The Vicinage Clause

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. . . .

—Brian C. Kalt

Introduction

The Sixth Amendment’s Vicinage Clause requires that jurors in federal criminal trials be selected from the state and district where the crime occurred. Congress can draw judicial district lines as it sees fit, but it can do this only prospectively. Vicinage refers to the location from which jurors are drawn. Venue refers to where the trial is held. Vicinage and venue are intricately and sometimes confusingly linked. The Vicinage Clause is one of the few provisions in the Bill of Rights that has not been applied against state governments by incorporation into the Fourteenth Amendment.

History Before 1787

In medieval England, jurors were not originally required to be impartial.¹ Rather, they decided cases based on their firsthand knowledge of the crime and the people involved. But even as the notion of the impartial jury emerged in England, the idea that the jury needed to be local remained important. As Sir William Blackstone explained, because juries from the “immediate neighbourhood” were “apt to intermix their prejudices and partialities,” the vicinage was expanded, but jurors were still required to be “de corpore comitatus, from the body of the county at large.”² Thus, a fundamental feature of Anglo-American trial juries is that they are local.

Colonial Americans took the idea of local jury trials seriously. Local jury trials were seen as important institutions to safeguard the rights of criminal defendants. In October 1774, the Continental Congress praised the local jury in its “Address to the People of Great Britain.” Without a local jury, defendants might “be tried in a distant land, by a jury of strangers, and subject to all the disadvantages that result from want of friends, want of witnesses, and want of money.”³ Local jury trials were also important as a cornerstone of democratic self-government. They allowed the colonists to decide what things would and would not be punished in their own communities.⁴ The colonists protested mightily when the Crown violated these norms.⁵ The Declaration of Independence, for example, charged the King of England with “transporting us beyond Seas to be tried.”⁶

After independence, most state constitutions required local jury trials, but in a range of ways. For example, Maryland simply praised the virtues of “the trial of facts where they arise,” and Pennsylvania more explicitly gave criminal defendants the right to trial “by an impartial jury of the country.”⁷ Other states restricted trials to the county or the “vicinity.”⁸

The Constitutional Convention

The Framers wanted to respect the principle of local jury trials—to a point. Article III provided that all federal criminal trials must be by jury and that the venue must be in the state where the crime was committed.⁹ (See Essay No. 136.) Although the text made no express reference to the question, implicit in the state-venue requirement was that jurors would be drawn from the state where the crime was committed as well.¹⁰ These requirements were not controversial and triggered no recorded debate during the Convention.¹¹

The Ratification Debates

During the ratification debates, on the other hand, Anti-Federalist essayists and delegates criticized the Constitution for not guaranteeing a right to be tried by a jury of the vicinage.¹² The Anti-Federalists wanted an area much smaller than the statewide zones that Article III provided. Centinel wrote that the requirement that jurors must be “taken from the vicinage” was a “precaution which is omitted as to trial of crimes.”¹³ In the Virginia convention, Patrick Henry appealed to the “ancient common law” right under which “the trial of all facts is decided by a jury of impartial men from the immediate vicinage.”¹⁴

Federalists responded that Congress had the power to establish vicinage rules by statute. Also at the Virginia convention, John Marshall analogized to the common law, in which “the preservation of this [vicinage] right [was] in the hands of Parliament.”¹⁵ On this question, the Anti-Federalists would prevail. Many ratifying states produced lists of rights they wished to see added to the Constitution; four states’ lists included juries of the vicinage.¹⁶

The First Congress

The First Congress responded to the Anti-Federalists’ criticism and addressed the vicinage issue. Representative James Madison’s proposal of what became the Sixth Amendment guaranteed that federal criminal juries would comprise “freeholders of the vicinage.”¹⁷ Madison’s proposal also specified that if the crime was committed in a county occupied by enemy forces or experiencing an insurrection, the trial could be held in a nearby county in the same state.¹⁸ The latter provision, which was about venue rather than vicinage, suggested that the earlier vicinage provision envisioned county-level jury pools.

The House approved Madison’s language after replacing the word “county” with “place.”¹⁹ However, when the Senate approved its version of the Bill of Rights, it struck the entire vicinage provision.²⁰ Senators apparently felt that “of the vicinage” was too vague. Madison explained in a letter that, given the diversity of practices in the various states, “of the vicinage” could have meant anything from a neighborhood to an entire state and that to the extent that “vicinage” meant something specific like the county level, Senators considered that to be too strict.²¹

The two chambers compromised. The House succeeded in restoring a Vicinage Clause, but its final language was closer to the Senate’s sentiments.²² By saying that jurors would be from the state and district where the crime was committed, the Vicinage Clause theoretically allowed Congress to make districts as small as the strictest critics could want, but the reality was that districts were state-sized.

