per se rule in Vermont

2017Thus, in State v. Whitney , 156 Vt. 301 , 302, 591 A.2d 388 , 389 (1991), we recognized that "[w]hile it is the better practice for the court, when considering whether to accept a guilty plea, to explain to the defendant the elements of the offense and the factual allegations[,] ... this is not a per se rule." Quoting McCarthy , 394 U.S. at 467 n.20, 89 S.Ct. 1166 , we explained that the Rule 11 inquiry " 'must necessarily vary from case to case,' " and that the U.S. Supreme Court did " 'not establish any general guidelines other than those expressed in the Rule itself.' " Whitney , 156 Vt. at

2017Thus, in State v. Whitney , 156 Vt. 301 , 302, 591 A.2d 388 , 389 (1991), we recognized that "[w]hile it is the better practice for the court, when considering whether to accept a guilty plea, to explain to the defendant the elements of the offense and the factual allegations[,] ... this is not a per se rule." Quoting McCarthy , 394 U.S. at 467 n.20, 89 S.Ct. 1166 , we explained that the Rule 11 inquiry " 'must necessarily vary from case to case,' " and that the U.S. Supreme Court did " 'not establish any general guidelines other than those expressed in the Rule itself.' " Whitney , 156 Vt. at

2016In assessing the effect of a promise under the totality of the circumstances, relevant factors include “the nature of the promise, the context in which the promise was made, the characteristics of the individual defendant, whether the defendant was informed of his rights, and whether counsel was present.” Pillar, 820 A.2d at 13-14 (quotation and additional citations omitted). ¶ 17.

2016In assessing the effect of a promise under the totality of the circumstances, relevant factors include “the nature of the promise, the context in which the promise was made, the characteristics of the individual defendant, whether the defendant was informed of his rights, and whether counsel was present.” Pillar, 820 A.2d at 13-14 (quotation and additional citations omitted). ¶ 17.

2007There, we rejected the claim that DUI roadblocks “constitute a per se violation of the Fourth Amendment,” id. at 565 , 496 A.2d at 445 , adopting instead a balancing test “directly related to the characteristics of the DUI roadblock in each case.” Id. at 570, 496 A.2d at 448 (emphasis added).

2007There, we rejected the claim that DUI roadblocks “constitute a per se violation of the Fourth Amendment,” id. at 565 , 496 A.2d at 445 , adopting instead a balancing test “directly related to the characteristics of the DUI roadblock in each case.” Id. at 570, 496 A.2d at 448 (emphasis added).

1990On appeal, the Court relied on “the per se rule,” id. at 371 , 518 A.2d at 21 , announced in Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), where the United States Supreme Court held as follows: [Although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of t

1986The judgment must be reversed because his conviction was based upon inculpatory statements obtained in violation of the per se rule announced in Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). *372 I.

1981Hohman held that although “some courts have chosen to make prosecutorial bias per se reversible error as a matter of public policy, we are inclined to join those courts that have required some prejudice.” Id. at 506 , 420 A.2d at 855 (citation omitted).

1981Hohman held that although “some courts have chosen to make prosecutorial bias per se reversible error as a matter of public policy, we are inclined to join those courts that have required some prejudice.” Id. at 506 , 420 A.2d at 855 (citation omitted).

2002In Harris v. Harris, 149 Vt. 410, 418 , 546 A.2d 208, 214 (1988), we established that the primary care giver factor "should be entitled to great weight unless the primary custodian is unfit." Although we declined to create a per se rule in favor of the primary care giver, the result in Harris requires "the court to look carefully at the desirability and impact of changing the primary custodian." Id.

2002In Harris v. Harris, 149 Vt. 410, 418 , 546 A.2d 208, 214 (1988), we established that the primary care giver factor "should be entitled to great weight unless the primary custodian is unfit." Although we declined to create a per se rule in favor of the primary care giver, the result in Harris requires "the court to look carefully at the desirability and impact of changing the primary custodian." Id.

2008In State v. Franklin, 136 Vt. 568, 570-71 , 396 A.2d 138, 139 (1978), this Court held that “[t]he passage of over eighteen months from citation to trial, not brought about by the defendant, is so long as to constitute prejudice as a matter of law and a violation of the defendant’s constitutional rights.” We later overruled Franklin to the extent that it established the “use of a per se test” for finding prejudice.

2008In State v. Franklin, 136 Vt. 568, 570-71 , 396 A.2d 138, 139 (1978), this Court held that “[t]he passage of over eighteen months from citation to trial, not brought about by the defendant, is so long as to constitute prejudice as a matter of law and a violation of the defendant’s constitutional rights.” We later overruled Franklin to the extent that it established the “use of a per se test” for finding prejudice.

2025E.g., First Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶¶ 15-16 (finding inconclusive fencing originally for animals and sporadically maintained thereafter); MacDonough-Webster Lodge No. 26, 2003 VT 70, ¶ 28 (“Marking a claim to land with a fence is an indication of an intent to possess which, if combined with other acts of possession, can establish the presumption that land is held adversely up to the fence.”); Thurston v. Batchellor, 100 Vt. 334, ¶¶ 9-10 (outlining that “fence must have been erected and maintained for the purpose of inclosing the land as the property of the pers

2025E.g., First Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶¶ 15-16 (finding inconclusive fencing originally for animals and sporadically maintained thereafter); MacDonough-Webster Lodge No. 26, 2003 VT 70, ¶ 28 (“Marking a claim to land with a fence is an indication of an intent to possess which, if combined with other acts of possession, can establish the presumption that land is held adversely up to the fence.”); Thurston v. Batchellor, 100 Vt. 334, ¶¶ 9-10 (outlining that “fence must have been erected and maintained for the purpose of inclosing the land as the property of the pers

