The Vermont Statutes Online

Title 13: Crimes and Criminal Procedure

Chapter 182: Innocence Protection

• Subchapter 001: POSTCONVICTION DNA TESTING

• § 5561. Petition for postconviction DNA testing

  (a) A person convicted of a qualifying crime may at any time file a petition requesting forensic DNA testing of any evidence that may contain biological evidence that was obtained during the investigation or prosecution of the crime. The petition shall:

  (1) specifically identify the crime for which the petitioner asserts that he or she is innocent and the evidence which the petitioner seeks to have subjected to DNA testing;

  (2) contain the petitioner’s certification, under oath, that the petitioner did not commit the crime for which he or she was convicted;

  (3) contain the petitioner’s certification, under oath, that the petition is true and accurate; and

  (4) allege facts showing that DNA testing may be material to the petitioner’s claim of innocence.

  (b) As used in this section:

  (1) “Biological evidence” means:

  (A) a sexual assault forensic examination kit; or

  (B) semen, blood, saliva, hair, skin tissue, or other identified biological material.

  (2) “Person convicted of a qualifying crime” means a person convicted of:

  (A) one of the following crimes as defined in this title:

  (1) arson causing death, § 501;

  (2) assault and robbery with a dangerous weapon, § 608(b);

  (3) assault and robbery causing bodily injury, § 608(c);

  (4) aggravated assault, § 1024;

  (5) murder, § 2301;

  (6) manslaughter, § 2304;

  (7) aggravated murder, § 2311;

  (8) kidnapping, § 2405;

  (9) unlawful restraint, §§ 2406 and 2407;

  (10) maiming, § 2701;

  (11) sexual assault, § 3252;

  (12) aggravated sexual assault, § 3253;

  (13) burglary into an occupied dwelling, § 1201(c); or

  (14) lewd and lascivious conduct with a child, § 2602.

  (B) any felony not listed in subdivision (b)(1) of this section, if the petition is filed within 30 months after the conviction becomes final, the person presents specific facts demonstrating that DNA evidence will provide substantial evidence of the person’s innocence, and the court finds that the interests of justice would be served by permitting the petition.

  (c)(1) The petition shall be filed in the Superior Court of the county where the conviction was imposed, and shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial.

  (2)(A) Unless subdivision (B) of this subdivision (2) applies, the petitioner shall provide copies of the petition to the Attorney General and to the State’s Attorney in the district where the conviction was obtained.

  (B) If the petitioner is not represented by counsel, the court shall provide copies of the petition to the Attorney General and to the State’s Attorney in the district where the conviction was obtained.

  (3) Within 30 days after it receives the petition, the State shall agree to perform the requested DNA testing in a timely manner or file a response to the petition. The petitioner may file a reply to the State’s response only within 30 days after the response is filed.

  (4) The court shall schedule a hearing on the petition within 90 days after the State’s response is filed unless the State notifies the court that it has agreed to provide the testing in a timely manner or the court dismisses the petition pursuant to subsection (d) of this section.

  (5) Time limits under this subsection may be extended for good cause shown or by consent of the parties.

  (d) The court shall dismiss the petition without a hearing if it determines that:

  (1) the petition, response, reply if any, files, and records conclusively establish that the petitioner is entitled to no relief; or

  (2) the petition was not made to demonstrate innocence or the appropriateness of a lesser sentence and will unreasonably delay the execution of sentence or administration of justice.

  (e) No person shall file a petition requesting forensic DNA testing pursuant to this chapter if the person’s conviction resulted from a plea agreement until after July 1, 2008. (Added 2007, No. 60, § 1.)

• § 5562. Assignment of counsel

  The court may appoint counsel if the petitioner is unable financially to employ counsel and may order that all necessary costs and expenses incident to the matter, including court costs, stenographic services, printing, and reasonable compensation for legal services, be paid by the State from the appropriation to the Defender General. On appeal, the Supreme Court may make a similar order. (Added 2007, No. 60, § 1.)

• § 5563. Victim notification

  (a) If the address of a victim of the crime that the petitioner claims to be innocent of in the petition is known, the State’s Attorney or Attorney General shall give written notice of a petition under this section to the victim upon the victim’s request. If the victim’s current address is not known, the State’s Attorney or the Attorney General shall consult with the Department of Corrections Victim Services Division to verify the victim’s last known address. The notice shall be by any reasonable means to the victim’s last known address and shall indicate whether the petitioner is represented by public or private counsel. Upon the victim’s request, the State’s Attorney or Attorney General shall give the victim notice of the time and place of any hearing on the petition and shall inform the victim of the disposition of the petition and the outcome of any hearing. If DNA testing is ordered, the State’s Attorney or the Attorney General shall inform the victim whether the test results require further court hearings, the time and place of any hearings, and the outcome of the hearings.