Shortly before this compromise was drafted, Congress enacted the Judiciary Act of 1789, which established the new federal districts.²³ Under the Judiciary Act, each state contained only one district, with two exceptions: Virginia had a district covering the part of Virginia that would become Kentucky, and Massachusetts had a district covering the part of Massachusetts that would become Maine.²⁴ The First Congress therefore understood that, at least for the time being, the Vicinage Clause would not appreciably narrow the statewide scope provided by Article III. As a general matter, jurors in federal criminal trials could be drawn from anywhere in the state, not just from the county where the crime occurred. However, the Judiciary Act also provided for county-level venue and vicinage rules in capital cases when possible.²⁵ This reinforced the fact that Congress could provide for vicinages that were smaller than what was established by their district statutes.

Ratification of the Amendments

The states considering the Bill of Rights appear generally not to have discussed the Vicinage Clause to any significant degree. One exception was Virginia. During the first round of ratification debates, objectors complained that the Vicinage Clause still allowed for statewide vicinage rather than the smaller bounds they preferred.²⁶

Early Practice

Congress stuck with its initial inclination to keep vicinages on the larger side. In the first few decades following ratification of the Bill of Rights, Congress subdivided only a few states into multiple districts.²⁷ Moreover, the stricter statutory vicinage requirements that the Judiciary Act of 1789 had provided for capital cases were mostly sidestepped and later repealed.²⁸

The Vicinage Clause set the bar for vicinage fairly low, and individual judges had a fair amount of discretion with respect to where they would draw jurors from in a district.²⁹ Federal judges typically followed the practices of their local state courts.³⁰ While the clause set the bar low, however, that bar was respected.

Judicial Precedent

The Vicinage Clause requires that a district must be “previously ascertained by law.” The text suggests that this provision was designed to prevent Congress from retroactively manipulating the vicinage in a particular case. No legislative history suggests the contrary.³¹ This issue has arisen when a crime is committed in a place that is subsequently transferred to a newly drawn district. The U.S. Supreme Court affirmed the practice of holding the trial in and drawing jurors from the old district as it was constituted at the time of the crime,³² but it did not hold that the Vicinage Clause requires this practice. The Eleventh Circuit, for example, allowed the trial in a similar case to proceed in the new district.³³ This holding is consistent with the previous-ascertainment requirement only if “previous” is measured by reference to when charges were filed rather than when the offense was committed.

Some crimes occur outside of any state, which makes it impossible to find jurors “of the state” where the crime was committed. In such cases, the Supreme Court has looked to the Venue Clause of Article III, Section 2, which specifies that when a crime is committed outside of any state, venue is wherever Congress directs by statute. Cook v. United States (1891) found that the Vicinage Clause implicitly includes this distinction as well.³⁴ Thus, the Vicinage Clause does not apply outside of the fifty states. Congress has assigned the territories and Washington, D.C., to districts, and jurors are drawn from those districts. Cook even allowed a retroactive assignment to a district, which would have violated the previous-ascertainment requirement if the Vicinage Clause had applied. For crimes committed outside of any district, such as on the high seas, federal law assigns the trial to the district in which the defendant is arrested. Without an arrest, the case is assigned to the district in which the defendant last resided or, failing that, to Washington, D.C.³⁵

Often, jury pools are drawn from parts of the district other than the one where the crime was committed. Criminal defendants have challenged these pools as violating the Vicinage Clause. The Supreme Court, however, has found that the clause’s plain text does not require that jurors be drawn from a particular place in the district. Rather, jurors must be drawn from somewhere in the district.³⁶

Rule 21 of the Federal Rules of Criminal Procedure allows for a change of venue, but only if the defendant requests it. In 1944, the Rules Advisory Committee attributed this structure to the Sixth Amendment, saying that it gives defendants “a constitutional right to a trial in the district where the offense was committed”—a right that the defendant can waive by asking for a change of venue.³⁷ This reflects the way that vicinage has been both inextricably linked with and largely subsumed under venue.³⁸

What is the remedy for a violation of the Vicinage Clause? Smith v. United States (2023) treated the clause the same as most other Sixth Amendment rights are treated.³⁹ Under this standard, when a jury’s composition violates the Vicinage Clause, the criminal defendant is entitled only to a new trial, not to an outright acquittal.

