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The Champion

January-February 2019 , Page 24 

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Venue in Federal Criminal Cases: A Strange Duck

By David Spears

Venue may be the quirkiest concept in all of federal criminal law.

A criminal defendant’s venue right is set out in two different places in the Constitution.1 Yet despite that seeming emphasis, in recent years courts have consistently held that venue occupies a lesser station than other constitutional rights such as the right to a jury trial, the right to be indicted by a grand jury, and the privilege against self-incrimination. In particular, the venue right is easily waived through defense counsel’s failure to raise it at precisely the right time and to develop it in the right way.

Unlike those other, “superior” constitutional rights, under certain circumstances venue can become an issue for the jury. However, if defense counsel is successful in getting a venue issue before the jury, the jury is instructed that the government is required to prove proper venue only by a preponderance of the evidence, rather than beyond a reasonable doubt.

Most striking of all, when a district judge dismi

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