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terms had been sufficiently withdrawn, and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