Page:Smith v. United States (2023).pdf/15

Rh crime may be tried—there is no meaningful evidence that the Constitution altered the remedy prescribed by common law for violations of the vicinage right.

With this background in mind, we examine the remedy at common law for an initial trial in the wrong venue or before a jury drawn from the wrong vicinage, and we find that this history does not demand a departure from the retrial rule. By the time of the founding, compelling evidence supported the conclusion that pleas of prior acquittal or conviction could not be grounded on a verdict issued in or returned by a jury from the wrong vicinage.

The leading decision at common law was Arundel’s Case, 6 Co. Rep. 14a, 77 Eng. Rep. 273 (K. B. 1593), which concerned a vicinage challenge to a jury that had found the defendant guilty of murder. Id., at 14a–14b, 77 Eng. Rep., at 274. The King’s Bench arrested judgment on the conviction because the jury was insufficiently local, but it did not bar retrial. Ibid. Instead, “a new venire facias [was] awarded to try the issue again.” Ibid.; see also Vaux’s Case, 4 Co. Rep. 44a, 45a, 76 Eng. Rep. 992, 994 (K. B. 1591) (adopting a similar rationale for insufficient indictments). Discussing Arundel’s Case at length, Sir Edward Coke’s 17th-century treatise agreed that juries lacked authority to convict outside of their vicinage and added that a verdict by an improperly constituted jury would cause a “mistryall.” 1 Coke §193, at 125; see also 3 id., at 137 (1644); Rex v. Fenwicke, 1 Keble 546, 83 Eng. Rep. 1104 (K. B. 1662) (recognizing the availability of retrial “for misawarding of venue”); Rex v. Talbot, Cro. Car. 311, 312, 79 Eng. Rep. 871, 872 (K. B. 1633) (awarding a new jury venire to remedy a vicinage error).

Arundel’s remedy remained unchanged throughout the 18th century. Because “indictments are local,” one prominent treatise explained, a prior acquittal on an indictment