Vermont's rule on evidence law turns on a feature the national template does not capture: Vermont evidence practice is organized under the Vermont Rules of Evidence. Relevance starts at Vt. R. Evid. 401, 403; hearsay starts at Vt. R. Evid. 801, 802. The controlling authority is Vermont Rules of Evidence. Authenticity is a separate fight under Vt. R. Evid. 901, 902. Depositions at trial: Vt. R. Civ. P. 30 and 32 govern civil depositions and trial use. Vt. R. Crim. P. 16 addresses criminal discovery; deposition testimony at trial requires Vt. R. Evid. 804(b)(1).
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Worked example under Vermont law
The illustration below uses only rules already stated for Vermont. It is a research hypothetical, not a prediction of what a court will do.
A lawyer in Vermont wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Vt. R. Evid. 401, 403.
- If the email is the opposing party's, test Vt. R. Evid. 801(d)(2) before the hearsay definition in Vt. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in Vt. R. Evid. 803(6) and the treatment purpose in Vt. R. Evid. 803(4).
- For the deathbed statement, meet Vt. R. Evid. 804(b)(2), then authenticate every exhibit under Vt. R. Evid. 901, 902.
Vermont keeps hearsay, character, and authenticity on different rules inside the Vermont Rules of Evidence. Winning one does not win the others.
General standards of admissibility
Vermont starts every evidence dispute with relevance and unfair prejudice. Under Vt. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Vermont's small bar means evidence rulings are highly centralized through supreme court practice. Check Vt. R. Evid. 412 for rape-shield provisions.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Vermont is governed by Vt. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Vermont character-evidence opinions
John A. Russell Corporation v. James W. Bohlig
John A. Russell Corporation v. James W. Bohlig, 170 Vt. 12 (1999)
…e properly conveyed the spirit and doctrine of the law. II. Character Evidence Mr. Bohlig claims next that the court violated V.R.E. 404, 405 and 608 by admitting evidence that Mr. Bohlig was terminated from his previous employment for dishonesty involving his expense accounts. He contends that this is character evidence improperly admitted to *21 prove he acted dishonestly in…
On character evidence, John A. Russell Corporation v. James W. Bohlig speaks to the Vermont dispute in this passage: "II. Character Evidence Mr. Bohlig claims next that the court violated V.R.E. 404, 405 and 608 by admitting evidence that Mr. Bohlig was terminated from his previous employment for dishonesty involving his expense accounts." The surrounding opinion shows how the court applied that language to the record.
State of Vermont v. Michael Blow
State of Vermont v. Michael Blow, 157 Vt. 513 (1991)
…victions to rebut what it perceived as defendant’s offer of character evidence. The court stated during the charge conference that “defendant threw his character into the issue. ... He brought that forward. . . . ‘I’m not an assaultive person.’” Because we do not believe that defendant offered evidence of his character within the meaning of V.R.E. 404(a)(1), we conclude that th…
Practitioners open State of Vermont v. Michael Blow when Vermont character evidence turns on the distinction in this sentence: "The court stated during the charge conference that “defendant threw his character into the issue. ... He brought that forward. . . . ‘I’m not an assaultive person.’” Because we do not believe that defendant offered evidence of his character within the meaning of V.R.E." Do not lift it out of the facts the court was deciding.
State of Vermont v. Charles Crannell
State of Vermont v. Charles Crannell, 170 Vt. 387 (2000)
…ny of his ex-wife concerning a prior crime as impermissible character evidence. In addition, he claims that the trial court improperly disregarded a pro se motion he filed, denied his motion for acquittal, and denied him a speedy trial. Lastly, he claims he was improperly permitted to waive an instruction on lesser-included offenses. We find no error in the trial court’s ruling…
On character evidence, State of Vermont v. Charles Crannell speaks to the Vermont dispute in this passage: "In addition, he claims that the trial court improperly disregarded a pro se motion he filed, denied his motion for acquittal, and denied him a speedy trial. Lastly, he claims he was improperly permitted to waive an instruction on lesser-included offenses." The surrounding opinion shows how the court applied that language to the record.
State of Vermont v. Donald T. Forbes
State of Vermont v. Donald T. Forbes, 161 Vt. 327 (1993)
…8 S.W.2d 127, 128 (Ark. Ct. App. 1990) (in cases of incest, character evidence is admissible under Rule 404(b) to show defendant’s proclivity toward a specific act with a person with whom he has an intimate relationship). Child sexual abuse is “the involvement of dependent, developmental immature children in sexual activities that they do not fully comprehend,” and incest is on…
State of Vermont v. Donald T. Forbes is worth reading on Vermont character evidence because the court put the point in its own words: "S.W.2d 127, 128 (Ark. Ct. App. 1990) (in cases of incest, character evidence is admissible under Rule 404(b) to show defendant’s proclivity toward a specific act with a person with whom he has an intimate relationship)." Use that passage as the starting point, then read the facts that precede it.
State of Vermont v. James Kelley
State of Vermont v. James Kelley, 163 Vt. 325 (1995)
…ore the murder. He contends that the testimony was improper character evidence proscribed by V.R.E. 404(b). We will reverse the trial court’s decision to admit this evidence only if the court withheld or abused its discretion, see State v. Powers, 163 Vt. 98, 100, 655 A.2d 712, 713 (1994), and a substantial right of defendant was affected by the alleged error. V.R.E. 103(a). Th…
Practitioners open State of Vermont v. James Kelley when Vermont character evidence turns on the distinction in this sentence: "He contends that the testimony was improper character evidence proscribed by V.R.E. 404(b). We will reverse the trial court’s decision to admit this evidence only if the court withheld or abused its discretion, see State v. Powers, 163 Vt. 98, 100, 655 A." Do not lift it out of the facts the court was deciding.
State of Vermont v. Steven Larose
State of Vermont v. Steven Larose, 150 Vt. 363 (1988)
…heory. Defendant’s attempt to have the evidence admitted as character evidence fares little better. “Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.” McCormick on Evidence § 195, at 574 (3d ed. 1984). We agree with defendant that the evidence may have tended to sh…
Practitioners open State of Vermont v. Steven Larose when Vermont character evidence turns on the distinction in this sentence: "Defendant’s attempt to have the evidence admitted as character evidence fares little better. “Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness." Do not lift it out of the facts the court was deciding.
