by Sam Rutherford

The Supreme Court of Vermont abrogated the common-law year-and-a-day rule, under which the victim must die within one year and a day of the defendant’s criminal conduct to support a murder charge, thus reinstating a murder prosecution initiated against the defendant nearly two decades after his criminal conduct that caused the victim’s death in this case. This decision makes Vermont one of the last states in the nation to abrogate the rule.

Background

In 2001, Jason Roberts was charged with aggravated domestic assault after shaking his five-week-old daughter, causing her severe neurological injuries. He pleaded nolo contendere to the charge and served 10 years of a 15-year maximum sentence. His daughter was placed in foster care, later adopted, and died in 2016—at age 15—from complications resulting from the injuries she received as an infant. In 2022, the State charged Roberts with second-degree murder relating to his daughter’s death. 

Roberts moved to dismiss the charge, claiming that the prosecution was barred by the common-law year-and-a-day rule, the Double Jeopardy Clause, and his plea agreement. The trial court dismissed the murder charge based on the year-and-a-day rule. The State timely appealed to the Vermont Supreme Court.

Analysis

Vermont adopted the common law of England by statute after it gained independence in the 1770s. See 1 V.S.A. § 271. The common law embraces the “unwritten law of England, as amended or altered by acts of Parliament,” that existed at the time of Vermont’s founding. E.B. & A.C. Whiting Co. v. City of Burlington, 175 A. 35 (Vt. 1934). Thus, a law that was “part of the common law of England” is “part of our law” under § 271. State v. O’Brien, 170 A. 98 (Vt. 1934).

The year-and-a-day rule formed a part of the common law of England, both by custom and by statute, since at least 1287 with the passage of the Statute of Gloucester. See State v. Vance, 403 S.E.2d 495 (N.C. 1991); State v. Picotte, 661 N.W.2d 381 (Wis. 2003). Under this rule, a death was not considered the crime of murder unless the victim died within a year-and-a-day of the defendant’s criminal conduct. See 3 E. Coke, Institutes of the Laws of England 52 (1627); 1 M. Hale, The History of the Pleas of the Crown 428 (S. Emlyn et al., eds., Little-Britain, 1800) (1682) [hereinafter “Pleas of the Crown”]; 4 W. Blackstone, Commentaries *197.

The State argued that this rule should not bar prosecuting Roberts for murder for three reasons: (1) the Vermont Legislature abrogated the rule when it codified the crime of murder without specifying a limitation period for initiating prosecutions, (2) the Court should abrogate the rule if it still exists, and (3) such abrogation should apply retroactively to Roberts. The Court addressed each contention in turn.

Common-law rules may be eliminated by legislative enactments explicitly if done so by “clear and unambiguous language” or implicitly by language that is “clearly inconsistent” with the common law. Langle v. Kurkul, 510 A.2d 1301 (Vt. 1986). Here, neither the adoption of the murder statute, 13 V.S.A. § 2301, nor the adoption of the limitations statute, 13 V.S.A. § 4501, served to repeal the year-and-a-day rule because neither statute clearly indicates that the Legislature intended to eliminate it, according to the Court. In fact, § 2301 leave the substantive definition of murder to the common law, which included the year-and-a-day rule, while § 4501 is a procedural rule that imposes limitation periods for initiating prosecutions; whereas, the year-and-a-day rule substantively defines the crime of murder. Thus, the Court determined that the rule has not been statutorily abrogated by the Legislature.

This fact, however, did not mean that the Vermont Supreme Court could not eliminate the year-and-a-day rule because it has long recognized its own “authority to make changes in the common law, should we deem it appropriate to do so.” Hay v. Med. Ctr. Hosp. of Vt., 496 A.2d 939 (Vt. 1985). The Court determined that it should eliminate the year-and-a-day rule because the reasons for it “are outmoded and no longer relevant in Vermont.”

The reasons for the year-and-a-day rule are: (1) it aids in the fairness and accuracy of prosecutions for murder because medical science cannot accurately determine the cause of death when the time between injury and death is lengthy, (2) it prevents jurors from relying on their own knowledge and speculating as to extenuated causes of death, and (3) it protects criminal defendants from the threat of capital punishment in homicide cases. Picotte.

The first justification is clearly no longer applicable because “advances in medical science have so wholly undermined” its rationale and can now determine with great accuracy the cause of someone’s death no matter how much time has elapsed. The rule is also not necessary to ensure the proper role of the jury in homicide cases because modern prosecutions are based on expert testimony subject to strict evidentiary rules that did not exists when the year-and-a-day rule was created. And finally, saving defendants from capital punishment in speculative cases is no longer an issue because Vermont does not have the death penalty, and the Vermont Supreme Court has not reviewed and upheld a death sentence since 1954.