  (b) The rights of victims contained in this section do not entitle a victim to be a party in any proceeding, or to any procedural rights that are not specifically provided for in this section, including any right to request a delay or rescheduling of any proceeding. (Added 2007, No. 60, § 1.)

• § 5564. Discovery

  (a) Upon motion by the petitioner or the State, and after providing the nonmovant with reasonable opportunity to respond to the motion, the court may permit reasonable discovery and the right to depose witnesses. The court in its discretion may delay ruling on any discovery motions until after it has determined whether to dismiss the petition pursuant to subsection 5561(d) of this section.

  (b) A discovery order issued pursuant to this section may include the following:

  (1) The court may order the State to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case or to help the petitioner locate items of biological evidence that the State contends have been lost or destroyed. The court may further order the State to take reasonable measures to locate biological evidence that may be in its custody or to help the petitioner locate evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.

  (2) If evidence has previously been subjected to DNA testing, the court may order production of laboratory reports prepared in connection with the testing and may order production of the underlying data and the laboratory notes.

  (3) If any DNA or other biological evidence testing was previously conducted by either the prosecution or the defense without knowledge of the other party, the court may order that the previous testing be disclosed.

  (4) If the court orders DNA testing under this subchapter, the court shall order the production of any laboratory reports prepared in connection with the testing and may order production of the underlying data, bench notes, or other laboratory notes. (Added 2007, No. 60, § 1.)

• § 5565. [Reserved.]

• § 5566. Order; necessary findings; confidentiality

  (a) The court shall grant the petition and order DNA testing if it makes all of the following findings:

  (1) A reasonable probability exists that the petitioner would not have been convicted or would have received a lesser sentence for the crime that the petitioner claims to be innocent of in the petition if the results of the requested DNA testing had been available to the trier of fact at the time of the original prosecution.

  (2) One or more of the items of evidence that the petitioner seeks to have tested is still in existence.

  (3) The evidence to be tested was obtained in connection with the offense that is the basis of the challenged conviction and:

  (A) was not previously subjected to DNA testing; or

  (B) although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of significantly more probative results.

  (4)(A)(i) The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect; or

  (ii) if the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence.

  (B) For purposes of this subchapter, evidence that has been in the custody of a law enforcement agency, a governmental body, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subdivision.

  (b) The court may designate in its order:

  (1) the type of DNA analysis to be used;

  (2) the testing procedures to be followed;

  (3) the preservation of some portion of the sample for replicating the testing;

  (4) additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis.

  (c) DNA profile information from biological samples taken from any person pursuant to a petition under this subchapter shall be confidential except for use and dissemination consistent with this chapter and 20 V.S.A. chapter 113, and shall be exempt from any law requiring disclosure of information to the public. (Added 2007, No. 60, § 1.)

• § 5567. Appeals

  An order entered on the petition may be appealed to the Vermont Supreme Court pursuant to the Rules of Appellate Procedure. (Added 2007, No. 60, § 1.)

• § 5568. Choice of laboratory; payment

  (a) If the court orders DNA testing under this subchapter, the testing shall be conducted at a facility mutually agreed upon by the petitioner and the State and approved by the court. If the parties are unable to agree, the court shall designate the testing facility and provide the parties with a reasonable opportunity to be heard on the issue.

  (b) The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process.

  (c)(1) The State shall bear the costs of testing performed at the state crime laboratory.

  (2) Except as provided in subdivision (3) of this subsection, the court may require the petitioner or the State, or both, to pay for testing performed at a private laboratory.

  (3) If the State Crime Laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the State shall bear the costs of testing at a private laboratory that does have such capabilities or resources. (Added 2007, No. 60, § 1.)

• § 5569. Procedure after test results obtained

  (a) The results of any postconviction DNA testing conducted pursuant to this subchapter shall be disclosed to the State’s Attorney, the Attorney General, the Department of Corrections if the petitioner is under the Department’s custody or supervision, the petitioner, and the court.

  (b) If the results of forensic DNA testing ordered under this subchapter support the facts alleged in the petition, the court shall schedule a hearing as soon as practicable after the results are received to determine the appropriate relief to be granted. The petitioner and the State shall be permitted to submit motions and be heard at the hearing.

