Comment on US v. Hoskins, and the difficulty of addressing “jurisdictional” issues in criminal cases

On April 10, the excellent Compliance & Enforcement blog edited by the NYU Program on Corporate Compliance and Enforcement published my comment called “What the Hoskins Rule 29 Acquittal Reveals About Contesting ‘Jurisdictional’ Issues in American Criminal Justice.” You will find a PDF in the Publications page of this site, and a link to it in the NYU site is here.

The Comment addresses an oddity in US criminal procedures that I believe is not fully appreciated: US criminal cases (especially at the federal level) often involve “threshold” issues unrelated to the core issue of guilt itself. While the term “threshold” is admittedly unscientific, I use it to refer to factual questions that do not go to whether the defendant committed a prohibited act (or had requisite intent), but rather whether the relevant laws apply to the defendant at all, whether the court has “jurisdiction” because of a needed federal element such as interstate commerce, whether venue is proper in that District, and increasingly whether the criminal laws in question have the “territorial reach” to apply to the case. The oddity is that while such issues can indeed be considered “threshold,” in most cases there is no procedure to resolve them at the “threshold,” that is, before an expensive and risky trial. The very recent Hoskins case was an extreme example of this, and the Comment summarizes some other recent or pending cases presenting the same problem.  The Comment explores why this phenomenon is built into distinctively American procedures.

I would be very interested in your views on whether this is, in fact, a problem — I believe it is — and any ideas you may have on how to deal with it.

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