The Vermont Statutes Online

Title 12: Court Procedure

Chapter 061: Witnesses

• Subchapter 001: Qualifications, Privileges, and Credibility

• § 1601. Interest of witness; effect on qualifications and credibility

  A person shall not be disqualified as a witness in a civil cause or proceeding by reason of his or her interest therein as a party or otherwise. However, his or her interest or connection may be shown to affect his or her credibility as a witness.

• § 1602. When one party is dead or lacks capacity to testify due to a mental condition or psychiatric disability

  A party shall not be allowed to testify in his or her own favor where the other party to the contract or cause of action in issue and on trial is dead or shown to the court to lack capacity to testify due to a mental condition or psychiatric disability, except as follows:

  (1) To meet or explain the testimony of living witnesses produced against him or her.

  (2) To meet the testimony of such deceased or party who lacks capacity to testify due to a mental condition or psychiatric disability upon a question upon which his or her testimony has been taken in writing or by a stenographer in open court to be used in such action and is admitted as evidence therein.

  (3) In any action in which the estate of such deceased or party who lacks capacity to testify due to a mental condition or psychiatric disability or his or her grantee or assignee is a party, entries in a cash or account book showing the receipt or payment of money in due course of business, made by such party prior to his or her death or incapacity to testify and before any controversy arose respecting the transaction to which such entries relate, may be admitted in evidence as tending to show the facts therein recited to be true. The adverse party in such action may meet the evidence of such entries by any proper evidence.

  (4) In addition to the right to testify, as provided in the foregoing exceptions, the living party may be a witness in his or her own favor, so far as to prove in whose handwriting his or her entries are and when they were made and no further, in actions founded on book account and when the matter in issue and on trial is proper matter of book account.

  (5) In any action founded on tort, provided, however, that in tort actions by or against representatives of deceased persons, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence, and provided further, that this provision shall not be construed as permitting testimony as to conversations with the deceased other than to meet or explain the memoranda or declarations of the deceased. (Amended 1961, No. 166, § 1; 2013, No. 96 (Adj. Sess.), § 46.)

• § 1603. When executor or administrator is a party

  When an executor or administrator is a party, the other party shall not be permitted to testify in his or her own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to acts done or contracts made since the probate of the will, or since the appointment of the administrator, and to meet or explain the testimony of living witnesses produced against him or her. This section shall not apply to actions founded on tort. (Amended 1961, No. 166, § 2.)

• § 1604. Value of property; owner as competent witness

  The owner of real or personal property shall be a competent witness to testify as to the value thereof.

• § 1605. Husband and wife

  Husband and wife shall be competent witnesses for or against each other in all cases, civil or criminal, except that neither shall be allowed to testify against the other as to a statement, conversation, letter, or other communication made to the other or to another person, nor shall either be allowed in any case to testify as to a matter which, in the opinion of the court, would lead to a violation of marital confidence. This section shall not be construed so as to prevent a libelant and libelee from testifying as to all matters in divorce causes.

• § 1606. Religious belief

  A person shall not be incompetent as a witness in any court, matter, or proceeding, on account of his or her opinions on matters of religious belief; nor shall a witness be questioned, nor testimony taken or received, in relation thereto.

• § 1607. Priests and ministers

  A priest or minister of the gospel shall not be permitted to testify in court to statements made to him or her by a person under the sanctity of a religious confessional.

• § 1608. Conviction of crime

  A person shall not be incompetent as a witness in any court, matter, or proceeding by reason of the person’s conviction of a crime. The conviction of a crime involving moral turpitude within 15 years shall be the only crime admissible in evidence given to affect the credibility of a witness. (Amended 1959, No. 250, eff. June 10, 1959; 2005, No. 148 (Adj. Sess.), § 4f.)

• § 1609. Admissibility of written statements

  In civil cases, a written statement of a witness, other than when required by law, shall not be admissible in any court proceeding, either as an admission or as impeaching evidence, unless the written statement is taken pursuant to the requirements for depositions that the Supreme Court may by rule provide, or unless, before offering the statement in evidence, the party offering the statement identifies the person and capacity of the person taking it and the circumstances under which it was taken. (1959, No. 262, § 39, eff. June 11, 1959; amended 1971, No. 185 (Adj. Sess.), § 48, eff. March 29, 1972.)

• § 1610. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1611. Written statements; consent of physician or parent

  In civil cases, a written statement of a person who has been injured and is under the care of a physician and confined in a hospital, taken without the permission of the attending physician, or if the person is a minor, without the permission of the parent as well, shall not be admissible in any court proceeding either as an admission or as impeaching evidence. (1963, No. 116.)

• § 1612. Patient’s privilege

  (a) Confidential information privileged. Unless the patient waives the privilege or unless the privilege is waived by an express provision of law, a person authorized to practice medicine, chiropractic, or dentistry, a registered professional or licensed practical nurse, or a mental health professional as defined in 18 V.S.A. § 7101(13) shall not be allowed to disclose any information acquired in attending a patient in a professional capacity, including joint or group counseling sessions, and which was necessary to enable the provider to act in that capacity.