State of Vermont v. Thomas Hendricks — Dooley, J., concurring
State of Vermont v. Thomas Hendricks — Dooley, J., concurring, 173 Vt. 132 (2001)
…rring opinion on the important question of the scope of the character evidence rule of V.R.E. 404 in domestic *143assault criminal cases. Although I am concerned that the prohibition on the misuse of character evidence as expressed in V.R.E. 404(a) should not be undermined by the use of specious alternative rationales for admission, I do not believe that concern should govern i…
On character evidence, State of Vermont v. Thomas Hendricks — Dooley, J., concurring speaks to the Vermont dispute in this passage: "V.R.E. 404 in domestic *143assault criminal cases. Although I am concerned that the prohibition on the misuse of character evidence as expressed in V.R.E." The surrounding opinion shows how the court applied that language to the record.
Hearsay: start with the definition
Most hearsay objections in Vermont are won or lost on the definition, not on an exception. Under Vt. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Vermont hearsay opinions
State of Vermont v. John E. Recor
State of Vermont v. John E. Recor, 150 Vt. 40 (1988)
…rgues that the State’s expert witness was permitted to give hearsay testimony which went beyond the exception for statements made for purposes of medical diagnosis or treatment under V.R.E. 803(4). We affirm. The facts supporting defendant’s first claim are as follows. On February 27, 1985, the police issued a citation to defendant to appear and answer on March 25th. The arraig…
Practitioners open State of Vermont v. John E. Recor when Vermont hearsay turns on the distinction in this sentence: "State’s expert witness was permitted to give hearsay testimony which went beyond the exception for statements made for purposes of medical diagnosis or treatment under V.R.E. 803(4). We affirm. The facts supporting defendant’s first claim are as follows." Do not lift it out of the facts the court was deciding.
State of Vermont v. Dean Derouchie
State of Vermont v. Dean Derouchie, 153 Vt. 29 (1989)
…)(C). He raises two errors on appeal: (1) that the doctor’s hearsay account of the victim’s version of events was erroneously presented to the jury over defendant’s objection; and (2) that the trial court committed reversible error by permitting the State to present evidence that defendant had injected cocaine hours before the sexual assault. We affirm. The victim testified at…
State of Vermont v. Dean Derouchie is worth reading on Vermont hearsay because the court put the point in its own words: "State to present evidence that defendant had injected cocaine hours before the sexual assault. We affirm." Use that passage as the starting point, then read the facts that precede it.
Erica Keus v. Brooks Drug, Inc., and Peter Del Santo
Erica Keus v. Brooks Drug, Inc., and Peter Del Santo, 163 Vt. 1 (1994)
…onclusions and opinions of a non-testifying doctor as being hearsay. So we would object to those. MR. MORGAN: These are medical records. Dr. Fabricius’s are of a treating physician; Dr. Kuhlmann’s of an examining physician. Both records are based — are the basis for some of the opinions given by the Doctor in this case. I think they are relevant. I think *4 they are an exceptio…
Vermont opinions such as Erica Keus v. Brooks Drug, Inc., and Peter Del Santo are cited where hearsay is disputed. The court stated: "So we would object to those. MR. MORGAN: These are medical records. Dr. Fabricius’s are of a treating physician; Dr. Kuhlmann’s of an examining physician. Both records are based — are the basis for some of the opinions given by the Doctor in this case. I think they are relevant." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Charles Madigan
State of Vermont v. Charles Madigan, 199 Vt. 211 (2015)
…uthfulness; (2) that the trial court admitted impermissible hearsay; and (3) that the prosecution’s closing argument was improper. We reverse. ¶2. The testimony at trial reflected the following. The victim, A.R., had been close friends with defendant’s daughter since early childhood. A.R. was somewhat estranged from her parents, who had divorced, and defendant acted as a sort o…
Vermont opinions such as State of Vermont v. Charles Madigan are cited where hearsay is disputed. The court stated: "We reverse. ¶2. The testimony at trial reflected the following. The victim, A.R., had been close friends with defendant’s daughter since early childhood. A.R." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Joseph Roger Lemay
State of Vermont v. Joseph Roger Lemay, 180 Vt. 133 (2006)
…argues that the trial court erred by allowing inadmissible hearsay testimony, and that the State failed to present sufficient evidence to support a conviction on the charge of sexual assault. We hold that the court improperly allowed hearsay testimony, and we reverse and remand. ¶ 2. In October 2003, defendant was charged with two counts of lewd and lascivious conduct with a c…
On hearsay, State of Vermont v. Joseph Roger Lemay speaks to the Vermont dispute in this passage: "State failed to present sufficient evidence to support a conviction on the charge of sexual assault. We hold that the court improperly allowed hearsay testimony, and we reverse and remand. ¶ 2." The surrounding opinion shows how the court applied that language to the record.
IN RE WAIT HURLBURT'S ESTATE, GEORGE W. HURLBURT, APT.
IN RE WAIT HURLBURT'S ESTATE, GEORGE W. HURLBURT, APT., 68 Vt. 366 (1895)
…entertained” and that it is more limited in its scope than hearsay evidence, and while it may be the result of the latter, it is not necessarily dependent upon it and may exist without it. It would be useless to attempt to reconcile the utterances of the various courts that have spoken directly or indirectly upon this subject. Counsel upon both sides have collected quite a num…
Vermont opinions such as IN RE WAIT HURLBURT'S ESTATE, GEORGE W. HURLBURT, APT. are cited where hearsay is disputed. The court stated: "It would be useless to attempt to reconcile the utterances of the various courts that have spoken directly or indirectly upon this subject." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Harold Leggett
State of Vermont v. Harold Leggett, 167 Vt. 438 (1998)
…ant argues that the court erred by allowing introduction of hearsay testimony about defendant's actions without first making a finding and stating reasons as to whether there was good cause to admit the testimony. We affirm. *492 In February 1993, defendant pled nolo contendere to a charge of sexual assault against his stepdaughter, a minor. The court sentenced defendant to ser…
On hearsay, State of Vermont v. Harold Leggett speaks to the Vermont dispute in this passage: "We affirm. *492 In February 1993, defendant pled nolo contendere to a charge of sexual assault against his stepdaughter, a minor." The surrounding opinion shows how the court applied that language to the record.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Vermont treats them under Vt. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Vermont party-admission opinions
Ann Mellin v. Flood Brook Union School District, Department of Education, Et Al.
