dissenting. Because I believe the change of venue in this case was unconstitutional, thus rendering the entire proceeding in Hillsborough County void ab initio, I respectfully dissent.
When the trial judge granted the respondent’s motion for a directed verdict, he explained:
A review of the file indicates that no motion was ever filed by defendant or by the court or by the presiding justices for a change of venue, and that no reason therefore was stated other than the fact that the two presiding justices had recused themselves, and the defendant obviously did not waive any right that he had pursuant to Part 1 Article 17 of the constitution and has objected to it at the close of the State’s case, and the court finds that the change of venue in the absence of the defendant as it occurred in this case was a violation of his right under the state constitution, and that his right having been violated the indictment is dismissed.
The order dismissing the indictment entailed two rulings: (1) that venue was changed from Cheshire County to Hillsborough County in violation of Part I, Article 17 of the State Constitution; and (2) that the respondent “obviously did not waive” his rights under that provision.
In its petition, the State has raised but a single issue: “Whether the [respondent] waived his objection to venue, after the Chief Justice had transferred the case from Cheshire County to a judge sitting in Hillsborough County, where the [respondent] filed a motion in Hillsborough County waiving jury trial and requesting a trial by the presiding judge, and failed to object to venue until after the State had rested its case.” In other words, the State has not argued, as a discrete issue in its petition, that the trial judge erred in ruling that venue was changed in violation of the constitution. However, given that the State has appealed the trial judge’s ruling that venue was changed unconstitutionally, it is not unreasonable to read the State’s petition as challenging that ruling. Moreover, as it was the trial court’s unilateral decision to change venue that made venue improper, I cannot see how we can consider the issue of waiver without also considering the judicial act that created the situation that brought the respondent’s constitutional rights into play. I believe the constitutionality of the trial court’s order changing venue is properly before us in this case.
*160It is manifest in decisions from other jurisdictions that a criminal defendant may, by remaining silent or by participating in court proceedings, waive his or her objection to venue when a prosecution has been brought in a court where venue is not proper. See, e.g., State v. Tommy Y., Jr., 637 S.E.2d 628, 632-36 (W. Va. 2006) (holding that subject of delinquency petition waived objection to petition’s failure to set out venue by waiting until close of State’s case to object); Muir v. Nebraska Dept. of Motor Vehicles, 618 N.W.2d 444, 450 (Neb. 2000) (“By virtue of Muir’s participation in the telephonic hearing without objecting to the hearing location, he waived any objection he might have had to the venue of the proceedings under [Neb. Rev. Stat.] § 60-6,205(6)(a) [(reissue 1998)].”); State v. Dent, 869 P.2d 392, 399 (Wash. 1994) (“We hold that a criminal defendant waives any challenge to venue by failing to present it by the time jeopardy attaches. Jeopardy attaches in a... bench trial when' the court begins to hear evidence.” (quotation omitted)); State v. Lopez, 508 P.2d 1292, 1294 (N.M. 1973) (“this right to be tried in the county or district [in which the offense is alleged to have been committed is] a right or privilege ... which ... may be waived by an accused person in a number of ways____[W]hen he goes to trial in another judicial district, without objection on his part, he has waived the privilege, and cannot be heard to say that the court trying him was without jurisdiction.” (quotation omitted)). To similar effect are all the federal cases upon which the majority relies. Representative of those decisions is the following language from United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002) (quotation omitted), cert. denied, 537 U.S. 1173 (2003): “A defendant indicted by an instrument which lacks sufficient allegations to establish venue waives any future challenges by failing to object before trial.” Here, of course, there was nothing wrong with the indictment as it related to venue; it was brought by a Cheshire County grand jury, in the Cheshire County Superior Court, and alleged a crime that took place, at least in part, in Cheshire County. In this case, venue was not improper at the outset, but only after it was unilaterally changed to Hillsborough County. The majority refers to no cases, nor have I found any, addressing the issue of waiver when venue is initially proper but has been rendered improper by a unilateral change of venue directed by the trial court for administrative reasons. And, to be clear, this case involves not the waiver of an objection to improper venue, but the purported waiver of an objection to the trial court’s change of venue.
