The following is my floor report for H.744.

H.744 amends Rule 3 of the Vermont Rules of Criminal Procedure. This rule generally involves arrests without a warrant. It lists the types of offenses for which an arrest may be made without a warrant, including felonies, misdemeanors that a law enforcement officer witnesses, and some nonwitnessed misdemeanor offenses. Rule 3 also outlines procedures for the arresting officer to follow after the arrest. 

H.744 amends subsection (k) in Rule 3 related to temporary release. The language can be found on page 805 of today’s calendar. The provision requires the law enforcement officer making the arrest to contact the court to determine whether the alleged offender should be released or held. Often, this rule comes into play after hours when the court is closed. The arresting officer will contact an on-call judge or judicial officer in those situations. The arresting officer must provide the judicial officer with an affidavit or sworn statement, including information that allows the judicial officer to determine whether to release or hold the individual. 

Under the current rule, which the legislature passed in 2019, the arresting officer’s affidavit or sworn statement must indicate the crimes to be charged by the officer. This language is problematic and has led to the need for this amendment – an officer does not make charging decisions. It is the prosecutor who makes the charging decision.

H.744 fixes this problem by striking this sentence. In its place, the bill clarifies that the presiding judge for each court MAY require that prosecuting attorneys indicate the charge or charges that they intend to file. The presiding judge may also require the prosecuting attorney to request any conditions of release, bail, or orders to hold without bail. 

This additional clarifying provision codifies existing practice.

A bit more background is necessary related to this bill. Both the legislature and the courts have authority under the Vermont Constitution to amend judicial rules within the confines of separation of powers. The legislature generally cannot amend a court rule that involves an inherently judicial function, but Rule 3 is not such a rule.  Indeed, both the legislature and the court have amended Rule 3 multiple times over the years. In fact, it was an amendment to subsection (K) made by the legislature back in 2019 that H.744 is now revising. 

The judicial branch proposes rules through committees, including the Advisory Committee on Criminal Rules. 

That Committee has proposed an amendment to subsection (K) different than the language in H.744. The Advisory Committee’s proposal would have provided that the presiding judge SHALL require the affidavit or sworn statement to include the charge or charges that the prosecuting attorney intends to file.  H.744, again, provides that the presiding judge MAY have such a requirement. The court’s proposal was mandatory, H.744 is discretionary.

According to witness testimony, H.744’s approach codifies existing practice. H. 744 addresses and clarifies the issues that the Criminal Rules Committee sought to address in its proposed Rule 3 amendment. In contrast, the Advisory Committee’s proposal would substantially change existing practice, and would place a significant, and often unnecessary burden, on law enforcement and prosecuting attorneys.

Accordingly, the Judiciary Committee has exercised its authority to amend subsection (K) in H.744, thus clarifying the legislature’s previous problematic amendment to that provision.

Under H.744, individual presiding judges will continue to determine if and when they need direct input from prosecuting attorneys as opposed to relying solely on law enforcement in determining whether to release or hold an alleged offender. 

The committee vote was 11-0 and we ask for your support.