Ann Mellin v. Flood Brook Union School District, Department of Education, Et Al., 173 Vt. 202 (2001)
…ly where the depositions, pleadings, interrogatory answers, admissions and affidavits' on file show that no genuine issue of material fact exists and “any party is entitled to a judgment as a matter of law.” V.R.C.P. 56(c)(3). On summary judgment, the court may not act as the trier of fact, but instead must draw all reasonable inferences and doubts in the nonmoving party’s favo…
Practitioners open Ann Mellin v. Flood Brook Union School District, Department of Education, Et Al. when Vermont party admissions turns on the distinction in this sentence: "ly where the depositions, pleadings, interrogatory answers, admissions and affidavits' on file show that no genuine issue of material fact exists and “any party is entitled to a judgment as a matter of law.” V.R.C.P. 56(c)(3). On summary judgment, the court may not act as the tri" Do not lift it out of the facts the court was deciding.
John L. Spaulding, Admr. v. The Mutual Life Insurance Company of New York
John L. Spaulding, Admr. v. The Mutual Life Insurance Company of New York, 94 Vt. 42 (1920)
…is doubtless true that by weight of authority the insured’s admissions or declarations, not so made as to be part of the res gestae, are inadmissible against the beneficiary having a vested interest in the policy, at least as proof of the facts stated. 14 R. C. L. 1438 and cases there digested. The rule is apparently based upon the ground that the contract is between the insure…
John L. Spaulding, Admr. v. The Mutual Life Insurance Company of New York is worth reading on Vermont party admissions because the court put the point in its own words: "is doubtless true that by weight of authority the insured’s admissions or declarations, not so made as to be part of the res gestae, are inadmissible against the beneficiary having a vested interest in the policy, at least as proof of the facts stated. 14 R. C. L. 1438 and cases" Use that passage as the starting point, then read the facts that precede it.
Asa Cummings v. Connecticut General Life Insurance Company.
Asa Cummings v. Connecticut General Life Insurance Company., 101 Vt. 73 (1928)
…the exclusion was error because the offered evidence was an admission by the insured that she had the disease. The plaintiff says that no offer was made as to what the expected testimony would be. But it is not necessary to consider this point in this connection, because the ground now relied upon as showing error was not presented to the trial court. Capital Garage Co. v. Powe…
Vermont opinions such as Asa Cummings v. Connecticut General Life Insurance Company. are cited where party admissions is disputed. The court stated: "The plaintiff says that no offer was made as to what the expected testimony would be. But it is not necessary to consider this point in this connection, because the ground now relied upon as showing error was not presented to the trial court. Capital Garage Co. v." That is the language to brief; the rest of the decision supplies the procedural posture.
Lee K. Robinson v. Roy H. Leonard.
Lee K. Robinson v. Roy H. Leonard., 100 Vt. 1 (1926)
…een understood not to be applicable to the use of a party’s admission, i. e., they may be offered without a prior warning to the party.” See, also, Coolidge v. Ayers, 77 Vt. 448, 453, 61 Atl. 40. It is now urged that the effect of the testimony is not to state how the accident actually happened, but it was merely conjectural as to how it might have happened; it stated and admit…
Lee K. Robinson v. Roy H. Leonard. is worth reading on Vermont party admissions because the court put the point in its own words: "See, also, Coolidge v. Ayers, 77 Vt. 448, 453, 61 Atl. 40." Use that passage as the starting point, then read the facts that precede it.
In re L.M., Juvenile
In re L.M., Juvenile, 195 Vt. 637 (2014)
…other’s statements to the social worker to be nonhearsay as admissions of a party-opponent under Vermont Rule of Evidence 801(d)(2). The social worker then testified that two days before the CHINS petition was filed, mother informed her that she and L.M. were homeless. Mother explained that the family had left mother’s sister’s home after a fight, and that mother and L.M. had n…
Practitioners open In re L.M., Juvenile when Vermont party admissions turns on the distinction in this sentence: "Vermont Rule of Evidence 801(d)(2). The social worker then testified that two days before the CHINS petition was filed, mother informed her that she and L.M. were homeless. Mother explained that the family had left mother’s sister’s home after a fight, and that mother and L.M." Do not lift it out of the facts the court was deciding.
Daniel H. Wheeler v. Daniel Wheeler's Estate
Daniel H. Wheeler v. Daniel Wheeler's Estate, 47 Vt. 637 (1874)
…counsel for the estate. We think there was no error in the admission of the testimony of Mary Wheeler. *645The testimony of the other witnesses is claimed to have been inadmissible on two other grounds : first, that the declarations of the intestate, testified to by the witnesses, if made, do not necessarily relate to the surrender and cancellation of the receipt. Although the…
Practitioners open Daniel H. Wheeler v. Daniel Wheeler's Estate when Vermont party admissions turns on the distinction in this sentence: "We think there was no error in the admission of the testimony of Mary Wheeler." Do not lift it out of the facts the court was deciding.
Nehemiah Johnson v. Holland N. Powers
Nehemiah Johnson v. Holland N. Powers, 40 Vt. 611 (1868)
…. It is a well settled rule of law that the declarations or admissions, oral or written, or both, of' a party to the record, are, as against such party, admissible in evidence. Greeuleaf’s Ev. §§ 171-201 and 203. Phillips’ Ev. 98, 389 and notes. The object of the party using such declarations or admissions against the party who made them, is only to ascertain that which he conc…
On party admissions, Nehemiah Johnson v. Holland N. Powers speaks to the Vermont dispute in this passage: "It is a well settled rule of law that the declarations or admissions, oral or written, or both, of' a party to the record, are, as against such party, admissible in evidence. Greeuleaf’s Ev. §§ 171-201 and 203. Phillips’ Ev. 98, 389 and notes." The surrounding opinion shows how the court applied that language to the record.
Jill BAZZANO v. KILLINGTON COUNTRY VILLAGE, INC.
