The best-known rule of criminal procedure is that the government may not deprive someone of his life, liberty, or property unless and until it has proved his guilt of a crime beyond a reasonable doubt at trial.[1] The question of a party’s guilt or innocence is the most fundamental issue in every American criminal trial. Indeed, the entire purpose of a criminal trial is to decide whether the accused is guilty of the charges levelled against him.[2]

If a jury finds the accused guilty, the trial judge may impose whatever punishment is authorized by law.[3] If a jury returns a verdict of “Not Guilty,” the judge must enter a judgment reflecting that verdict and release the accused from any restraints associated with the charges.[4] If an appellate court finds that the evidence was insufficient for the jury reasonably to convict the defendant, the court must order the entry of a judgment of acquittal.[5] In either case, that judgment and the Fifth Amendment’s Double Jeopardy Clause protect a party against a second prosecution for the “same offense”[6] even if the acquittal is “based upon an egregiously erroneous foundation.”[7]

Few trials, however, come off perfectly. When a trial or appellate court decides that the defendant was prejudiced[8] by an error that occurred before the case was submitted to the jury or during its deliberations, what is the proper remedy? Should the court merely order a new trial? Or should the court enter a judgment of acquittal (or, in what amounts to essentially the same relief, order a dismissal of the indictment with prejudice) on the theory that the government should be allowed only one chance to convict someone of a crime?[9] That is the remedy awarded when the case should not have been submitted to the jury at all because the government’s proof of guilt was inadequate.[10] The Supreme Court will answer that question this Term in Smith v. United States.[11]

The facts of the Smith case illustrate a truly modern type of crime.[12] Smith is a software engineer and fisherman. Using his computer and the Internet, Smith accessed information about the location of attractive artificial fishing reefs in the Gulf of Mexico possessed by a Florida business named StrikeLines. StrikeLines is a private company that offers detailed GPS-enabled high resolution fishing charts on a subscription basis. The government charged Smith with (among other things) the theft of trade secrets,[13] and the trial was held in the Northern District of Florida. Smith objected to that venue, arguing that the locus delicti—or place where an offense was committed—was elsewhere. The case should have been tried, he argued, either in the Middle District of Florida, where StrikeLines’ servers were located, or the Southern District of Alabama, where he was at all times relevant to the case. Trial in the Northern District of Florida, he maintained, violated the venue requirements of Article III of the Constitution, the Sixth Amendment’s Jury Trial Clause, and Rule 18 of the Federal Rules of Criminal Procedure.[14]

The district court rejected Smith’s argument,[15] but the U.S. Court of Appeals for the Eleventh Circuit agreed with him. To remedy that error, the circuit court awarded Smith a new trial on the trade-secret theft count.[16] Relying on circuit court precedent, the court of appeals rejected Smith’s argument that the proper remedy was entry of a judgment of acquittal.[17]

Smith petitioned the Supreme Court to decide which of those remedies—retrial or acquittal—is the appropriate relief when a defendant is tried in the wrong court.[18] His argument is two-fold. First, venue is an element of a federal offense, he says, which the federal government cannot try to prove more than once. Second, retrial is not a constitutionally adequate remedy for being tried in the wrong district, he argues, because it cannot rectify the burdens the defendant suffered by the first trial.[19]

In our view, a mistaken choice of trial venue does not require an offender to go scot-free; a new trial is an adequate remedy. That argument will unfold as follows: Part I will discuss the law governing appropriate remedies for cases in which, after a jury’s guilty verdict, a trial or appellate court finds that an error prejudiced the offender’s ability to defend himself at trial. Part II will explain why the Sixth Amendment’s Jury Trial Clause does not create an exception to the rule that a retrial is the appropriate remedy for a trial that went awry. That part will also address the relevance of an 1861 Supreme Court decision, United States v. Jackalow, on which Smith relies.[20] Part III explains why the Due Process Clause also does not require the entry of a judgment of acquittal as the remedy for initially trying a defendant in the wrong forum. Indeed, the Supreme Court has quite clearly rejected Smith’s argument when it was made in connection with the Fifth Amendment’s Double Jeopardy Clause. It fares no better under the alternative theories discussed below.

