General Evidentiary Issues

  • CR05-011.  Evidence (12/12/03).
  • CR05-031.  Statements by the Attorneys (01/04/02).  The model instructions refer to the attorneys as “attorneys.”  The committee concluded that “counsel” is too obscure, and that “lawyers” is too informal.
  • CR05-041.  Exhibits  (01/04/02)
  • CR05-091.  Number of Witnesses (01/04/02).  The instruction on number of witnesses will generally appear after the instruction on the burden of proof.  The purpose is to point out that the evidence of one side or the other is not stronger merely because that side may have presented more witnesses.
  • CR05-401.  Stipulations of Fact (07/28/03)

Circumstantial and Direct Evidence

  • CR05-051.  Circumstantial Evidence (11/21/06).   The committee has simplified and shortened the instruction on circumstantial evidence.  The Supreme Court has approved similar instructions in State v. Baird, 2006 VT 86, 180 Vt. 243.  A full discussion of the use of circumstantial evidence in criminal cases is set forth in State v. Godfrey, 2010 VT 29, ¶¶ 18–23, 187 Vt. 495.  This instruction is unusual in that it provides an example.  Most judges prefer to give an example of circumstantial evidence, although some would use a different example, such as an overnight snowfall, or a substitution of deer prints for cow tracks.  It is not necessary to use the example of cow tracks, which might not be understood by all audiences.

Witness Credibility

  • CR05-061.  Credibility of Witnesses (06/01/07).  This is a generic instruction on credibility of witnesses.  The model does not include an instruction on reconciling testimony, although it does tell the jury that it may consider inconsistencies or discrepancies.  There are potential problems with instructing the jury that it must try to reconcile conflicting testimony, because that might suggest that witnesses are presumed to tell the truth.  See State v. Percy, 156 Vt. 468, 472-73 (1991).
  • CR05-161.  Police Witnesses (11/09/07).  The emphasis of this instruction is that the jury should not give greater or lesser weight to the testimony of a witness merely because the witness is a police officer.  Despite this emphasis, the jury may consider the officer’s testimony in light of the officer’s training and experience.
  • CR05-201.  Expert Witnesses (06/01/07)
  • CR05-211.  Expert Testimony About DNA Profiling and Psychological Testing (01/04/02)
  • CR05-071.  Credibility of Child Witnesses (07/29/05).
  • CR05-081.  Hearsay Statement of Child Introduced under V.R.E. 804a (07/28/03).  See, e.g., State v. Hoch, 2011 VT 4, 189 Vt. 560; State v. Spooner, 2010 VT 75, 188 Vt. 356; State v. Willis, 2006 VT 128, 181 Vt. 170; State v. Tester, 2006 VT 24, 179 Vt. 627 (mem.); State v. Oscarson, 2004 VT 4, 176 Vt. 176; State v. LaBounty, 168 Vt. 129 (1998); State v. Gallagher, 150 Vt. 341, 348 (1988).

Impeachment and Rehabilitation of Witnesses

  • CR05-261.  Impeachment by Bad Reputation for Telling Truth (01/04/02)
  • CR05-251.  Prior Inconsistent Statements (09/12/03). If there is testimony about prior inconsistent statements by the witness which were not made under oath, then the out-of-court statements are introduced for impeachment only, under V.R.E. 613.  However, if the out-of-court statements were under oath and subject to penalties of perjury, then they may be admitted as substantive evidence, under V.R.E. 801(d)(1).  Statements are subject to perjury only if the person is lawfully required to depose the truth in a proceeding in a court of justice.  13 V.S.A. § 2901.  Deposition testimony may be admitted as substantive evidence if the deponent is unavailable for trial, or if the witness gives testimony at the trial that is inconsistent with his or her deposition.  See V.R.Cr.P. 15(e).  Prior inconsistent statements by the defendant may be admitted as substantive evidence against him or her, as admissions under V.R.E. 801(d)(2).  The model instruction attempts to cover the various possibilities, but the court might have to tailor it to fit the specific circumstances of each case.
  • CR05-271.  Prior Consistent Statements (06/01/07)

Accomplices, Co-Conspirators, and Informants

Defendant’s Statements, Testimony, and Character

Other issues