The Vicinage Requirement

The United States Constitution only confers a right to be tried in the state where the offense occurred. (Art. III, 2.) Vicinage is more expressly covered in the Sixth Amendment, which grants the right to trial by a jury drawn from the "State and district." The vicinage requirement is an essential feature of the right to trial by jury, and is binding upon the states under the Fourteenth Amendment. (People v. Jones (1973) 9 Cal. 3d 546, 551, 108 Cal. Rptr. 345, 510 P.2d 705 (overruled on other grounds in Hernandez v. Municipal Court (1989) 49 Cal. 3d 713, 729, 263 Cal. Rptr. 513, 781 P.2d 547); People v. Bismillah (1989) 208 Cal. App. 3d 80, 87, 256 Cal. Rptr. 25.) It is evident that drawing a jury even from an entire state would not offend the federal Constitutional right, and in fact several federal judicial districts are entire states. (E.g., Maryland, Kansas, and Colorado.) As the California Supreme Court pointed out in Hernandez v. Municipal Court, supra, 49 Cal. 3d at pp. 725-726, federal courts have not held states to any more rigid standards, but have approved arrangements which result in trial by a jury drawn from a different county than that in which the offense was committed. (See Zicarelli v. Gray (3d Cir. 1976) 543 F.2d 466, 482.) Furthermore, in State of Maryland v. Brown (D.Md. 1969) 295 F. Supp. 63, 83, the court observed that "there would appear to be nothing in the federal Constitution to prevent a state from trying any criminal case anywhere within the state, with a state-wide jury. . . ." Indeed, it has been commented that for the colonists, the only crucial function of a vicinage requirement was that it secure the right to trial in North America. (See Blume, the Place of Trial in Criminal Cases: Constitutional Vicinage and Venue (1944) 43 Mich.L.Rev. 59, 64 .) As the court noted in Hernandez notes, the concept had a strong political appeal to the colonists due to the enactment by the British Parliament of laws allowing charges of treason committed in the colonies to be tried in England. (49 Cal. 3d at p. 720, citing Kershen, Vicinage (1976) 26 Okla.L.Rev. 803, 806-807.) Finally, the Supreme Court has held that the "outer limits of the 'district' as used in the Sixth Amendment are flexible, encompassing greater or smaller areas as the Legislature deems wise. . . ." (People v. Jones, supra, 9 Cal. 3d 546 at p.554.) In the case of section 784.7, the Legislature has, in essence, created a flexible, multi-county "district" for trial of any of the enumerated offenses by expanding venue to include a county in which a related offense was committed. (See People v. Martin (1995) 38 Cal. App. 4th 883, 888: "Those counties where venue lay under the venue statutes constituted a 'district' for vicinage requirements.") "Transformations in our government as well as in our society make clear that narrowly interpreting the [Sixth Amendment] vicinage requirement is no longer warranted." ( Hernandez v. Municipal Court, supra, 49 Cal. 3d at p. 722.)