Defendant’s Statements, Testimony, and Character

CR05-351.  Defendant’s Out-of-Court Statements (07/28/03)

CR05-301.  Defendant Not Testifying at Trial (06/01/07).  It is the defendant’s choice of whether to give this instruction, and the defendant also has some discretion in choosing the language to be used.  The following statute applies: 

13 V.S.A. § 6601: Respondent as witness

In the trial of complaints, informations, indictments and other proceedings against persons charged with crimes or offenses, the person so charged shall, at his own request and not otherwise, be deemed a competent witness.  The credit to be given to his testimony shall be left solely to the jury, under the instructions of the court but the failure of such person to testify shall not be a matter of comment to the jury by either the court or the prosecutor and shall not be considered by the jury as evidence against him.

The Vermont Supreme Court has indicated that the defendant has the right to decide whether or not an instruction will be given.  The trial court asks:  Defendant, do you desire that the court comment on your failure to take the stand?  If the answer is no, say nothing.  If the answer is yes, then get the defendant’s request on the record.

     We are of the firm opinion that the better procedure is for the trial court to ascertain the position of a respondent who has not testified to determine whether he desires that the instruction be given and then give the instruction only when it is requested by him. This places the burden of choice on the respondent rather than the court to decide whether the jury shall be instructed as to the respondent’s rights under the statute. This decision is where it should rest in fairness to the respondent. He may feel that under the facts appearing in his case such an instruction would be prejudicial or, on the other hand, that it might be helpful or favorable to him if given. It should be for him to elect whether or not the instruction shall be given to the jury. 

State v. Emrick, 129 Vt. 330, 333 (1971).

CR05-311.  Defendant Testifying As Witness At Trial (06/01/07).  This instruction may be appropriate in a case where the defendant testifies as a witness, but the court should give the instruction only if the defendant requests it.

CR05-501.  Evidence of Flight as Showing Consciousness of Guilt (05/25/05).  The Supreme Court has discussed evidence of flight in State v. Giroux, 151 Vt. 361 (1989), and in State v. Unwin, 139 Vt. 186 (1980).  The committee has shortened the model based on the Court’s approval of the instruction given in State v. Alexander, 2005 VT 25, ¶ 5, 178 Vt. 482.  See also the reporter’s notes on the state’s introduction of evidence of a false or fictitious alibi as showing consciousness of guilt. 

CR05-511.  Evidence of Defendant’s Prior Bad Acts (07/29/05).  Generally, before evidence of prior bad acts is admitted, the trial court must determine the purposes for which the evidence is admitted.  A preliminary hearing under V.R.E. 104 and V.R.E. 403 would generally seem advisable, but more recent cases have begun suggesting that the issue be reserved for trial, when the relevance of the acts can be better determined.  State v. Connor, 2011 VT 23, 189 Vt. 587 (mem.); State v. Williams, 2010 VT 77, 188 Vt. 405.  In any event, any limiting instruction must be tailored to fit the circumstances of the case.  Prior bad acts have been admitted as part of a concerted scheme or plan of molestation, e.g., State v. Catsam, 148 Vt. 366, 380-81 (1987), as “signature” evidence to show identity, e.g., State v. Bruyette, 158 Vt. 21 (1992); as context for statutory rape, e.g., State v. Searles, 159 Vt. 525 (1993), to rebut a claim of fabrication, e.g., State v. Brown, 2010 VT 103, 189 Vt. 88, and to establish the defendant’s propensity to engage in sexual conduct with his daughter in State v. Forbes, 161 Vt. 327, 331 (1994).  Other recent cases have included evidence of drug use by the complaining witness, State v. Faham, 2011 VT 55 (mem.); State v. Memoli, 2011 VT 15, 189 Vt. 237, and evidence of the defendant’s history of domestic violence to show context for the relationship, State v. Mead, 2012 VT 36; State v. Connor, 2011 VT 23, 189 Vt. 587 (mem.), State v. Williams, 2010 VT 77, 188 Vt. 405.

CR05-521.  Evidence of Defendant’s Criminal Convictions (01/04/02)

CR05-531.  Evidence of Defendant’s Good Character and Reputation (04/21/03)

CR05-541.  Cross-Examination Concerning Character or Reputation (06/09/03)

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