This article will review the differences between state and federal criminal jurisdiction, as well as what happens when one crime can be charged in multiple states or in federal and state court.
Crimes that violate federal law or that involve a national or federal interest can be prosecuted in federal court. For example, federal tax fraud and immigration offenses are crimes that violate federal law. Crimes that involve a national or federal interest include those where:
In some cases, the federal interest is clear, such as seditious conspiracy charges in the January 6th attack on the U.S. Capitol. In others, the connection to interstate commerce (and thus federal jurisdiction) can be slight. Take the example below.
Example: Eight men try to rob a racetrack in Illinois but are thwarted by security guards. In their subsequent prosecution for attempted robbery, they argue that the federal government doesn't have jurisdiction to prosecute them because the alleged crime occurred on state grounds. But because the racetrack's money is federally insured, many of the horses' owners come from out of state, and the track uses several out-of-state services (for betting machines and advertising materials, for example), jurisdiction was properly vested in the U.S. government. (See United States v. Harty, 930 F.2d 1257 (7th Cir. 1991).)
Charges for federal crimes are brought by federal prosecutors, called U.S. Attorneys (or Assistant U.S. Attorneys), and tried in federal court. Federal prosecutors work for the U.S. government, just like state prosecutors work for the state and city prosecutors work for their cities. The title of a federal criminal case will read United States v. the Defendant.
Federal trial courts are divided into districts, with some states having one district and others having two, three, or four districts. For instance, California has four district courts (the Central, Eastern, Northern, and Southern Districts). The name of the federal trial court includes the district, such as the U.S. District Court for the Central District of California. Check out the U.S. Courts website to learn more about how federal courts are organized.
Each state has its own penal or criminal code that defines crimes and their penalties, such as murder, assault, robbery, burglary, DUI, and rape. Most crimes that occur within a state's borders, or within three miles of its coastline, are prosecuted in state court by a state or district attorney. The title of a state court case might be something like the People of the State of New York v. the Defendant or the State of Minnesota v. the Defendant.
State law usually specifies which courts have jurisdiction over which types of cases. In many states, adult felonies and misdemeanors are divided between different courts. Most states also have juvenile courts, which have exclusive jurisdiction over most crimes committed by minors. The names for the kinds of state courts vary from state to state, such as district court, county court, superior court, or municipal court.
Yes, a crime can violate both state and federal law in one of a few ways. For instance, a crime might occur partly on federal land and partly on non-federal land, giving the state and the federal government jurisdiction. Or a crime might violate state law, such as murder, but as soon as the defendant moved the body across state lines, a federal crime was committed. In this situation, a second state might also have jurisdiction. Say the defendant murders a victim in California but dumps the body in Nevada—here the defendant committed crimes in both California and Nevada and under federal law (by crossing state lines).
Yes, a defendant can face prosecution for the same crime in both state and federal court. However, in many instances, one of the jurisdictions will defer to another. For example, the federal government might prosecute a case, instead of a state, where the crime involved a large sex trafficking ring because the federal government has more resources. The deferring government might step in only if the other prosecution fails. Or sometimes both state and federal prosecutors will pursue criminal charges.
In some sense, it seems unfair for a defendant to undergo criminal prosecution more than once for the same alleged offense. After all, doesn't the prohibition against double jeopardy prevent exactly that? Unfortunately for some defendants, the answer is no. The Constitution's Double Jeopardy Clause prevents multiple prosecutions or punishments by the same "sovereign." Successive state and federal prosecutions don't violate the clause because state and federal governments are separate sovereigns.
Example: In 1991, several Los Angeles police officers were involved in the vicious beating of motorist Rodney King. In the state criminal case, the jury acquitted the officers on all but one charge (as to which it hung), sparking the 1992 LA Riots. Months later, a federal grand jury indicted the officers for the same beating under a federal law punishing anyone who, acting under governmental authority, violates another person's federal rights. (18 U.S.C. § 242.) A federal jury ultimately convicted two of the four officers.
Example: Federal authorities charged NFL quarterback Michael Vick for running an interstate dogfighting business. A federal court sentenced him to 23 months in prison. The state of Virginia separately prosecuted Vick for the dogfighting ring. After his federal conviction, while he was still in U.S. custody, he pleaded guilty to a state charge. (The sentence for the state crime was essentially folded into the federal sentence he was serving.)
Usually, any state in which an essential part of a crime has been committed can prosecute the offender—meaning more than one state might have jurisdiction where the crime begins in one state and continues into another.
Some state laws and constitutions address this type of concurrent jurisdiction, but others don't. In most cases, the first-in-time rule applies. When there are competing claims to jurisdiction, the prosecuting attorneys usually get together and try to reach an agreement about who will "go" first. Often, the first court to exercise jurisdiction over the defendant keeps the case to itself—at least for a while. That state's jurisdiction will be exclusive. Any other courts claiming jurisdiction must wait until the case is over or the first court releases its jurisdiction.
