Vermont Bar Journal, Vol. 40, No. 2 Fall 2015, Vol 41, No. 3 - Page 14

Ruminations attorney or attorneys and magistrate, and that it was not an orderly, formal eliciting of facts which witnesses were known by counsel to possess, but an investigation to find out what the witnesses knew, in any way or in any part, concerning the cause and manner of the death of the person upon whose body inquest was being held. Chief Judge Jonathan Ross rejected the claim that this was improper. There is a class of facts which need not be proved, because courts take judicial notice of them. Among these are the public laws of the state, the other courts established by law in the state, their judges, extent of jurisdiction, and course of proceeding. Hence, by bringing the testimony of this witness in the court of inquest into the case, the respondents brought with it the statute creating courts of inquest, the extent and purpose of their jurisdiction, and their course of proceedings. These include all the facts which Mr. Plumley called to the attention of the jury as well known to them. An inspection of the testimony of this witness given in the court of inquest reveals, moreover, the informality in the pro14 ceedings in that court, of which Mr. Plumley speaks.41 in a judge’s discretion whether to honor a prosecutor’s request for an inquest. In 1915, however, the high court ruled that the proceedings of a court of inquest were not by right available to the defense or admissible in evidence at trial. The defense might inspect them at the sound discretion of the trial court, reflecting a change in the law adopted in 1912.42 Using the record in a closing argument triggered different reactions from the high court.43 In 1918, defense counsel’s statement that his client had been pounded and pummeled by the State at various inquests, after he clarified that he used the term figuratively, was not reversible error, as the offensive terms had been sufficiently withdrawn, and his client’s acquittal stood.44 In a 1966 decision the court ruled that once the prosecution refers to inquest evidence, defense counsel is entitled to an equivalent opportunity of access to the record.45 Inquests held after a trial has commenced are not prohibited. A prosecutor conducted an inquest during the lunch hour recess in a case, granted the witness immunity, and called the witness to testify in favor of the State. The high court ruled that inquests are investigatory, and there is no rule that an investigation cease during the progress of a trial.46 But while the Court did not see the lunchtime inquest as reversible error, it did say the practice did not meet the Court’s full approval. The following year, the Court clarified its position: The Inquest Today we would emphasize for purposes of retrial that the motion to suppress should be heard by the court, testimony taken as to all relevant circumstances, and appropriate findings and conclusions made. The procedure involved is too fraught with opportunity for abuse to deny a suppression motion as a matter of law.47 In 1975, Arthur E. Ploof, Sr., perjured himself at an inquest. Convicted, he appealed, claiming the inquest was defective due to the presence of an unauthorized person. The Court affirmed the trial court’s decision refusing to suppress the record of the inquest.48 Use of inquest testimony incorporated into an affidavit is, however, not protected.49 Not everything that is ordered to be confidential remains secret. During the contested disciplinary proceedings against Justice William Hill, there were leaks to the press from the inquest.50 A judge’s participation in an inquest is not a violation of the separation of powers provision of the Vermont Constitution,51 because the court’s role is administrative. The judge doesn’t call the inquest, ask questions, or make any decisions as to evidence of crime or to prosecute. It is withTHE VERMONT BAR JOURNAL • FALL 2015 Vermont has never officially created an office of coroner, although some cases use that word to describe a physician who participates in the inquest. The office of state medical examiner was first created in 1961. The chief medical examiner is appointed by the governor, and in turn appoints assistants. Autopsies are ordered on petition of the state’s attorney before a superior judge or the attorney general.52 Inquests “are investigations into criminal matters to determine the existence of probable cause, and thus the statutes are strictly construed. An inquest is at most a discovery procedure.”53 Today it is conducted by a superior judge, when requested by a state’s attorney.54 The judge may subpoena witnesses and hear their testimony, as they are examined by the state’s attorney. The judge is not disqualified from presiding over a trial, if one is held on the facts evinced at the inquest.55 The t