  (c) At or subsequent to the hearing, the court may issue an order including the following:

  (1) setting aside or vacating the petitioner’s judgment of conviction;

  (2) granting the petitioner a new trial;

  (3) granting the petitioner a new sentencing hearing;

  (4) discharging the petitioner from custody;

  (5) specifying the disposition of any evidence that remains after the completion of the testing;

  (6) granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including documents pertaining to the original criminal investigation and the identities of other suspects; or

  (7) providing such other relief as the court deems appropriate.

  (d) If, as a result of DNA evidence, the person’s conviction for an offense is reversed or vacated, the information or indictment is dismissed, the person is acquitted after a second or subsequent trial, or the person is pardoned:

  (1) The court shall order the removal and destruction of the person’s name and any information about that conviction from the Sex Offender Registry established under section 5402 of this title, the Child Abuse Registry established under 33 V.S.A. § 4916, the Vulnerable Adult Registry established under 33 V.S.A. § 6911, and any other registry on which the person’s name appears solely because of his or her conviction of that offense. If the person has more than one entry on a registry, only the entry related to the offense for which, as a result of DNA evidence, the person’s conviction was reversed or vacated, the information or indictment was dismissed, the person was acquitted after a second or subsequent trial, or the person received a pardon shall be removed and destroyed.

  (2) It shall not be a violation of Vermont law for the person to respond, when asked, that he or she has never previously been convicted of a crime, and that his or her innocence of the crime charged has been established. This subdivision shall not apply if the person has been convicted of a crime other than the one for which, as a result of DNA evidence, the person’s conviction was reversed, the information or indictment was dismissed, the person was acquitted after a second or subsequent trial, or the person was pardoned.

  (e) An order issued under this section may be appealed to the Vermont Supreme Court pursuant to the Rules of Appellate Procedure. (Added 2007, No. 60, § 1.)

• § 5570. Successive petitions

  (a) The court shall not be required to entertain a second or successive petition for similar relief on behalf of the same petitioner unless it appears the petition will be assisted by the availability of more advanced DNA technology.

  (b) The court may entertain a second or successive petition if it determines that doing so would serve the interests of justice. (Added 2007, No. 60, § 1.)

• Subchapter 002: COMPENSATION FOR WRONGFUL CONVICTIONS

• § 5572. Right of action; procedure

  (a) A person convicted and imprisoned for a crime of which the person was exonerated pursuant to this chapter shall have a cause of action for damages against the State.

  (b) An action brought under this subchapter shall be filed in Washington County Superior Court. Notice of the action shall be served upon the Attorney General.

  (c) The Vermont Rules of Civil Procedure shall apply to actions brought under this subchapter, and the plaintiff shall have a right to trial by jury. The Vermont Rules of Appellate Procedure shall apply to appeals from orders and judgments issued under this subchapter.

  (d) The Attorney General may consider, adjust, determine, and settle any claim for damages brought against the State of Vermont under this subchapter. (Added 2007, No. 60, § 1; amended 2015, No. 133 (Adj. Sess.), § 5, eff. May 25, 2016.)

• § 5573. Complaint

  (a) A complaint filed under this subchapter shall be supported by facts and shall allege that:

  (1) the complainant has been convicted of a felony crime, been sentenced to a term of imprisonment, and served at least six months of the sentence in a correctional facility; and

  (2) the complainant was exonerated through the complainant’s conviction being reversed or vacated, the information or indictment being dismissed, the complainant being acquitted after a second or subsequent trial, or the granting of a pardon.

  (b) The court may dismiss the complaint, upon its own motion or upon motion of the State, if it determines that the complaint does not state a claim for which relief may be granted. (Added 2007, No. 60, § 1; amended 2013, No. 126 (Adj. Sess.), § 4.)

• § 5574. Burden of proof; judgment; damages

  (a) A claimant shall be entitled to judgment in an action under this subchapter if the claimant establishes each of the following by clear and convincing evidence:

  (1) The complainant was convicted of a felony crime, was sentenced to a term of imprisonment, and served at least six months of the sentence in a correctional facility.

  (2)(A) the complainant’s conviction was reversed or vacated, the complainant’s information or indictment was dismissed, or the complainant was acquitted after a second or subsequent trial; or

  (B) the complainant was pardoned for the crime for which he or she was sentenced.

  (3) The complainant is actually innocent of the felony or felonies that are the basis for the claim. As used in this chapter, a person is “actually innocent” of a felony or felonies if he or she did not engage in any illegal conduct alleged in the charging documents for which he or she was charged, convicted, and imprisoned.

