The Crime-Committed Rule

The Crime-Committed Rule

Every transfer under Rule 21 departs from a starting point, so the starting point has to be fixed first. The most common approach to venue, and the one the federal system follows, divides the territory into geographic regions and places the trial in the region where the crime was committed.¹ Federal Rule of Criminal Procedure 18 carries that approach into the rules by directing that the prosecution be had in a district in which the offense was committed.² Two reasons make this the natural baseline. The first is fairness: a defendant tried near the scene is spared the hardship of answering in a remote place, and the constitutional text was adopted in direct response to the colonial practice of sending the accused to England or some other distant location for trial.³ The second is accuracy, because the witnesses and physical circumstances that bear on guilt are most available near where the events occurred, and jurors drawn from that area understand the local conditions the evidence describes.⁴

The rule is easiest to learn in layers, and the order matters because each layer depends on the one before it. The vocabulary comes first, since venue, jurisdiction, and vicinage sound alike yet answer different questions about where a case may be heard and where its jurors come from. Next come the two constitutional texts, which were written at different times and in response to different objections, yet fit together to produce the crime-committed rule. The last layer is application: deciding where an offense was committed and, when a district is large enough to hold courthouses in several cities, deciding which courthouse will host the trial. The vocabulary is the first layer, and it begins with the place of trial itself.

Venue, Jurisdiction, and Vicinage

Venue, jurisdiction, and vicinage all bear on where a criminal case is heard, which is why they are so easily run together, yet each answers its own question. Venue asks where the trial will be held, jurisdiction asks whether the court has power to decide the case at all, and vicinage asks where the jurors will come from. Sorting a fact pattern therefore begins by deciding which of those three questions the facts raise, and only then can the right rule be applied to the right question.

Venue comes first because the rest of this chapter is built on it. It is the physical location or judicial district in which the prosecution takes place, and its rules come from statutes, court rules, and the constitutions of the United States and many states.⁵ Two purposes explain why the location matters. A trial held in a remote place burdens the accused, so venue rules protect fairness, and a trial held where the witnesses and circumstances are available gives the fact-finder better evidence, so venue rules also promote accuracy.⁶ Venue concerns the placement of a case that the court is otherwise able to hear, which means that a venue defect is a problem about where the case sits, never about whether the court may decide it.

Jurisdiction is the power or authority of a court to decide the case, and as it bears on the location of a prosecution, its most important limit is geographic.⁷ The reason runs through the legislature. A court can enforce only what a legislature has enacted, and as a general rule a legislature may not criminalize conduct that occurs outside the geographic boundaries of the political entity it governs. When no valid enactment reaches the conduct, the court has nothing to enforce, so courts generally lack jurisdiction to try cases arising outside the region in which they sit.⁸ Congress holds a limited extraterritorial jurisdiction to protect and punish United States citizens, which is the main exception to that general rule.⁹

Vicinage is the geographic area from which the jurors are drawn for the trial.¹⁰ Historically it has required jurors to come from the vicinity where the crime was committed, so that the people who decide the case know the local values and circumstances against which the evidence must be read. The Constitution gives the idea its textual home in the Sixth Amendment, which promises an impartial jury of "the State and district wherein the crime shall have been committed."¹¹ Because standard practice is to try a case in the same place the jury is selected, vicinage and venue ordinarily point to the same location, and that overlap explains much of the confusion between them. They remain separable ideas, since a jury may, in rare cases, be drawn from a district other than the one in which the case is tried.¹²

The two scenes differ in one decisive fact: in the first, a valid law reaches the conduct and only the location is wrong, while in the second, no valid law reaches the conduct at all. That difference explains why the categories must be kept apart. Moving a trial can repair a defect of place, because a proper district exists to receive the case, but it cannot create a power that no court ever had. Students lose points here when they treat a wrong-place problem as a power problem, or the reverse. A complaint about where the jury pool is drawn from, as opposed to which courthouse hosts the trial, belongs in the third category and is a vicinage complaint.

Civil practice shows the same separation from another angle, though its rules do not decide the criminal question. In civil cases, venue is the proper geographic district for the suit, and unlike subject matter jurisdiction it can be waived.¹³ A defendant who does not object to venue in a pretrial motion or in the answer is treated as acquiescing, because venue restrictions exist chiefly to identify a convenient forum.¹⁴ In {{coming_soon_placeholder_removed}}Gulf Oil Corp. v. Gilbert, a civil case, it was conceded that the federal venue statutes let the plaintiff sue in the Southern District of New York and empowered that court to entertain the claim, yet the Court recognized that those facts did not settle whether the court was bound to hear it.¹⁵ Each requirement is a separate hurdle, which is the lesson to carry back to the criminal setting.

Article III and the Sixth Amendment

The two constitutional texts that fix the place of criminal trial were written at different moments and answered different worries, and the second was added because the first left a gap. Article III, section 2, part of the original Constitution, provides that the trial of all crimes, except impeachments, shall be by jury and that "such Trial shall be held in the State where the said Crimes shall have been committed."¹⁷ A crime committed outside every State falls under a separate clause of the same sentence, which lets Congress direct where the trial occurs.¹⁸ The command was added in direct response to the colonial practice of forcing the accused to stand trial in England or some other place far from the scene of the crime.¹⁹ The mechanism is easy to trace. A rule that ties the place of trial to the location of the offense relies on a fact that exists before any prosecutor makes a choice, so it removes the government's freedom to select a distant forum. The accused is then protected from defending among strangers, far from the witnesses and records that bear on the charge.

