CHAPTER 17

JURISDICTION AND VENUE

§ 17.01 District and Superior Court Jurisdiction

§ 17.02 Venue

§ 17.03 Circumstances Warranting a Change of Venue

§ 17.04 Procedure on Motion To Change Venue

§ 17.01

District and Superior Court Jurisdiction

Except for the Vermont Supreme Court whose jurisdiction is partly granted by the constitution{1} the jurisdiction of all courts in Vermont is a creature of statute.{2} The district court is a unified court with statewide criminal jurisdiction.{3} The superior courts, by contrast, are county institutions, with jurisdiction over criminal offenses committed "within their respective counties. . . ."{4}

A court's lack of subject matter jurisdiction has the drastic consequence of rendering ensuing proceedings void, and such jurisdictional defects can be raised at any time.{5} Absent proof that the crime charged occurred within the boundaries of the state, the defendant is entitled to judgment of acquittal.{6} But Vermont has jurisdiction over crimes committed partly outside the state, so long as the defendant intends a Vermont crime and "does an act" within the state "in execution or part execution of such intent," which results in a crime either in or out of Vermont.{7} The in-state act must be "so related to the crime that if nothing more had followed, it would have amounted to an attempt."{8}

The state has an initial burden of proof to show that the crime charged occurred in (or partly in) Vermont.{9} But the fact that a crime was committed within the borders of the state does not always establish subject matter jurisdiction. By federal law the state lacks jurisdiction over some offenses committed by Indians in "Indian country," a term which includes, in addition to Indian reservations and allotments, the ill-defined category of "dependent Indian communities."{10} Whether a crime has been committed in Indian country is a question of fact, for which the defendant bears the burden of proof by a preponderance of evidence.{11}

§ 17.02

Venue

By administrative order the district court has been divided into five administrative units, some of which are subdivided into circuits,{12} which constitute the units of venue. District court venue is normally in the territorial unit where the offense is alleged to have been committed.{13} In superior courts the county where the crime is committed is the normal venue.{14}

Defects in venue do not have the same effect as jurisdictional defects. Defendants may have an "interest" in being tried in the locality where the offense occurred{15} but the right "to be tried locally[,]"{16} that is, to a particular venue, is not firmly established by the Vermont Constitution, which guarantees only the right to trial by a jury "of the country[,]"{17} a term which does not require trial within a particular political unit.{18}

A defect in venue "in no way affects the general jurisdiction of the court over the subject-matter[,]"{19} and a defendant challenging his conviction on the ground that he was tried in the wrong venue must demonstrate prejudice.{20}

§ 17.03

Circumstances Warranting a Change of Venue

A change of venue is required on the defendant's motion if "there exists in the county or unit where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial therein."{21} A change of venue of all or part of a case is also permissible, on motion of either side or sua sponte, "[f]or the convenience of the parties and witnesses, and in the interest of justice. . . ."{22} Although the power to change venue is given to the trial judge, in an extraordinary (and "hopefully unique") case, the Vermont Supreme Court found itself with authority to order a venue change on its own motion, pursuant to its supervisory jurisdiction, to bring a contentious proceeding "back into a trial alignment. . . ."{23}

The Vermont Supreme Court's deep reluctance on first amendment grounds to restrict press access to court proceedings requires a canvassing of other methods to limit the effect of prejudicial pretrial publicity, and a principal alternative to press restrictions is change of venue.{24}

Changes of venue are said to be "discretionary" with the trial judge,{25} but this only means that appellate review will give deference to a challenged ruling: if a fair trial cannot be had in the original venue, a change is not simply a matter of discretion.

More is required than a showing that the charges have been a subject of media coverage,{26} or that jurors have some extrajudicial knowledge of the case,{27} or that the defendant is known in the community and has been the subject of media interest unrelated to the trial.{28} Relevant considerations include the character of the news coverage (its extent, recency, and whether it was inflammatory or inaccurate),{29} the degree to which it has intruded into the trial process,{30} and indications of juror prejudgment at the voir dire.{31}

Defense counsel's failure to use all peremptory challenges{32} and his expression of "satisfaction" with the jury as drawn{33} will count against a claim that the judge erred in refusing to order a change of venue.

§ 17.04

Procedure on Motion To Change Venue

The motion must be made at the latest before the jury has been impanelled or (in a jury-waived trial) before evidence is received.{34} If made earlier it should be renewed at jury selection, particularly if new grounds justifying a change of venue show up at the voir dire.{35} The motion need not (but generally should) specify the requested site for the trial.{36} Once a change of venue has been ordered, the clerk transfers the file to the new court.{37} The original state's attorney stays on as prosecutor.{38}

ENDNOTES

1. Vt. Const. ch. II, art. 30.

2. Vt. Const. ch. II, § 31 (lower courts "shall have original and appellate jurisdiction as provided by law").

3. 4 V.S.A. §§ 436, 439-42.