And like federal and state prosecutions, having multiple prosecutions in each affected state doesn't violate double jeopardy because each state is a separate "sovereign." (In fact, it's at least theoretically possible that multiple states and the federal government could prosecute a defendant for a single course of conduct.)
Example: A man hired two men to kill his wife. Pursuant to his plan, the men kidnapped the wife in Alabama, then drove her into Georgia and killed her. The man pleaded guilty to murder in Georgia in exchange for a life sentence. After the plea, an Alabama court tried and convicted him and sentenced him to death. The U.S. Supreme court held that, under the dual sovereignty principle, two states may separately prosecute a defendant for the same conduct without violating the Fifth Amendment's Double Jeopardy Clause. (Heath v. Alabama, 474 U.S. 82 (1985).)
If you're facing criminal charges, talk to a criminal defense lawyer. Some lawyers practice in both state and federal courts, while others might practice in only one or the other. You'll want to find a defense attorney who understands the ins and outs of the court where your case will be handled.
]]>But a defendant can request that her trial move to another county. And if there’s a reasonable likelihood that she can’t receive a fair trial in the original venue, a court may grant her request.
Someone accused of a crime generally has the right to a fair trial by an impartial jury. But a defendant doesn’t have the right to a trial in the county of his choice. Circumstances that make juror impartiality unlikely can, however, arise. In those circumstances, defense attorneys often “move” to have the trial take place somewhere else. (In most states, the prosecution can’t request a change of venue.)
Some state constitutions address the right to a change of venue, but in most states, the issue is left to statutes or court rules. These laws and rules explain how to request a change of venue, and may impose deadlines to file the requisite motion.
To achieve a change of venue, defendants typically have to show a reasonable likelihood that they can’t receive a fair trial. That reasonable likelihood is usually due to pretrial publicity, but it could have to do with some other event making it almost impossible to find an impartial jury.
Venue changes can also happen when the current venue is simply the wrong one. For instance, if the crime occurred in County X, and the case is currently in County Y, County Y most likely lacks jurisdiction. If so, it may have to transfer the case to County X.
Some states, as well as the federal courts, allow a change of venue for the convenience of the parties or witnesses, typically because some or all of the witnesses reside elsewhere. But the inconvenience usually must be substantial before a court will change venue for this reason alone.
Other reasons for a change of venue include:
Negative pretrial publicity is the most common reason for seeking a change of venue. But some publicity won’t justify a venue change—the publicity has to be severe enough to the point that it affects the ability to find an impartial jury. (Lawyers often refer to publicity having “tainted” the jury pool.)
To get a venue change based on publicity, courts usually require that the defense show that the media coverage caused actual prejudice in the prospective jurors’ minds. In rare cases, sufficiently pervasive, sensational, and slanted publicity will cause the court to presume that there’s prejudice.
In most cases though, the motion for venue change will turn on what prospective jurors say during voir dire (a normal part of jury selection). But proving that a few would-be jurors are actually biased isn’t enough. The defense typically has to show a likelihood that the publicity has poisoned the entire "pool."
The ultimate test for prejudice is whether jurors can set aside any opinions they may have formed from the publicity and decide the case only on the in-court evidence. But most jurors will say they can do that. So, the judge may have to probe.
The court might consider a variety of factors other than the words of prospective jurors, such as:
The judge will often review articles and broadcasts, and take any other relevant information into account.
Again, the ultimate issue is whether the publicity affects the defendant’s right to a fair trial.
Normally, in order to seek a venue change, the defense must file a written motion with affidavits demonstrating why the defendant can’t receive a fair trial. Some states, though, allow the judge to change venue without a request.
Judges usually decide motions to change venue because of bad publicity after voir dire. Judges are typically afforded significant leeway in deciding whether to change venue. That leeway may make it tough for the defense to convince an appeals court to overturn the decision. (See our sections on appeals and writs.)
The ability to change venue is related to the constitutional right to a fair trial, but it itself isn’t considered a constitutional right. Instead, it’s a privilege that’s capable of being waived. The effect is that, in most states, if a defendant doesn’t move for a change of venue before the designated stage, he’s lost the right to challenge venue and can’t raise the issue on appeal.
Courts are reluctant to change venue, and defendants can usually get only one venue change. Changing venue can affect the entire case. Further, the law on venue change may vary from state to state and from state to federal court. So, it’s crucial to rely on an experienced attorney for explanation and advice.
]]>Often multiple law enforcement agencies will work together to quell civil unrest. In cases where local resources become overwhelmed, the state can call in the National Guard. Only in limited circumstances can the federal government become involved.
In the United States, the federal government holds a different law enforcement role than state governments. The framers of the Constitution did not want a national police force. Rather, through the Tenth Amendment to the U.S. Constitution, general “police powers” were left to the states.
Under their police powers, state governments have broad authority to make and enforce laws necessary to preserve public health, safety, and general welfare. The federal government, on the other hand, carries a narrower policing role.