Jill BAZZANO v. KILLINGTON COUNTRY VILLAGE, INC., 175 Vt. 534 (2003)
…In Mobbs, we held that “[gjenerally, when the party seeking admission of the evidence can show substantial similarity of conditions, evidence of no prior accidents is admissible to show ‘(1) absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situati…
Vermont opinions such as Jill BAZZANO v. KILLINGTON COUNTRY VILLAGE, INC. are cited where party admissions is disputed. The court stated: "In Mobbs, we held that “[gjenerally, when the party seeking admission of the evidence can show substantial similarity of conditions, evidence of no prior accidents is admissible to show ‘(1) absence of the defect or condition alleged, (2) the lack of a causal relationship between" That is the language to brief; the rest of the decision supplies the procedural posture.
Business records
The business-records exception under Vt. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Vermont business-records opinions
Unifund CCR Partners v. Daniel Zimmer
Unifund CCR Partners v. Daniel Zimmer, 201 Vt. 474 (2016)
…r Ms. Andres was qualified to authenticate the documents as business records under Vermont Rule of Evidence 803(6). ¶ 5. Furthermore, the trial court found Ms. Andres’ testimony as to the assignments from Pilot to UCL and UCL to Unifund to be particularly difficult to credit. Specifically, the trial court found it troubling that, although she claimed to have the custodial quali…
Practitioners open Unifund CCR Partners v. Daniel Zimmer when Vermont business records turns on the distinction in this sentence: "Ms. Andres was qualified to authenticate the documents as business records under Vermont Rule of Evidence 803(6). ¶ 5. Furthermore, the trial court found Ms. Andres’ testimony as to the assignments from Pilot to UCL and UCL to Unifund to be particularly difficult to credit." Do not lift it out of the facts the court was deciding.
Westinghouse Electric Supply Company v. B. L. Allen, Inc., and the Travelers Indemnity Company
…tout as hearsay which does not qualify as an admissible *99 business record under the Uniform Business Records as Evidence Act, 12 V.S.A. § 1700 (b). This act states: A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made…
Practitioners open Westinghouse Electric Supply Company v. B. L. Allen, Inc., and the Travelers Indemnity Company when Vermont business records turns on the distinction in this sentence: "Uniform Business Records as Evidence Act, 12 V.S.A. § 1700 (b)." Do not lift it out of the facts the court was deciding.
In re ODESSA CORPORATION
In re ODESSA CORPORATION, 179 Vt. 640 (2006)
…earsay testimony from this witness, other than a purported “business record,” which, as discussed below, was properly excluded.* In any event, counsel’s suggestion that its witness may have been absent due to her pregnancy conflicts with its representation to the Board at the hearing. ¶ 17. We are equally unpersuaded by Odessa’s reliance on Vermont Rule of Civil Procedure 40(d)…
Practitioners open In re ODESSA CORPORATION when Vermont business records turns on the distinction in this sentence: "In any event, counsel’s suggestion that its witness may have been absent due to her pregnancy conflicts with its representation to the Board at the hearing. ¶ 17." Do not lift it out of the facts the court was deciding.
Colonial Plumbing Corporation v. Solar Heating, Inc.
Colonial Plumbing Corporation v. Solar Heating, Inc., 133 Vt. 82 (1974)
…ard and invoices is controlled by 12 V.S.A. § 1700, Uniform Business Records as Evidence Act. However, the defendant contends that the plaintiff’s salesman, not being the actual custodian of these business records, was not qualified to identify these records and the mode of their preparation as a foundation for their admission into evidence. We cannot agree. The pertinent provi…
Colonial Plumbing Corporation v. Solar Heating, Inc. is worth reading on Vermont business records because the court put the point in its own words: "V.S.A. § 1700, Uniform Business Records as Evidence Act." Use that passage as the starting point, then read the facts that precede it.
In RE B.B., B.C., and B.B., Juveniles
In RE B.B., B.C., and B.B., Juveniles, 208 A.3d 244 (2019)
…e reports for all three children, concluding that they were business records. ¶ 3. The assistant principal was concerned because all three children had a significant number of absences from school and contacted mother to schedule a meeting. The assistant principal also made a referral to Northwest Counseling Services (NCSS) for both B.C. and Bo.B. for a home/school coordinator…
Practitioners open In RE B.B., B.C., and B.B., Juveniles when Vermont business records turns on the distinction in this sentence: "The assistant principal was concerned because all three children had a significant number of absences from school and contacted mother to schedule a meeting. The assistant principal also made a referral to Northwest Counseling Services (NCSS) for both B.C. and Bo.B." Do not lift it out of the facts the court was deciding.
Dorothy Vladyka, Adm'x of the Estate of Stephen Vladyka v. Walter H. Page
Dorothy Vladyka, Adm'x of the Estate of Stephen Vladyka v. Walter H. Page, 135 Vt. 252 (1977)
…rect examination, his report was offered into evidence as a business record kept in the ordinary course of business. 12 V.S.A. § 1700. On this basis, the trial court admitted the document over the timely objection of *253counsel for the plaintiff. The objection raised by the plaintiff’s counsel made known to the court the action which he desired it to take; this was sufficient…
Dorothy Vladyka, Adm'x of the Estate of Stephen Vladyka v. Walter H. Page is worth reading on Vermont business records because the court put the point in its own words: "V.S.A. § 1700. On this basis, the trial court admitted the document over the timely objection of *253counsel for the plaintiff." Use that passage as the starting point, then read the facts that precede it.
Doris Kinney and Milton Kinney v. J. Elllsworth Johnson
Doris Kinney and Milton Kinney v. J. Elllsworth Johnson, 142 Vt. 299 (1982)
…ic water shortage. Exhibits 2 through 9 were all offered as business records of the Vermont Department of Health. The uncontradicted testimony was that they were true and accurate copies of reports on file in the Department, normally and regularly prepared after evaluations of water systems. On the basis of the record presented this Court on appeal, we agree that such *302docum…
Vermont opinions such as Doris Kinney and Milton Kinney v. J. Elllsworth Johnson are cited where business records is disputed. The court stated: "Exhibits 2 through 9 were all offered as business records of the Vermont Department of Health. The uncontradicted testimony was that they were true and accurate copies of reports on file in the Department, normally and regularly prepared after evaluations of water systems." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Ronald Veach
State of Vermont v. Ronald Veach, 157 Vt. 473 (1991)
…cksonville, 386 So. 2d 894, 895 (Fla. Dist. Ct. App. 1980) (business records exception for license tag check through police dispatcher inapplicable because no records or reports offered into evidence). However, the error was not significant. Defendant was identified by an eyewitness who knew the area where defendant lived and had “seen the car around that area quite a bit.” She…
State of Vermont v. Ronald Veach is worth reading on Vermont business records because the court put the point in its own words: "So. 2d 894, 895 (Fla. Dist. Ct. App. 1980) (business records exception for license tag check through police dispatcher inapplicable because no records or reports offered into evidence). However, the error was not significant." Use that passage as the starting point, then read the facts that precede it.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Vermont trial practice.
