Records of vital statistics. Records or data compilations, in any form, of the fact of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.


	(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.


	(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.


	(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.


	(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.


	(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office.


	(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.


	(16) Statements in ancient documents. Statements in a document in existence 20 years or more whose authenticity is established.


	(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.


	(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination, or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.


	(19) Reputation concerning personal or family history. Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.


	(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.


	(21) Reputation as to character. Reputation of a person's character among his associates or in the community.


	(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. A judgment is not admissible under this rule during the pendency of an appeal therefrom.


	(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.


	(24) Statements of a putative victim who is a minor. [Repealed.]

Amended Jan. 8, 1985, eff. March 7, 1985; 1985, No. 82, § 7, eff. July 1, 1985; March 31, 2004, eff. July 1, 2004.


	Rule 804. Hearsay Exceptions: Declarant Unavailable


	(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant:


	(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or


	(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or


	(3) Testifies to a lack of memory of the subject matter of his statement; 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 his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.


	A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.


	(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:


	(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.


	(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.


	(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement of confession offered against the accused in a criminal case, made by a co-defendant or other person implicating both himself and the accused, is not within this exception.


	(4) Statement of personal or family history or concerning boundaries. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared; or (C) a statement as to boundaries of land.


	(5) [Reserved.]


	(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Amended July 2, 2004, eff. Oct. 1, 2004.


	Rule 804a. Hearsay Exception; Putative Victim Age 12 or Under; Person with a Mental Illness or Developmental Disability


	(a) Statements by a person who is a child 12 years of age or under or who is a person with a mental illness as defined in 18 V.S.A. § 7101(14) or developmental disability as defined in 18 V.S.A. § 8722(2) at the time the statements were made are not excluded by the hearsay rule if the court specifically finds at the time they are offered that:


	(1) the statements are offered in a civil, criminal, or administrative proceeding in which the child or person with a mental illness or developmental disability is a putative victim of sexual assault under 13 V.S.A. § 3252, aggravated sexual assault under 13 V.S.A. § 3253,aggravated sexual assault of a child under 13 V.S.A. § 3253a, lewd or lascivious conduct under 13 V.S.A. § 2601, lewd or lascivious conduct with a child under 13 V.S.A. § 2602, incest under 13 V.S.A. § 205, abuse, neglect, or exploitation under 33 V.S.A. § 6913, sexual abuse of a vulnerable adult under 13 V.S.A. § 1379, or wrongful sexual activity and the statements concern the alleged crime or the wrongful sexual activity; or the statements are offered in a juvenile proceeding under chapter 52 of Title 33 involving a delinquent act alleged to have been committed against a child 13 years of age or under or a person with a mental illness or developmental disability if the delinquent act would be an offense listed herein if committed by an adult and the statements concern the alleged delinquent act; or the child is the subject of a petition alleging that the child is in need of care or supervision under chapter 53 of Title 33, and the statement relates to the sexual abuse of the child;


	(2) the statements were not taken in preparation for a legal proceeding and, if a criminal or delinquency proceeding has been initiated, the statements were made prior to the defendant's initial appearance before a judicial officer under Rule 5 of the Vermont Rules of Criminal Procedure;


	(3) the child or person with a mental illness or developmental disability is available to testify in court or under Rule 807; and


	(4) the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.


	(b) Upon motion of either party in a criminal or delinquency proceeding, the court shall require the child or person with a mental illness or developmental disability to testify for the state.

Added 1985, No. 82, § 2, eff. July 1, 1985; amended Oct. 30, 1986, eff. March 1, 1987; 1993, No. 100, § 11; Oct. 23, 2002, eff. Jan. 1, 2003; 2009, No. 1, § 28, eff. July 1, 2009; No. 58, § 22, eff. July 2, 2009.


	Rule 805. Hearsay Within Hearsay


	Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.


	Rule 806. Attacking and Supporting Credibility of Declarant


	When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the statement admitted in evidence, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.