Moreover, the Court stated that the rule “fails as a matter of public policy.” As many courts have recognized, “the rule’s efficacy in promoting judicial fairness is arbitrary at best; the rule fails to explain why the prosecution ought to be barred from bringing a murder prosecution and attempting to prove causation where a year and a day has passed between the defendant’s act and the victim’s death.” People v. Stevenson, 331 N.W.2d 143 (Mich. 1982); People v. Brengard, 191 N.E. 850 (N.Y. 1934). Continued validity of the rule could have “adverse consequences given the ability for modern medical science to prolong the life of a victim” and thus “permit a murderer to evade punishment simply because modern medicine kept his victim alive for more than a year,” the Court reasoned.

In light of these considerations, the Court aligned itself with the “vast majority” of jurisdictions and the “overwhelming trend” of authority by abrogating the year-and-a-day rule. But the next issue was whether this abrogation should apply retroactively to Roberts to permit his prosecution for murder. The Vermont Supreme Court follows the “common-law approach to retroactivity, under which changes in the law are applied to the parties in both the case at hand and pending cases.” State v. Shattuck, 450 A.2d 1122 (Vt. 1982).

Since Shattuck, the Supreme Court has “frequently applied” its decisions abrogating common-law rules in criminal cases retroactively. See State v. Peters, 450 A.2d 332 (Vt. 1982) (retroactively applying abrogation of common-law rule allowing defendant to resist unlawful arrest with violence and then affirming defendant’s conviction for assaulting a police officer); State v. Congress, 114 A.3d 1128 (Vt. 2014) (retroactively applying abrogation of common-law rule permitting defendant to reduce murder to manslaughter based on diminished capacity and then affirming defendant’s murder conviction). The Court saw no reason to depart from this authority and therefore applied its abrogation of the year-and-a-day rule retroactively to Roberts.

The Court also determined that retroactive application does not violate the U.S. Constitution. In Rogers v. Tennessee, 532 U.S. 451 (2001), the U.S. Supreme Court held that the Ex Post Facto Clause does not apply to the retroactive application of judicial decisions eliminating the year-and-a-day rule because, by its plan terms, the Clause only applies to legislative enactments. Retroactive application of judicial decisions may violate the Due Process Clause but only when such retroactivity is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Rogers. In 2001, the Rogers Court held that a Tennessee decision abrogating the year-and-a-day rule was not “unexpected or indefensible” in light of overwhelming authority condemning the rule as an “outdated relic of the common law.” The Court reasoned that the same result must be true in 2024 when even more jurisdictions have abandoned the year-and-a-day rule.

Finally, the Court rejected Roberts’ contention that prosecuting him for murder now violated the Double Jeopardy Clause or the terms of his plea agreement. Double jeopardy is not applicable because the crime of murder and the crime of aggravated assault are not the same in fact or law. This is consistent with overwhelming authority holding that double jeopardy principles do not bar a subsequent prosecution where the victim dies long after the defendant is convicted of assault. See, e.g., Diaz v. United States, 223 U.S. 442 (1912); State v. Dye, 939 N.E.2d 1217 (Ohio 2010); People v. Latham, 631 N.E.2d 83 (N.Y. 1994); State v. Thomas, 294 A.2d 57 (N.J. 1972).

Roberts’ plea agreement in the assault case also did not bar the murder prosecution, according to the Court. Plea agreements are subject to contract law principles and are interpreted as written. State v. George, 279 A.3d 135 (Vt. 2022). Nothing in Roberts’ plea agreement to assault prohibits the State from pursuing a murder prosecution against him now. Although several state courts around the country have previously interpreted similar plea agreements as barring a murder prosecution when the victim dies long after pleading guilty to assault—see, e.g., State v. King, 398 P.3d 336 (Or. 2017)—the Vermont Supreme Court rejected this authority because it read into plea agreements language and conditions that were not expressly stated or considered by the contracting parties, i.e., the State and defendant.

Here, Roberts could have insisted that his guilty plea include a provision that the State forego its right to prosecute him for subsequently discovered crimes connected to his assault, but he did not do so. In fact, this type of condition is relatively common place in criminal cases resolved by way of plea agreement. Instead, Roberts’ plea agreement simply said that the State would not bring additional charges “on file” at the time of his guilty plea in 2001, not that it would forego prosecuting him for additional crimes discovered later. Thus, the Court concluded that nothing in the plain language of the plea agreement bars his murder prosecution now.

Conclusion

Accordingly, the Court reversed the trial court’s order dismissing the murder charge against Roberts and remanded the case for further proceedings. See: State v. Roberts, 323 A.3d 928 (Vt. 2024).  

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