4. 4 V.S.A. § 114.

5. State v. Joy, 149 Vt. 607, 614-15 (1988); V.R.Cr.P. 12(b)(2), Reporter's Notes.

6. State v. Huginsky, 139 Vt. 95, 97-98 (1980); State v. Longway, 137 Vt. 165, 168 (1979).

7. 13 V.S.A. § 2.

8. State v. Huginsky, 139 Vt. 95, 98-99 (1980).

9. State v. St. Francis, 151 Vt. 384, 389 (1989).

10. 18 U.S.C. §§ 1151-52; State v. St. Francis, 151 Vt. 384, 386, 388 (1989).

11. State v. St. Francis, 151 Vt. 384, 391 (1989). Cf. State v. Elliott, No. 90-512 (Vt. June 12, 1992) (rejecting "aboriginal rights" defense to fish and game prosecution of Abenaki Indians). A similar jurisdictional objection was rejected in State v. Armstrong, 148 Vt. 344 (1987), where the Vermont Supreme Court held that the state had jurisdiction over offenses committed at a federal border station on the U.S.-Canada border. See also State v. Dreibelbis, 147 Vt. 98 (1986) (rejecting the same argument on other grounds).

12. 4 V.S.A. §§ 436, 436a, 436b; A.O. 2.

13. 13 V.S.A. § 4601; V.R.Cr.P. 18.

14. 13 V.S.A. § 4601; V.R.Cr.P. 18.

15. State v. Hunt, 150 Vt. 483, 490 n.2 (1988).

16. Herald Association v. Ellison, 138 Vt. 529, 534 (1980).

17. Vt. Const. ch. I, art. 10.

18. See State v. Murphy, 134 Vt. 106, 108-09 (1976); State v. Brown, 103 Vt. 312 (1931); V.R.Cr.P. 18, Reporter's Notes.

19. State v. Hunt, 150 Vt. 483, 491 (1988) (quoting Page v. Town of Newbury, 113 Vt. 336, 339 (1943)).

20. State v. Hunt, 150 Vt. 483, 491 (1988).

21. V.R.Cr.P. 21(a); 13 V.S.A. § 4631.

22. V.R.Cr.P. 21(b); 13 V.S.A. § 4631.

23. State v. Hunt, 150 Vt. 483, 488-89 (1988).

24. State v. Schaefer, Nos. 84-484 and 84-515, slip op. 14-16 (Vt. Sept. 6, 1991). See §§ 22.01-22.05, infra.

25. State v. Chenette, 151 Vt. 237, 252 (1989); State v. Truman, 124 Vt. 285, 289 (1964).

26. State v. Truman, 124 Vt. 285, 289-90 (1964).

27. Irwin v. Dowd, 366 U.S. 717, 722 (1961).

28. State v. Chenette, 151 Vt. 237, 252 (1989).

29. Compare State v. Chenette, 151 Vt. 237, 252 (1989); State v. Winters, 136 Vt. 469, 470-71 (1978) and State v. Truman, 124 Vt. 285, 290 (1964) (publicity was not inflammatory or denunciatory) with Irwin v. Dowd, 366 U.S. 717, 725-26 (1961) (inflammatory coverage, defendant had become "the cause celebre" of a small rural community). Purely factual coverage, however, can be enough to prejudice the community. Rideau v. Louisiana, 373 U.S. 723 (1963) (repeated television broadcasts of defendant's confession).

30. See, e.g., Rideau v. Louisiana, 373 U.S. 723 (1963) (press allowed to overrun courtroom with television equipment); Sheppard v. Maxwell, 384 U.S. 333 (1966) (publicity contributed to carnival atmosphere).

31. Compare State v. Chenette, 151 Vt. 237, 252 (1989) (voir dire was "uneventful") and Murphy v. Florida, 421 U.S. 794, 800 (1975) (voir dire indicated no hostility toward defendant by jurors who sat on case) with Irwin v. Dowd, 366 U.S. 717, 727 (1961) (voir dire revealed pattern of deep community prejudice).

32. State v. Winters, 136 Vt. 469, 471 (1978).

33. State v. Truman, 124 Vt. 285, 290 (1964).

34. V.R.Cr.P. 22.

35. See State v. Chenette, 151 Vt. 237, 252 (1989) (judge gave defendant opportunity to renew motion; defendant failed to do so); State v. Winters, 136 Vt. 469, 471 (1987).

36. V.R.Cr.P. 21(a).

37. V.R.Cr.P. 21(c); 13 V.S.A. § 4631.

38. 13 V.S.A. § 4638.