Excited utterance — Vt. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Vt. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Vt. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Vt. R. Evid. 804(a), Vermont opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Vt. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Vt. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Vermont dying-declaration opinions
State v. Thomas Patterson
State v. Thomas Patterson, 45 Vt. 308 (1873)
…ett, J. It is objected in behalf of the respondent that the dying declarations of Elanders, as testified by Mr. Hill, should have been excluded from the consideration of the jury, by force of the rule as stated 1 Greenl. Ev. §159, viz., that “whatever the statement may be, it must be complete in itself; for, if the declarations appear to have been intended by the dying man to b…
Vermont opinions such as State v. Thomas Patterson are cited where dying declaration is disputed. The court stated: "J. It is objected in behalf of the respondent that the dying declarations of Elanders, as testified by Mr. Hill, should have been excluded from the consideration of the jury, by force of the rule as stated 1 Greenl. Ev. §159, viz." That is the language to brief; the rest of the decision supplies the procedural posture.
The State of Vermont v. William H. M. Howard
The State of Vermont v. William H. M. Howard, 32 Vt. 380 (1859)
…of the act. III. The declarations of Olive Ashe, offered as dying declarations, were properly rejected, and as they were only admissible in regard to the count for manslaughter, where there was an acquittal, the question has now become immaterial, except in the event of a new trial; Rex v. Mead, 2 B. & C. 605; 1 Greenl. Ev. sec. 156. So, too, the judge having decided they were…
The State of Vermont v. William H. M. Howard is worth reading on Vermont dying declaration because the court put the point in its own words: "III. The declarations of Olive Ashe, offered as dying declarations, were properly rejected, and as they were only admissible in regard to the count for manslaughter, where there was an acquittal, the question has now become immaterial, except in the event of a new trial; Rex v." Use that passage as the starting point, then read the facts that precede it.
The State of Vermont v. Susan Center and W. H. H. Center
The State of Vermont v. Susan Center and W. H. H. Center, 35 Vt. 378 (1862)
Aldis, J. Dying declarations are admitted in cases of homicide, both from necessity, and because the near approach of death is supposed to impress the mind with as solemn an obligation to speak the truth, as would the administration of an oath. *384The state of mind of the person making such declarations, is to be regarded ; it…
The State of Vermont v. Susan Center and W. H. H. Center is worth reading on Vermont dying declaration because the court put the point in its own words: "Aldis, J. Dying declarations are admitted in cases of homicide, both from necessity, and because the near approach of death is supposed to impress the mind with as solemn an obligation to speak the truth, as would the administration of an oath." Use that passage as the starting point, then read the facts that precede it.
NOYES, FRENCH & FICKETT v. EDWARD J. PARKER
NOYES, FRENCH & FICKETT v. EDWARD J. PARKER, 64 Vt. 379 (1892)
…pages 103-105. This principle is illustrated by evidence of dying declarations. It is for the .Court to determine whether the declarations were made under such circumstances as to constitute *383them legal evidence. When the evidence is admitted, its credibility is solely a question for the jury, who are at liberty to consider and weigh all the circumstances under which the dec…
Vermont opinions such as NOYES, FRENCH & FICKETT v. EDWARD J. PARKER are cited where dying declaration is disputed. The court stated: "This principle is illustrated by evidence of dying declarations. It is for the .Court to determine whether the declarations were made under such circumstances as to constitute *383them legal evidence." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE v. CARLTON
STATE v. CARLTON, 48 Vt. 636 (1876)
…the Crown, 261. And the exception that is made in admitting dying declarations, is upon the theory that when made, every motive to falsehood is silent, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administere…
Practitioners open STATE v. CARLTON when Vermont dying declaration turns on the distinction in this sentence: "Crown, 261. And the exception that is made in admitting dying declarations, is upon the theory that when made, every motive to falsehood is silent, and the mind is induced by the most powerful considerations to speak the truth." Do not lift it out of the facts the court was deciding.
Joshua Wetherbee's Executors v. Joshua Wetherbee's Heirs
Joshua Wetherbee's Executors v. Joshua Wetherbee's Heirs, 38 Vt. 454 (1866)
…ase of Dr. Cram cannot make them exceptional. They were not dying declarations, nor given as testimony at a former trial. It is the ordinary case of the death of a witness. His decease makes it more desirable to the party to use his declarations, but does not alter the rule of their admissibility. 2. His professional character cannot make them exceptional. It may add to their r…
Practitioners open Joshua Wetherbee's Executors v. Joshua Wetherbee's Heirs when Vermont dying declaration turns on the distinction in this sentence: "Dr. Cram cannot make them exceptional. They were not dying declarations, nor given as testimony at a former trial. It is the ordinary case of the death of a witness." Do not lift it out of the facts the court was deciding.
State v. Randall Tubbs.
State v. Randall Tubbs., 101 Vt. 5 (1928)
…trouble at the Tubbs farm were received in evidence as his dying declarations. The respondent objected to the admission of such declarations on the ground that they were hearsay. The admission of dying declarations is one of the exceptions to the rule against hearsay evidence, and, under certain conditions, such declarations have always been admitted in cases of homicide, both…
On dying declaration, State v. Randall Tubbs. speaks to the Vermont dispute in this passage: "Tubbs farm were received in evidence as his dying declarations. The respondent objected to the admission of such declarations on the ground that they were hearsay." The surrounding opinion shows how the court applied that language to the record.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Vt. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Vermont medical-statement opinions
State of Vermont v. John E. Recor
State of Vermont v. John E. Recor, 150 Vt. 40 (1988)
…nt beyond the exception for statements made for purposes of medical diagnosis or treatment under V.R.E. 803(4). We affirm. The facts supporting defendant’s first claim are as follows. On February 27, 1985, the police issued a citation to defendant to appear and answer on March 25th. The arraignment date was subsequently continued to July 8, 1985 and a trial date set for Novembe…
Practitioners open State of Vermont v. John E. Recor when Vermont medical diagnosis hearsay turns on the distinction in this sentence: "V.R.E. 803(4). We affirm. The facts supporting defendant’s first claim are as follows. On February 27, 1985, the police issued a citation to defendant to appear and answer on March 25th." Do not lift it out of the facts the court was deciding.
