Volume 75, Number 6

December 2000

The Public’s Vicinage Right: A Constitutional Argument

Steven A. Engel

Law Clerk to Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. A.B., 1996, Harvard College; M.Phil., 1997, Cambridge University; J.D., 2000, Yale University.

Again and again in notorious criminal trials, courts neglect significant public interests by transferring the trial out of the community in which the crime was committed. The acquittal of the officers who shot Amidou Diallo reflects but the latest of a number of high-profile verdicts in which the change of venue undermined the verdict’s legitimacy, particularly within the community victimized by the crime. American law always has presumed that jurors must be drawn from within the victimized community in order to permit the jury to fulfill its representative and adjudicative functions. Local jurors stamp the community’s judgment on the verdict, permit the trial to serve as an outlet for community concern, and interpret ambiguous statutory terms in light of the common sense of the community. These essential jury functions were understood by the Founders, yet they wholly are absent from the prevailing law governing change of venue motions. In this Article, Steven Engel argues that the public enjoys a constitutional right to adjudicate criminal trials locally. He first examines a series of cases in the 1980s where the Supreme Court recognized that the public enjoys a right of access to criminal proceedings premised on the tradition of public access, the public interest in publicity, and the link between the right and established constitutional values. He then suggests that the public’s “vicinage right” grows from the same soil as does the public’s right of access, has long-standing roots in our legal tradition, continues to serve important public policies, and is implicit in other constitutional doctrines protecting the jury right. Engel concludes that recognizing such a public right would encourage courts to explore alternatives to transfers that would preserve the defendant’s right to an impartial jury without damaging the community interests implicit in the trial by jury.