We're from Vermont and we do what we want: a "re"-examination of the criminal jurisprudence of the Vermont Supreme Court.

• Author: Sabourin, Nathan

The State of Vermont has long been an enigma to some outsiders. Many view the state--known mostly for its maple syrup, Ben & Jerry's ice cream, and a screaming former governor--as a bastion of liberal thinking and progressive politics. (1) However, for being the second-least populated state in the Union, Vermont has a great diversity of cultures and political views within its Green Mountains. From the French-speaking inhabitants of the Northeast Kingdom, to the nouveaux riches of South Burlington, from the quarry workers of Rutland County, to the commuters along the I-91 Corridor, and on to the so-called 'ski-bums' of its many mountain peaks and the throwback 'hippies' populating Burlington, the citizens of Vermont continue to live by a simple credo perhaps best stated by one of its most famous citizens, Robert Frost. (2)

This independence, this choice of the road less traveled, seen in nearly all Vermonters, is also evident in the decision-making and jurisprudence of its Supreme Court. Many outsiders perhaps know the Vermont Supreme Court best for its controversial decision regarding the State's prohibition of same-sex marriage in Baker v. Vermont. (3) For the most part, however, the comings and goings of the Vermont Supreme Court go largely unnoticed by members of the legal community without the State, which one might imagine is just what Vermonters prefer.

This Study is not aimed at enlightening members of the bar outside the State, but rather is aimed at enlightening the members within as to the court's current criminal jurisprudence. (4) In addition, an ancillary aim of this Study is to educate practitioners on the court's liberal judicial philosophy as it relates to state constitutional adjudication. The Study is sub-titled a "re"-examination of criminal jurisprudence because this is not the first, nor will it be the last attempt to examine and evaluate the Vermont Supreme Court's criminal jurisprudence.

In 1997, Jason J. Legg investigated the "decisionmaking [sic] profile of the Vermont Supreme Court in state constitutional criminal cases." (5) This Study is a re-examination and re-evaluation of that work, with consideration of the decisions rendered by the Vermont high court over the last half decade. Since 1997, the Vermont high court and our Nation have undergone a variety of changes, and this Study will re-examine some of Legg's conclusions regarding the direction of the court. In addition, the Study will evaluate and reveal the current direction and attitude of the Vermont Supreme Court relative to criminal jurisprudence.

Despite these changes, this Study will demonstrate that things have not changed when it comes to the Vermont Supreme Court's decision-making trends. The court continues to follow the "Due Process Model" (6) of criminal adjudication when evaluating possible Miranda violations, confessions, interrogations, and searches and seizures. (7) In addition, the court continues to adhere to the "Crime Control Model" (8) of criminal adjudication once a citizen has been arrested and brought to trial and ultimately convicted. (9)

Similar to Legg's prior work, the First Section of this Study will provide a primer on state constitutional adjudication and the approaches taken by state courts and practitioners who wish to take, or advocate for, the road less traveled. The Second Section will examine the methodology used in the Study. Sections Three through Six will focus on the four divisions of the criminal process discussed in Section Two--(1) Miranda, Self-Incrimination, and Confessions; (2) Search and Seizure; (3) Post-Investigation, Bail, and Trial; and (4) Post-Trial and Sentencing. The Study's conclusion will focus on the voting trends of the current Vermont justices as well as the direction of the court as a whole.

1. STATE CONSTITUTIONAL ADJUDICATION

   Many commentators, scholars, and practitioners alike have waxed poetic about the concepts of judicial federalism and state constitutional adjudication. (10) This Study will not attempt to add to what is already a well-versed and well-stocked scholarly discussion. Rather, as I noted in my Introduction, this Study will attempt to educate the practitioner about the current trends of the Vermont Supreme Court regarding criminal jurisprudence.

