Venue - Cases
Venue is the appropriate place of trial, as between different geographical subdivisions of a state or between different federal districts It is determined by constitutional, statutory, and administrative provisions. Venue should be distinguished from the related concepts of jurisdiction, vicinage, and cross-sectional representation.
Subject matter jurisdiction, which includes territorial jurisdiction, is a court's power to try cases based on a state's sovereign power to make laws for acts that occur in or have an effect in its territory. Lack of venue in one situs can result in the transfer of a prosecution to another county or district, while lack of jurisdiction terminates the prosecution by other courts of the same sovereign. Although venue can be waived or conferred by consent, jurisdiction cannot.
Vicinage is the right to be tried by a jury drawn from the vicinity in which the crime occurred. Although a defendant may claim it, the vicinage requirement protects the right of the offended community to pass judgment in criminal matters. Venue and vicinage are usually the same, but a jury of the vicinage may decide a case in which venue has been moved to another district.
The right to cross-sectional representation is a demographic requirement, which assures a criminal defendant a trial by a jury selected without systematic or intentional exclusion of cognizable economic, social, religious, racial, political, and geographical groups. In recent times, decisions regarding change of venue have raised questions concerning cross-sectional representation, leading some commentators to suggest that changes of venue be made to a district or county with a similar racial composition as the original venue.
The U.S. Constitution guarantees trial by jury and venue ". . . in the State where the said Crimes shall have been committed; but when not committed in any State, the Trial shall be at such Place or Places as the Congress may by Law have directed" (Article III, section 2, clause 3). The Framers' concern for the locality of criminal prosecutions was generated by the threat of the Crown to try American revolutionaries in England or other colonies. This was condemned in the Declaration of Independence, charging the King for "transporting us beyond Seas to be tried for pretended offenses." The Sixth Amendment includes a vicinage right, often treated as a venue provision, that draws vicinage more tightly than Article III venue: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."
The Framers' belief that venue is an important safeguard to liberty has been borne out in political trials. There is strong historical evidence that President Thomas Jefferson sought a venue favorable to the prosecution of Aaron Burr for treason in 1807. An account of a more recent trial of political dissidents suggests that federal prosecutors virtually constructed a group of conspirators in the 1968 trial of Dr. Benjamin Spock for antidraft activity during the Vietnam War in order to find a more favorable venue (Boston) than New York or Washington, where prominent antiwar activity occurred.
The Supreme Court has not coherently articulated underlying venue policy. Although it has, at times, suggested that fairness and convenience to defendants should be the underlying policy, it has more often ruled that the basic requirement of placing venue in the district wherein the crime has been committed must be determined from the nature of the crime alleged and the location of the act or acts constituting it. The Court has said that questions of venue in criminal cases "are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed" (United States v. Johnson). The Federal Rules of Criminal Procedure adhere to the basic rule that the prosecution shall be had in a district in which the offense was committed, but allow the courts to consider such factors as the convenience of defendants and witnesses and the prompt administration of justice in setting venue and considering motions for the change of venue.
There is no single defined policy or mechanical test to determine constitutional venue. In determining proper venue federal courts have created a number of tests. These tests may be complementary, overlapping, or contradictory in their effects, thus creating confusion in properly laying venue. Where the crime is unambiguously committed in one district, the venue lies there. At common law there was a single situs test that was modified by statute when that rule proved too restrictive. Where the acts constituting the crime and the nature of the crime charged implicate more than one location, the constitution does not command a single venue. A variation of the single situs test is that for some crimes venue lays in the district in which the effects of the act occur. Thus, in a homicide prosecution, where the act or omission is inflicted in one venue and the victim dies in another, English statutes placed venue in the place where death occurred, but the federal statute lays venue in the district where the injury was inflicted. Advances in communications and transportation and the expansion of federal criminal law have made it increasingly difficult to determine where, for the purpose of laying venue, a crime is committed.
Congress usually appends a venue provision to criminal statutes, which provides a method of fixing the place of prosecution. Congress is free to establish venue in any district that has a minimal contact with the crime. To this end, Congress has provided that "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." As a general rule, then, venue in "continuing crimes" may be laid in any district in which the crime occurred. Venue in conspiracy cases, for example, is proper in any district where the agreement was formed or where an overt act in furtherance of the conspiracy was performed. On the other hand, federal courts have held that venue for the prosecution of a substantive crime that arises out of a conspiracy lies only in the district where the substantive crime occurred. To lay venue in any district in which the conspiracy occurred would in effect engraft a forum shopping option as to the substantive offense on the already broad venue rule for conspiracy.