Placing the trial in the State of the offense still left an opening, and the ratification debates exposed it. Critics complained that the Article III sentence did not adequately assure trial by a jury of the vicinage, because they regarded a whole State as too large an area from which to draw jurors.²⁰ The worry had a concrete basis. In a large State, jurors summoned from one end may know nothing of the local conditions that give the testimony its meaning, and a defendant could be tried hundreds of miles from the scene while remaining, technically, inside the State. The Sixth Amendment answered the critics by guaranteeing 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."²¹ The drawing of the districts, which were plainly meant to be smaller than a whole State, was left to Congress.²²

The amendment's language adds two separate protections, and each has its own logic. The reference to a district narrows the geography, so that the people who judge the case come from the vicinity of the offense and understand the local setting in which the evidence arose.²³ The phrase "previously ascertained by law" does subtler work. If district lines could be drawn after an offense occurred, a prosecutor or legislature could trace a boundary around a favorable jury pool once the defendant was known, whereas lines fixed in advance are set before any particular case is in view.²⁴ The two phrases therefore guard against different dangers, the first the hardship of distance and the second the manipulation of place.

The Sixth Amendment's vicinage language is formally a rule about where jurors come from, and Article III had already supplied a place-of-trial sentence.²⁵ Yet standard practice is to hold the trial in the same location from which the jury is selected, so a command about the jury's origin ends up fixing the place of trial as well.²⁶ The result is a layered rule. Article III sets the outer boundary at the State where the crime occurred, and the Sixth Amendment tightens it to a district fixed in advance by law. Taken together they form the crime-committed rule, and their overlap explains why venue and vicinage ordinarily point to the same courthouse. A reader who treats the Sixth Amendment clause as purely a jury-selection provision misses its practical effect on where the trial is held.

The Supreme Court's own description of these provisions states their purpose. In Platt v. Minnesota Mining & Manufacturing Co. the court of appeals had held that criminal defendants have a constitutionally based right to trial in their home districts, and the Supreme Court called that holding erroneous.²⁷ The Court explained that Article III, section 2 requires trial in the State where the crime was committed, that the Sixth Amendment carries a like command, and that proper venue in a criminal case depends on where the crime was committed.²⁸ It then described the provision 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."²⁹ The home-district holding receives full treatment later in this chapter. For now the decision supplies the statement of purpose that ties both texts to the place of the offense, and it shows that the defendant's own residence does not enter the formula.

Only one fact separates the two scenes: where the trial sits relative to the offense. The texts look at nothing else, which is why a defendant's residence, convenience, or preference for another forum plays no part in this baseline rule. Those considerations return later, under Rule 21, as reasons to ask a court to depart from the baseline. The next section turns to the prior question of how a court decides where an offense was committed.

Applying the Formula

Putting the crime-committed rule to work requires two decisions that are easy to blur. The first is which district may host the prosecution, and the second is which courthouse inside that district should hold the trial. Rule 18 answers the first decision with a single command: unless a statute or another rule provides otherwise, the prosecution must be brought in a district where the offense was committed.³¹ That command points at the crime, so a court asks where the conduct making up the offense, as the law defines it, took place. The residence of the defendant, the homes of the witnesses, and the place where records happen to be stored are facts about the accused and the evidence, and none of them enters that question. A test built on those facts would change with every witness list and invite each side to assemble the list that favors its preferred forum. A test built on the offense has an answer fixed before anyone files a charge.

Travis v. United States shows the first decision at work. A false affidavit was executed in Colorado and mailed from there to the National Labor Relations Board in Washington, D.C., and the Supreme Court held that venue for the offense lay exclusively in the District of Columbia, although all the witnesses were located in Colorado.³² The offense, as defined, was committed where the filing occurred, so that place fixed the district, and the location of the witnesses did not move it. The decision therefore separates two kinds of fact: the place of the offense, which decides venue, and the place of the witnesses, which does not. The result also shows that venue fixed by the offense can sit far from every witness in the case. The venue rule has no built-in way to correct that inconvenience, which is why the Federal Rules give the defendant a separate tool, a motion to transfer for the convenience of the parties and witnesses under Rule 21(b).³³ That tool is the subject of the sections that follow.

The second decision arises because a federal district can cover a large area and hold court in more than one city. Once the district is fixed, someone has to choose the courthouse, and Rule 18 gives that choice to the court. The court fixes the place of trial within the district by looking to the convenience of the defendant and the witnesses and to the prompt administration of justice.³⁴ The wording adopted in a 1966 amendment spoke only of due regard to the convenience of the defendant and the witnesses, so the formulations differ in how many considerations they list.³⁵ What every version shares is a focus on the convenience of the people who must come to court, and that is the level at which to state the rule. Leaving this choice to the judge makes sense because moving from one courthouse to another inside the district keeps the trial in the district the Sixth Amendment already identifies, so the judge can adjust freely without leaving the constitutionally relevant place. The same reasoning explains a limit on the defendant's rights later in this chapter: a transfer to prevent prejudice is available only when a fair trial cannot be had at any place fixed by law for holding court in the district, because the judge can already cure prejudice tied to one courthouse by choosing another under Rule 18.³⁶

Students lose points here when they treat where the witnesses live as a venue fact. That location is a convenience fact, and it belongs at step four or step five, never at step two.

The two scenes differ in a single fact, the location of the witnesses, and that fact changes the remedy but not the venue. Taken together with the Colorado example, they show how the rest of the chapter is organized. Venue follows the offense, the courthouse inside the district follows convenience, and convenience that points to another district can be pursued only through a motion to transfer. The next section introduces that motion.