The majority holds that the respondent waived his objection to venue through a combination of silence or acquiescence, and it puts future defendants on notice that they must act sooner than the respondent did in this case in order to avoid waiver. On the practical side, however, it is easy *161to see the merits of the respondent’s position. In another of the cases upon which the majority relies, the Fourth Circuit held that “if an indictment properly alleges venue, but the proof at trial fails to support the venue allegation, an objection to venue can be raised at the close of the evidence.” United States v. Collins, 372 F.3d 629, 633 (4th Cir. 2004). The Collins court went on to explain that “a defendant does not waive venue unless the indictment clearly reveals the venue defect but the defendant fails to object.” Id. (brackets and quotation omitted). At least on the surface, the facts of this case seem to fit the rule stated in Collins-, the indictment properly alleged venue, but, albeit because of the change of venue, the evidence at trial did not establish that the alleged crime was committed in the county where the respondent was tried. More importantly, while the majority would have a defendant subjected to a sua sponte change of venue act more quickly than the respondent did here, it provides no guidance regarding what form that action should take.
One option might be a motion to reconsider the order changing venue, but practical difficulties abound. Here, the order changing venue was an order of the Cheshire County Superior Court. Two days after the order changing venue was issued, the clerk of the Cheshire County Superior Court issued a notice of decision that also announced the transfer of the file in the respondent’s case to the Northern District of Hillsborough County Superior Court, “for all purposes.” Thus, it appears likely that before the end of the ten-day reconsideration period, see SUPER. Ct. R. 59-A(l), there was no longer a pending case in Cheshire County in which the respondent could have filed a motion for reconsideration. Filing an objection of some sort in Hillsborough County would have presented its own difficulties; namely, appearing to consent to venue in that county by participating in litigation there. My point is that at the moment the trial court changed venue, on its own motion and without giving the respondent an opportunity to object beforehand, it placed the respondent in a “Catch-22” position with no clear way out. Moreover, I do not share the majority’s opinion the respondent’s constitutional right to a trial in Cheshire County was adequately protected by the mechanism of a motion to change venue back to Cheshire County. Part I, Article 17 allows a change of venue upon a defendant’s motion only upon a finding by the trial court that a fair and impartial trial cannot be had in the county or district where trial has originally been set.
In light of the position in which the respondent was placed, and the lack of guidance in either the law of this state or the decisions of other jurisdictions regarding the procedure for objecting to a sua sponte change of venue — as opposed to merely objecting to a defect in venue apparent on the face of a charging document — I am unconvinced that it is possible to *162deal with the question of waiver without also addressing the constitutionality of the order changing venue, an issue ostensibly not raised in the petitioner’s brief.
The right of a criminal defendant to be tried in the county or district in which the alleged crime took place is granted by the State Constitution, which provides, in pertinent part:
In criminal prosecutions, the trial of facts, in the vicinity where they happened, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except in any case in any particular county or judicial district, upon motion by the defendant, and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed, the court shall direct the trial to a county or judicial district in which a fair and impartial trial can be obtained.
N.H. Const, pt. I, art. 17.
Both parties agree that the respondent had a constitutional right to be tried in Cheshire County. The petitioner argues, however, that once the respondent failed to object to the order changing venue or, at the very latest, when he filed his first pleading in Hillsborough County Superior Court, he waived his constitutional right to a trial in Cheshire County. While we have held that a defendant may waive his right to be tried in the county or district in which the alleged crime took place, “for the purpose of securing the fair trial which the constitution guarantees,” State v. Albee, 61 N.H. 423, 429 (1881), the waiver at issue in Albee took the form of the defendant’s motion to change venue, id., and no such motion was ever filed in this case. The trial court’s authority to grant a defendant’s motion to change venue was at issue in Albee because the version of Part I, Article 17 in force at the time, unlike the version in force today, did not mention the defendant’s right to file a motion to change venue, but only granted the justices of the superior court the authority to change venue “in cases of general insurrection in any particular county, when it shall appear to [them] that an impartial trial cannot be had in the county where the offence may be committed.” Id. at 424. As we explained in Albee, Part I, Article 17, as then in force, was “not intend[ed] to destroy [the defendant’s] common-law right to a change of venue whenever a fair and impartial trial could not be had in the county where the fact happened.” Id. at 429. When Part I, Article 17 was amended in 1978, the common law right we recognized in Albee was established as a constitutional right.
