Vermont

Overview

Vermont presents an intriguing case study in prosecutorial candor: a small, centralized state with progressive legal culture, yet lacking the infrastructure necessary to enforce Brady and Giglio obligations uniformly. There is no law in Vermont requiring prosecutors to maintain Giglio or “Do Not Call” lists, and no mandate for law enforcement agencies to notify prosecutors of sustained officer misconduct. While the Vermont Criminal Justice Council (VCJC) maintains decertification authority over law enforcement officers and has taken steps to publicize disciplinary actions, these processes remain largely disconnected from prosecutorial obligations. Additionally, the Vermont Public Records Act allows agencies to withhold internal affairs files under broad exemptions. Despite a relatively low incarceration rate and strong civil liberties advocacy, the state has yet to build a systematic, statewide framework that ensures credibility impairments are consistently tracked, disclosed, and enforced in court.

Brief Description of Legal Landscape

Criminal prosecutions in Vermont are conducted by State’s Attorneys in each of the state’s 14 counties, who function as the local equivalent of District Attorneys. The Vermont Attorney General may prosecute cases of statewide importance or act in conflicts but does not generally supervise or direct local State’s Attorneys.

Key legal authorities shaping disclosure include:

• Vermont Rules of Criminal Procedure, Rule 16: Requires the prosecution to disclose exculpatory and impeachment evidence relevant to guilt or punishment.

• Vermont Rules of Professional Conduct, Rule 3.8(d): Imposes a duty on prosecutors to disclose all evidence tending to negate guilt or mitigate sentencing, regardless of admissibility.

• Vermont Public Records Act (1 V.S.A. § 317 et seq.): Allows public access to government records but contains exemptions for certain personnel and internal affairs records.

Police officers are certified and overseen by the Vermont Criminal Justice Council, which holds decertification authority and is charged with investigating officer misconduct. While this body has made improvements in transparency—such as creating a database of decertified officers—no statute requires coordination with prosecutors regarding officer credibility.

Historical Context

Vermont’s criminal justice system has not seen the same volume of wrongful convictions as some larger states, but issues of officer misconduct and disclosure failures have emerged nonetheless.

In 2020, an investigation by VTDigger and Seven Days revealed that officers with documented credibility issues—including those fired or decertified for dishonesty—had testified in criminal trials without their records being disclosed to defense attorneys. One particularly notable case involved an officer who resigned amid falsification allegations in one department and was later hired by another Vermont agency.

This reporting prompted renewed calls for better tracking of officer misconduct and its impact on courtroom credibility. However, beyond public discussion and limited administrative reforms, the state has not adopted mandatory Giglio protocols or built systems to ensure automatic notification of prosecutors.

In 2021, the Vermont legislature passed Act 56, reforming the police certification process and expanding the grounds for decertification. The law strengthened POST’s (now VCJC’s) role and led to the creation of a public decertification database, but again fell short of creating a direct link between sustained misconduct and prosecutorial disclosure practices.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

Vermont’s Constitution guarantees due process under Chapter I, Article 10, and confrontation rights under the same Article, echoing the protections of the federal Fifth, Sixth, and Fourteenth Amendments.

Relevant laws and policies include:

• V.R.Cr.P. Rule 16(a)(1)(E): Requires disclosure of “[a]ny material or information... favorable to the defendant on the issues of guilt or punishment.”

• Rule 3.8(d), Vermont Rules of Professional Conduct: Requires disclosure of known evidence that may exculpate or mitigate.

• 1 V.S.A. § 317(c)(7): Exempts “personal documents relating to an individual” from public records, which includes disciplinary records unless the public interest overcomes privacy concerns.

Importantly, Vermont law does not require:

• Police departments to notify prosecutors of sustained misconduct or decertification;

• Prosecutors to maintain lists of Giglio-impaired officers;

• VCJC to coordinate disciplinary decisions with prosecutorial offices.

Relevant Case Law and Judicial Interpretations

• State v. Simmonds, 2011 VT 103: Reiterated the obligation to disclose evidence favorable to the defense, including impeachment material.

• State v. Recor, 150 Vt. 40 (1988): Emphasized the prosecution’s duty to disclose even if the defense does not request it.

• State v. Gokey, 154 Vt. 129 (1990): Held that due process violations can occur when disclosure of impeachment evidence is delayed or withheld.

While the Vermont Supreme Court has affirmed the importance of disclosure obligations, it has not mandated systemic structures to ensure compliance or to link law enforcement disciplinary processes with prosecutorial review.

Implementation and Enforcement

Law Enforcement Policies and Training

Law enforcement agencies in Vermont manage internal affairs investigations independently, and most have no formal requirement to notify prosecutors when officers are found to have engaged in misconduct that could impair credibility. In smaller departments, findings may be handled informally or not documented in a retrievable format.

Training on Brady and Giglio obligations is not standardized or mandatory for law enforcement officers. While ethics and integrity are part of basic academy training, specific instruction on how misconduct may affect courtroom testimony or trigger disclosure duties is not uniformly provided.