  (b) Identification by dentist; crime committed against patient under 16. A dentist shall be required to disclose information necessary for identification of a patient. A physician, dentist, chiropractor, or nurse shall be required to disclose information indicating that a patient who is under the age of 16 years has been the victim of a crime.

  (c) Mental or physical condition of deceased patient.

  (1) A physician, chiropractor, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subsection (a) of this section, except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived:

  (A) by the personal representative, or the surviving spouse, or the next of kin of the decedent; or

  (B) in any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or

  (C) if the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.

  (2) A physician, dentist, chiropractor, mental health professional, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subsection (a) of this section upon request to the Chief Medical Examiner. (Added 1973, No. 190 (Adj. Sess.), eff. July 1, 1974; amended 1981, No. 221 (Adj. Sess.), § 1; 1991, No. 236 (Adj. Sess.), § 2; 1993, No. 222 (Adj. Sess.), § 23; 2009, No. 55, § 12.)

• § 1613. Lawyer-corporate client privilege

  Communications otherwise privileged under Rule 502 of the Vermont Rules of Evidence are privileged with respect to a corporation only if the representative client is a member of the control group of the corporation, acting in his or her official capacity. However, if the communications are with a representative client who is not a member of the control group, such communications are privileged only to the extent necessary to effectuate legal representation of the corporation. For purposes of this section, “control group” means:

  (1) the officers and directors of a corporation; and

  (2) those persons who:

  (A) have the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer; or

  (B) have the authority to obtain professional legal services or to act on advice rendered pursuant thereto, on behalf of the corporation. (Added 1993, No. 85, § 4b, eff. Jan. 1, 1994.)

• § 1614. Victim and crisis worker privilege

  (a)(1) “Crisis worker” means an employee or volunteer who:

  (A) provides direct services to victims of abuse or sexual assault for a domestic violence program or sexual assault crisis program incorporated or organized for the purpose of providing assistance, counseling, or support services;

  (B) has undergone 20 hours of training;

  (C) works under the direction of a supervisor of the program, supervises employees or volunteers, or administers the program; and

  (D) is certified by the director of the program.

  (2) 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 services to the victim or those reasonably necessary for the transmission of the communication.

  (b) A victim receiving direct services from a crisis worker has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to the crisis worker, including any record made in the course of providing support, counseling, or assistance to the victim. The crisis worker shall be presumed to have authority to claim the privilege but only on behalf of the victim. (Added 1993, No. 228 (Adj. Sess.), § 8.)

• § 1615. Journalist’s privilege

  (a) Definitions. As used in this section:

  (1) “Journalist” means:

  (A) an individual or organization engaging in journalism or assisting an individual or organization engaging in journalism at the time the news or information sought to be compelled pursuant to subsection (b) of this section was obtained; or

  (B) any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism at the time the news or information sought to be compelled pursuant to subsection (b) of this section was obtained.

  (2) “Journalism” means:

  (A) investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public, whether or not the news or information is ultimately published or distributed; or

  (B) preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.

  (b) Compelled disclosure.

  (1) No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:

  (A) a journalist to disclose news or information obtained or received in confidence, including:

  (i) the identity of the source of that news or information; or

  (ii) news or information that is not published or disseminated, including notes, outtakes, photographs, photographic negatives, video or audio recordings, film, or other data; or

  (B) a person other than a journalist to disclose news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information pursuant to subdivision (A) of this subdivision (1).

  (2) No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:

  (A) a journalist to disclose news or information that was not obtained or received in confidence unless it finds that the party seeking the news or information establishes by clear and convincing evidence that:

  (i) the news or information is highly material or relevant to a significant legal issue before the court or other body;

  (ii) the news or information could not, with due diligence, be obtained by alternative means; and

  (iii) there is a compelling need for disclosure; or

  (B) a person other than a journalist to disclose news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information pursuant to subdivision (A) of this subdivision (2).

  (c) No implication of waiver. The publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure as provided in subsection (b) of this section. (Added 2017, No. 40, § 1, eff. May 17, 2017.)

• Subchapter 002: Attendance

• §§ 1621, 1622. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1623. Penalty for disobeying subpoena

  When a person upon whom a subpoena is legally served fails to appear according to such subpoena, without reasonable excuse, he or she shall forfeit to the party which issued the subpoena or on whose behalf it was issued a sum set by the court, but not exceeding $100.00 plus all costs of litigation incurred by that party as a result of the respondent’s noncompliance, including costs of issuing new subpoenas and incurring additional expenses for expert witnesses. Such person shall also pay such party all just damages, to be recovered in an action of tort on this statute. (Amended 1983, No. 230 (Adj. Sess.), § 6.)

• § 1624. Mittimus to compel attendance

  When it appears to a court that a subpoena has been legally served on a person, and that such person has not obeyed the subpoena, the court may issue a mittimus to compel his or her attendance. (Amended 1983, No. 230 (Adj. Sess.), § 7.)

