Since its introduction to the public discourse, lawyers have admonished the pejorative phrase, “off on a technicality”—and rightfully so. However, the phrase may rightfully find application to the law’s present treatment of criminal defendants who have been convicted in improper venues. Although venue is a constitutionally necessary component of all criminal prosecutions, it does not speak to the factual guilt or innocence of a defendant. Nevertheless, in the Fifth and Eighth Circuits, defendants whose convictions stem from improper venue may be acquitted despite a jury’s finding that they committed each substantive element of the underlying offense. By contrast, the Sixth and Ninth Circuits remedy these same improper venue convictions by dismissing cases without prejudice, allowing for a second prosecution of the accused. Under the Ninth Circuit’s approach, the government’s subsequent prosecution is uninhibited—allowing prosecutors the opportunity to prove venue in the same district where the initial prosecution failed. This Comment seeks to resolve, through a balanced approach, the existing circuit split concerning the proper remedy for cases where venue is found improper post-conviction. It does so by proposing that dismissal without prejudice should be adopted as the uniform remedy for improper venue but argues that criminal collateral estoppel should be applied on retrial to prevent prosecutors from attempting to prove venue in the same district a second time. This method promotes the resolution of criminal cases on their merits while protecting defendants from an endless string of duplicitous litigation.
Chris Thomson, Comment, Off on a Technicality: The Proper Remedy for Improper Venue, 73 SMU L. Rev. 667 (2020).