The Vermont Criminal Justice Council has decertification authority and now publishes decisions on its website, including details of sustained findings against officers. However:

• There is no system to alert prosecutors when officers in their jurisdictions have been sanctioned.

• There is no automated or required review of past cases involving those officers.

• There is no prosecutor-specific portal to facilitate case cross-referencing or Giglio tracking.

Prosecutors in Vermont are left to identify credibility issues through informal channels, voluntary cooperation with police agencies, or independent research.

Oversight Mechanisms and Accountability Structures

Prosecutorial ethics in Vermont are overseen by the Professional Responsibility Board, part of the Vermont Judiciary. Disciplinary action for Brady/Giglio violations is rare and almost always tied to high-profile or repeated infractions. There is no Giglio compliance audit, no centralized oversight body, and no mechanism for public or defense attorney access to comprehensive disciplinary information.

In 2022, the Vermont ACLU called for greater transparency in police discipline and encouraged the legislature to close loopholes in the records access law. However, legislative reform has stalled amid competing priorities and resistance from law enforcement unions.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Burlington Police Department Officer Resignation (2020)
   An officer resigned after sustained allegations of falsifying information on reports. Prosecutors were not formally notified, and the officer later appeared on court dockets in an adjacent jurisdiction. Defense attorneys uncovered the resignation only after a records request.

2. Rutland County Officer Decertification (2021)
   An officer was decertified for untruthfulness and abuse of authority. Despite public reporting on the decertification, no process was initiated to identify cases in which the officer’s testimony might have been critical, nor was defense counsel notified in pending cases.

3. Seven Days / VTDigger Joint Investigation (2020)
   This statewide investigation found that many Vermont officers resigned or were quietly disciplined for misconduct involving dishonesty or excessive force—and in many cases, continued to work in law enforcement or testify in court without their histories disclosed to prosecutors or defense attorneys.

Outcomes and Implications

These cases underscore a troubling pattern: officers with credibility-impairing records remain in courtroom roles because there is no systemic mechanism to track or disclose their misconduct. Even in a small state like Vermont, the lack of coordination between law enforcement, certification bodies, and prosecutors results in fragmented and incomplete justice.

Challenges and Gaps

Identified Issues within the State’s System

• No Giglio Lists Required or Maintained: Prosecutors operate without mandated tracking of officer credibility.

• No Mandatory Reporting from Law Enforcement: Agencies are not obligated to notify prosecutors of sustained internal misconduct findings.

• Incomplete Transparency in Personnel Records: The Public Records Act allows withholding of internal affairs records even when credibility is at stake.

• Disconnection Between VCJC and Prosecutors: POST decisions are not communicated to relevant prosecutors or linked to trial review processes.

Legislative and Institutional Barriers

Efforts to improve transparency and disclosure compliance are impeded by strong local control, limited political momentum, and fears of undermining officer privacy. While the VCJC has become more transparent, prosecutors and courts have not adopted systems to take advantage of that progress. Vermont’s small size and centralized institutions could make reform efficient—but only if supported by legislative will and public demand.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Giglio List Creation and Maintenance
   Require every State’s Attorney to maintain an up-to-date list of officers with sustained misconduct relevant to testimonial credibility.

2. Establish Reporting Duties for Law Enforcement
   Mandate that police agencies notify prosecutors within 30 days of any sustained finding involving dishonesty, fabrication, or constitutional violations.

3. Integrate VCJC and Prosecutorial Systems
   Develop a secure, searchable portal linking POST decisions to the counties where affected officers worked and testified.

4. Amend Rule 16 to Include Officer Misconduct
   Expand the Vermont Rules of Criminal Procedure to explicitly require disclosure of internal affairs findings and disciplinary records affecting credibility.

Recommendations for Enhanced Transparency and Accountability

1. Expand Public Access to Misconduct Records
   Amend the Public Records Act to allow limited, redacted access to sustained findings of law enforcement misconduct that affects courtroom testimony.

2. Create a Centralized Prosecutorial Disclosure Unit
   Establish an entity—possibly within the AG’s Office—to audit compliance with Giglio obligations and help local prosecutors conduct retroactive reviews when needed.

3. Require Brady/Giglio Training Statewide
   Mandate annual disclosure ethics training for all prosecutors and law enforcement officers as part of ongoing certification and employment.

4. Provide Defense Access to VCJC Data
   Create a defense-side interface to the VCJC misconduct database, ensuring defense counsel can verify if officers in their cases have known credibility impairments.

Conclusion

Vermont has the tools and the temperament to build a model of prosecutorial candor—but has yet to assemble them into a functioning system. The lack of disclosure mandates, Giglio tracking, and interagency coordination leaves justice vulnerable to omission. The state’s size should be its advantage: with just 14 counties and a unified court system, Vermont could easily implement reforms that remain elusive in larger jurisdictions. But without codifying candor—without building the bridges between police discipline, prosecutor practice, and courtroom integrity—truth in Vermont will continue to depend on happenstance, not structure.