I. Post-Verdict Remedies in Criminal Cases

The Anglo-American common law does not provide much assistance in answering the question in Smith. English courts could not grant a convicted offender a new trial until the end of the 17th century.[21] Even then, the court could award a new trial only during the term of court in which the judge entered his judgment or enter a reprieve so that the offender could seek royal clemency.[22] There also was no right to appeal a judgment of conviction or sentence at common law.[23] True, habeas corpus was an available remedy to challenge an unlawful pretrial detention, but it did not serve as a basis for seeking relief from a judgment of conviction, however error-filled the trial might have been.[24] A judgment entered by a court with jurisdiction over an offense was a conclusive answer to a claim of illegal detention.[25] In sum, at common law, clemency was the only recourse available to a convicted offender.[26]

The Framers followed that approach.[27] Article III created one Supreme Court of the United States and contemplated that Congress would create lower courts; it gave Congress the freedom to decide whether and how to create a federal judicial system,[28] as well as what authority lower courts should have, including over the adjudication of criminal cases.[29] The First Congress passed two laws creating the original federal judicial system and the criminal code—the Judiciary Act of 1789[30] and the Crimes Act of 1790[31]—but neither one gave a defendant the right to appeal a judgment of conviction.[32] In fact, it was not until 1889 that Congress granted convicted offenders a right of appeal, and then only in capital cases.[33] Convicted offenders with lesser punishments had to wait until 1891 for that right.[34] Only then did a convicted offender have an opportunity to seek relief from a judgment of conviction and sentence from a federal court rather than the President.[35]

The new ability of defendants to appeal their convictions posed the question as to the proper relief that an appellate court should award. The Supreme Court answered that question in 1891 in United States v. Ball.[36] Ball was a murder case. Three defendants were tried; two were convicted, one was acquitted. On the appeal of the convicted defendants, the Supreme Court reversed the trial court’s judgment on the ground that the indictment was defective for omitting a statement as to the time and place of the victim’s death.[37] Afterwards, the government retried and convicted all three defendants.[38] On its second review of the prosecution, the Court held that the acquitted defendant should not have been retried even under a valid indictment.[39] In his case, “[t]he verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the constitution,” the Court reasoned.[40] “However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense.”[41] By contrast, the Court held that the two defendants who had been convicted under a defective indictment could be re-prosecuted under the new one.[42] They could not rely on the Double Jeopardy Clause as a bar to their retrial because they had sought judicial relief from the original judgment:

How far, if they had taken no steps to set aside the proceedings in the former case, the verdict and sentence therein could have been held to bar a new indictment against them, need not be considered, because it is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted.[43]

The Court later summarized the teaching of Ball in United States v. Scott.[44] As then-Associate Justice William Rehnquist explained, Ball established “two venerable principles of double jeopardy jurisprudence.”[45] One is that “[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict . . . poses no bar to further prosecution on the same charge.”[46] By contrast, “[a] judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.”[47] The Supreme Court has consistently applied the distinction it first drew in Ball between acquittals and reversals on other grounds.[48]

The Supreme Court has made the same point in connection with a Sixth Amendment provision parallel to the one at issue in the Smith case: The Counsel Clause. In United States v. Morrison, two federal agents interviewed an indicted offender in the absence of her attorney, in violation of the clause.[49] The defendant challenged the interview as violating her rights under the Counsel Clause, and the court of appeals agreed. The court of appeals also ruled that the appropriate remedy was dismissal of the indictment. The Supreme Court unanimously reversed.[50]