	Rule 807. Testimony Where Victim Is a Minor, a Mentally Ill Person or a Mentally Retarded Person


	(a) Application. This rule applies only to the testimony of a child age 12 or under or mentally ill or mentally retarded person as defined in 14 V.S.A. § 3061(4) or (5) in a proceeding:


	(1) in a prosecution for sexual assault under 13 V.S.A. § 3252 or aggravated sexual assault under 13 V.S.A. § 3253 alleged to have been committed against that child or mentally ill or mentally retarded person;


	(2) in a prosecution for lewd and lascivious conduct with a child under 13 V.S.A. § 2602 or incest under 13 V.S.A. § 205 alleged to have been committed against that child;


	(3) in a prosecution for abuse, neglect or exploitation under 33 V.S.A. § 6913 or lewd and lascivious conduct under 13 V.S.A. § 2601 alleged to have been committed against that mentally ill or mentally retarded person;


	(4) under chapter 55 of Title 33 involving a delinquent act alleged to have been committed against that child or mentally ill or mentally retarded person, if that delinquent act would be an offense listed in this subsection if committed by an adult;


	(5) in a civil action in which one of the parties or witnesses has been an alleged victim of causes of action alleging sexual assault, lewd and lascivious conduct or sexual activity as defined in 33 V.S.A. § 6902.


	(b) Who may move. The court may, on motion of any party, on its own motion or on motion of the attorney or guardian ad litem for the child or mentally ill or mentally retarded person order that the testimony of the child or mentally ill or mentally retarded person be taken by two-way closed-circuit television or by recorded testimony under this rule.


	(c) Finding a trauma. The court shall make an order for two-way closed-circuit television or recorded testimony under this rule only upon a finding that requiring the child or mentally ill or mentally retarded person to testify in court will present a substantial risk of trauma to the child or mentally ill or mentally retarded person which would substantially impair the ability of the child or mentally ill or mentally retarded person to testify.


	(d) Recorded testimony. The testimony of the child or mentally ill or mentally retarded person may be taken outside the courtroom and recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only the court and the attorneys may question the child or mentally ill or mentally retarded person. In pro se proceedings, the court may modify the provisions of this subsection relating to the role of a pro se party. The court shall permit the person against whom the child, or mentally ill or mentally retarded person is testifying to observe and hear the testimony of the child or mentally ill or mentally retarded person in person and to confer personally with his or her attorney. Only the person against whom the testimony is directed, the attorneys, the court, persons necessary to operate the equipment and any person who is not a potential witness and whose presence the court finds would contribute to the welfare and well-being of the child or mentally ill or mentally retarded person may be present in the room with the child or mentally ill or mentally retarded person during the testimony. The persons operating the equipment shall be situated whenever possible in such a way that they can see and hear the child or mentally ill or mentally retarded person during the testimony, but the child or mentally ill or mentally retarded person cannot see or hear them. If the testimony is taken under this subsection, the court shall also ensure that:


	(1) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;


	(2) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and is not altered except as ordered by the court;


	(3) each voice on the recording is identified; and


	(4) each party is afforded an opportunity to view the recording before it is shown in the courtroom.


	(e) Two-way closed-circuit television. The testimony of the child or mentally ill or mentally retarded person may be taken in a room other than the courtroom and be televised by two-way closed-circuit equipment to be viewed by the finder of fact and others present in the courtroom. Only the persons necessary to operate the equipment and a person who is not a potential witness and whose presence the court finds would contribute to the welfare and well-being of the child or mentally ill or mentally retarded person may be present in the room with the child or mentally ill or mentally retarded person during the testimony.


	(f) Placing of the party against whom the testimony is directed. During the recording of testimony under subsection (d) of this rule the party shall be situated in such a way that the child or mentally ill or mentally retarded person can hear and see the party unless the court finds that requiring the child or mentally ill or mentally retarded person to hear and see the party presents a substantial risk of trauma to the child or mentally ill or mentally retarded person which would substantially impair the ability of the child or mentally ill or mentally retarded person to testify, in which case the court may order that the party be situated in such a way that the child or mentally ill or mentally retarded person cannot hear or see the party. During the taking of testimony by two-way closed-circuit equipment under subsection (e) the party's image shall be transmitted to the witness unless the court finds that requiring the witness to hear and see the party presents a substantial risk of trauma to the witness which would substantially impair the ability of the witness to testify, in which case the image of the party shall not be transmitted to the witness.


	(g) In-court testimony not required. If the court orders the testimony of a child or mentally ill or mentally retarded person to be taken under this rule, the child or mentally ill or mentally retarded person may not be required to testify in court at the proceeding for which the testimony was taken, unless otherwise ordered by the court for good cause shown.

Added 1985, No. 82, § 1, eff. July 1, 1985; amended 1993, No. 100, § 12; Oct. 23, 2002, eff. Jan. 1, 2003.


