Rule 43.Taking testimony; evidence

Reporter’s Notes—2025 Amendment: Rule 43(d) is reworded for clarity and consistency. Rule 43(h) is added to authorize use of a declaration in place of an affidavit or oath. This reflects the provisions of 4 V.S.A. § 27b, as amended effective June 5, 2023, as applied to oaths and affidavits. Subdivision (h) allows the use of an unsworn and unnotarized declaration, signed in proper form as true under penalty of perjury, in place of an affidavit or oath otherwise required by a rule or court order. A declaration, for example, could be used to verify answers to interrogatories otherwise required to be signed under oath. V.R.C.P. 33. Rule 43(h) does not extend to other notarizations, such as acknowledgements, as to which the statute (or its exceptions) may apply. See 4 V.S.A. § 27b (referring broadly to any document that would otherwise require the approval or verification of a notary but stating exceptions). Rule 43(h) has no exceptions. The words used in the declaration must substantially conform to those in subdivision (h). A false statement or affidavit is subject, not only to penalty of perjury, but also to other sanctions in the discretion of the court. See also V.R.C.P. 56(h) (Affidavit or Declaration Submitted in Bad Faith). Rule 11(e), which authorized use of a declaration in place of a “notarization” not required by statute, is concurrently deleted. While the rule by its terms allows a declaration as an alternative to affidavits submitted for summary judgment purposes, Rule 56 is concurrently amended to clarify that any declaration used to support or oppose summary judgment must be made on personal knowledge. V.R.C.P. 56(c)(6).

Reporter’s Notes—2022 Amendment: Rule 43(e) is amended to replace the reference to V.R.C.P. 78(b)(2) (evidence on motions if requested), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(6), added by that order and embodying the provisions of V.R.C.P. 78(b)(2) in revised form. See Reporter’s Notes to 2021 amendment of V.R.C.P. 7(b) and abrogation of V.R.C.P. 78.

Reporter’s Notes—2019 Amendment: Rule 43(a) is amended to reflect the fact that new Rule 43.1 and amendments to the Family and Probate rules, promulgated simultaneously, permit testimony to be presented by video or audio conference in appropriate circumstances. The amendment provides expressly that proceedings under Rule 43.1 are an exception to the existing requirement that “testimony . . . shall be taken orally in open court” unless otherwise provided by specific rules. That provision has been held to prohibit testimony by telephone or other means except by agreement of the parties. Simpson v. Rood, 2003 VT 39, ¶ 8, 175 Vt. 546, 830 A.2d 4 (mem.).

Reporter’s Notes—2017 Amendment: Rule 43(f) is amended, contemporaneously with conforming amendments to V.R.Cr.P. 28 and V.R.P.P. 43(e), to make clear that the requirements in actions in all divisions of the Superior Court for court provision of interpreter services for persons with limited English proficiency (LEP), hearing impairments, or other disability resulting in the need for interpreter services comply with federal law. The amended civil and criminal rules will apply in other proceedings by virtue of their incorporation in the rules governing those proceedings. See V.R.F.P. 1(a), 2(a), 4.0(a)(2) (Family Division juvenile and civil proceedings); V.R.E.C.P. 3, 4(a), 5(a) (Environmental Division civil, enforcement, and appellate proceedings); V.R.S.C.P. 13 (Civil Division small claims proceedings); V.R.A.P. 2, 21(a) (Supreme Court suspension of the rules, actions for extraordinary relief). The U.S. Department of Justice (DOJ) in 2002 issued final guidance (DOJ Guidance) making clear that court systems receiving federal financial assistance that did not provide meaningful access to LEP persons, including competent interpretation, in civil and other proceedings were not in compliance with Title VI of the Civil Rights Act of 1964, as amended, and the Omnibus Crime and Safe Streets Act of 1968, as amended, and their implementing regulations. See 42 U.S.C. § 2000d et seq.; 42 U.S.C. § 3789d(c); 28 C.F.R. §§ 42.104(b)(2), 42.203(e); 67 Fed. Reg. 41,455, 41,462, 41,471 (June 18, 2002). In a letter of August 16, 2010 to state court officials intended to provide greater clarity regarding these requirements (DOJ Letter), DOJ stated its expectation that “meaningful access will be provided to LEP persons in all court and court-annexed proceedings, whether civil, criminal, or administrative including those presided over by non-judges.” DOJ Letter, p. 2. While the Vermont Judiciary’s current policy is in basic compliance with the DOJ Guidance and Letter, existing Rule 43(f) and similar procedural rules applicable in other divisions of the Superior Court do not reflect it. The specific language of the amended rule is intended to address that problem. Thus, “other person” in the amended rule includes LEP nonparties “whose presence or participation is necessary or appropriate,” such as parents or guardians of minors involved in criminal or juvenile matters. DOJ Letter, p. 2. The amended rule covers “court proceedings,” which DOJ defines as including proceedings before “magistrates, masters, commissioners, hearing officers, arbitrators, mediators, and other decision-makers.” Id. The rule also covers “court-managed functions in or related to civil actions.” DOJ broadly defines programs outside the courtroom to include information counters, filing offices, sheriffs’ offices, probation and parole offices, ADR programs, diversion programs, and similar offices and activities, as well as communication with court-appointed participants, such as defense counsel and guardians ad litem. Id. at 3. The rule, however, should be understood as requiring judicial appointment of a specific interpreter for a specific individual only when participation in those functions or programs is managed or operated by the court and is a necessary component of participation in a specific action before the court. The rule does not impose on the judiciary the cost of providing interpretation services for communication with individuals who are operating under the control of a different agency, such as public defenders, probation and parole officers, or corrections officers. The rule also complies with the DOJ position that “meaningful access” requires that interpretation services be provided at no cost to the individuals. Id. at 2. The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, as implemented by U.S. Department of Justice Final Rule: Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. Part 35, 56 Fed. Reg. 35694 (July 26, 1991), entitles deaf participants in court activities to “auxiliary aids and services,” such as qualified interpreter services, to ensure effective communication during the proceeding. 28 C.F.R. §§ 35.104, 35.160(b). Court activities include any type of state or local court proceeding as well as court administrative activities. Deaf participants cannot be charged for the auxiliary aid or service. See 28 C.F.R. § 35.130(f), 56 Fed. Reg. 35,705-35,706. See generally http://www.nad.org/issues/justice/courts/communication- access-state-and-local-courts [http://perma.cc/2DNC-54DT]. The amended rule extends to a person with an “other disability which results in the need for interpreter services,” in recognition that disabilities other than hearing impairment may result in an inability to speak and may require interpreter services. The trial court has always had authority and responsibility for determination of the competency and accuracy of an interpreter’s services and the mode of interpretation. This provision of the amended rule is addressed to language interpretation needs and does not reach other circumstances in which support services may be necessary to facilitate a disabled person’s access to, presence at, and participation in, judicial proceedings, which are a separate concern and obligation of the judiciary. In Vermont, 1 V.S.A. § 332 provides that “Any person who is deaf or hard of hearing who is a party or witness in any proceeding shall be entitled to be provided with a qualified interpreter” or to be provided with “assistive listening equipment.” Under 1 V.S.A. § 333, the “presiding officer” (e.g., the judge in a court proceeding) is to appoint the interpreter. Section 335 provides that “[i]n civil proceedings, the Court may order that” the interpreter’s fees and expenses “be paid by a party, as justice may require, or it may order that the costs be paid by the State. In criminal proceedings, costs of the interpreter shall be paid by the State.” These provisions are inconsistent with the ADA and implementing regulations described above. Rule 43(f) as amended extends these statutory provisions and makes the Vermont process consistent with federal requirements. The present amendments govern provision of interpreter services in judicial proceedings, essentially in the courtroom and in those matters and circumstances directly related thereto. They are intended to supplement the Vermont Judiciary Language Access Plan dated December 30, 2016 and as amended from time to time, and such administrative directives and procedures as are adopted by the State Court Administrator that independently make provision for access to court documents and services associated with the filing, maintenance, and participation in judicial proceedings and related matters. In particular, in determining the competency of interpretation services, courts should consider the guidelines in the Vermont Judiciary Language Access Plan.