The Court started from the premise that “the fundamental importance of the right to counsel in criminal cases” was not the only relevant consideration.[51] Also relevant is “the necessity for preserving society’s interest in the administration of criminal justice.”[52] To protect both interests, the Court said that “[c]ases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”[53] In earlier cases involving a violation of the Counsel Clause, the Court had consistently remedied the violation only by excluding improperly obtained evidence without ordering dismissal of the indictment.[54] The correct approach is “to identify and then neutralize the taint” from a constitutional error, by tailoring relief “appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial.”[55] Absent a prejudicial “effect” on the trial, however, “there is no basis for imposing a remedy in that proceeding,” let alone one of dismissal.[56] The deliberate nature of the error was irrelevant, the Court decided, absent a prejudicial effect on the proceedings. Citing its precedents discussing the Fourth Amendment and the Fifth Amendment Self-Incrimination Clause, the Court explained that “[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.”[57] Dismissal of the charges, the Court ruled, is an unwarranted remedy. “[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.”[58] Having shown no prejudice in her case, Morrison was not entitled to have the indictment dismissed.[59]

In sum, the Supreme Court’s historic remedy for a trial error that prejudiced the accused is a retrial, not entry of a judgment of acquittal (or, what is the same thing, dismissal of the indictment with prejudice). The government may retry an offender who persuades an appellate court that a prejudicial error before or at trial materially affected the integrity of a judgment of conviction. There is but one exception. Whether before or after the jury returns a guilty verdict, if the trial judge or an appellate court decides that the evidence was insufficient to allow a reasonable jury to convict, then a judgment of acquittal is the only appropriate remedy.[60] Put conversely, if the trial judge should have dismissed the charges for insufficient proof without even submitting the case to the jury, the defendant is entitled to have a judgment of acquittal entered in his favor.[61] Entry of such a judgment engages the protections of the Fifth Amendment Double Jeopardy Clause, barring a retrial for the “same offense.” Otherwise, the government may begin the prosecution anew.

II. The Sixth Amendment Jury Trial Clause

Smith maintains that he is entitled to a judgment of acquittal for being forced to stand trial in the wrong district.[62] Pointing to the venue provisions of Article III and the Sixth Amendment, Smith argues that, because the Constitution effectively makes proof of venue an element of every federal offense and because of the importance of trying a defendant in the proper court, the government’s failure to try him in the correct district is tantamount to a failure of proof of his guilt, entitling him to an acquittal. That argument is unpersuasive.

Smith is correct that the venue requirement is an important one; indeed, it is expressly granted twice in the Constitution. But Smith is mistaken in the role that venue plays in a federal prosecution. Proper venue is but one of several guarantees that the Framers and the First Congress adopted to ensure that no one would be convicted without receiving the type of trial that, even by late 18th-century standards, was deemed necessary for that proceeding to be fundamentally fair. But all of those guarantees are procedural in nature, not substantive. With the one exception of the crime of treason, the Constitution is silent on what conduct should be made a crime and what the elements of that offense should be. Here, the offense for which Smith was convicted does not make venue an element of the actual offense, so requiring him to stand in the dock in the wrong court cannot be deemed a failure of proof that he committed the offense charged against him.

Start with the text of the Constitution. Article III provides in part that “[t]he Trial of all crimes . . . shall be by jury . . . in the State where the said Crimes shall have been committed.”[63] The Sixth Amendment contains a similar provision, which states that “[i]n 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.”[64] Technically speaking, Article III and the Jury Trial Clause could be said to establish two different requirements.[65] The former, which could be denominated a venue requirement, demands that a trial be held “in the State where the said Crime shall have been committed.” The latter, which could be seen as a vicinage requirement, guarantees the accused “an impartial jury of the State and district wherein the crime shall have been committed.” Think of the location of the trial versus the location of the jurors.

The critical point, however, is that Article III and the Sixth Amendment fix only the location for a trial brought to decide the accused’s guilt or innocence of an offense created and defined elsewhere in the law. That was no accidental oversight. The colonists and Framers were familiar with the difference between the substantive law of crimes and the rules of procedure. Murder and robbery were offenses at common law, and the states had criminal codes incorporating those crimes.[66] In fact, the text of the Treason Clause, a companion provision to the Article III Jury Trial requirement, illustrates the difference between the two bodies of law. The Treason Clause is the only constitutional provision defining a crime.[67] Other clauses, such as the Commerce, Coinage, Counterfeiting, Piracy, and Military Regulation Clauses, also illustrate the divide between substance and procedure. They expressly or impliedly authorize Congress to create federal offenses without regulating where those cases may be tried.[68] Accordingly, the text of the Constitution undermines Smith’s argument.

