Could a Vermont deputy state’s attorney prosecute a DWI case after witnessing the stop and being called as a witness?

Plain-English summary

A deputy state's attorney rode with an officer who stopped a driver for DWI. The deputy was then assigned to prosecute the case, and defense counsel intended to call the deputy as a witness.

The committee concluded that a deputy likely to be called as a witness should not prosecute that case. It applied the former advocate-witness rules and discussed the prosecutor's duty to act dispassionately and objectively. The opinion noted possible exceptions for uncontested testimony and substantial hardship.

The committee said other attorneys in the State's Attorney's Office were not necessarily disqualified merely because one deputy might testify. It distinguished a government law office from a private firm for imputation and said the court would ultimately decide a recusal motion.

Currency note

This opinion was issued in 1992 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Could the deputy prosecute and testify in the same DWI case?

A: The opinion said a deputy likely to be called as a witness should not prosecute that case, subject to the rules’ stated exceptions.

Q: Did one deputy’s witness role disqualify the whole office?

A: No. The committee said the other prosecutors were not necessarily disqualified and that the court would decide any recusal motion.

Q: Did the opinion approve prosecutors riding on patrol?

A: It expressly declined to address the propriety of prosecutors riding with police officers on patrol.

Background and rules framework

The opinion discussed former Code DR 5-101(B), DR 5-102(A) and (B), and EC 5-9 on the conflicting roles of advocate and witness. It cited In Re J.S. in discussing a prosecutor’s duties.

Citations and references

Vermont Code of Professional Responsibility:

• DR 5-101(B), DR 5-102(A), DR 5-102(B), EC 5-9

Cases:

• In Re J.S., 140 Vt. 230 (1981), prosecutor duties and office recusal discussion in Justice Hill’s dissent

See also

• Vermont Ethics Op. 93-08: Wrongful-death appeal and testimony
• Vermont Ethics Op. 14-01: Investigator as advocate and witness

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 92-05
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”