Precision in Preservation: Vermont Supreme Court Clarifies Waiver vs. Forfeiture and Reaffirms Limits on Public-Trial, Consequences Instructions, and Interpreter Claims

Precedents and Authorities Cited and How They Shaped the Decision

• Preservation and Review
  • United States v. Olano, 507 U.S. 725 (1993): Anchors the waiver/forfeiture distinction (“forfeiture is the failure to make the timely assertion of a right”).
  • State v. Freeman, 2013 VT 25: Defines waiver as a voluntary and intentional relinquishment of a known right; informs the “invited error” doctrine.
  • State v. Alzaga, 2019 VT 75; State v. Spooner, 2010 VT 75; State v. Caron, 2020 VT 96; State v. Morse, 2019 VT 58: Vermont’s invited-error line—true waiver forecloses any review, including plain error.
  • United States v. Lewis, 125 F.4th 69 (2d Cir. 2025): A true waiver extinguishes the claim and negates even plain-error review.
  • V.R.A.P. 28 (issue statement and preservation) and Vermont cases (Kandzior, Brink, Ben-Mont, Washburn, Rideout) emphasize raising issues with specificity below to allow factual development and a ruling.
• Authority to Refile and Preclusion
  • Office of State’s Attorney v. Office of the Attorney General, 138 Vt. 10 (1979): The AG and State’s Attorney share equal authority to initiate criminal prosecutions; one office’s decline does not bind the other.
  • State v. Forbes, 147 Vt. 612 (1987): Dismissal without prejudice before jeopardy attaches does not preclude further prosecution.
  • Hazen v. Lyndonville Nat’l Bank, 70 Vt. 543 (1898): A dismissal without prejudice is akin to a nonsuit—no adjudication on the merits.
  • Issue preclusion elements: In re Cent. Vt. Pub. Serv. Corp., 172 Vt. 14 (2001); applied with Pollander and Scott: no final merits judgment here—no preclusion.
• Public Trial and Presence
  • Illinois v. Allen, 397 U.S. 337 (1970); V.R.Cr.P. 43; State v. Grace, 2016 VT 113: Presence right attaches at critical stages; presence is not required for purely legal conferences.
  • Presley v. Georgia, 558 U.S. 209 (2010): Public trial right includes voir dire. The Court distinguishes between public voir dire and back-room challenges.
  • Cohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002): No constitutional right to be present at in-chambers juror challenges if the defendant attends voir dire questioning, can consult counsel, and strikes are announced in open court; aligned decisions include Fontenot, Gayles, Bascaro.
  • Morales v. United States, 635 F.3d 39 (2d Cir. 2011); United States v. Lee, 290 F. App’x 977 (9th Cir. 2008); Richmond Newspapers (Brennan, J., concurring): Public-access norms distinguish voir dire from peremptory/for-cause exercise at sidebar/in chambers.
  • State v. Cardinal, 162 Vt. 418 (1994): Exercises at the bench do not violate presence rights when the defendant is in court.
• Insanity Instructions and “Consequences”
  • State v. Smith, 136 Vt. 520 (1978): Disposition after an NGI verdict is a matter for the court and not to be charged to the jury; juries decide facts, not punishment or post-verdict consequences.
  • State v. Percy, 146 Vt. 475 (1986): Affirms curative instruction that consequences are “not [the jury’s] worry” following improper argument; confirms the Smith rule.
  • State v. Delisle, 162 Vt. 293 (1994): A narrow exception to avoid misleading jurors—does not alter Smith for insanity consequences; applies when the jury must be told about the effect of a time-barred lesser-included offense.
  • Shannon v. United States, 512 U.S. 573 (1994): Consequences of a verdict are irrelevant to the jury’s task.
  • Insanity standard: 13 V.S.A. § 4801 (“at the time of such conduct”).
• Graphic Video in Deliberations
  • Reaffirmation of invited-error/waiver: defense urged jurors to rewatch the video and agreed to provide it for unsupervised deliberations; under Freeman, Alzaga, Morse, this extinguishes review.
  • State v. Koveos, 169 Vt. 62 (1999): Related to defendant presence at video playback; likewise waived here.
• Interpreter Rights
  • Federal constitutional baseline: United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970); United States v. Henry, 888 F.3d 589 (2d Cir. 2018): Right to competent interpretation to ensure comprehension and ability to consult counsel effectively.
  • Fundamental fairness standard: Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989); United States v. Tapia, 631 F.2d 1207 (5th Cir. 1980); focus on whether comprehension and participation were adequate.
  • Applied benchmarks: United States v. Da Silva, 725 F.2d 828 (2d Cir. 1983); United States v. Lim, 794 F.2d 469 (9th Cir. 1986) (discretion over interpreter use); Commonwealth v. Lee, 134 N.E.3d 523 (Mass. 2019) (extensive interpreted Q&A as evidence of comprehension).
  • Vermont rule: V.R.Cr.P. 28 requires provision of competent services as necessary to ensure meaningful access.
  • Recording requests: No constitutional requirement to record interpretations (In re Pheth, 502 P.3d 920 (Wash. Ct. App. 2021); People v. Braley, 879 P.2d 410 (Colo. App. 1993); United States v. Hernandez, 1990 WL 125519).
  • Judiciary’s Language Access and Operations Manual: Advises recording interpreted proceedings, but it is policy guidance, not a constitutional or per se legal mandate.