The history of the Article III and Sixth Amendment Jury Trial Clauses also does not help Smith. The Framers focused on trial geography in those clauses because of events preceding the Revolutionary War. Colonial juries were known for acquitting colonists charged with criminal violations of the Crown’s laws and for convicting of assault Crown officials who arrested local offenders.[69] In response, Parliament authorized a trial for treason to be held wherever the Crown saw fit to designate as the proper forum.[70] The colonists were outraged by the prospect that they could be tried in England for offenses occurring in America. In fact, one of the grievances listed in the Declaration of Independence was that England had “depriv[ed] us in many cases, of the benefits of Trial by Jury” and had “transport[ed] us beyond Seas to be tried for pretended offenses.”[71] Article III and the Jury Trial Clause sought to prevent a reoccurrence of those outrages in the new nation by ensuring that trials were held locally.[72]

In his petition, Smith relied heavily on the Supreme Court’s 1861 decision in United States v. Jackalow.[73] Jackalow was an unusual case, in several respects. The government charged a pirate who used the alias “Jackalow” with a capital offense for violating the federal piracy statute[74] because he boarded an American vessel on the high seas, assaulted its owner, and robbed him of merchandise and gold.[75] The evidence indicated that the piracy occurred in Long Island Sound near New York, but the government arrested Jackalow in New Jersey and brought him to trial in that district, as both Article III and the piracy statute seemed to permit.[76] The jury convicted Jackalow of having committed piracy, but then uncertainty arose as to precisely where the crime occurred. The issue of venue had not been submitted to the jury at the guilt stage of the case. After the jury returned its guilty verdict, the court held a post-trial arrest-of-judgment hearing to determine the jurisdictional issue, and a special jury verdict indicated that the crime did not occur in the District of New Jersey.[77] The Supreme Court concluded that it was a mistake to try Jackalow in New Jersey.[78] Given Article III and the piracy statute, the Court reasoned, “the indictment and trial must be in a district of the State in which the offence was committed.”[79] Because the jury had not been properly instructed on the venue issue, the Court concluded, the judgment could not stand.[80] The Court therefore ordered that Jackalow be retried.[81]

The Supreme Court’s opinion in Jackalow is both short and (to be honest) opaque.[82] The Court mentioned but did not delve into the relationship between the trial judge’s authority to decide issues of law and the jury’s authority to decide pure questions of fact and mixed questions of fact and law. The Court also conflated issues of jurisdiction, venue, and substantive criminal law in the course of its brief treatment of the issue. The Court did not fully explicate the respective duties of trial judges and juries for several more decades. It was not until 1895, when the Court decided Sparf v. United States, that the Court clearly distinguished between a court’s responsibility to decide questions of law and a jury’s responsibility to decide questions of fact.[83] And it was not until 1995, when the Court decided United States v. Gaudin, that it made clear that juries must decide mixed questions of fact and law in accordance with the trial court’s jury instructions.[84] Unlike Jackalow, Sparf and Gaudin justified in detail the separate responsibilities of the trial judge and petit jury. The latter two decisions state the contemporary law; Jackalow does not. In short, Jackalow did not survive the Court’s later rulings in Sparf and Gaudin. Whatever the precise holding of Jackalow might be, it is not the law today that a jury must decide a venue issue along with the factual elements of a charged substantive offense.[85]

There is one aspect of the Jackalow opinion, however, that is quite clear. The remedy for trying a defendant found guilty in the wrong court is a new trial, not an acquittal. The last line of the Court’s opinion directed the circuit court on receipt of the Court’s opinion “to set aside the special verdict, and grant a new trial.”[86] On that point, at least, the Court’s opinion is pellucid. Jackalow was not entitled to be set free just because he was tried in New Jersey, rather than another district. At the end of the day, therefore, Jackalow denies Smith the relief that he seeks.

