The Green Mountain Boys Still Love Their Freedom: Criminal Jurisprudence of the Vermont Supreme Court

I. Introduction This Comment is a decision making profile of the Vermont Supreme Court in state constitutional criminal cases. This Comment considers constitutional criminal decisions rendered over the past. decade which reveal the attitude of the Vermont Supreme Court relative to the development of its independent body of state constitutional law. The development of any body of law is never without its critics, and the dissents reviewed in this Comment evidence that the recent direction of the Vermont court has not gone unchallenged. In order for the reader to understand the principles and philosophies discussed in this Comment, it is helpful to define the basic tenets of state constitutional adjudication and legal realism. Therefore, the first section of this Comment provides overview of state constitutional adjudication and the different approaches available to a state court seeking to map a new course. Further, the first section also briefly discusses the concept of legal realism and its application to this study. In effort to determine the different, attitudes and proclivities of the justices, a series of tables have been prepared to demonstrate their individual voting trends.(1) The second section of this Comment examines the voting patterns of the Vermont Supreme Court in state constitutional criminal matters. This Comment will demonstrate that the Vermont Supreme Court follows a process model(2) of criminal adjudication when evaluating the actions of state law enforcement officers. In keeping with this approach, the Vermont Supreme Court closely scrutinizes cases involving the state against the presumably innocent citizen, i.e., situations involving confessions, interrogations, and searches and seizures.(3) However, once the citizen has been arrested and shuffled into the courtroom, the Vermont court shifts from a due process approach to a crime control orientation approach.(4) Finally the Vermont high court's concern for its citizens' rights is reduced significantly once a valid conviction has been obtained.(5) II. The Basic Principles A. State Constitutional Adjudication During the past several decades, many critics have claimed, correctly or incorrectly, that the United States Supreme Court has been following a policy of retrenchment as a reaction to the Warren Court's liberal expansion of individual freedoms.(6) These criticisms have not come only from academics; indeed, members of the Supreme Court themselves have voiced their disapproval of the Court's retrenchment.(7) In one dissent, Justice Brennan encouraged the states to use their inherent power to impose more stringent standards than the Supreme Court.(8) Even when Brennan was not wearing a judicial robe, he encouraged the growth of state constitutional protections, which he viewed as an important and highly significant development for our constitutional jurisprudence and for our concept of federalism.(9) It is axiomatic that a state court is free to grant greater protections and liberties under its constitution than those provided by the federal constitution. However, state courts must assure that the minimum (often referred to as the floor protections and liberties guaranteed under the federal constitution are upheld in the state courts.(10) As one commentator eloquently stated: [T]hose who drafted [the federal constitution] understood that enduring and viable ... system rested ... on the pillars of the state constitutions.... Maintaining the state constitutions in good repair, and understanding their postulates, are important in carrying forward a system of government that has served us well for two centuries and gives hope and promise for the next century and beyond.(11) Indeed, there was a time in this nation's history when the state courts were the only available means to guarantee protection of individual liberties from violations by state officials and actors. …