• Subchapter 003: Examination

• § 1641. Repealed. 1959, No. 261, § 68.

• § 1641a. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1642. Impeachment of own witness

  When, in the opinion of the court, a witness produced by a party is adverse, such party, by leave of court, may prove that such witness has made statements inconsistent with his or her testimony. Before such proof is given, the attention of the witness shall be called to the occasion of such supposed statements and he or she be asked whether or not he or she has made the same.

• § 1643. Expert witness

  An expert witness may be asked to state his or her opinion based on the witness’ personal observation, or on evidence introduced at the trial and seen or heard by the witness, or on his or her technical knowledge of the subject, without first specifying hypothetically in the question the data on which this opinion is based. On direct or cross-examination, such expert witness may be required to specify the data on which his or her opinion is based.

• § 1644. Witnesses may be examined separately

  On the trial of a civil cause, in its discretion, upon the application of either party, the Superior Court may order the witnesses of the adverse party examined separately and apart from each other. (Amended 1965, No. 194, § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3; 2009, No. 154 (Adj. Sess.), § 70.)

• § 1645. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1646. Evidence of sexual conduct

  (a) In a civil action arising from alleged wrongful sexual activity and in professional licensing board administrative hearings where alleged wrongful sexual activity is an issue:

  (1) Neither opinion evidence of, nor evidence of the reputation of the complaining witness’ sexual conduct shall be admitted.

  (2) Evidence shall be required as it is for all other civil actions.

  (3) Evidence of prior sexual conduct of the complaining witness shall not be admitted; provided, however, where it bears on the credibility of the complaining witness or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:

  (A) evidence of the complaining witness’ past sexual conduct with the defendant;

  (B) evidence of specific instances of the complaining witness’ sexual conduct showing the source of origin of semen, pregnancy, or disease;

  (C) evidence of specific instances of the complaining witness’ past false allegations of wrongful sexual activity.

  (b) In a civil action arising from alleged wrongful sexual activity, if a party proposes to offer evidence described in subdivision (a)(3) of this section, that party shall prior to the introduction of such evidence file written notice of intent to introduce that evidence, and the court shall order an in camera hearing to determine its admissibility. All objections to materiality, credibility, and probative value shall be stated on the record by the opposing party at the in camera hearing, and the court shall rule on the objections immediately, and prior to the taking of any other evidence. (Added 1995, No. 170 (Adj. Sess.), § 22, eff. Sept. 1, 1996.)

• Subchapter 004: Immunities

• § 1661. Attesting witnesses to wills and other instruments

  The provisions of sections 1601-1609 and 1642 of this title shall not affect the law relating to the attestation of the execution of last wills and testaments or of any other instrument. (Amended 1971, No. 185 (Adj. Sess.), § 49, eff. March 29, 1972.)

• § 1662. Self incrimination—generally

  The provisions of sections 1601-1609 and 1642 of this title shall not compel a person to subject himself or herself by his or her testimony to a prosecution for a criminal offense. (Amended 1971, No. 185 (Adj. Sess.), § 50, eff. March 29, 1972.)

• § 1663. Suits or prosecutions for fraudulent conveyances

  When a person testifies in a suit or proceeding at law, his or her testimony shall not be used as evidence to prove any fact in a suit or prosecution against him or her for a penalty for violation of a law in relation to fraudulent conveyance of property. (1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972.)

• § 1664. Immunity of witnesses

  (a) Whenever a witness refuses, on the basis of his or her privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to a court or grand jury of the State of Vermont, and the presiding judge communicates to the witness an order issued under subsection (b) of this section, the witness may not refuse to comply with the order on the basis of his or her privilege against self-incrimination; but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used for any purpose, including impeachment and cross-examination, against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. The State shall have the burden of proving beyond a reasonable doubt that any proffered evidence was derived from sources totally independent of the compelled testimony. If the witness is subsequently charged with an offense, other than perjury, the court may order the return of all copies of his or her compelled testimony. Nothing in this section shall preclude the Attorney General or a State’s Attorney from entering into an agreement with a witness, or from requesting an order from the presiding judge under subsection (b) of this section, under which the witness shall not be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she may testify or produce evidence and no testimony given or procured pursuant to such agreement shall be received against him or her in any criminal investigation, proceeding, or trial, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with a court order.

  (b) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court or grand jury of the State of Vermont, the presiding judge may issue in accordance with subsection (c) of this section, upon the request of the Attorney General or a State’s Attorney, an order requiring such individual to give testimony or provide other information which he or she refuses to give or provide on the basis of his or her privilege against self-incrimination, such order to become effective as provided in subsection (a) of this section.

  (c) The Attorney General or a State’s Attorney may request an order under subsection (a) of this section when in his or her judgment:

  (1) the testimony or other information from such individual may be necessary to the public interest; and

  (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his or her privilege against self-incrimination. (1971, No. 199 (Adj. Sess.), § 17, eff. July 1, 1972; 1973, No. 109, § 1, eff. July 1, 1973; 1981, No. 223 (Adj. Sess.), § 22.)