Jackalow is also but one decision. The Supreme Court has discussed the venue guarantee in a host of additional cases, and none of them requires entry of a judgment of acquittal for a trial initially held in the wrong court.[87]

Venue, Justice Felix Frankfurter wrote, “touch[es] closely the fair administration of criminal justice and public confidence in it, on which it ultimately rests.”[88] Those factors are “important” ones “in any consideration of the effective enforcement of the criminal law” raising “deep issues of public policy,” rather than “merely matters of formal legal procedure.”[89] Nonetheless, when the Supreme Court concluded that a defendant had been charged in the wrong district, the Court did not direct the district court to enter a judgment of acquittal, dismiss the charges with prejudice, or otherwise treat a defendant as if he had been acquitted of the charged offense. The Court merely ordered that the offender be retried.[90]

The same is true when we consider the Supreme Court’s other jury trial decisions. The Jury Trial Clauses protect against governmental oppression by interposing a jury of one’s peers between the prosecution and a defendant.[91] Nonetheless, the Court has never held that a violation of the jury trial right can be remedied only by entry of a judgment of acquittal or dismissal of the charges rather than awarding the offender a new trial. The Court has not ordered an acquittal or dismissal when the government unconstitutionally excluded potential grand or petit jurors because of their race or sex;[92] when the jury panel contained too few members (viz., five) to qualify as a “jury”;[93] when a six-person jury was not unanimous;[94] when adverse publicity, before or during trial, prejudiced the jury’s consideration of guilt or innocence;[95] or when a defendant was mistakenly denied the right to any jury trial at all.[96] The Court has not ordered a trial court to enter a judgment of acquittal, or dismissal with prejudice of an indictment, where there was a constitution-based error in the selection of petit jurors, whether that error was based on the Jury Trial Clause or the Equal Protection Clause.[97] In each case, the Court’s opinion contemplates that there will be a new trial on the offender’s guilt or innocence.

Two cases stand out in that regard. One is Hill v. Texas.[98] After being convicted of rape, Hill challenged the indictment against him on the ground that African Americans had been systematically excluded from the pool of potential grand jurors. After reviewing the evidence, the Supreme Court agreed with him.[99] The Court made clear, however, that its ruling in Hill’s favor did not bar a re-prosecution. As Chief Justice Harlan Fisk Stone wrote, “A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again by the procedure which conforms to constitutional requirements.”[100] The rationale in Hill is fully consistent with the one that the Court offered in Ball for allowing a retrial when an offender persuades a court that he was prejudiced by a pre-verdict error in his case. The second case is a federal criminal prosecution, Ballard v. United States.[101] There, the Court exercised its supervisory power to set aside a judgment of conviction where women had been intentionally and systematically excluded from jury service in the defendant’s case. The majority also ordered the indictment to be dismissed because it was returned by a grand jury that suffered from the same infirmity.[102] Nonetheless, the Court again made it clear that the government could seek a new indictment and re-prosecute the defendants for fraud.[103] Hill and Ballard prove that errors in the selection of the parties who will decide whether someone should be charged with or convicted of a crime do not immunize a defendant against a second trial.

Relying on the Supreme Court’s decision in Strunk v. United States,[104] Smith argues that the Supreme Court should adopt the same remedy for venue errors that it has already endorsed for speedy trial shortcomings: dismissal of the indictment.[105] Strunk was a short opinion decided before the Court came to focus on the remedial aspects of a ruling in the defendant’s favor.[106] Strunk concluded that the proper remedy for a Speedy Trial Clause violation is dismissal of the indictment because no remedy other than dismissal can cure the flaw in the trial process.[107] But the Court in Strunk expressly distinguished Speedy Trial Clause violations from all others, such as the “failure to afford a public trial, an impartial jury, notice of charges, or compulsory service,” all of which can be remedied by a new trial, the Court wrote.[108] Strunk therefore does not assist Smith. If trying the accused before a secret or biased jury can be remedied by a new trial, surely trying a defendant before the wrong jury can be remedied in the same way.