State of Vermont v. Albert C. Gallagher
State of Vermont v. Albert C. Gallagher, 150 Vt. 341 (1988)
…xception for statements made to a physician for purposes of medical diagnosis or treatment, V.R.E. 803(4). The defendant argues that the juvenile’s statement to the physician was improperly admitted under Rule 803(4) because it was a statement of cause. In support of this assertion defendant points to the language of the Reporter’s Notes to this rule: “The rule omits a provisio…
Practitioners open State of Vermont v. Albert C. Gallagher when Vermont medical diagnosis hearsay turns on the distinction in this sentence: "V.R.E. 803(4). The defendant argues that the juvenile’s statement to the physician was improperly admitted under Rule 803(4) because it was a statement of cause." Do not lift it out of the facts the court was deciding.
In re R.M., Juvenile
In re R.M., Juvenile, 150 Vt. 59 (1988)
…n of V.R.E. 803(4) relating to “[statements for purposes of medical diagnosis or treatment.” The objection was overruled. Appellant argues, and correctly so, that under V.R.E. 803(4) — unlike the corresponding federal rule — statements relating to the inception or cause of a condition or symptoms are not admissible even if pertinent to diagnosis or treatment. See V.R.E. 803(4)…
Vermont opinions such as In re R.M., Juvenile are cited where medical diagnosis hearsay is disputed. The court stated: "V.R.E. 803(4) relating to “[statements for purposes of medical diagnosis or treatment.” The objection was overruled. Appellant argues, and correctly so, that under V.R.E." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Randall Gokey
State of Vermont v. Randall Gokey, 154 Vt. 129 (1990)
…ception for out-of-court statements made for the purpose of medical diagnosis or treatment. Under Vermont’s rule, “statements relating to the inception or cause of a condition or symptom are not admissible even if pertinent to diagnosis or treatment.” State v. Recor, 150 Vt. at 47, 549 A.2d at 1387; Reporter’s Notes, V.R.E. 803(4); see also State v. Derouchie, 153 Vt. 29, 32, 5…
Vermont opinions such as State of Vermont v. Randall Gokey are cited where medical diagnosis hearsay is disputed. The court stated: "Under Vermont’s rule, “statements relating to the inception or cause of a condition or symptom are not admissible even if pertinent to diagnosis or treatment.” State v. Recor, 150 Vt. at 47, 549 A.2d at 1387; Reporter’s Notes, V.R.E. 803(4); see also State v. Derouchie, 153 Vt." That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Rheo A. Brisson
State of Vermont v. Rheo A. Brisson, 119 Vt. 48 (1955)
…medical treatment for this affliction, he did not know the medical diagnosis of his condition until it appeared at the trial. The medical testimony in the case established in the proof that some of the generally recognized symptoms of the disease, multiple sclerosis, are consistent with some of the indications attendant upon human reaction to intoxication from alcohol. No othe…
State of Vermont v. Rheo A. Brisson is worth reading on Vermont medical diagnosis hearsay because the court put the point in its own words: "The medical testimony in the case established in the proof that some of the generally recognized symptoms of the disease, multiple sclerosis, are consistent with some of the indications attendant upon human reaction to intoxication from alcohol." Use that passage as the starting point, then read the facts that precede it.
State of Vermont v. Edwin Allen Towne, Jr.
State of Vermont v. Edwin Allen Towne, Jr., 142 Vt. 241 (1982)
…d came back reinforced with what he concluded was a correct medical diagnosis. Thank you. Again, the State’s argument was made without objection by the defendant. The defendant now contends that the above-quoted portions of the doctor’s testimony and the State’s closing argument constitute impermissible hearsay, the admission of which violated his confrontation rights under the…
Practitioners open State of Vermont v. Edwin Allen Towne, Jr. when Vermont medical diagnosis hearsay turns on the distinction in this sentence: "Thank you. Again, the State’s argument was made without objection by the defendant." Do not lift it out of the facts the court was deciding.
State of Vermont v. Dean Derouchie
State of Vermont v. Dean Derouchie, 153 Vt. 29 (1989)
…eral rule, applies only to statements “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations.” V.R.E. 803(4). The Reporter’s Notes to this rule make clear its limits: “The rule omits a provision of the Federal and Uniform Rules that would also admit statements of the inception and cause of a conditio…
On medical diagnosis hearsay, State of Vermont v. Dean Derouchie speaks to the Vermont dispute in this passage: "eral rule, applies only to statements “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations.” V.R.E. 803(4). The Reporter’s Notes to this rule make clear its limits: “The rule omits a provision of the" The surrounding opinion shows how the court applied that language to the record.
State of Vermont v. Charles Madigan
State of Vermont v. Charles Madigan, 199 Vt. 211 (2015)
…utterances, Y.R.E. 803(2), statements made for purposes of medical diagnosis or treatment, Y.R.E. 803(4),6 and certain out-of-court statements *229made by children who are twelve years of age or under and who are the putative victims of abuse, neglect, or certain sexual crimes. V.R.E. 804a(a).7 We join those courts that have declined to apply a separate “fresh-complaint except…
Vermont opinions such as State of Vermont v. Charles Madigan are cited where medical diagnosis hearsay is disputed. The court stated: "Y.R.E. 803(2), statements made for purposes of medical diagnosis or treatment, Y.R.E. 803(4),6 and certain out-of-court statements *229made by children who are twelve years of age or under and who are the putative victims of abuse, neglect, or certain sexual crimes. V.R.E. 804a(a)." That is the language to brief; the rest of the decision supplies the procedural posture.
