Entry Regarding Motion Page 5 of 11
24-CV-04273 Juliet Stephens v. Shannon Gilmour
asserted.” V.R.E. 801(c). Under Rule 802, hearsay is not admissible except as the rules of evidence
or procedure may permit.
Therefore, the Court begins with the understanding that the document sought to be
admitted is not admissible under the rules of evidence.
Defendant seeks to use the affidavit in two ways through her motion. In the first instance,
she seeks to introduce the statement as an exhibit and in the second instance use it in lieu of M.G.’s
testimony if M.G. is unable to testify. Both propositions are inconsistent with the rules as to trial
testimony and the use of out-of-court statements as exhibits.
A witness can only testify from his or her personal knowledge of the relevant matter. V.R.E.
402, 602. This knowledge is usually established through testimony. V.R.E. 602. Each party is
responsible for securing the attendance of their witnesses to testify at trial. In re Odessa Corp., 2006
VT 35, ¶ 17, 179 Vt. 640. Under Rule 43, “the testimony of witnesses shall be taken orally in open
court, unless otherwise provided.” V.R.C.P. 43(a). Together, these rules place an emphasis on live
testimony, particularly in trials, by witnesses. Nichols v. Brattleboro Retreat, 2009 VT 4, ¶ 6, 185 Vt. 313
(“The preference for live, in-court testimony is well settled in our jurisprudence.”); see also Simpson v.
Rood, 2003 VT 39, ¶ 8, 175 Vt. 546 (mem.) (finding error where trial court allowed telephonic
testimony from witness without agreement by the parties).
Against this general rule, there are limited exceptions. One of these exceptions comes under
Rule 32, which allows either party to use a deposition “for the purpose of contradicting or
impeaching the testimony of deponent as a witness or for any other purpose permitted by the
Vermont Rules of Evidence.” V.R.C.P. 32(a)(1); see also Nichols, 2009 VT 4, at ¶ 6. Another is
found under Vermont Rule of Evidence 613(b), which allows the admission of prior inconsistent
statements by a witness. As well, Rule 801(d) establishes that a prior statement may be used to
demonstrate a witness’s inconsistency or consistency or when it constitutes an admission by a Party-
opponent.
M.G.’s affidavit does not fit any of these exceptions at this time.1 Given this lack of
admissibility, the Court will not permit the affidavit to be admitted or to have M.G. use it in lieu of
testimony. These requests are Denied.
As to Defendant’s request that M.G. be subject to age-appropriate cross-examination,
Defendant does not specify what such a cross-examination would entail. The Court generally grants
parties the leeway to conduct direct and cross-examinations as they choose. In this respect, the