Moreover, it is not clear that the Supreme Court would decide that dismissal is the only available remedy if the issue in Strunk were to arise today. The Speedy Trial Clause protects three interests: (1) freedom from unduly prolonged pretrial detention, (2) freedom from the trials and tribulations of a pending criminal charge, and (3) freedom from the potentially prejudicial effect that delay could have on the accused’s ability to defend himself at trial.[109] The Court did not consider in Strunk whether other forms of relief would rectify the harms from an unduly delayed trial. The only alternative that the Court considered in Strunk was crediting the offender’s federal term of imprisonment against the state period of incarceration that he was then serving.[110] Discounting one sentence against another, however, would remedy none of the three harms caused by an unduly delayed trial.

Finally, the Court’s statement in Strunk that “dismissal must remain ‘the only possible remedy’”[111] is implausible. As Stanford Law School Professor Anthony Amsterdam explained:

On its face, this proposition is incredible. Anglo-American law has long provided remedies for denial of a speedy trial other than dismissal of the prosecution with prejudice. State and lower federal courts enforcing subconstitutional speedy-trial guarantees have frequently found other remedies appropriate; and both lower courts and the Supreme Court have enforced the sixth amendment by other means. Surely, the primary form of judicial relief against denial of a speedy trial should be to expedite the trial, not to abort it. Where expedition is impracticable for some reason, the Supreme Court’s repeated recognition of the several distinct interests protected by a right to speedy trial suggests the propriety of fashioning various remedies responsive to the particular interest invaded in any particular case. If the sole wrong done by delay is undue and oppressive incarceration prior to trial, the remedy ought to be release from pretrial confinement; if prolongation of the ‘anxiety’ and other vicissitudes ‘accompanying public accusation’ is sufficiently extensive, the remedy ought to be dismissal of the accusation without prejudice; and it is only when delay gives rise to ‘possibilities [of impairment of] . . . the ability of an accused to defend himself,’ or when a powerful sanction is needed to compel prosecutorial obedience to norms of speedy trial which judges cannot otherwise enforce, that dismissal of a prosecution with prejudice is warranted.[112]

The Court’s later decision in United States v. Montalvo-Murillo illustrates why dismissal is not the only available remedy.[113] Montalvo-Murillo involved a parallel type of issue. The Bail Reform Act of 1984 requires a court to hold a hearing on whether a person should be detained pending trial “immediately upon the person’s first appearance before” a judicial officer.[114] In that case, the release hearing was held later, and both the district court and federal court of appeals held that the delay required the offender’s release.[115] The Supreme Court reversed, ruling that “a failure to comply with the first appearance requirement does not defeat the government’s authority to seek detention of the person charged.[116] “Although the duty” to hold a release hearing at an offender’s first appearance is “mandatory,” the failure to do so should not deprive the government “of all later powers to act”;[117] a more “realistic and practical” approach was preferable[118] given the hustle-bustle that can occur during the pretrial stage of a case.[119] Moreover, a dismissal of the charges “has neither causal nor proportional relation to any harm caused by the delay in holding the hearing” because “a defendant subject to detention already will have suffered whatever inconvenience and uncertainty a timely hearing would have spared him,” harms that an order of release cannot remedy.[120] A prompt hearing on the motion of the defendant or government is an adequate remedy.[121] The same rationale would apply to a Speedy Trial Clause claim. The proper remedy is for the defendant (or government) to demand a trial, not to wait until one is held and then seek dismissal of the charges. In sum, post-Strunk decisions like Montalvo-Murillo illustrate not only that the Court’s remedy in Strunk was overbroad, but also that the Court would not likely endorse it today.[122]

Finally, there is no good reason to construe Article III or the Sixth Amendment to require the government to prove venue as an element of every federal offense. Any such rule would be irreconcilable with the Supreme Court’s decision in Jackson v. Virginia.[123] Jackson interpreted the Due Process Clause to forbid a conviction if “no rational trier of fact could have found proof beyond a reasonable doubt” from “the record evidence adduced at the trial.”[124] In response to the concern that this standard would “invite intrusions upon the power of the States to define criminal offenses,” the Court responded that any such fear was unfounded because “the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.”[125] Perhaps, some criminal statutes require proof that a particular offense occurred at a site certain, and those statutes might raise a different issue. But that is not generally the case. Criminal laws are generally concerned with what a person did, not where he did it. By focusing on the what elements of a criminal offense, the clear implication of Jackson is that venue is not a necessary element of every criminal offense.

