The Vicinage Clause of the Sixth Amendment to the United States Constitution provides that: "In all criminal prosecutions, the accused shall enjoy the right to a . . . 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 . . . ."[1] The Clause has its roots in medieval English criminal procedure, the perceived abuses of criminal vicinage and venue during the colonial period, and Anti-federalist objections to the United States Constitution.

The Clause is one of the few constitutional criminal procedure provisions that has not been incorporated to apply to proceedings in state courts, along with the Grand Jury Clause of the Fifth Amendment and (maybe) the Excessive Bail Clause of the Eighth Amendment. The Vicinage Clause limits the geography of criminal jury selection to both the state and federal judicial district where a crime is committed.

The Clause has led to very little litigation, in part because of its overlap (as a practical matter) with the venue provision of Article Three of the United States Constitution and Rule 18 of the Federal Rules of Criminal Procedure. Further, with the exception of the District of Wyoming, which includes the portions of Yellowstone National Park in Idaho and Montana (see below), no federal judicial district has ever included the territory of two or more states.

Background

Blackstone wrote that English juries must be composed of residents of the county.

According to Blackstone, in medieval England, the "vicinage of the jury" referred to a jury drawn from the relevant county.[2]

The Declaration and Resolves of the First Continental Congress adopted on October 14, 1774, resolved:

That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.[3]

On October 26, 1774, the Continental Congress approved an address to the people of Quebec, drafted by Thomas Cushing, Richard Henry Lee, and John Dickinson, arguing that:

[One] great right is that of trial by jury. This provides, that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses . . . .[4]

The Virginia Resolves (1769) assert that being sent "beyond the Sea, to be tried" was "highly derogatory of the Rights of British subjects" and referred to "inestimable Privilege of being tried by a Jury from the Vicinage."[5] The former is similar to one of the enumerated grievances of the United States Declaration of Independence (1776), which accuses George III of the United Kingdom of "transporting us beyond seas to be tried for pretended offences."[6] Both complaints allude to an act of Parliament authorizing treason trials for colonists in England.[7]

Article Three of the United States Constitution responded to these concerns with a venue provision, but not a vicinage provision: "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed."[8]

The omission of a vicinage right from the United States Constitution was among the objections of the Anti-federalists.[9] James Madison explained the omission of a vicinage clause in the Virginia Ratifying Convention as follows:

It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations of it in England: yet greater deviations have happened here since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be therefore left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer.[10]

Drafting

James Madison both defended the absence of a vicinage provision in the Constitution and pushed for more stringent vicinage language in the Sixth Amendment.

James Madison's original draft of the jury provision of the Sixth Amendment provided:

The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites.[11]

With minor alteration, this language passed the House.[12] The vicinage requirement was opposed in the Senate and returned to the House in an altered form, leading to a conference committee.[12] Little is known about the Senate debate due to the illness of Senator Samuel Maclay whose journal is a key source for the proceedings of the Senate during the first Congress.[13] The Senate deleted every clause from the House version of the Sixth Amendment, with the exception of the grand jury indictment clause.[14] A motion to restore the House wording failed.[15] A September 14, 1789 letter from Madison to Edmund Pendleton reports:

The Senate have sent back the plan of amendments with some alternations, which strike, in my opinion, at the most salutary articles. In many of the States, juries, even in criminal cases, are taken from the State at large; in others, from districts of considerable extent; in very few from the County alone. Hence a dislike to the restraint with respect to vicinage, which has produced a negative on that clause. . . . Several others have had a similar fate.[16]

The members of the committee from the House proposed that the jury simply be defined as comporting with "the accustomed requisites."[17] Instead, the committee adopted the version that passed Congress and was ratified by the states:

In all criminal prosecutions, the accused shall enjoy the right to a . . . 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 . . . .[12]

