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Of the individual rights enshrined in the Constitution, many of them speak directly to the rights of the accused in a criminal proceeding. The rights of the accused to a fair and speedy trial, to confront witnesses, to have counsel, to compel witnesses to testify on your behalf, and so many more are deeply fundamental to our understanding of freedom and protection from an overreaching State. But what happens when these fundamental rights bump against the pressing need to protect public health and safety? The Vermont Judiciary is working hard to strike the correct balance.

On March 16, 2020, as COVID-19 became a present part of all of our lives, the Vermont Judiciary issued Administrative Order No. 49 (the "Order") and declared a judicial emergency. The Order postponed all non-emergency Superior Court hearings, including criminal trials. But when your freedom or the freedom of a loved one is at stake, you might reasonably feel that every hearing is fairly emergent. In normal times, the Judiciary would agree with you. The current moment, however, is anything but normal. Here is a rundown of criminal matters deemed to be emergent:

Rule 5 hearings and arraignments of defendants:

An arraignment is simply the first appearance in court by a criminal defendant after an arrest or citation. A person who has been charged with a criminal offense has the right to know the charges being levied against them and the right to enter a plea of either "not guilty" or "guilty" on their behalf. This right is deeply fundamental as it protects citizens against a State which may otherwise seek to imprison citizens without specifying a charge or allowing them to make a public denial of guilt.

At the arraignment, the court will follow a specified procedure. Rule 5 of the Vermont Rules of Criminal Procedure may not be common knowledge around your family's dinner table, even if you have had contact with the criminal justice system, but it is important in protecting the rights of an accused. Essentially, this rule ensures that anyone facing a criminal charge has the right to an initial appearance before a judicial officer. At this initial appearance the judicial officer will determine a number of extremely important issues, including whether there was probable cause for the arrest, and the conditions upon which a defendant may be released from custody pending a trial, and the accused has a chance to advocate for themselves as these issues are addressed.

At present, arraignments are being scheduled for June and July, in most cases with the option of a waiver of appearance before the Judge. Further, the Court is particularly sensitive to charges of domestic assault and arraignments for individuals charged with domestic assault are deemed emergent and will be held in an expedited manner.

To safeguard public safety, the safety of the staff and correctional officers, and the safety of those in custody, these hearings will be held remotely by video if possible.

Review of bail for defendants in custody:

Bail is set to ensure that defendants return to Court when required to do so, however, with some exceptions, the State cannot jail citizens who are presumed innocent. If a criminal defendant is held on bail, sometimes a change of circumstance will require a review of the bail requirements. This is particularly important because those charged with crimes in this country are considered innocent unless and until the State can prove them guilty. Accordingly, where an individual defendant's circumstances change such that bail should be modified, the Court will hear that matter. No one should sit in jail on an unproven charge unless the circumstances give rise to a substantial justification.

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Search warrants, criminal competency, and related hospitalization hearings:

Equally important as the rights of individual defendants are the rights of the State and the public to maintain safety and enforce criminal laws. Unfortunately, even a pandemic won't stop crime. In recognition of the public's interest in curbing and prosecuting criminal acts and ensuring public safety, the Court will continue to hear requests for search warrants in person where necessary. The Court will also hear the infrequent but necessary criminal competency and hospitalization matters. In these uncommon cases, the Court must determine whether a defendant's mental health is such that they are competent to stand trial or whether they require involuntary hospitalization.

Change-of-plea hearings:

As a criminal case progresses, a defendant may wish to change their plea. This happens for many reasons, but when it is necessary it can have significant implications for State and individual interests. Accordingly, Superior Court Judges have the discretion to hear such matters where they deem them emergent. In some other limited circumstances, a plea can be made in writing and submitted to a court clerk without an in-person appearance before a judge.


Under current guidance, criminal jury trials may commence as soon as September. The Courts are considering all safety and logistical measures for jury panels, jurors, court staff, witnesses and attorneys.

Matters of life and liberty have taken on a new meaning as we come together to protect one another from a novel threat. Protecting the rights of the accused, however, is not a novel idea. It is the idea of basic freedom upon which this country was founded. The Vermont Judiciary is doing everything it can to protect these fundamental rights as we navigate this new reality both in court and out.

Aimee Goddard, Sam Angell and John Mabie are attorneys with Windham Law, PLC in Brattleboro. The opinions expressed by columnists do not necessarily reflect the views of the Brattleboro Reformer.