Venue Issues on Appeal

If you have been convicted of a crime after trial, a Georgia Criminal Appeals Lawyer will scrutinize the record to make sure that the State proved what is called venue beyond a reasonable doubt. Georgia's Constitution requires, generally, that people accused of crimes be tried in the county in which the crime was allegedly committed. The State has the burden of proving venue beyond a reasonable doubt. If the State fails to meet its burden of proof on this element, the conviction must be reversed. As a Georgia Appellate Attorney and Cobb County Appellate Attorney, Ben frequently challenges proof of venue on appeal.

Proving Venue

Venue can, in most cases, be proven by asking one question. For example, in an armed robbery case that occurred at a convenience store, the prosecutor may ask the store owner "is this store located in ________ County?" If the answer to this question is "yes," venue has been proven and there will be no viable challenges to its proof on appeal. 

Most people would be surprised by how often over the years prosecutors in Georgia courtrooms have forgotten to ask the venue question or questions. This has resulted in literally hundreds of criminal convictions being reversed. Venue, however, does not implicate double jeopardy concerns, so a reversal on this basis will not bar a retrial on the same charges.  

Venue may be proved by direct evidence, circumstantial evidence, or both. Thus, it is not absolutely necessary that the prosecuting attorney ask the form of question described above. In fact, sometimes venue is not so straightforward that such a question would settle the issue. 

Special Circumstances

Georgia law provides special venue provisions for situations that sometimes arise in criminal cases. For example, if a person is kidnapped and thrown in the trunk of a car, driven somewhere and then beaten up, that person will likely not know what county they were in when the physical violence occurred. For this and other special situations, the following provisions may apply:

(a) In general. Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.

(b) Crime committed on boundary line of two counties. If a crime is committed on, or immediately adjacent to, the boundary line between two counties, the crime shall be considered as having been committed in either county.

(c) Criminal homicide. Criminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted. If it cannot be determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred. If a dead body is discovered in this state and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.

(d) Crime commenced outside the state. If the commission of a crime under the laws of this state commenced outside the state is consummated within this state, the crime shall be considered as having been committed in the county where it is consummated.

(e) Crime committed while in transit. If a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.

(f) Crime committed on water boundaries of two counties. Whenever a stream or body of water is the boundary between two counties, the jurisdiction of each county shall extend to the center of the main channel of the stream or the center of the body of water; and, if a crime is committed on the stream or body of water and it cannot be readily determined in which county the crime was committed, the crime shall be considered as having been committed in either county.

(g) Crime committed on water boundaries of two states. Whenever a crime is committed on any river or body of water which forms a boundary between this state and another state, the accused shall be tried in the county of this state which is situated opposite the point where the crime is committed. If it cannot be readily determined on which side of the line a crime was committed between two counties which border the river or body of water, the crime shall be considered as having been committed in either county.

(h) Crime in more than one county. If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.

In a recent appeal filed by Ben, he has challenged the constitutionality of this last provision, in subsection (h). Specifically, Ben is arguing that this provision unconstitutionally lowers the State's burden of proving venue beyond a reasonable doubt. Stay tuned for more on this issue, or follow the case here. 

Venue issues will not be present on most appeals, but you want a Georgia Criminal Appeals Lawyer that will look for every possible avenue of relief. Contact a Georgia Criminal Appeals Attorney today at 404-985-9772.