   In developing effective constitutional arguments, it is critical for any lawyer to have at least a minimal understanding of state constitutional methodology. Most lawyers leave law school with Supreme Court tunnel vision "because most law school courses on constitutional law are dominated by U.S. Supreme Court decisions and lack specific attention to state constitutions." (11) Even a cursory search of the curriculum of some of America's top law schools reveals an almost total lack of any courses regarding state constitutional adjudication. (12) This, however, should not excuse today's practitioners and today's judges from being aware that their respective states do actually have a constitution that is separate and distinct from the United States Constitution. (13)

   Over the past century, as more and more commentators and courts have begun to realize the value of state constitutional adjudication, four distinct methodologies or approaches to decision making have developed: (1) lockstep; (14) (2) dual reliance; (15) (3) primacy; (16) and (4) supplemental or interstitial. (17)

   Under the lockstep approach, the state court acts only as an intermediate federal court and applies the dictates of the United States Supreme Court. (18) "[T]he state court never actually considers its own constitution.... [and] merely declares that its state constitution grants the same protections and liberties as those granted under the federal constitution." (19)

   Under the dual reliance approach, (20) state courts discuss or rely upon both federal and state law in forming their decisions. (21) Although this method gives the practitioner the opportunity to see how the court weaves the two constitutions together, unless the court bases its ultimate decision on independent and adequate state grounds, it will leave itself open to review by the United States Supreme Court on the federal analysis. (22)

   Under the primacy approach, the state court looks first to its own state constitution and federal law takes a secondary position. (23) By asserting its autonomy, a state court may never address federal law if it feels that its own constitution provides a particular right or protection. (24)

   Lastly, under the supplemental or interstitial approach, the state court looks first to the federal constitution to see if it protects the right. (25) Only after determining that the federal constitution is not dispositive will the state court then examine the right under its state constitution. (26) The Supreme Court, therefore, sets the minimum level for constitutional rights, and "the state court of last resort determines whether supplemental protection is afforded as a matter of state law." (27) State courts will find greater protections under its constitution when it appears that there are "textual differences, legislative history supporting a broader reading of the state provision, state law predating United States Supreme Court decisions, differences between federal and state judicial structures, subject matter of particular state or local interest, state traditions, [or] public attitudes in the state." (28)

2. METHODOLOGY

   Based primarily upon Legg's prior methodology, this Study examines Vermont Supreme Court decisions dealing with state constitutional criminal justice claims. Some cases examine party claims under both the Vermont State Constitution and the United States Constitution. The scope of this Study is cases examined by the Vermont high court from January of 2002 until December of 2007, a six-year span. In total, the Study examines seventy-nine cases, including those in which the court decisions came via an Entry Order.

   For the sake of organization, and to allow for comparison to Legg's study, this Study categorizes the large number of cases into four distinct divisions: (1) Miranda, Self-Incrimination, and Confessions; (2) Search and Seizure; (3) Post-Investigation, Bail, and Trial; and (4) Post-Trial and Sentencing. (29) The organization was largely accomplished by analyzing the primary focus of the majority opinion and/or the dissenting opinion; however, some cases analyzed two or more issues that required that the Study consider these cases in two distinct divisions. (30) Obviously, given the volume of cases in the Study, each case is not and cannot be fully examined. The cases analyzed within this Study were chosen because of their novelty, their departure from historical federal precedent, and/or disagreement amongst the Vermont justices as to their proper holdings.

   Given the historical trend of independent thinking of both the Vermont Supreme Court and the state itself, this Study will abstain from using the politically-charged terms, used by Legg in his study, of "conservative" and "liberal" when analyzing court decisions and voting records. Instead, this Study will use the more apropos terms of "pro-prosecution" or "pro-defendant" when describing and analyzing individual voting styles and judicial philosophies. (31)

   Although this Study will not examine the concept of legal realism per se, it is something that all must consider when conducting a study of high court voting patterns. (32) No matter how a judge frames the reasoning for his or her decision--whether it be based on objective factors, the facts of the case, analogies to other case law, legislative history, historical precedent, or legal scholarship (33)--ultimately, it is the "judge's background, education, religion, beliefs, values, and philosophies [that] demonstrate [how] the judge will vote." (34) As Benjamin N. Cardozo stated in The Nature of the Judicial Process:

   Any judge, one might suppose, would find it easy to describe the process which he had...