  (4) The complainant did not fabricate evidence or commit or suborn perjury during any proceedings related to the crime with which he or she was charged.

  (b) A claimant awarded judgment in an action under this subchapter shall be entitled to damages in an amount to be determined by the trier of fact for each year the claimant was incarcerated, provided that the amount of damages shall not be less than $30,000.00 nor greater than $60,000.00 for each year the claimant was incarcerated, adjusted proportionally for partial years served. The damage award may also include:

  (1) economic damages, including lost wages and costs incurred by the claimant for his or her criminal defense and for efforts to prove his or her innocence;

  (2) up to 10 years of eligibility for State-funded health coverage equivalent to Medicaid services;

  (3) compensation for any reasonable reintegrative services and mental and physical health care costs incurred by the claimant for the time period between his or her release from mistaken incarceration and the date of the award;

  (4) reasonable attorney’s fees and costs for the action brought under this subchapter.

  (c) Damages awarded under this section:

  (1) shall not be subject to any State taxes, except for the portion of the judgment awarded as attorney’s fees; and

  (2) shall not be offset by any services awarded to the claimant pursuant to this section or by any expenses incurred by the State or any political subdivision of the State, including expenses incurred to secure or maintain the claimant’s custody or to feed, clothe, or provide medical services for the claimant.

  (d) The claimant’s acceptance of a damages award, compromise, or settlement as a result of a claim under this subchapter shall be in writing and, except when procured by fraud, shall be final and conclusive on the claimant, and constitute a complete release by the claimant of any claim against the State and a complete bar to any action by the claimant against the State with respect to the same subject matter.

  (e) A claimant shall be entitled to compensation under this subchapter only for the years in which he or she would not otherwise have been incarcerated for another sentence. (Added 2007, No. 60, § 1; amended 2013, No. 79, § 16, eff. Jan. 1, 2014; 2013, No. 126 (Adj. Sess.), § 5; 2015, No. 5, § 3, eff. April 9, 2015.)

• § 5575. Payment

  (a) Any award made or compromise or settlement against the State of Vermont agreed upon by the Attorney General in response to an action brought under this subchapter shall be paid by the State Treasurer out of the treasury, and the Emergency Board shall reimburse the State Treasurer therefor from time to time.

  (b) If the State elects to self-insure for liability as defined in 12 V.S.A. § 5601, any award, compromise, or settlement against the State of Vermont agreed to by the Attorney General shall be paid by the Treasurer from the liability self-insurance fund.

  (c) To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy. (Added 2007, No. 60, § 1.)

• § 5576. Limitations

  (a) Except as provided in subsection (b) of this section, an action for compensation under this subchapter shall be commenced within three years after the person is exonerated pursuant to subchapter 1 of this chapter through the person’s conviction being reversed or vacated, the information or indictment being dismissed, the person being acquitted after a second or subsequent trial, or through the granting of a pardon.

  (b)(1) If the State challenges the exoneration of a person entitled to bring an action under this subchapter, the limitations period shall not commence until the challenge is finally resolved.

  (2) If a person entitled to bring an action under this subchapter is not provided the notice required by section 5577 of this title, the person shall have an additional year within which to bring the action. (Added 2007, No. 60, § 1.)

• § 5577. Notice of right of action

  (a) A copy of this subchapter shall be provided to a person by a court:

  (1) exonerating a person pursuant to subchapter 1 of this chapter through vacating or reversing the person’s conviction, dismissing the information or indictment, entering judgment on an acquittal after a second or subsequent trial; or

  (2) receiving notice of a pardon.

  (b) A person receiving a copy of this subchapter pursuant to subsection (a) of this section shall be required to acknowledge its receipt in writing on a form established by the Court Administrator. The acknowledgement shall be entered on the docket by the court and shall be admissible in an action filed under this subchapter. (Added 2007, No. 60, § 1.)

• § 5578. Applicability; retroactivity

  Notwithstanding 1 V.S.A. § 214(b), this subchapter and any amendments thereto shall apply to any exoneration that occurs on or after July 1, 2007. (Added 2015, No. 133 (Adj. Sess.), § 6, eff. May 25, 2016.)

• Subchapter 003: LAW ENFORCEMENT PRACTICES

• § 5581. Eyewitness identification policy

  (a) On or before January 1, 2015, every State, county, and municipal law enforcement agency and every constable who exercises law enforcement authority pursuant to 24 V.S.A. § 1936a and who is trained in compliance with 20 V.S.A. § 2358 shall adopt an eyewitness identification policy.

