The House Judiciary Committee got off to a rapid start this year. On January 7^th, the second day of the Session, the Committee passed two bills, both holdovers from last year.

H.28 implements technical fixes to our statutes related to oaths and affirmations, which are used when an official is sworn into office or a witness in court swears to tell the truth, for example. An oath is a solemn promise invoking a higher power, while an affirmation is a similar, legally binding promise based solely on one’s personal honor. Both have the same legal weight and lying under either is considered perjury. Some Vermont statutes currently provide only for an oath and this bill adds the option of providing an affirmation instead, depending on the individual’s choice. This technical bill covers some statutes; future bills will address the remaining laws. The bill aims to ensure inclusiveness and personal choice when an individual must make assurances under penalty of perjury.

The other bill the Committee passed relates to bail. Criminal defendants in Vermont have a constitutional right to bail – unless they have committed a violent crime against a person, they are entitled to be released pending their trial, with or without conditions of release. Bail may be imposed, however, if they are a risk of flight and they will be held unless they post (or pay) bail.

In situations where a defendant has not been detained pending their trial but later commits an infraction such as violating a condition of release, prosecutors can make a motion to the court asking a judge to take away (or revoke) the defendant’s right to bail. Granting that motion would lead to the individual’s detention. To date, Vermont courts have only allowed revocation of bail in very limited circumstances. If the judge denies that motion, there is currently no clear way for a prosecutor to seek relief of a higher Court (our Vermont Supreme Court) to argue that the lower court judge got it wrong. H.409, which the committee voted out unanimously, allows prosecutors to appeal a denied motion for revocation of bail, which will help move the case forward and may provide clarity as to the allowable circumstances for bail revocation.

The Committee also took testimony on H.5, which would amend Vermont Rule of Evidence 804a. This rule creates a specific exception to the general rule against hearsay, which prohibits using out-of-court statements as evidence because they are less reliable than live testimony.  There are exceptions to the rule against hearsay, including that established in 804a.

Rule 804a allows out-of-court statements to be admitted in court where they are from young children (or vulnerable adults) about sexual abuse or other serious crimes, provided certain conditions are met that suggest those statements are reliable. 804a balances the need for evidence with the protection of vulnerable victims from further trauma. Currently, 804a excepts children who are age 12 and under from the rule against hearsay. H.5 would increase the age for the exception to 15.

Witnesses testifying in the Judiciary Committee asserted that the current age-based distinction in Vermont’s hearsay statute does not reflect how trauma affects children. A child’s ability to disclose abuse, remember events, or withstand the pressures of court is not fundamentally different for a 12-year-old and a 15-year-old. Adolescents ages 13 to 15 remain developmentally and emotionally vulnerable. This is particularly true when abuse involves a trusted adult, family member, or caregiver. By extending the existing hearsay exception to older children, the bill aligns Vermont statute with child development research and adolescent brain science.

Other testimony pointed out the potential downsides of H.5. Rather than preventing trauma of 13- to 15-year-olds, Rule 804a may also be understood as a tool to strengthen the prosecution’s evidence. It would increase the amount of admissible evidence and would presumably make it easier to convict individuals who have allegedly committed sexual or violent offenses against adolescents. Because defendants are presumed innocent, easing the ability of the prosecution to evade the hearsay rule could be unfair to the defendant. It could increase the risk of convicting someone who is not guilty.

The current version of 804a provides important safeguards to protect defendants’ rights. It requires the child to testify under cross-examination if called as a witness, thus protecting the defendant’s right to confrontation. Also, before admitting any out-of-court statement under 804a, the court must consider the time, content, and circumstances of the statement to determine whether they substantially ensure its trustworthiness. In addition, if such statements are admitted into evidence, the defendant still can try to undermine the reliability and credibility of the statements through cross-examining witnesses.

The question that the Judiciary Committee must answer, then, is whether the bill appropriately balances the rights of defendants with the need to ensure that children who have experienced abuse are not silenced by procedural barriers that fail to reflect their developmental reality. I anticipate that the Committee will soon answer that question.

In January, the Committee will also consider bills to strengthen our laws against animal cruelty and advance protections against voter intimidation. We will also consider a bill to create a new crime to cover cases of sexual extortion, also called “sextortion.” Current Vermont law prohibits disclosing nude or sexual images without consent but does not criminalize the threat to do so. In February, we will turn our attention to the functioning of the criminal justice system. What else can we do to ensure swift and certain consequences when criminal laws are violated? What lessons will the Chittenden County “accountability court” pilot provide?