Notwithstanding any rule or provision to the contrary in the Criminal Division:
The technical standards in Administrative Order 47 apply to remote proceedings by video or audio conference under this Order.
Vt. Admin. Ord. Of. Sup. Ct. Administrative Order No. 38
Reporter's Notes-2023 Amendment
Administrative Order No. 38 is amended to conform to concurrent amendments to Vermont Rule for Family Proceedings 17 and Vermont Rule of Civil Procedure 43.1. The amendment removes the reference to juvenile delinquency proceedings in the title and in § I because delinquency (and youthful offender) proceedings are now addressed in revised V.R.F.P. 17(c), which incorporates V.R.C.P. 43.1 for certain types of nonevidentiary proceedings. Subdivision I(c) is amended to update the cross reference to the factors for a court and parties to consider in evaluating whether to allow remote audio or video testimony by agreement under (b)(2), which now incorporates by reference consideration of and compliance with the provisions of V.R.Cr.P. 26.2.
Subdivision I(a) addresses circumstances of remote participation by the court and the parties where the presence of the defendant is not required by law; subdivision (b) prescribes circumstances in which parties may participate remotely by agreement of the parties, and in other proceedings where the defendant's presence is required by law. In contrast to I(a)(1), paragraph (b)(1) reflects the concern that where the judge must serve as a factfinder, and in other circumstances in which a defendant's presence is required by law, the judge may preside remotely only upon agreement of the parties, and not on the judge's own motion and over objection.
As a central reference in the application of subdivisions I(a) and (b), V.R.Cr.P. 43 generally prescribes those criminal proceedings for which the presence of a defendant is, or is not, required. Beyond Rule 43, certain constitutional imperatives may require, or provide a defendant's right to be present, as well. V.R.Cr.P. 43(d)(1) establishes procedures for a defendant's waiver of the right to be physically present in court, where applicable.
Of course, in criminal proceedings, in contrast to presence and participation, provision of witness testimony remotely contemplates agreement of the parties in accordance with subdivision (b)(2). Thus, subdivision I(c) directs that the court and parties must observe the requirements of V.R.Cr.P. 26.2 in conjunction with any proposal for remote witness testimony by agreement.