  (b) The written policy shall contain, at a minimum, the following essential elements as identified by the Law Enforcement Advisory Board:

  (1) Protocols guiding the use of a show-up identification procedure.

  (2) The photo or live lineup shall be conducted by a blind administrator who does not know the suspect’s identity. For law enforcement agencies with limited staff, this can be accomplished through a procedure in which photographs are placed in folders, randomly numbered and shuffled, and then presented to an eyewitness such that the administrator cannot see or track which photograph is being presented to the witness until after the procedure is completed.

  (3) Instructions to the eyewitness, including that the perpetrator may or may not be among the persons in the identification procedure.

  (4) In a photo or live lineup, fillers shall possess the following characteristics:

  (A) All fillers selected shall resemble the eyewitness’s description of the perpetrator in significant features such as face, weight, build, or skin tone, including any unique or unusual features such as a scar or tattoo.

  (B) At least five fillers shall be included in a photo lineup, in addition to the suspect.

  (C) At least four fillers shall be included in a live lineup, in addition to the suspect.

  (5) If the eyewitness makes an identification, the administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness’s own words, as to the eyewitness’s confidence level that the person identified in a given identification procedure is the perpetrator.

  (c) The model policy issued by the Law Enforcement Advisory Board shall encourage ongoing law enforcement training in eyewitness identification procedures for State, county, and municipal law enforcement agencies and constables who exercise law enforcement authority pursuant to 24 V.S.A. § 1936a and are trained in compliance with 20 V.S.A. § 2358.

  (d) If a law enforcement agency does not adopt a policy by January 1, 2015 in accordance with this section, the model policy issued by the Law Enforcement Advisory Board shall become the policy of that law enforcement agency or constable. (Added 2013, No. 193 (Adj. Sess.), § 1, eff. June 17, 2014.)

• Subchapter 004: CUSTODIAL INTERROGATION

• § 5585. Electronic recording of a custodial interrogation

  (a) As used in this section:

  (1) “Custodial interrogation” means any interrogation:

  (A) involving questioning by a law enforcement officer that is reasonably likely to elicit an incriminating response from the subject; and

  (B) in which a reasonable person in the subject’s position would consider the person to be in custody, starting from the moment a person should have been advised of the person’s Miranda rights and ending when the questioning has concluded.

  (2) “Electronic recording” or “electronically recorded” means an audio and visual recording that is an authentic, accurate, unaltered record of a custodial interrogation, or if law enforcement does not have the current capacity to create a visual recording, an audio recording of the interrogation.

  (3) “Place of detention” means a building or a police station that is a place of operation for the State police, a municipal police department, county sheriff department, or other law enforcement agency that is owned or operated by a law enforcement agency at which persons are or may be questioned in connection with criminal offenses or detained temporarily in connection with criminal charges pending a potential arrest or citation.

  (4) “Statement” means an oral, written, sign language, or nonverbal communication.

  (b)(1) A custodial interrogation that occurs in a place of detention concerning the investigation of a felony or misdemeanor violation of this title shall be electronically recorded in its entirety. Unless impracticable, a custodial interrogation occurring outside a place of detention concerning the investigation of a felony or misdemeanor violation of this title shall be electronically recorded in its entirety.

  (2) In consideration of best practices, law enforcement shall strive to record simultaneously both the interrogator and the person being interrogated.

  (c)(1) The following are exceptions to the recording requirement in subsection (b) of this section:

  (A) exigent circumstances;

  (B) a person’s refusal to be electronically recorded;

  (C) interrogations conducted by other jurisdictions;

  (D) a reasonable belief that the person being interrogated did not commit a felony or misdemeanor violation of this title and, therefore, an electronic recording of the interrogation was not required;

  (E) the safety of a person or protection of the person’s identity; and

  (F) equipment malfunction.

  (2) If law enforcement does not make an electronic recording of a custodial interrogation as required by this section, the prosecution shall prove by a preponderance of the evidence that one of the exceptions identified in subdivision (1) of this subsection applies. If the prosecution does not meet the burden of proof, the evidence is still admissible, but the court shall provide cautionary instructions to the jury regarding the failure to record the interrogation. (Added 2013, No. 193 (Adj. Sess.), § 4, eff. Oct. 1, 2015; amended 2021, No. 161 (Adj. Sess.), § 3, eff. July 1, 2022.)