Page:Smith v. United States (2023).pdf/17

Rh there may be a new trial; as in cases of a mis-trial by an improper jury,” United States v. Gibert, 25 F. Cas. 1287, 1302 (No. 15,204) (CC Mass. 1834) (citing Arundel’s Case), and Justice Iredell had found it “unnecessary” to consider a vicinage objection because a new trial was warranted on other grounds, United States v. Fries, 3 Dall. 515, 518 (CC Pa. 1799). Other federal decisions ordered retrials for venue violations, see United States v. Plympton, 27 F. Cas. 578 (No. 16,057) (CC DC 1833), or otherwise accepted that a retrial would be sufficient to cure such an error, see, e.g., United States v. Keen, 26 F. Cas. 686, 690 (No. 15,510) (CC Ind. 1839) (“It is laid down in all the authorities, that if the court have not jurisdiction … or the jury have not been legally summoned, the defendant, though tried, cannot be considered as having been in jeopardy”). State courts had likewise begun reaching similar conclusions, notwithstanding the existence of venue and vicinage clauses in their State Constitutions. Given these developments, it is not surprising that American treatises from this period agreed with their English counterparts regarding the availability of retrial.

Far from justifying an exemption from the retrial rule, the historical background of the Venue and Vicinage Clauses supports the opposite inference. We have found—and Smith points to—no decision barring retrial based on a successful venue or vicinage objection in either the centuries of common law predating the founding or in the early years of practice following ratification. This absence alone