The members of the committee from the Senate were opposed to constitutionalizing the vicinage requirement, believing that the vicinage provisions of the first Judiciary Act (already being debate) were sufficient.[18] A second letter from Madison to Pendleton recounts that the Senators were

inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county. It was proposed to insert after the word Juries, "with the accustomed requisites," leaving the definition to be construed according to the judgment of professional men. Even this could not be obtained. . . . The Senate suppose, also, that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point.[19]

The Judiciary Act of 1789 eventually included a conditional vicinage clause as an exception to a general venue clause. The Act provided:

[T]hat in cases punishable with death, the trial shall be had in the county where the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence.[20]

Interpretation

The Vicinage Clause may allow the commission of the "perfect crime" in the Idaho portion of Yellowstone National Park.

The Vicinage Clause places no limits on the prosecution of crimes committed outside the territory of a state. Thus the Supreme Court has thrice held in murder cases arising from the Indian Territory,[21] Navassa Island,[22] and the No Man's Land of the Oklahoma Panhandle.[23]

In Barrett v. United States (1898), the Court held that the Clause did not require trial within the judicial division (a subset of a federal judicial district) within which the crime occurred; rather, the crime could be prosecuted within another division of the same district.[24]

The "wherein the crime shall have been committed" language of the clause is in parallel with the venue provision of Article Three—"where the said Crimes shall have been committed."[8]—and with Rule 18 of the Federal Rules of Criminal Procedure—"where the offense was committed."[25] The three provisions have been interpreted in tandem.[26]

Incorporation

The Third, Fifth, and Sixth Circuits have held that the vicinage clause was not incorporated against the states by the Fourteenth Amendment.[27]

The perfect crime?

Prof. Brian C. Kalt of Michigan State University College of Law argues that the Vicinage Clause may permit the commission of the "perfect crime" in the portion of Yellowstone National Park within the state of Idaho because the entire park is within the District of Wyoming and the Idaho portion of the park has no residents (and that a less perfect crime could be committed in the lightly-populated Montana portion of the park).[28] Kalt argues that two arguments the government might make in favor of prosecution would be unsuccessful: that the Idaho portion of the park is not part of a state[29] and that the judicial district could be changed after the crime.[30]

However, Kalt argues that the Vicinage Clause might permit a variety of prosecutorial strategies that would at least partially close this loophole. First, the government might be able to charge other crimes that did not occur exclusively within the Idaho portion of the park (for example, if the defendant(s) conspired elsewhere).[31] Second, the government could charge crimes for which the maximum authorized sentence is six months or less, to which the jury right does not attach.[32] Third, the Clause might permit the government to encourage potential jurors to move into the Idaho portion of the park after the crime.[33] Fourth, the government might argue for a purposive, rather than textualist, interpretation of the Clause by arguing that a jury drawn from elsewhere could satisfy the purposes of the Clause.[34] Kalt also notes that the Vicinage Clause would not protect against civil liability or vigilante justice.[35]

Extraterritorial jurisdiction

It might be noted that a vicinage requirement would effectively obstruct an effort at exercising extraterritorial jurisdiction (allowing governments to try persons for crimes committed outside their borders). Unless a government were to allow another government to conduct a trial on the first entity's territory, it would seem impossible to try a defendant for a crime committed elsewhere, in the presence of a vicinage requirement.[36][37] The vicinage rule would appear to be superseded by the international law doctrine of universal jurisdiction, where that doctrine applies.

Similar provisions in state constitutions

A similar provision is contained in the Maryland Declaration of Rights.[38]

In Coleman's Appeal (1874), the Supreme Court of Pennsylvania held that "a man shall only be liable to be called on to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage."[39]

