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The Framers and the Boston Bomber, Part 2

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Yesterday I wrote a column about the change of venue requested by accused Boston Marathon bomber Dzhokhar Tsarnaev. I argued that the Framers were concerned about keeping trials local to protect the accused. That much was correct. But I also offered a brief history of the rise of the change of venue in the U.S., tracing the modern doctrine to the English Central Criminal Court Act of 1856. That history was incomplete, and I now think I got the causality partly wrong.

The English law of 1856 codified and developed a doctrine with older roots in the common law. The change of venue developed gradually in the U.S. from those earlier English common law origins -- not from the act of Parliament. I’m grateful to Eugene Volokh of the UCLA School of Law and the Volokh Conspiracy blog for gently putting me on the right path.

It turns out the story is even more striking than I thought -- and emphasizes even more strongly that the Framers valued local trials. Remarkably, the change of venue was originally, in the common law and in the early republic, understood as a tool that could be used by the prosecution to help to get a conviction away from a sympathetic jury in the defendant’s backyard -- and for that reason it was feared by at least some Americans.

Taken in its fuller form, then, the development of the law of change of venue shows how difficult the problem of a fair trial really is -- and how ideas can change about when community justice is really fair.

The earliest examples of the change of venue in English common law -- some of them very old indeed, as one supposedly goes back to 1351 -- involved cases that were moved from one county to another because the defendants were too powerful to get a fair trial near home. In these cases, the concern was not for the defendant to get a fair trial, but for the prosecution to be able to get a conviction.  In other words, the change of venue seems to have begun its life as a policy designed to serve the crown, not the individual.

By the second half of the 18th century, Lord Mansfield, perhaps the greatest common law judge of all time, wrote that “in parts of England itself where an impartial trial cannot be had in the proper county it shall be tried in the next.” Mansfield added that “the law is clear and uniform as far back as it can be traced.”

To the English judges after Mansfield, the change of venue was, and remained, a “common-law right equally open to defendants and prosecutors.”

In the U.S., things got more complicated. Citizens of the early republic were very concerned, as I wrote yesterday, to make sure that defendants were tried near home -- to protect them against overreaching central authorities. Yet some were also worried about the problem of a biased jury that wouldn’t convict genuine criminals because of resistance to the law.

The drafters of the New Hampshire state constitution of 1783 offered a complex compromise. On the one hand, they wrote in the original Article 17 of the New Hampshire Bill of Rights, “In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed.” This was a strong, classically American statement in favor of local trials to protect the accused -- the same value that made its way into the Sixth Amendment to the Constitution.

On the other hand, the New Hampshire framers were also worried about cases where the jury might refuse to convict because local residents were in open rebellion against state authorities. They therefore made an exception for “cases of general insurrection in any particular county, when it shall appear to the judges of the superior court that an impartial trial cannot be had in the county where the offence may be committed, and, upon their report, the assembly shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained.” The process envisioned was one in which local judges in a revolting county reported to the state legislature, which would then order the change in venue to get a conviction.

Delaware, too, was concerned about getting convictions. In its 1792 constitution, it specified that “every action shall be tried in the county in which it shall be commenced, unless when the judges of the court in which the cause is to be tried shall determine that an impartial trial therefore cannot be had in that county.” This change of venue provision was framed neutrally, and could have benefited prosecution or defense -- but the likely implication of placing it by the promise of a local trial was that the Delaware framers, like those in New Hampshire, saw the change of venue as ordinarily pro-government, not pro-defendant.

In the years that followed, however, defendants began to seek change of venue on grounds of juror or judicial bias. State courts across the country were unsure of whether they had the traditional English common law authority to change venue. Thus, for example, in 1817, Virginia’s General Court said it had no authority to change the venue in a criminal case, even where it suspected the possibility of prejudice.  In response, some states passed laws allowing for a change in venue -- well before 1855 and the English model. Virginia did so in 1819, two years after the holding that the common law didn’t authorize the change.

Over time, it would seem, the idea that a change of venue was dangerous to the defendant gradually gave way to the idea that it would be advantageous.

I said yesterday that the Framers would have found the change of venue motion “incomprehensible.” That was true insofar as they seem to have considered the change of venue in terms of the advantage it gave to the prosecution. Their children and grandchildren came to have a different view -- not primarily because of developments in England, but in parallel.

The upshot of all this history is that the powerful belief in local trials to protect liberty really was the primary concern of a founding generation that feared centralized government -- but within a few generations, the traditional concern for defendants’ rights made a change of venue seem desirable to the individual. Local justice has pride of place in our earliest traditions, but an impartial jury is right there alongside it. Americans discovered the tension between these two impulses themselves -- and we didn’t need Parliament or a Victorian poisoner to do it.

  1. See Crocker v. Justices of the Superior Court, 208 Mass. 162 (1811), http://masscases.com/cases/sjc/208/208mass162.html. The next three quotes come from the same source, citing earlier British cases.

  2. In 1875, New Hampshire’s highest court said that the courts couldn’t give a change of venue under this provision. State v. Sawyer, 56 N.H. 175 (1875). The court reversed itself in State v. Albee, 61 N. H. 423 (1881).

  3. Commonwealth v. Wildy, 2 Va.Cas. 69 (1817).

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To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net