Reporter’s Notes—1990 Amendment: Rule 43(e) is amended simultaneously with the 1990 amendment of Rule 78(b)(2). The change makes explicit that Rule 43(e) does not allow a court to rule on a motion on affidavits alone in those circumstances in which Rule 78(b)(2) requires an evidentiary hearing. Those circumstances are discussed in the Reporter’s Notes to 1990 amendments to Rules 7 and 78.

Reporter’s Notes—1983 Amendment: Rule 43(a) is amended to refer generally to the Rules of Evidence and other rules of court as sources of qualifications upon the general rule that testimony will be taken orally in open court. The amendment also eliminates as superseded by the Rules of Evidence a sentence stating the general principle of admissibility. Rule 43(b) is abrogated because its provisions concerning impeachment, cross-examination, and leading questions are superseded by Evidence Rules 607, 611(b), and 611(c). Rule 43(c) is abrogated because it is superseded by the provisions of Evidence Rule 103 for offer of proof and record of excluded evidence. Rule 43(h) is abrogated because it is superseded by Evidence Rule 611(a), which gives the court general discretion to control the order of evidence.

Reporter’s Notes: This rule is substantially similar to Federal Rule 43, with variations based on prior Vermont practice. Rule 43(a) omits complicated provisions of the federal rule inapplicable to state practice. The second sentence, taken from Maine Rule 43(a), makes clear that the rules do not intend to impinge upon the rules of evidence. Rule 43(b) is identical to 12 V.S.A. § 1641a (now superseded), which was based on the federal rule. The new rule carries forward two variations between the former statute and the federal rule: (1) an employee of a corporation or other entity that is an adverse party may be called as hostile witness. (2) “A person for whose immediate and adverse benefit the action was instituted, prosecuted or defended,” may likewise be called. Rule 43(c), providing for an offer of proof, is consistent with prior Vermont practice. See Macauley v. Hyde, 114 Vt. 198, 42 A.2d 482 (1945); State v. Winter, 102 Vt. 36, 145 A. 413 (1929). Even though formal exceptions are, under Rule 46, no longer necessary to preserve errors, the offer of proof is necessary to permit the court to determine whether exclusion of evidence was prejudicial. See 2B Barron & Holtzoff, Federal Practice and Procedure § 969 (Wright ed. 1961); cf. Rule 61. Rule 43(d), permitting an affirmation in lieu of oath, is consistent with 12 V.S.A. § 5851, which makes a similar general provision. Rule 43(e) is identical to 12 V.S.A. § 1645 (now superseded), with the addition of the final phrase taken from former County Court Rule 51. The statute and the new rule, in permitting oral and deposition testimony, give the court greater discretion than did the former County Court rule. Rule 43(f), providing for interpreters, carried forward a practice recognized in Vermont in the absence of express provision for it. See 12 V.S.A. § 5811, setting forth a form of oath to be administered to an interpreter. Rule 43(g) and (h) are taken verbatim from former County Court Rules 24.2, 24.3, and 26. Note that 12 V.S.A. § 1644, permitting separate examination of witnesses in the court’s discretion, remains in force.