III. The Fifth Amendment Due Process Clause

The final question is whether the Due Process Clause should play a role in this case atop the one played by the Jury Trial Clause.[126] The Supreme Court has occasionally used that clause as an all-purpose backstop forbidding fundamentally unfair pretrial and trial procedures that do not violate a specific constitutional guarantee, but that the Court finds constitutionally unacceptable. The cases in which the Court has followed that approach are ones in which a state deprived a defendant of any semblance of a fair trial or deeply corrupted the fact-finding process. For example, in Frank v. Mangum, the Court held that a mob-dominated proceeding was, in effect, a slow-motion lynching rather than the “trial” that due process requires.[127] Similarly, in Tumey v. Ohio, the Court ruled that paying a trial judge by the number of convictions obtained in his court is impermissible because it is inherently likely to bias a judge in the government’s favor.[128] Since Frank and Tumey, the Court has condemned a host of other state practices that effectively denied a defendant a fair trial. Those now-forbidden practices include using perjured testimony or a coerced confession to establish a defendant’s guilt;[129] trying a defendant who, because of a mental disease or defect, is incapable of understanding what a trial is (or that he is on trial) or from consulting with defense counsel;[130] and trying a defendant under circumstances that, due to adverse pretrial publicity or in-court media coverage, corrupt the integrity of the proceedings.[131] The question that the Court decided to review in Smith is not limited to the Jury Trial Clause, so the Justices could address the relevance of the Due Process Clause.[132] If they do, the issue would be whether that clause should bar a retrial of an offender when neither the Double Jeopardy Clause nor the Jury Trial Clause require such relief. We think not, for three reasons.

The first one is that, in the due process cases just discussed, the Supreme Court did not rule that a judgment of acquittal was the necessary or an appropriate remedy for the errors that occurred. In fact, the Court did not establish a new law of remedies for the due process violations that the Court found in those cases. In each case, the Supreme Court relied on the Due Process Clause only as a means of defining the substantive right that a defendant is entitled to receive as a component of a fundamentally fair trial. The Court did not say, let alone hold, that an acquittal is the only remedy that could both remedy the flaw and prevent a state from repeating its mistake in other cases. Even in cases like Moore v. Dempsey,[133] where the integrity of the proceedings was so despoiled by a mob’s demand for the defendant’s blood that “the whole proceeding” was but “a mask” for a lynching,[134] the Court did not order the charges to be dismissed, only that, if the trial happened as the habeas petitioners averred, they would have been denied a fair trial. The Court’s 1966 decision in Sheppard v. Maxwell makes that point well.[135] There, the Court determined that the defendant was denied a fair trial due to adverse pretrial and in-trial publicity,[136] along with disruptive courtroom influences.[137] The Court only ordered the defendant to be released from custody “unless the State puts him to its charges again within a reasonable time.”[138] Sheppard therefore expressly contemplated that the denial of a fair trial did not require the accused to be acquitted of the crime. Accordingly, the Court’s due process decisions cited above cannot justify disregarding the rule stated in Ball, Scott, and Morrison that an adequate remedy for a flawed trial is a new trial.

The second reason is that the Supreme Court has twice held that, in connection with the violation of parallel Bill of Rights provisions, dismissal of the indictment is an overbroad remedy. In United States v. Blue[139] and United States v. Morrison,[140] the Court ruled that violations of the Fifth Amendment Self-Incrimination Clause and Sixth Amendment Counsel Clause, respectively, do not justify dismissal of an indictment merely because an error occurred.[141] Those decisions are directly relevant here because the remedy that Smith seeks—entry of a judgment of acquittal—is not materially different from the relief that the Court found inappropriate in those cases. To be sure, the Court did not expressly discuss the option of entering a judgment of acquittal as an alternative to dismissal of an indictment in either Blue or Morrison. But the Court’s Double Jeopardy Clause decisions in the Ball and Scott cases make clear that a judgment of acquittal is appropriate only when a court finds the evidence insufficient to convict.[142] It makes no sense to assume that the Court was ignorant of its Double Jeopardy Clause precedent when it decided Blue and Morrison.

