Constitutional Roots of Venue

Constitutional Roots of Venue

The command that the government prosecute in a district where the offense was committed can look like housekeeping, a rule about which courthouse receives which file. It has a political origin, and that origin explains its shape. In United States v. Cabrales the Court recalled that proper venue in criminal proceedings was a matter of concern to the founders, whose complaints against the King of Great Britain, listed in the Declaration of Independence, included his transportation of colonists “beyond Seas to be tried.”¹ The grievance has a practical logic. An accused carried across an ocean to answer a charge is cut off from the witnesses who could speak for him, from the records and neighbors who could test the accusation, and from any lawyer who knows the community. Because the Crown chose the place, the choice itself could decide the case. The Article III provision was added in direct response to that colonial practice of forcing the accused to stand trial in England or some other location far from where the crime was committed.²

Two constitutional texts carry the answer to that grievance. Article III, § 2, cl. 3 provides that the trial of all crimes, except in cases of impeachment, shall be by jury, and that the trial “shall be held in the State where the said Crimes shall have been committed.”³ The Sixth Amendment then guarantees the accused an impartial jury “of the State and district wherein the crime shall have been committed.”⁴ Together they mean the Constitution twice safeguards the defendant’s venue right, as Cabrales put it.⁵

The second text exists because the first was thought too coarse. A State is a large area, and during the ratification debates critics objected that Article III did not adequately assure trial by a jury of the vicinage, since the State as a whole was too large an area from which to draw jurors.⁶ The Sixth Amendment’s reference to the district answered that objection, and the task of drawing districts, which were plainly meant to be smaller than a State, was left to Congress.⁷ The amendment also requires that the district have been “previously ascertained by law.”⁸ That phrase has a visible function. Because the lines are fixed by statute before any charge is brought, a prosecutor cannot draw a district around a preferred jury pool after deciding whom to charge.

The grievance also shows what the placement protects, and the protection has two parts that rest on different reasons. The first is practical: a trial far from home and from the facilities for defense imposes needless hardship on the accused. The second is an incentive problem. A prosecutor has an obvious reason to prefer a forum that favors the government, so a venue rule that leaves the government room to choose invites abuse, or at least the appearance of it. Jones v. Gasch drew on an earlier Supreme Court decision to name both dangers of such leeway: needless hardship for an accused prosecuted remote from home and from appropriate facilities for defense, and the appearance, if not the fact, of abuses in selecting a tribunal favorable to the prosecution.⁹ Tying trial to the place of the crime removes the second danger at its source, because the place is fixed by what the accused did and not by what the prosecutor would like. Jones v. Gasch itself supplies the clean illustration. Venue in a perjury case lies only where the perjurious statement is supposed to have been made, so the government in that case had no choice of forum and no opportunity to shop for one.¹⁰

The opposite pole appears when a prosecution is brought in a place with no link to the defendant’s conduct. In United States v. Auernheimer a grand jury sitting in Newark, New Jersey, charged a defendant who was hauled over a thousand miles from Fayetteville, Arkansas, even though the district court acknowledged that neither he nor his co-conspirator was ever in New Jersey while allegedly committing the crime and that the servers accessed were not there.¹¹ The Third Circuit reversed the venue determination and vacated the conviction. It reasoned that a defendant tried in a distant, remote, or unfriendly forum at the prosecutor’s whim has had substantial rights compromised, and that he would have had no complaint only if he or a co-conspirator had committed an act in furtherance of the conspiracy in New Jersey, or had performed an essential conduct element of the charged offenses there.¹²

The guarantee has a limit that exam stems probe. It attaches trial to the place of the crime, which means distance from the defendant’s home is not itself a violation. The Constitution does not entitle an accused to be tried in the place of residence or domicile; it requires only that trial be conducted in a district where the crime was committed.¹³ The Supreme Court corrected a court of appeals on this point in Platt v. Minnesota Mining & Manufacturing Co., rejecting the view that criminal defendants have a constitutionally based right to trial in their home districts.¹⁴ In Smith v. United States the Court likewise said that the venue clause guarantees the State where the crime was committed, which may be far from the defendant’s residence, and does not promise the most convenient trial venue, presumably where the defendant lives.¹⁵ The reason follows from how the place is identified. The place of the crime is determined by the acts of the accused, so the defendant’s own conduct selects the forum, and the policy fixes the situs of trial in the vicinage of the crime rather than at the residence of the accused.¹⁶ A home-forum rule would also pull the trial away from the witnesses and circumstances that the second purpose of venue aims to reach.

Rule 18 carries these commands into federal practice. Courts describe the constitutional provisions as implemented by the rule, and Cabrales observed that the rule echoes them.¹⁷ Its first sentence directs that, unless a statute or the rules permit otherwise, the government prosecute an offense in a district where the offense was committed.¹⁸ Because the rule rests on constitutional text, courts decline to treat venue as a technicality, and they read venue statutes with the underlying policy in view.¹⁹ In United States v. Cores the Court explained that the provision for trial in the vicinity of the crime safeguards against the unfairness and hardship of prosecution in a remote place, and that a venue statute should receive, so far as its language permits, the construction that respects those considerations.²⁰ The next section applies that framework to the practical question of how a court identifies the district where an offense was committed.