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June 15, 2023

Unanimous Supreme Court rejects claim Double Jeopardy Clause precludes retrial after trial in wrong venue

The Supreme Court this morning issued an short unanimous ruling in Smith v. US, No. 21–1576 (S. Ct. June 15, 2023) (available here).  Justice Alito authored the opinion for the full Court, which starts this way:

When a conviction is reversed because of a trial error, this Court has long allowed retrial in nearly all circumstances.  We consider in this case whether the Constitution requires a different outcome when a conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location.  We hold that it does not.

June 15, 2023 at 11:08 AM | Permalink


Buried in the decision is a brief reference to jury nullification (pgs. 14-15). The reference is more of an acknowledgment that jury nullification is possible but that such claims are unreviewable. But it is an interesting aside in the opinion.

Posted by: tmm | Jun 15, 2023 11:36:29 AM

tmm, along those lines is the idea that in reviewing ineffective rep claims, the defendant is not entitled to a lawless factfinder . . . .

Posted by: federalist | Jun 15, 2023 3:49:05 PM

When taking Strickland into account, the basic line is that double jeopardy prevents the government from appealing in a case of jury nullification, but when defendant seeks to challenge his conviction, the law assumes (probably wrongly given how poorly instructions are drafted) that the jury followed the instructions, made factual findings consistent with their verdict, and applied those factual findings to the elements as set forth in the instructions.

Posted by: tmm | Jun 15, 2023 4:56:40 PM


Another charge for self-defense.

Posted by: federalist | Jun 15, 2023 5:12:35 PM

"Justice Alito authored the opinion" ... no need for more information. It was a government win.

Posted by: eli | Jun 16, 2023 2:11:32 AM

@eli: About once every 2 or 3 years, Alito writes or joins an opinion favorable to a defendant. He is probably the least Defendant-friendly Justice, but this judgment was unanimous, which suggests it was not even a close question.

Posted by: Marc Shepherd | Jun 16, 2023 8:10:43 AM

eli --

To paraphrase you, when Jackson, Sotomayor and Kagan all go along, there's "no need for more information." The defendant's case was nonsense -- something you conspicuously don't dispute or even mention. See Marc Shepherd's comment.

Posted by: Bill Otis | Jun 16, 2023 12:25:44 PM

I know the federal system is different from the state systems, but about 15 years ago my State Supreme Court decided that venue was not a jury issue as it was not an element of the substantive offense. Instead, it is a procedural protection given to defendants which could be waived if not asserted. The end result, however, is the same -- an error as to venue is merely reversible error and is not a bar to a new trial in the right venue. That conclusion makes sense as I know of no law creating a criminal offense that includes venue as part of the definition of the offense.

Posted by: tmm | Jun 16, 2023 5:31:46 PM

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