The third reason is that there is no justification for creating an entirely new acquittal right beyond what the Double Jeopardy Clause already provides. That is the lesson from the Supreme Court’s decision in Graham v. Connor.[143] The question there was whether the police had used excessive force when arresting Graham. Traditionally, the lower federal courts had treated that claim as a matter of substantive due process.[144] The Supreme Court found that approach misconceived. As the Court explained:

Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures” of the person. . . . Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.[145]

That approach makes sense here, too. The only difference is that here the Double Jeopardy Clause—rather than the Fourth Amendment—supplies “the explicit textual source of constitutional protection” against the conduct that Smith challenges: a retrial. But that clause, as explained above, allows Smith to be retried. As the Supreme Court made clear in Ball, Scott, and other cases, the Double Jeopardy Clause balances the competing interests and clearly defines different consequences for the two materially different judgments that (1) the jury should never have been allowed to deliberate on the charges because the proof of guilt was deficient, and (2) a prejudicial error occurred at the trial of an otherwise guilty defendant. The former is tantamount to an acquittal and must be treated as such, thereby raising a shield against a second prosecution on the indictment. The latter means that an evidentiary or procedural mistake was made that requires correction before we can be confident that only a guilty person was convicted. There is no room left for the Due Process Clause to ensure that no innocent person is convicted and punished. Indeed, some trial errors—the denial of a public trial, for example—might not raise any concern that an innocent person was found guilty. Nonetheless, the criminal justice system’s systemic interest in guaranteeing public trials is sufficiently weighty to overcome our general reluctance to treat every trial error as fatal and requires that the defendant be afforded a new trial even if he is indisputably as guilty as sin.[146] Unless every trial error requires an appellate court to enter a judgment of acquittal, there is no good reason why errors like the one in Smith case should receive a favored status, leading to acquittal whenever they occur.

IV. Conclusion

The Smith case is proof that not every case that the Supreme Court reviews poses a difficult issue of constitutional law. More than a century ago, the Supreme Court held in Ball that, if an appellate court finds that the defendant was prejudiced by an error that occurred at his trial, the court must set aside a judgment of conviction and order a retrial. That proposition governs this case. The circuit court of appeals held that Smith was tried in the wrong federal district court and awarded him a new trial. The only exception to that rule exists when an appellate court concludes that the evidence was insufficient to support the jury’s verdict. In that event, the court must not only set aside the conviction but also order the entry of a judgment of acquittal, which bars a retrial. Unfortunately for Smith, his case does not fit into that exception. Whether considered as a matter of law or logic, trying a defendant in the wrong zip code is not tantamount to failing to prove his guilt of a crime. Smith is entitled to receive the new trial that the court of appeals awarded him, but he is not entitled to go scot-free, at least not yet.

Other Views:

·  Brief for Petitioner, Smith v. United States, 2022 WL 17586971 (No. 21-1576), available at https://www.supremecourt.gov/DocketPDF/21/21-1576/253367/20230127165939742_2023-01-27%20No.%2021-1576%20-%20Smith%20Merits%20Brief.pdf.

·  Brief of Professor Drew L. Kershen & Professor Brian C. Kalt as Amici Curiae in Support of Petitioner, Smith (No. 21-1576), available at https://www.supremecourt.gov/DocketPDF/21/21-1576/253972/20230203145310122_Smith%20v.%20US--Amicus%20Brief.pdf.

·  Brief for the Rutherford Institute, the Cato Institute, & the National Association for Public Defense as Amici Curiae in Support of Petitioner, Smith (No. 21-1576), available at https://www.supremecourt.gov/DocketPDF/21/21-1576/253969/20230203144740733_Smith%20v.%20United%20States%20--%20Merits-Stage%20Amicus%20Brief.pdf.

·  Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, Smith (No. 21-1576), available at https://www.supremecourt.gov/DocketPDF/21/21-1576/253998/20230203155838040_NACDL%20Smith%20Amicus%20Brief%20AS_FILED.pdf.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].