Notes

  1. ^ U.S. Const. amend. VI (emphasis added).
  2. ^ Williams v. Florida, 399 U.S. 78, 94 n.35 (1970) (citing 4 William Blackstone, Commentaries *350–51).
  3. ^ 1 Journals of the Continental Congress 69 (1904).
  4. ^ 1 Journals of the Continental Congress 107 (1904).
  5. ^ Journals of the House of Burgesses of Virginia, 1766–1769, at 214 (J. Kennedy ed. 1906).
  6. ^ The Declaration of Independence (U.S. 1776).
  7. ^ 16 Parliamentary History of England from Earliest Period to the Year 1803, at 476–510 (T. Hansard ed. 1813).
  8. ^ a b U.S. Const. Art. III, § 2, cl. 3.
  9. ^ Crawford v. Washington, 541 U.S. 36, 49 (2004) (citing R. Lee, Letter IV by the Federal Farmer (Oct. 15, 1787), reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History (1971), at 469).
  10. ^ Williams, 399 U.S. at 94 n.35 (quoting 3 M. Farrand, Records of the Federal Convention 332 (1911)).
  11. ^ 1 Annals of Cong. 435 (1789).
  12. ^ a b c Apodaca v. Oregon, 406 U.S. 404, 409 (1972).
  13. ^ Williams, 399 U.S. at 94–95 & n.38.
  14. ^ Senate Journal, Sept. 4, 1789, 1st Cong., 1st Sess., 71.
  15. ^ Senate Journal, Sept. 9, 1789, 1st Cong., 1st Sess., 77.
  16. ^ Williams, 399 U.S. at 95 n.39 (quoting Letter from James Madison to Edmund Pendleton, Sept. 14, 1789, in 1 Letters and Other Writing of James Madison 491 (1865)).
  17. ^ Apodaca, 406 U.S. at 409 (citing Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in 5 Writings of James Madison 424 (G. Hunt ed. 1904)).
  18. ^ Williams, 399 U.S. at 95.
  19. ^ Williams, 399 U.S. at 95–96 (quoting Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in 1 Letters and Other Writing of James Madison 492–93 (1865)).
  20. ^ Act of Sept. 24, 1789, sec. 29, 1 Stat. 73, 88.
  21. ^ United States v. Dawson, 56 U.S. (15 How.) 467, 487 (1853) (holding that the Clause "applies only to the case of offences committed within the limits of a State").
  22. ^ Jones v. United States, 137 U.S. 202, 211 (1890) (holding that "a crime not committed within any state of the Union may be tried at such place as congress may by law have directed").
  23. ^ Cook v. United States, 138 U.S. 157, 181 (1891) (holding that "if [the Vicinage Clause] import[s] immunity from prosecution where the district is not ascertained by law before the commission of the offense, or that the accused can only be tried in the district in which the offense was committed, (the district having been established when the offense was committed) the amendment has reference only to offenses against the United States committed within a state").
  24. ^ Barrett v. United States, 169 U.S. 218 (1898).
  25. ^ Fed. R. Crim. P. 18.
  26. ^ United States v. Rodriguez-Moreno, 526 U.S. 275, 278–82 (1999).
  27. ^ Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
  28. ^ Kalt, 2005, at 77–79.
  29. ^ Kalt, 2005, at 679–81.
  30. ^ Kalt, 2005, at 681–82.
  31. ^ Kalt, 2005, at 682.
  32. ^ Kalt, 2005, at 682–83.
  33. ^ Kalt, 2005, at 683–85.
  34. ^ Kalt, 2005, at 685–87.
  35. ^ Kalt, 2005, at 683.
  36. ^ See, e.g., M. Cherif Bassiouni, ed., International Criminal Law, Vol. 2: Multilateral and bilateral enforcement mechanisms, Chap. 2.1: Extraterritorial Jurisdiction. Martinus Nijhoff Publishers / Brill Academic; 3rd edition, 2008, and citations therein.
  37. ^ Allan Erbsen, "Constitutional Spaces" (Minnesota Legal Studies Research Paper No. 11-21), Minnesota Law Review, Vol. 95, 2011 (abstract at Social Science Research Network.
  38. ^ Md. Declaration of Rights § XVIII (1776), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, at 1686, 1688 (F. Thorpe ed. 1909).
  39. ^ Coleman's Appeal, 75 Pa. 441, 458 (1874).

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