	Rule 901. Requirement of Authentication or Identification


	(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.


	(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:


	(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.


	(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.


	(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been authenticated.


	(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.


	(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.


	(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.


	(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.


	(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.


	(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.


	(10) Methods provided by statute or rule. Any method of authentication or identification provided by statute or by other rules prescribed by the Supreme Court.


	Rule 902. Self-authentication


	Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:


	(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.


	(2) Domestic public documents not under seal. (A) A document purporting to bear the signature in his official capacity of an officer or employee of the State of Vermont, or of any political subdivision, department, or agency thereof. (B) A document purporting to bear the signature in his official capacity of an officer or employee of any other entity included in paragraph (1) hereof, if accompanied by a certificate under oath of such person that he acts in that capacity or if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.


	(3) Foreign public documents. A document made authentic by treaty between the United States and a foreign country or, if no treaty applies, a document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.


	(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any statute of the United States or the State of Vermont or rule prescribed by the Supreme Court.


	(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.


	(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.


	(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.


	(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.


	(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.


	(10) Presumptions created by statute. Any signature, document, or other matter declared by any statute of the United States or of the State of Vermont to be presumptively or prima facie genuine or authentic.


	(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, made under oath, certifying that the record:


	(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;


	(B) was kept in the course of the regularly conducted activity; and


	(C) was made by the regularly conducted activity as a regular practice.


	A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.


	(12) Certified foreign records of regularly conducted activity. The original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:


	(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;


	(B) was kept in the course of the regularly conducted activity; and


	(C) was made by the regularly conducted activity as a regular practice.


	The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Amended March 31, 2004, eff. July 1, 2004.


	Rule 903. Subscribing Witness' Testimony Unnecessary


	The testimony of a subscribing witness is not necessary to authenticate a writing unless required by a statute of this state.


	Rule 1001. Definitions


	For purposes of this article the following definitions are applicable:


	(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.


	(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.


	(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."


	(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques, which accurately reproduces the original.


	Rule 1002. Requirement of Original


	To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.


	Rule 1003. Admissibility of Duplicates


	A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.


	Rule 1004. Admissibility of Other Evidence of Contents


	The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if -


	(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or


	(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or


	(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be subject to proof at the hearing, and he does not produce the original at the hearing; or


	(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.


	Rule 1005. Public Records


	The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.


	Rule 1006. Summaries


	The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.


	Rule 1007. Testimony or Written Admission of Party


	Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.


	Rule 1008. Functions of Court and Jury


	When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.


	Rule 1101. Applicability of Rules


	(a) Rules applicable. Except as otherwise provided in subdivision (b), these rules apply to all actions and proceedings in the courts of this state.


	(b) Rules inapplicable. The rules other than those with respect to privileges do not apply in the following situations:


	(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).


	(2) Grand jury. Proceedings before grand juries.


	(3) Miscellaneous proceedings. Proceedings for extradition or rendition; inquest proceedings; except as otherwise provided by statute or rule promulgated by the Supreme Court, sentencing or granting or revoking probation; finding probable cause for arrests without warrant and issuance of citations, warrants for arrest, criminal summonses, and search warrants.


	(4) Contempt. Those contempt proceedings in which the court may act summarily.


	(5) Small claims. Small claims proceedings.


	(6) Statutory exceptions. Proceedings in which all or part of the rules of evidence are made inapplicable by statute.

Amended Jan. 8, 1985, eff. March 7, 1985.


	Rule 1102. Effective Date


	(a) Effective date of rules. These rules will take effect on April 1, 1983. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event former evidentiary principles apply.


	(b) Effective date of amendments. Amendments to these rules will take effect on the day specified in the order adopting them. They govern all proceedings in actions brought after they take effect and also all proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when they take effect would not be feasible or would work injustice, in which event the former rule or evidentiary principle applies.


	Rule 1103. Title


	These rules may be known and cited as the Vermont Rules of Evidence.

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Vermont Rules of Evidence

I. GENERAL PROVISIONS.

II. JUDICIAL NOTICE.

III. PRESUMPTIONS.

IV. RELEVANCY AND ITS LIMITS.

V. PRIVILEGES.

VI. WITNESSES.

VII. OPINIONS AND EXPERT TESTIMONY.

VIII. HEARSAY.

IX. AUTHENTICATION AND IDENTIFICATION.

X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS.

XI. MISCELLANEOUS RULES.

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