2025E.g., First Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶¶ 15-16 (finding inconclusive fencing originally for animals and sporadically maintained thereafter); MacDonough-Webster Lodge No. 26, 2003 VT 70, ¶ 28 (“Marking a claim to land with a fence is an indication of an intent to possess which, if combined with other acts of possession, can establish the presumption that land is held adversely up to the fence.”); Thurston v. Batchellor, 100 Vt. 334, ¶¶ 9-10 (outlining that “fence must have been erected and maintained for the purpose of inclosing the land as the property of the pers

2025E.g., First Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶¶ 15-16 (finding inconclusive fencing originally for animals and sporadically maintained thereafter); MacDonough-Webster Lodge No. 26, 2003 VT 70, ¶ 28 (“Marking a claim to land with a fence is an indication of an intent to possess which, if combined with other acts of possession, can establish the presumption that land is held adversely up to the fence.”); Thurston v. Batchellor, 100 Vt. 334, ¶¶ 9-10 (outlining that “fence must have been erected and maintained for the purpose of inclosing the land as the property of the pers

2025E.g., First Congregational Church of Enosburg v. Manley, 2008 VT 9, ¶¶ 15-16 (finding inconclusive fencing originally for animals and sporadically maintained thereafter); MacDonough-Webster Lodge No. 26, 2003 VT 70, ¶ 28 (“Marking a claim to land with a fence is an indication of an intent to possess which, if combined with other acts of possession, can establish the presumption that land is held adversely up to the fence.”); Thurston v. Batchellor, 100 Vt. 334, ¶¶ 9-10 (outlining that “fence must have been erected and maintained for the purpose of inclosing the land as the property of the pers

2024Fed. 2d 71, at §18 (2013); see also U.S. v. Raposo, 205 F.3d 1326 , at *2 (2d Cir. 2000) (not reported) (“[T]here is a per se rule that rental property constitutes Entry Regarding Motion Page 5 of 6 23-CV-04586 Lea Ann Macrery v. John Foley, III et al property that is used in an activity affecting interstate commerce.”) (quoting United States v. Tocco, 135 F.3d 116 , 124 (2d Cir.), cert. denied, 523 U.S. 1096 (1998)).

2024Fed. 2d 71, at §18 (2013); see also U.S. v. Raposo, 205 F.3d 1326 , at *2 (2d Cir. 2000) (not reported) (“[T]here is a per se rule that rental property constitutes Entry Regarding Motion Page 5 of 6 23-CV-04586 Lea Ann Macrery v. John Foley, III et al property that is used in an activity affecting interstate commerce.”) (quoting United States v. Tocco, 135 F.3d 116 , 124 (2d Cir.), cert. denied, 523 U.S. 1096 (1998)).

2023The burden then shifts to the nonmoving party to persuade the court that there is a triable issue of fact.” Boulton v. CLD Consulting Engineers, 2003 VT 72 45 , 14 Vt.L.W. 238, 239 (2003) (quoting Ross v. Times Mirror, Inc., 164 Vt. 13, 18 (1995)). 00. fp NOV 17 2003 Windsor County Clerk In earlier decisions on summary judgment, Judge Cook rejected a per se rule that closely related corporations should all be treated as employers protected by the exclusivity provisions of the workers’ compensation act.

2018See Commonwealth v. Johnson , 420 Mass. 458 , 650 N.E.2d 1257 , 1264-65 (1995) ; People v. Adams , 53 N.Y.2d 241 , 440 N.Y.S.2d 902 , 423 N.E.2d 379 , 383-84 (1981). 6 We acknowledge that the trial court identified each of the witnesses' certainty as a factor supporting the trial court's reliability determination, and that the logical consequence of our abandonment of that factor as relevant might therefore be to remand for a new determination of the suppression motion without consideration of that factor.

2018See Commonwealth v. Johnson , 420 Mass. 458 , 650 N.E.2d 1257 , 1264-65 (1995) ; People v. Adams , 53 N.Y.2d 241 , 440 N.Y.S.2d 902 , 423 N.E.2d 379 , 383-84 (1981). 6 We acknowledge that the trial court identified each of the witnesses' certainty as a factor supporting the trial court's reliability determination, and that the logical consequence of our abandonment of that factor as relevant might therefore be to remand for a new determination of the suppression motion without consideration of that factor.

2015United States v. Glass, 128 F.3d 1398, 1407 (10th Cir. 1997).

2015United States v. Glass, 128 F.3d 1398, 1407 (10th Cir. 1997).

2015See id.

2015In State v. Rodriquez, 796 A.2d 857, 863-64 (N.J. 2002), the New Jersey Supreme Court decided a case in which the officer asked the same question but, rather than relying upon the per se rule of J.G., concluded that there was a seizure based primarily on other factors, essentially aligning its decision with Pitts. ¶ 35.

2015In State v. Rodriquez, 796 A.2d 857, 863-64 (N.J. 2002), the New Jersey Supreme Court decided a case in which the officer asked the same question but, rather than relying upon the per se rule of J.G., concluded that there was a seizure based primarily on other factors, essentially aligning its decision with Pitts . ¶ 35.

2014See id. at 57-58; Scarpa v. Dubois, 38 F.3d 1, 13 (1st Cir. 1994) (noting that “bad lawyering, regardless of how bad, does not support the per se presumption” (quotation omitted)). ¶ 34.