Use of depositions at trial
Vt. R. Civ. P. 30 and 32 govern civil depositions and trial use. Vt. R. Crim. P. 16 addresses criminal discovery; deposition testimony at trial requires Vt. R. Evid. 804(b)(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Vermont deposition / former-testimony opinions
State of Vermont v. Michael Roberts
State of Vermont v. Michael Roberts, 154 Vt. 59 (1990)
…t. Daniels provided two sworn affidavits as well as a sworn deposition. He later was a key witness at defendant’s murder trial. Daniels’ account of the events leading to Knapp’s death, based on his affidavits, his deposition, and his testimony at defendant’s trial, was as follows: Daniels and defendant were walking along a street in Rutland when Knapp drove up, asked for direct…
Practitioners open State of Vermont v. Michael Roberts when Vermont deposition / former testimony turns on the distinction in this sentence: "Daniels provided two sworn affidavits as well as a sworn deposition. He later was a key witness at defendant’s murder trial." Do not lift it out of the facts the court was deciding.
State of Vermont v. Glenn R. Lynds
State of Vermont v. Glenn R. Lynds, 158 Vt. 37 (1991)
…ness was unavailable under V.R.Cr.P. 15 and in allowing her deposition to be read to the jury. Since the error was not harmless, we reverse and remand for a new trial. Ac*40cordingly, we do not reach two other arguments raised by defendant. In February 1988, defendant’s nineteen-year-old daughter complained that she had been repeatedly sexually abused by defendant. She alleged…
On deposition / former testimony, State of Vermont v. Glenn R. Lynds speaks to the Vermont dispute in this passage: "V.R.Cr.P. 15 and in allowing her deposition to be read to the jury. Since the error was not harmless, we reverse and remand for a new trial. Ac*40cordingly, we do not reach two other arguments raised by defendant." The surrounding opinion shows how the court applied that language to the record.
Lawrence Cameron v. Karen Burke
Lawrence Cameron v. Karen Burke, 153 Vt. 565 (1990)
…work schedule, and her desire to further review plaintiff’s deposition. The motion was granted and trial was again specially assigned for December 28, 1987. Defendant filed several motions as the trial date drew near, three of which we discuss below. On December 9, 1987, defend *569 ant moved for a continuance for the third time, stating that she was an attorney in a case set f…
Vermont opinions such as Lawrence Cameron v. Karen Burke are cited where deposition / former testimony is disputed. The court stated: "The motion was granted and trial was again specially assigned for December 28, 1987. Defendant filed several motions as the trial date drew near, three of which we discuss below." That is the language to brief; the rest of the decision supplies the procedural posture.
In re M. W. R. and J. L. R.
In re M. W. R. and J. L. R., 143 Vt. 6 (1983)
…rred in admitting a tape of J. R.’s pretrial statement as a deposition because it was unsworn. We agree and reverse. The facts as they relate to J. R.’s pretrial statement are as follows. On September 23, 1981, the statement was taken. Counsel for the father, the mother, the children and the State, as well as the guardian ad litem, were present. Counsel for the father questione…
On deposition / former testimony, In re M. W. R. and J. L. R. speaks to the Vermont dispute in this passage: "J. R.’s pretrial statement as a deposition because it was unsworn. We agree and reverse. The facts as they relate to J. R.’s pretrial statement are as follows. On September 23, 1981, the statement was taken." The surrounding opinion shows how the court applied that language to the record.
Kenneth BOEHM v. Shawn WILLIS
Kenneth BOEHM v. Shawn WILLIS, 180 Vt. 615 (2006)
…al. He contends that the transcript of defendant’s expert’s deposition testimony should not have been admitted. In addition, he argues that the verdict was contrary to the weight of the evidence and should be set aside. We affirm. ¶2. On January 23, 2003, plaintiff Kenneth Boehm was driving to see his physician, Dr. Ronald Woodworth, who had been treating plaintiff for an old i…
Kenneth BOEHM v. Shawn WILLIS is worth reading on Vermont deposition / former testimony because the court put the point in its own words: "He contends that the transcript of defendant’s expert’s deposition testimony should not have been admitted. In addition, he argues that the verdict was contrary to the weight of the evidence and should be set aside. We affirm. ¶2." Use that passage as the starting point, then read the facts that precede it.
State of Vermont v. Deborah A. Sprague
State of Vermont v. Deborah A. Sprague, 144 Vt. 385 (1984)
…ant. At approximately 3 p.m. on December 29, 1982, Miller’s deposition was taken. At about 5:15 p.m., after the State had completed its questioning but before the defendant’s counsel had finished cross-examining Miller, the deposition was adjourned due to the lateness of the hour. The parties agreed to continue the deposition at a later date so that the defendant’s counsel coul…
Practitioners open State of Vermont v. Deborah A. Sprague when Vermont deposition / former testimony turns on the distinction in this sentence: "At approximately 3 p.m. on December 29, 1982, Miller’s deposition was taken. At about 5:15 p.m., after the State had completed its questioning but before the defendant’s counsel had finished cross-examining Miller, the deposition was adjourned due to the lateness of the hour." Do not lift it out of the facts the court was deciding.
State of Vermont v. Dennis P. Tribble
State of Vermont v. Dennis P. Tribble, 193 Vt. 194 (2012)
…case is whether the trial court’s admission of a videotaped deposition of a key State witness who was out of the country but willing to travel to the trial violated defendant’s constitutional right to confrontation where defendant personally objected to admission of the testimony on the record, but his counsel stipulated to the videotape’s admission. We conclude that defendant’…
Vermont opinions such as State of Vermont v. Dennis P. Tribble are cited where deposition / former testimony is disputed. The court stated: "State witness who was out of the country but willing to travel to the trial violated defendant’s constitutional right to confrontation where defendant personally objected to admission of the testimony on the record, but his counsel stipulated to the videotape’s admission." That is the language to brief; the rest of the decision supplies the procedural posture.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Vt. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Vermont environmental, dairy, and healthcare cases require authenticated agency records, farm logs, and medical charts under Vt. R. Evid. 901–902.
Why authenticity gets its own section in every Vermont trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Vermont trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Vermont authenticity opinions
Israel P. Brown v. Albertus Edson and The Town of Plymouth
Israel P. Brown v. Albertus Edson and The Town of Plymouth, 23 Vt. 435 (1851)
….” This copy is certified by the present register ; and his authentication is verified by the certificate of the clerk of common pleas of that county. Two questions are made in regard to this copy. 1. Whether the original registry js of such a character, that it can be regarded as evidence of the original deed. This will depend upon the inquiry, whether, at; the date of the reg…
Vermont opinions such as Israel P. Brown v. Albertus Edson and The Town of Plymouth are cited where authentication is disputed. The court stated: "This copy is certified by the present register ; and his authentication is verified by the certificate of the clerk of common pleas of that county. Two questions are made in regard to this copy. 1." That is the language to brief; the rest of the decision supplies the procedural posture.