The Court’s Legal Reasoning

1) Preservation: Precise Terminology, Concrete Consequences

The Court foregrounded its opinion by clarifying preservation doctrine, expressly distinguishing:

• Waiver (true waiver/invited error): A voluntary, intentional relinquishment of a known, enforceable right. Once found, it extinguishes the claim and forecloses appellate review, including plain error.
• Forfeiture: A failure to timely assert a right. Forfeited claims may receive plain-error review, but only if the appellant argues plain error.

The Court emphasized it will use these terms accurately going forward and will examine the record for affirmative agreement, deliberate choice, or circumstances suggesting potential sandbagging to determine waiver. This framework then permeated the analysis of each claim—several were found waived by counsel’s express agreement or invited error; others were forfeited by non-objection and not argued as plain error on appeal.

2) Effect of the Prior Dismissed Prosecution

The Attorney General’s re-prosecution was permissible. The State’s Attorney’s dismissal had been explicitly “without prejudice.” Under Vermont law, a dismissal without prejudice (before jeopardy) is not a merits adjudication, functions like a nonsuit, and does not bar re-prosecution. The AG and State’s Attorney share equal prosecutorial authority; one’s decision not to proceed does not bind the other. Collateral estoppel failed because there was no final judgment on the merits; a separate “judicial admissions” theory was unpreserved and not argued as plain error.

3) Public-Trial Right and the Defendant’s Presence

The Court drew a careful line: voir dire must be public, but the exercise of peremptory and for-cause challenges may be conducted outside public earshot (as at sidebar or in chambers) without violating the Sixth Amendment, provided the critical features remain public—the questioning of jurors and the announcement of who is struck and who is seated. Here, the defendant was present for voir dire, could consult with counsel, and the strikes were announced in open court. On separate proceedings (Rule 29 motion and charge conference), defense counsel expressly agreed the defendant need not be present; the Court treated this as invited error (true waiver), precluding appellate review.

4) Jury Instructions: No “Consequences” Instruction; Accurate Supplemental Clarification

Reaffirming longstanding Vermont and federal doctrine, the Court held that juries should not be instructed on the post-verdict consequences of a not-guilty-by-reason-of-insanity verdict. That subject belongs to the court and is irrelevant to the jury’s fact-finding duty. Neither the ABA Standards nor juror post-verdict correspondence altered this analysis. The Court also approved the trial court’s supplemental instruction that framed the insanity inquiry at the “time of the incident,” which was consistent with the statute’s “time of such conduct” language. The instructions, taken as a whole, were neither misleading nor inadequate.

5) Juror Access to Graphic Video During Deliberations: Invited Error

Although the trial court initially limited juror access to the graphic cell-phone video, defense counsel later urged close review and agreed that the jury should receive the video on a thumb drive for unsupervised access in deliberations. Any alleged error was therefore invited—true waiver that extinguishes appellate review—including any claim about the defendant’s presence at playback.

6) Language Interpretation: Fundamental Fairness and No Requirement to Record

The governing constitutional standard asks whether any interpretation deficiencies rendered the trial fundamentally unfair by undermining the defendant’s understanding and ability to participate and consult with counsel. The Court found no abuse of discretion: the trial judge provided two interpreters for simultaneous interpretation, allowed a defense interpreter to monitor and flag issues, promptly addressed a specific concern by striking testimony, convened a hearing to investigate general concerns, reaffirmed processes for contemporaneous objections, and permitted defense counsel to record the interpretation (while declining to make it part of the official court record).

Importantly, the defense did not demonstrate that the defendant’s comprehension or participation was impaired—either during trial or in the post-trial motion seeking an evidentiary hearing. The Court recognized the Judiciary Manual’s recommendation to record interpreted proceedings as a “better practice,” but not a constitutional or per se requirement. Denying an evidentiary hearing was within the trial court’s discretion because the motion did not present a genuine factual dispute about prejudice or fundamental unfairness.

Impact and Practical Implications

• Preservation doctrine sharpened:
  • Appellate advocates must identify whether a claim was waived (extinguished) or merely forfeited (eligible for plain-error review) and must argue plain error if appropriate.
  • Trial counsel should expect courts to scrutinize the record for affirmative consent or strategic silence amounting to waiver; explicit agreements can foreclose any later review.
• Charging decisions and dismissed prosecutions:
  • Dismissal without prejudice is not a merits adjudication and does not trigger issue preclusion.
  • The AG retains equal authority with State’s Attorneys to prosecute, including refiling charges previously dismissed without prejudice by a State’s Attorney.
• Public-trial and presence management:
  • Courts may conduct peremptory/for-cause challenges at sidebar or in chambers so long as voir dire itself remains public and seating/strikes are announced openly.
  • Presence is not required for purely legal conferences; counsel can waive the defendant’s presence—but counsel should build a clear record when making such waivers.
• Insanity “consequences” instructions:
  • Smith and Shannon remain controlling: do not instruct on the post-verdict disposition of an NGI verdict absent a targeted curative need to dispel jury confusion caused during trial.
• Graphic exhibits in deliberations:
  • Early limits can be revisited. If defense strategy involves urging close review in deliberations, consenting to unfettered access may foreclose appellate complaints; counsel should balance strategic benefits against preservation costs.
• Interpreter practices:
  • The legal touchstone is fundamental fairness centered on the defendant’s comprehension and participation, not perfection of translation.
  • Contemporaneous, specific objections are essential. Post-trial challenges must show actual impact on understanding and ability to assist counsel.
  • While the Judiciary Manual recommends recording interpretations, failure to create an official recording is not itself a constitutional violation; however, courts and counsel should anticipate more trial-level requests to implement the Manual’s “better practice.”