Most states divide law enforcement responsibilities by jurisdiction. Local governing bodies can establish law enforcement departments, and in many states, you’ll find city or municipal police departments and county sheriff departments. You’ll also find certain agencies with statewide jurisdiction, such as state patrol units or state investigative agencies. Examples are the Minneapolis Police Department, Los Angeles County Sheriff's Department, Kentucky State Police, and Georgia Bureau of Investigation.
A law enforcement agency and its officers are typically authorized to enforce laws only within their geographic boundaries. So an officer working for a city police department can provide policing services within the city limits. A county deputy would have arrest powers within the county limits. And state troopers patrol state highways. Other agencies with statewide jurisdiction often assist local departments by providing additional resources and support, especially in complex investigations or when local resources have been exhausted.
Federal law enforcement power comes from Congress. The U.S. Code gives more than 80 federal agencies authority to enforce laws that fall under their agency jurisdiction. For instance:
Approximately 100,000 full-time federal law enforcement officers provide policing protection compared to more than 700,000 full-time state and local officers. (Bureau of Justice Statistics (2019).)
The National Guard has a unique, dual mission involving federal and state governments.
State governors. State governors can activate the National Guard to assist with local or statewide emergencies (such as riots and protests). Assistance can take on various forms, including law enforcement.
President. Under the Insurrection Act, the President can also call upon (or “federalize”) the National Guard in limited circumstances to suppress insurrection and enforce federal law. (10 U.S.C. §§ 251-253 (2020).) This law also allows the President to deploy military troops for the same purposes. However, the authority given under the Insurrection Act does not amount to martial law, which is the displacement of civilian authority by the military. In fact, a separate law prohibits the use of active-military troops to conduct civilian law enforcement activities, such as patrolling the streets. (18 U.S.C. § 1385 (2020).)
In times of civil unrest, immediate threats to public safety require government action. Generally, the law enforcement agency responsible for quelling civil unrest will depend on where and how the situation is unfolding.
If protests and rioting are occurring within city or county limits, that city’s police department or the county’s sheriff department will typically have primary jurisdiction. When protestors block or march down state highways or interstates, the state patrol will likely be the agency in charge.
Civil unrest, though, doesn’t always have nice geographic boundaries. In cases where rioting or disorder spills over to another city or county, multiple agencies could have jurisdiction. In these instances, the agencies can act within their specific jurisdictions or agree to give officers the power to enforce laws in multiple jurisdictions.
Local resources—including manpower and equipment—can be quickly overwhelmed during times of civil unrest. In such cases, a law enforcement agency can request assistance from neighboring cities or counties or the state.
The role of federal law enforcement in quelling civil unrest is more limited. Federal law enforcement agents can work with, or provide assistance to, local and state law enforcement authorities who request assistance. Often, this arrangement requires a written agreement between the federal and local agencies to establish a chain of command and give federal officers arrest authority in the jurisdiction.
A federal agency independently has the power to enforce violations of federal laws that fall within the agency’s purview. But federal agents exercising this power when it comes to mass gatherings and protests has proved controversial—and legally tricky. For instance, President Trump sent federal agents to Portland, Oregon, during protests in 2020. According to the federal government, the agents were from the Department of Homeland Security and had federal law enforcement authority to protect federal buildings, grounds, and property. But Portland sued the federal government, alleging that federal agents acted beyond their authority by arresting and clashing with protesters.
More commonly, when protests turn violent or overwhelm local and state police, the state governor calls in the state National Guard. National Guard units can assist law enforcement in various ways, from providing support and equipment to assisting emergency responders and barricading roads.
The President can also call in the National Guard in three circumstances: at the state’s request, to enforce federal law, or to protect citizens' civil rights (if the state refuses to do so). Often, this power comes into play when a governor asks the President to activate a National Guard unit. But the President can also activate the Guard by sidestepping, or acting over the objection of, the governor. For instance, when the Alabama Governor blocked black students from entering a university building in 1963, President Kennedy federalized the state National Guard to enforce desegregation laws.
The President can also deploy military forces to suppress insurrection (again, this is not the same as martial law). Examples where Presidents have used this authority include the L.A. riots and desegregation efforts in the South. In the case of the L.A. riots, the California governor asked the President to deploy military troops to assist law enforcement and the state National Guard in quelling the violence. In a few instances, Presidents have deployed military troops on their own initiative to control insurrection—most notably during the civil rights movement. For example, President Eisenhower deployed Army troops to Arkansas to assist in school integration of black students, after the Arkansas governor, in violation of the law, activated the state National Guard to block black students from entering a school.
Regardless of which entity is policing an area during a period of civil unrest, you have constitutional rights. If law enforcement uses excessive force against you or wrongly arrests you, for example, you can get legal help.
If you are facing criminal charges, you should speak with a criminal defense attorney. If you want to know whether you have a viable claim against the government for violation of your rights, consider consulting a civil rights or personal injury attorney.
And keep in mind that several organizations, including the ACLU, provide information on protesters’ legal rights.
]]>