Proprietors of Braintree v. Edward Battles
Proprietors of Braintree v. Edward Battles, 6 Vt. 395 (1834)
…ose. It does not appear that any exception was taken to the authentication of the copy, but the exception is, that no copy was admissible — that the original should have been produced. The admission of the copy was put upon the ground of the loss of the original, and the question seems to resolve itself into this, whether the proof of the loss was sufficient. Proof of the actua…
Practitioners open Proprietors of Braintree v. Edward Battles when Vermont authentication turns on the distinction in this sentence: "It does not appear that any exception was taken to the authentication of the copy, but the exception is, that no copy was admissible — that the original should have been produced." Do not lift it out of the facts the court was deciding.
State of Vermont v. Shawn Kelley
State of Vermont v. Shawn Kelley, 202 Vt. 174 (2016)
…e reasons: (1) the State did not lay a proper foundation to authenticate the identity of the 911 caller; (2) the State failed to establish a foundation for the admission of the 911 recording as an excited utterance; and (3), because the complainant did not remember the 911 recording, defendant could not cross-examine her, which violated the Confrontation Clause of the Sixth Ame…
On authentication, State of Vermont v. Shawn Kelley speaks to the Vermont dispute in this passage: "e reasons: (1) the State did not lay a proper foundation to authenticate the identity of the 911 caller; (2) the State failed to establish a foundation for the admission of the 911 recording as an excited utterance; and (3), because the complainant did not remember the 911 record" The surrounding opinion shows how the court applied that language to the record.
JAMES O. IVES, Exr. v. THE HEIRS ELIZA E. SALISBURY
JAMES O. IVES, Exr. v. THE HEIRS ELIZA E. SALISBURY, 56 Vt. 565 (1884)
…tate, on which such will may operate ; that when a properly authenticated copy of such will and the probate thereof, is produced to the Probate Court in this State, such court shall appoint a time and place for hearing, and give notice thereof ; and if it appears to the court that the instrument ought to be allowed in this State as such will, the copy shall be filed, and record…
Vermont opinions such as JAMES O. IVES, Exr. v. THE HEIRS ELIZA E. SALISBURY are cited where authentication is disputed. The court stated: "tate, on which such will may operate ; that when a properly authenticated copy of such will and the probate thereof, is produced to the Probate Court in this State, such court shall appoint a time and place for hearing, and give notice thereof ; and if it appears to the court tha" That is the language to brief; the rest of the decision supplies the procedural posture.
King Administrator of Ingersoll v. Van Gilder
King Administrator of Ingersoll v. Van Gilder, 1 D. Chip. 59 (1797)
…t act extends, I consider that we are bound to admit copies authenticated in the mode therein prescribed, and to allow the judgments their full effect, yet, they may be admitted on other proof of their authenticity; but, unless the record be authenticated agreeably to that act, the judgment will *61be considered as having the effect of a foreign judgment only. I .... . , have d…
Vermont opinions such as King Administrator of Ingersoll v. Van Gilder are cited where authentication is disputed. The court stated: "t act extends, I consider that we are bound to admit copies authenticated in the mode therein prescribed, and to allow the judgments their full effect, yet, they may be admitted on other proof of their authenticity; but, unless the record be authenticated agreeably to that act, t" That is the language to brief; the rest of the decision supplies the procedural posture.
State of Vermont v. Christina Marie Allcock
State of Vermont v. Christina Marie Allcock, 2020 VT 60 (2020)
…erred in admitting Facebook messages that were not properly authenticated, and that the trial court should not have allowed the State to alter the elements of the impeding charge after the evidence was closed.1 We reverse the conviction of aggravated assault and affirm the convictions of simple assault and impeding a police officer. Defendant’s argument on appeal with respect t…
On authentication, State of Vermont v. Christina Marie Allcock speaks to the Vermont dispute in this passage: "Facebook messages that were not properly authenticated, and that the trial court should not have allowed the State to alter the elements of the impeding charge after the evidence was closed." The surrounding opinion shows how the court applied that language to the record.
Town of Barnet v. Town of Woodbury
Town of Barnet v. Town of Woodbury, 40 Vt. 266 (1867)
…for such service, and his attestation shall be a sufficient authentication of such copies.” It will be seen that this provision is confined to instruments on record. A grand list is a document not a record. We think, considering the numerous papers and documents that .are required by law to be deposited in the town clerk’s office and not to be recorded, that this provision of t…
Practitioners open Town of Barnet v. Town of Woodbury when Vermont authentication turns on the distinction in this sentence: "It will be seen that this provision is confined to instruments on record. A grand list is a document not a record. We think, considering the numerous papers and documents that ." Do not lift it out of the facts the court was deciding.
Cindy L. STAFFORD v. David C. STAFFORD
Cindy L. STAFFORD v. David C. STAFFORD, 161 Vt. 580 (1993)
…ntends that the exhibit known as “My List” was not properly authenticated and should not have been admitted into evidence. V.R.E. 901(a) states that the requirement of authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” “Testimony of a witness with knowledge” can serve as that evidence. V.R.E. 901(b…
Cindy L. STAFFORD v. David C. STAFFORD is worth reading on Vermont authentication because the court put the point in its own words: "My List” was not properly authenticated and should not have been admitted into evidence. V.R.E. 901(a) states that the requirement of authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Use that passage as the starting point, then read the facts that precede it.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Vt. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Vermont appellate evidence opinions before mediation or motions in limine.
Frequently asked questions
What is the primary evidence source in Vermont?
Vermont applies the Vermont Rules of Evidence. Vermont's rules mirror the FRE; Vt. R. Evid. 401–902 govern superior court trials.
How do Vermont courts decide relevance and unfair prejudice?
Under Vt. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Vermont?
Party-opponent statements under Vt. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Vt. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Vermont?
Vt. R. Civ. P. 30 and 32 govern civil depositions and trial use. Vt. R. Crim. P. 16 addresses criminal discovery; deposition testimony at trial requires Vt. R. Evid. 804(b)(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Vermont authenticity practice starts with Vt. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under Vt. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Vt. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.