Crimes Against Public Authority

WARNING: The legislature recently decriminalized escape from most types of furlough. Courts and attorneys should review 2019, No. 77, § 10 and the current version of 13 V.S.A. § 1501(b)(1)(B) before using instruction CR28-187 (escape by failing to return from furlough).

Escape

False Information to a Police Officer (FIPO)

Hindering a Police Officer

Obstruction of Justice

Perjury and False Swearing

  • CR28-531.  Perjury, 13 V.S.A. § 2901 (06/20/12)
  • CR28-541.  False Swearing, 13 V.S.A. § 2904 (06/20/12)

Resisting Arrest

Reporter’s Notes

Hindering an Officer.  “A person ‘hinders’ an officer when the person’s actions illegally interfere with the officer’s ability to perform duties within the scope of the officer’s authority.” State v. Berard, 2019 VT 65, ¶ 9, 211 Vt. 39 (citing State v. Harris, 152 Vt. 507, 509 (1989). The Vermont Supreme Court has “consistently defined ‘hinder’ in this context as ‘to slow down or to make more difficult someone’s progress towards accomplishing an objective; to delay, or impede or interfere with that person’s progress[.]’ ” State v. Blanchard, 2021 VT 13, ¶ 26 (citing State v. Berard, 2019 VT 65, ¶ 9, 211 Vt. 39; State v. Neisner, 2010 VT 112, ¶ 20, 189 Vt. 160; State v. Stone, 170 Vt. 496, 499 (2000); State v. Dion, 154 Vt. 420, 423 (1990)).

Nevertheless, it can be difficult to draw a line between what constitutes a hindrance and what does not. Several elements of the Court’s discussion in Blanchard may offer some guidance. First, the Court has “cast doubt on the notion that § 3001 criminalizes ‘any unlawful action, no matter how slight or brief, that for any moment delays or interferes with the lawful execution of an officer’s duties.’ ” Blanchard, 2021 VT 13, ¶ 27 (quoting Berard, 2019 VT 65, ¶ 13). This suggests that a de minimus delay or interference is not sufficient to constitute a hindrance. Second, the Court has “required that a defendant’s conduct actually hinder or impede an officer in order to qualify as hindering under § 3001,” Id. ¶ 26 (emphasis in original) (citing Berard, 2019 VT 65, ¶ 10; Neisner, 2010 VT 112, ¶ 14), while at the same time noting that “the very decisions that have required ‘actual’ hindrance contemplate that a defendant may ‘actually hinder’ an officer by delaying or interfering with the officer’s progress.” Id. (citing Berard, 2019 VT 65, ¶ 9; Neisner, 2010 VT 112, ¶ 20). Finally, the Court has “implicitly recognized that the significance of the hindrance may be relevant to the question of whether a defendant ‘actually hinders’ an officer, in that the impeding convictions we have upheld involved ‘substantial interference’ or actions that ‘significantly impeded’ an officer. Id. ¶ 27 (quoting Berard, 2019 VT 65, ¶ 9).

In the absence of objection, a failure to instruct on “actual hindrance” or the significance of the interference does not necessarily constitute plain error where the case does not involve “momentary and inconsequential interference with an officer’s actions.” Blanchard, 2021 VT 13, ¶ 27. As a matter of practice, however, it might be advisable to instruct on such principles.

Endeavored to Obstruct Justice.  The term “endeavored” does not require success in a defendant’s attempt to obstruct justice; instead, a mere effort satisfies that element. See State v. Wiley, 2007 VT 13, ¶ 15, 181 Vt. 300. In State v. Fucci, 2015 VT 39, ¶ 8, the defendant argued that, under Wiley, an “endeavor” is synonymous with an “attempt.” The Court clarified that it had used “attempt” for its ordinary connotation rather than its special legal meaning, as defined in 13 V.S.A. § 9(a). While acknowledging that other courts have held that the effort necessary to fulfill the actus reus element of the federal obstruction-of-justice statute is less than that for attempt, the Court declined to decide in Fucci “whether under Vermont law the steps necessary for an endeavor are the same as for an attempt.”

Perjury.  The model instruction contains an essential element of wilfulness.  The requirement that the false testimony be given “wilfully” was included as a supplemental instruction in State v. Wood, 99 Vt. 490, 498 (1926).  The jury was told that false testimony given “wilfully” means that it was given knowingly and understandingly.  Id. at 498.

When a defendant is charged with perjury under 13 V.S.A. § 2901, the State must prove that he or she made the false statement in a proceeding in a court of justice.  The model instruction also requires that the defendant made the false statement when he or she was lawfully required to depose the truth, even though it may be presumed that an oath had been administered as required by law.  State v. Lawrence, 134 Vt. 373, 375 (1976) (citing State v. Chamberlin, 30 Vt. 559 (1859)).

“A false statement under oath generally may be punished as perjury only if it was material to an issue in the proceeding in which it was made.”  State v. LaCourse, 168 Vt. 162, 163-64 (1998).  The Supreme Court suggested, without deciding, that the question of materiality is an essential element of the charge that must be submitted to the jury.  Id. at 164 (citing United States v. Gaudin, 515 U.S. 506 (1995)).

Perjury must be proven “by the testimony of two witnesses, or by the testimony of one witness with independent corroborating evidence.”  State v. Tinker, 165 Vt. 548 (1996) (quoting State v. Wheel, 155 Vt. 587, 607 (1990)).  The testimony of one witness, corroborated by the testimony of another or by circumstances, is sufficient, “if thereby the crime is proved beyond a reasonable doubt.”  State v. Woolley, 109 Vt. 53, 57 (1937).  “The independent corroborating evidence must be equal in weight to the testimony of another witness, and it must be, by itself, inconsistent with the innocence of the defendant.”  State v. Tonzola, 159 Vt. 491, 497 (1993) (quoting People v. Fueston, 717 P.2d 978, 980 (Colo. App. 1985), rev’d on other grounds, 749 P.2d 952 (Colo. 1988)).  The Vermont Supreme Court recently affirmed the requirement of corroborating evidence in State v. Hutchins, 2005 VT 47, 178 Vt. 551.

Resisting Arrest. The statute specifies that the attempt to prevent the arrest must take place “when it would reasonably appear that the latter is a law enforcement officer.”  13 V.S.A. § 3017.  The instruction explains that the element is satisfied by a standard of objective reasonableness, i.e. under all the circumstances, it would have appeared to an objective reasonable observer that the person attempting to make the arrest was in fact a law enforcement officer.

The crime of resisting arrest requires proof that the defendant was attempting to prevent a “lawful arrest.”  Compare State v. Peters, 141 Vt. 341, 347 (1982) (explaining that for the crime of simple assault on a police officer, the state must show only that the officer was performing a lawful duty at the time of the arrest) with 13 V.S.A. § 3017 (explaining that for the crime of resisting arrest, the arrest itself must be lawful).  In some cases, the state may need to prove that a warrantless arrest was proper under Vermont Criminal Procedure Rule 3, such as by showing that the arresting officer had probable cause to make an arrest.  In such a case, the explanation of the term “lawful arrest” should be expanded to include a fact-specific instruction asking the jury whether or not the officer had probable cause to believe that the specified predicate acts had been committed.  See Arthur v. State, 24 A.3d 667, 676–77 (Md. 2011) (explaining issue under nearly-identical state statute).