When a statute contains no venue provision, the situs of the crime must be determined from the nature of the crime alleged and the location of the act constituting it (United States v. Anderson). To this end federal courts have had recourse to a "key verbs" or "essential verbs" test. This has led to formalistic decisions. For example, the Court held that in a prosecution for failure to file a required statement regarding the harboring of an alien, venue was improperly laid in the defendant's home district in the state of Washington because filing does not occur until the document is delivered and received. Since the culpable omission was "committed" where the duty should have been performed, venue lay only in the District of Columbia and not where the required statement would normally be prepared and mailed (United States v. Lombardo).
The limitations of the key verbs test is seen in the current division among federal circuits over where to lay venue in prosecutions for obstruction of justice when the defendant allegedly acted in one judicial district to obstruct a proceeding that was pending in another. The obstruction of justice statute is complex and includes verbs that point to venue where the acts occurred ("injures") or in the affected or "focus" district ("influences"). It is apparent that in some instances, the key verbs test is no test at all.
The examination of verbs, as the Supreme Court has made clear, is not an exclusive method of determining the proper venue. Another, somewhat broader, test used by some courts is the "elements of the crime" test, said to be more true to the overriding principle that venue depends on the nature of the crime. Courts have also examined legislative intent. A test supported by many commentators may be called the "ease of fact finding" test. The source of this test is an opinion by Justice John Marshall Harlan, dissenting in a case where a union officer was charged with making and filing false affidavits with the National Labor Relations Board (NLRB). The majority held that venue lay only in Washington, D.C., where the documents were sent, and not in the district (Colorado) where the affidavits were made (Travis v. United States). The fact-finding test examines the nature of the crime alleged and the location of the act or acts constituting it. This test views the basic policy of the Sixth Amendment as providing for trial in the vicinity of the crime as a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place. Thus, where a minimal contact exists, venue lies where the witnesses and relevant circumstances surrounding the contested issues more probably will be found.
An even broader "substantial contacts" rule incorporates several of the previously noted tests and takes them all into account—the site of defendants' acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact-finding. This approach is taken by the Second Circuit and results in the greater likelihood that venue will be found to exist in the district of the trial (United States v. Reed).
After a hiatus of two decades, the Supreme Court has begun to resolve conflicts regarding venue, holding in United States v. Cabrales (1998) that venue for a prosecution for money laundering is the district where the money laundering took place and not the district of the anterior criminal conduct that yielded the funds allegedly laundered. The Cabrales case, holding the government to a strict account of venue, appears to express a different policy concern than the decision in United States v. Rodriguez-Moreno (1999), which held that the venue for a prosecution of the crime of using a firearm during a crime of violence may be laid in any district where the predicate crime of violence occurred, even if no weapon was used in that district. The Court, in deprecating the verb test, expressed a concern that a close adherence to that test "creates a danger that certain conduct prohibited by statute will be missed." Thus, the Court's recent venue rulings again fail to provide a consistent policy.
Venue is a fact that the prosecution must prove. Beyond this, rules as to the proof of venue vary among jurisdictions. Some states have a statutory presumption that venue is proper in the absence of contrary evidence. The federal rule is that venue may be proven by a preponderance of the evidence. This is followed by a majority of states ruling on the question, based on the idea that venue is neither an essential element of a crime nor of the same nature as defenses that relate to guilt or innocence. The Model Penal Code and a few states have ruled that venue must be proven beyond a reasonable doubt. This rule is based upon the view that venue is a material fact or issue in a criminal prosecution that the prosecution is required to prove.
Under the Federal Rules of Criminal Procedure a defendant can move for a change of venue because of prejudice in the district depriving the defendant of a fair trial, for the convenience of parties and witnesses, and in the interest of justice. A motion for change of venue is addressed to the sound discretion of the trial judge. The Supreme Court noted nine factors to be considered in making a change of venue determination for the convenience of the parties: (1) location of the defendant; (2) location of witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant's business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; and (9) docket conditions in each district (Platt v. Minnesota Mining & Mfg. Co.). A district court can transfer the prosecution to any district, including a district in which no part of the offense was committed.
State venue and change of venue provisions parallel federal venue rules. Some state laws provide that venue for offenses committed near the boundary between counties is proper in either county. When a crime is committed on a train or other public conveyance, the "common carrier exception" allows venue to be laid in any county through which the vehicle passed, even if it is clear that all of the elements of the crime occurred in one county. The states are split on whether a prosecutor may seek a change of venue, and some states restrict the number of times that a change of venue is permitted. Some states allow a change of venue on the grounds of the bias or prejudice of the judge, as well as on such factors as pretrial publicity and the convenience of the parties.
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