Reporter’s Notes—2021 Amendment: V.R.Cr.P. 24(a)(2) and V.R.C.P. 47(a)(2) are concurrently amended, to delete reference to the circumstances in which juror responses to written questionnaires, and the specific content thereof, may be disclosed to the public. Public access to information contained in responses of potential jurors to written questionnaires may implicate lawful privacy interests or result in disclosure of information that is not subject to public access by law. For example, information subject to patient privilege that is divulged by a potential juror in the context of a request for excuse from service, as pertains to the requirement that a juror must meet the “mental or physical” demands of jury service. See 4 V.S.A. § 962(a)(4). Note that the amendments to paragraph (a)(2) in both rules preclude party and attorney access to such information, which is typically in the form of health-care provider information subject to patient privilege for persons who have been excused from the venire in advance of jury selection by reason of mental or physical inability to serve. This preclusion has been a feature of Juror Qualification Rule 4(c) as to public access since 2001; the present amendment extends the preclusion to parties and attorneys as well. However, the amendment clarifies that parties and attorneys are accorded access to this supplemental information for individuals, who have not been excused upon request after submitting such information, to enable full and fair inquiry as to that potential juror’s service in a given case. Party and attorney access to supplemental information may otherwise be sought subject to a judicial finding of good cause pursuant to Vermont Rule for Public Access to Court Records 6(b)(19). The former last sentence of (a)(2) is deleted, in recognition that the determination of whether juror questionnaire information is subject to public access, and the process and standards for such determination, are properly within purview of the Vermont Rules for Public Access to Court Records, which are concurrently amended to address such process and standards. See V.R.P.A.C.R. 6(b)(19). These amendments are also adopted concurrently with amendments to Rules 4 and 10 of the Rules Governing Qualification, List, Selection and Summoning of All Jurors. Note that under the existing criminal and civil procedural rules, which do address public access to “physical records” of juror information, access to any juror information held in electronic form is not publicly accessible. This particular provision has also been applicable since 2001 amendments, which were made with the purpose of making juror questionnaires “less intrusive” than under then-prevailing practice. That prohibition is continued.
Reporter’s Notes—2001 Amendment: This amendment to Rule 47 is based on the recommendation of the Committee to Study Public Access to Court Documents and Electronic Court Information. The purpose of this amendment is to make juror questionnaires less intrusive than current practice in some courts. If more detailed information about prospective jurors is required in order to insure a fair and impartial jury in that case, the court may direct the clerk to distribute additional questions to prospective jurors. Any record of a potential juror’s response may be inspected by the parties. The physical record of a potential juror’s response to a questionnaire will be open to the public only after the name and address of the responder has been redacted. Electronic records of potential juror responses will not be open to the public. This amendment is being adopted concurrently with amendments by the Court Administrator to the Rules Governing Qualification, List, Selection and Summoning of All Jurors.
Reporter’s Notes—1983 Amendment: Subdivision (f) is added to provide rules on preliminary instructions. Rule 51(b) requires the court to “instruct the jury after the arguments are completed.” Because this rule might be interpreted as preventing the court from charging the jury at other times, subdivision (f) is added here to authorize specifically the giving of preliminary instructions. Cf. Jerrold Electronics Corp. v. Westcoast Broadcasting Co., 341 F.2d 653, 665 (9th Cir. 1965) (giving of preliminary instruction does not violate F.R.C.P. 51(b) where the party objecting could not show prejudice). In addition, the specific authorization of this subdivision encourages judges to use preliminary instructions and provides guidance on what may be in such an instruction. Pretrial instructions offer the jury a road map through the trial that allows greater understanding of the significance of the evidence. Indeed, there is evidence that jurors cannot remember evidence when they can’t relate it to the decision before them and are likely to form a judgment about a case before they even hear the legal principles involved. See generally Comment, Memory, Magic, and Myth: The Timing of Jury Instructions, 59 Or. L. Rev. 451 (1981). For this reason, many states have authorized and encouraged use of pretrial instructions well beyond the general jury indoctrination and outline of the claims of the parties typically given in Vermont. See, e.g., Ind. R. Tr. Pro. 51(A); Wis. R.C.P. 805.13(2). Subdivision (f) follows the trend in other states and authorizes broad discretion in use of pretrial instructions. The general standard of subdivision (f) is that the instruction “aid the jury in comprehending the trial procedure and in understanding the evidence.” Included within this description would be information about trial procedure, evidence or the law applicable to the case, to the extent it is known. The court should be careful not to include information that will not be relevant to the case to avoid misleading the jury. Because there is no requirement that the court give any preliminary instruction, the court must disclose to the parties what instructions will be given. The disclosure can generally describe the instructions without going into detail on any particular instruction. The intent is to put the parties on notice so they can propose additions, deletions or alternatives. The party must object specifically to an instruction before, or immediately after, it is given to preserve the issue for review. Compare Rule 51(b). The addition applies in District Court pursuant to D.C.C.R. 47.