Open Questions

• The Supreme Court has incorporated almost every other provision of the Bill of Rights to apply against state governments, but not the Vicinage Clause. Does the Vicinage Clause apply to the states as well as to the federal government? Lower courts have split over the question.⁴⁰ Significantly, most state constitutions require juries from the county or district where the crime was committed, so the effect of incorporation would be limited.⁴¹
• To what extent does the Vicinage Clause represent a right of the community as opposed to a right only of criminal defendants?⁴²

1. Thomas A. Green, A Retrospective on the Criminal Jury Trial, 1200–1800, in Twelve Men Good and True: The Criminal Trial Jury in England, 1200–1800 (J.S. Cockburn & Thomas A. Green eds., 2014). ↩︎
2. 3 Blackstone 359–60; Brian C. Kalt, Crossing Eight Mile: Juries of the Vicinage and County-Line Criminal Buffer Statutes, 80 Wash. L. Rev. 271, 296 (2005). ↩︎
3. 1 J. Cont. Cong. 85 (Oct. 21, 1774). ↩︎
4. Steven A. Engel, The Public’s Vicinage Right: A Constitutional Argument, 75 N.Y.U. L. Rev. 1658, 1681 (2000). ↩︎
5. Id. at 1680–86. ↩︎
6. Declaration of Independence, ¶¶ 19, 20. ↩︎
7. Md. Const. of 1776, Decl. of Rts., art. XVIII; Pa. Const. of 1776, Decl. of Rts., § 9. ↩︎
8. Kalt, supra at 301–02; Drew L. Kershen, Vicinage, 29 Okla. L. Rev. 801, 807, 815 (1976). ↩︎
9. Art. III, § 2, cl. 3. ↩︎
10. Kershen, supra at 830–31. ↩︎
11. Id. at 808. ↩︎
12. Smith v. United States, 599 U.S. 236, 248 (2023). ↩︎
13. Storing 2.7.43 (emphasis in original). ↩︎
14. 3 Elliot’s 446–47; Smith, 599 U.S. at 248 n.11 (2023). ↩︎
15. 3 Elliot’s 558; Smith, 599 U.S. at 248 n.12. ↩︎
16. Kershen, supra at 816–17. ↩︎
17. 1 Annals of Cong. 435 (1789). ↩︎
18. Id. ↩︎
19. Id. at 760. ↩︎
20. S. Jour., 1st Cong., 1st Sess. 77 (Sept. 9, 1789). ↩︎
21. Letter from James Madison to Edmund Pendleton (Sept. 23, 1789), https://perma.cc/ZD6J-XD7C. ↩︎
22. 1 Annals of Cong. 913 (1789). ↩︎
23. Kershen, supra at 845, 856–57. ↩︎
24. Judiciary Act of 1789, § 2, 1 Stat. 73, 73. ↩︎
25. Id. § 29. ↩︎
26. J. Gordon Hylton, Virginia and the Ratification of the Bill of Rights, 1789–91, 25 U. Rich. L. Rev. 433, 455 (1991). ↩︎
27. Erwin C. Surrency, Federal District Court Judges and the History of Their Courts, 40 F.R.D. 139, 147–48 (1967). ↩︎
28. Drew L. Kershen, Vicinage—Part II, 30 Okla. L. Rev. 1, 56–61 (1977). ↩︎
29. Id. at 53. ↩︎
30. Id. at 56 n.364. ↩︎
31. Zicarelli v. Dietz, 633 F.2d 312, 321–25 (3d Cir. 1980). ↩︎
32. Lewis v. United States, 279 U.S. 63, 72 (1929). ↩︎
33. United States v. Louwsma, 970 F.2d 797, 801–02 (11th Cir. 1992). ↩︎
34. 138 U.S. 157, 181–82 (1891). ↩︎
35. 18 U.S.C. § 3238. ↩︎
36. Ruthenberg v. United States, 245 U.S. 480, 482 (1918). ↩︎
37. Fed. R. Crim. P. 21 (advisory committee note 3 to 1944 adoption). ↩︎
38. Kershen, Vicinage—Part II, supra. ↩︎
39. 599 U.S. 236 (2023). ↩︎
40. 1 Wayne R. LaFave et al., Criminal Procedure § 2.6(b) (4th ed. Dec. 2023 update). ↩︎
41. Kalt, supra at 304–10. ↩︎
42. Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641 (1996). ↩︎