Vt. Sup. Ct. Promulgation Order of Feb. 10, 2026: VRPACR6(b)(18)(19)

STATE OF VERMONT

VERMONT SUPREME COURT

FEBRUARY TERM, 2026

Promulgation Order Amending Rule 6(b) of the Vermont Rules for Public Access to Court

Records

Pursuant to the Vermont Constitution, Chapter II, § 37, and 12 V.S.A. § 1, it is hereby ordered:

1. That Rule 6(b) of the Vermont Rules for Public Access to Court Records be amended as

follows (new matter underlined):

RULE 6. CASE RECORDS

(a) Policy. The public has access to all judicial-branch case records, in accordance with the

provisions of this rule, except as provided in subdivision (b).

(b) Exceptions. The public does not have access to the following judicial-branch case records.

******

(18) Any document filed with respect to an inquest proceeding, including: an application for

an inquest, an affidavit providing the grounds for the inquest, any request for a subpoena in

connection with the inquest, any document supporting the request for a subpoena, the court’s

decision on the request for the inquest, any court order issued with respect to the application and

any subpoena request, and any response from the person or entity on which the subpoena is served.

(19) Records of the issuance of a nontestimonial identification order under V.R.Cr.P. 41.1,

including but not limited to the application, supporting affidavit(s), any testimony, and inventory,

until the filing of the return on the order, unless sealed by order of court; and records of the denial

of a nontestimonial identification order, unless opened by order of the court.

Reporter’s Notes—2026 Amendment

Rule 6(b)(18) is added to clarify that documents filed in

connection with inquest proceedings are not publicly accessible. An

inquest is essentially a discovery procedure used “to determine

whether sufficient evidence exists to prosecute a criminal matter.”

In re D.L., 164 Vt. 223, 225-26, 669 A.2d 1172, 1174-75 (1995).

Inquests are governed by 13 V.S.A. §§ 5131-5136. The state’s

attorney or the attorney general institutes an inquest by applying in

writing to a judge of the superior court. 13 V.S.A. § 5131. “If the

judge decides to conduct an inquest, the judge may issue ‘necessary

process’ to require witnesses to give evidence related to the

investigation.” In re D.L., 164 Vt. at 225, 669 A.2d at 1174 (quoting

13 V.S.A. § 5132).

Traditionally, an inquest was an in-person proceeding at which the

prosecutor would examine witnesses, and a stenographer would

record the examination. Id. at 226. Section 5134 of Title 13 makes

an inquest hearing, and the transcript thereof, secret.

Inquests of this type are now rare, however. “Instead the ‘inquest’

has become primarily a method of obtaining documentary or

physical evidence from a witness who will provide the document or

physical evidence on receipt of a subpoena for it thereby obviating

any need for a hearing of any kind. . . . In the modern ‘inquest’ there

is no evidentiary hearing with witnesses testifying to facts relevant to

the commission of the crime. If there is an evidentiary hearing, it

involves only the validity of the subpoena.” In re VSP-TK / 1-16-18

Shooting, 2019 VT 47, ¶¶ 43-44, 210 Vt. 435, 217 A.3d 560

(Dooley, J., concurring).

There is no statute or rule addressing the modern use of the inquest

subpoena, or the public-access status of documents filed with the

court in that process. There is also no statute or rule addressing the

public-access status of documents filed in a traditional inquest

proceeding, other than the transcript of the evidentiary hearing.

New Rule 6(b)(18) clarifies that all documents filed in connection

with an inquest proceeding, whether it is a traditional in-person

proceeding or the modern inquest subpoena process, are exempt

from public access. This conforms with existing practice in the

superior court. The court retains discretion to grant access to all or

part of such records under Rule 9(c)-(d), unless otherwise prohibited

by statute.

Similarly, Rule 6(b)(19) is added to clarify that records of requests

for nontestimonial identification orders (NTOs) are not publicly

accessible. Vermont Rule of Criminal Procedure 41.1 provides the

authority for NTOs. It requires that an NTO be issued by a judicial

officer based on a sworn affidavit establishing that there is probable

cause to believe an offense has been committed, reasonable grounds

to believe the subject of the NTO committed the offense, and the

results of the NTO will be of material aid in determining whether the

suspect committed the offense. V.R.Cr.P. 41.1(c). The order may be

issued prior to the arrest of a suspect, after arrest and prior to trial, or

during trial if warranted by special circumstances. Id. 41.1(b). The

order may require the suspect to appear at a specified time and place

for identification by, among other things, fingerprints, blood

specimens, urine specimens, saliva samples, hair samples,

handwriting examples, or voice samples. See V.R.Cr.P. 41.1(d),

(m)(3). Criminal Rule 41.1 “is intended to provide a procedure

equivalent to a search warrant for obtaining nontestimonial

identification evidence.” Reporter’s Notes, V.R.Cr.P. 41.1. Rule 41.1

does not state whether records of pre-charge NTO proceedings are

confidential, and the Vermont Supreme Court has not addressed the

issue.

New Rule 6(b)(19) clarifies that such records are exempt from

public access, consistent with current superior court practice and the

exemption for search warrants. See V.R.P.A.C.R. 6(b)(2). The court

retains discretion to grant access to all or part of such records under

Rule 9(c)-(d), unless otherwise prohibited by statute.

3. That these amendments be prescribed and promulgated, effective on July 1, 2026. The

Reporter’s Notes are advisory.

4. That the Chief Justice is authorized to report these amendments to the General Assembly in

accordance with the provisions of 12 V.S.A. § 1, as amended.

Dated in Chambers at Montpelier, Vermont, this 10th day of February, 2026.

____________________________________

Paul L. Reiber, Chief Justice

____________________________________

Harold E. Eaton, Jr., Associate Justice

____________________________________

Nancy J. Waples, Associate Justice

Signed by the Vermont Supreme Court _______________________________________

Christina E. Nolan, Associate Justice

____________________________________

Michael P. Drescher, Associate Justice