Reporter’s Notes—1982 Amendment: Subdivision (e) is added to Rule 47 to provide alternative procedures for selection of replacement jurors. The addition authorizes a procedure developed by the District and Superior Judges and in widespread use, with the consent of the parties, in the Vermont trial courts. Consent of the parties will no longer be required for its use. The addition is incorporated by reference in D.C.C.R. 47. Subdivision (a) is fairly rigid in its proscription of the method for examination of prospective jurors. Twelve prospective jurors must be drawn and seated. Only when these jurors have been examined and one or more has been challenged may a replacement be drawn, seated and examined. The trial judges developed an alternative method of impanelling the jury which offers some advantages. The standard procedure is often inefficient because of repetition of the examination and challenge process. By increasing the number of prospective jurors drawn at the outset, the alternative requires only one examination in most cases. At the same time, the parties are aware of who will replace any prospective jurors who are challenged. As a result, the parties are able to make more informed use of their challenges. Subdivision (e) authorizes the alternate procedure, as long as the number of replacement jurors drawn originally does not exceed six. Although replacement jurors theoretically replace prospective jurors as they are successfully challenged, the actual replacement does not occur until the prospective jurors are excused. In Palmisano v. Rheem Mfg. Co., 133 Vt. 549, 349 A.2d 718 (1975), the Court found that excusing each juror as he or she is peremptorily challenged places the challenging party at such a disadvantage that it is an impermissible procedure. Only where a lengthy jury drawing is involved did the Court authorize deviation from the method of excusing challenged jurors only when the jury is impanelled. Note that the procedure authorized by subdivision (e) is an alternative. The Court has the discretion on whether to use it.
Reporter’s Notes: This rule is based in part on prior Vermont practice and in part on Maine Rule 47. It departs from Federal Rule 47 in a number of respects. Rule 47(a) provides for examination of prospective jurors by the parties or their attorneys, although examination by the court may be allowed by agreement, and the court may in any event ask additional questions. The rule carries forward prior Vermont practice. See, e.g., Parker v. Hoefer, 118 Vt. 1, 100 A.2d 434 (1953); Lattrell v. Swain, 127 Vt. 33, 239 A.2d 195 (1967). The federal rule gives the court discretion to conduct the examination or to permit the parties to conduct it. Examination by the court upon agreement is made available in the Vermont rule, because it may on occasion offer advantages in efficiency and orderliness. Under the rule, as in prior practice, twelve jurors are to be drawn, seated in the box, and examined, with individuals challenged to be replaced by a further drawing. Rule 47(b) provides the procedure for the challenges for cause authorized by 12 V.S.A. § 1941. Challenges for cause may be made at any time prior to the impaneling of the jury. See Lattrell v. Swain, supra, 127 Vt. at 37. Replacement jurors for those challenged for cause should be drawn at once and examined before any peremptory challenges are allowed. Rule 47(c)(1) provides the procedure for the peremptory challenges permitted by 12 V.S.A. § 1941. These challenges are made against a list of the first twelve jurors seated and examined. Peremptory challenges are carried out by counsel’s removing the name of the challenged juror from the list—a procedure intended to eliminate prejudice against the challenging party and embarrassment for the challenged juror. Rule 47(c)(3) carries forward the number of peremptory challenges permitted by 12 V.S.A. § 1941. Rule 47(d) is taken from Federal Rule 47(b), except that the number of alternate jurors is reduced to two, in accordance with prior practice. See 12 V.S.A. § 1942 (superseded for civil actions). The rule makes a change for Vermont. Under 12 V.S.A. § 1942, an alternate could replace a regular juror even after submission of the cause. This practice is thought to be constitutionally dubious, at least in the federal system, because in order for an alternate to act after submission, he must either enter the jury’s deliberations after they have begun or be allowed to sit in the jury room even if he is not replacing a regular juror. See 2B Barron & Holtzoff, Federal Practice and Procedure § 1031 (Wright ed. 1961). The specific provisions of the former statute as to the conduct and care of the alternate jurors are omitted as embraced in the provision of the rule that they are to “have the same functions, powers, facilities, and privileges as the regular jurors.” The final sentence, taken from the Maine rule, leaves to the court the procedure for challenges in the case of multiple plaintiffs or defendants.