*163At the time Albee was decided, Part I, Article 17 of the State Constitution provided:
In criminal prosecutions the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed, except in cases of general insurrection in any particular county, when it shall appear to the judges of the superior court that an impartial trial cannot be had in the county where the offence may be committed, and, upon their report, the legislature shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained.
Id. (quotation omitted). In Albee we explained:
Whether the emergency named in article 17 of the bill of rights would present an occasion which can be improved by the state, or by the state alone, to obtain a change of venue, and would be the only occasion on which the state can move for a change, we do not need to inquire.
Id.; see also State v. Sawtelle, 66 N.H. 488, 504 (1891) (“The state cannot have a change of venue except in the extraordinary case of a general insurrection. Unless the defendant asks for a change of venue, he cannot be tried ‘in any other county than that in which’ the offence was committed.” (citations omitted)). Part I, Article 17 was amended in 1978 and now provides that venue may be changed “upon motion by the defendant, and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed.” Since 1978, we have not had the occasion to decide whether a change of venue may be initiated by the State, as prosecutor, or by the trial court upon its own motion.
While the amendment of Part I, Article 17 shifted the initiative from the judges of the superior court to the defendant to move for a change of venue, both versions of Article 17 specify a single reason for transferring a case from one county or district to another: to secure a fair and impartial trial. Conspicuously absent from the State Constitution, the relevant statutes and rules of court and our decisions is any articulated justification for a change of venue other than providing a fair and impartial trial.
We have never decided whether a trial court has the authority to change venue on its own motion, or whether venue may be changed for any reason other than to provide the defendant a fair and impartial trial. However, when we recognized the defendant’s common-law right to move for a change of venue in Albee, we explained that Part I, Article 17 was *164“designed for the protection of the accused,” Albee, 61 N.H. at 429, and that its purpose was “the protection, not the destruction, of individual rights,” id. We further explained that what was protected was the defendant’s right to a fair and impartial trial. Id. Nowhere in our cases is Part I, Article 17 described as a tool for accommodating judicial convenience. Moreover, while Part I, Article 17 sets out the finding a trial court must make before changing venue upon motion by the defendant, it is silent regarding the finding a trial court must make before it can change venue upon its own motion. I tend to agree with Justice Galway that the defendant alone has the power to move for a change of venue. But even if venue may be changed upon the trial court’s own motion, it would be anomalous indeed, given the acknowledged purpose of Part I, Article 17 to protect the rights of the defendant, to allow the trial court to change venue for any reason other than securing a fair and impartial trial.
“All fifty-two jurisdictions recognize judicial authority to grant a change of venue on a timely defense motion where needed to ensure that the defendant receives a fair trial.” 4 W. LaFave et AL., CRIMINAL PROCEDURE § 16.3(b), at 545 (2d ed. 1999). Change of venue on the court’s own motion is another matter.
Roughly a dozen states have provisions authorizing the court to grant a change of venue on its own motion, notwithstanding the objections of the parties. Those provisions differ dramatically in the grounds they accept for the change. Among the grounds recognized in one or more states are: (1) the threat of violence against the defendant or disruption of the proceedings; (2) the exhaustion of so many jury panels as to clearly indicate that it will be impossible to secure a jury to try [the] cause in the county; (3) a community so prejudiced against the defendant that a fair and impartial trial cannot be had in the county of prosecution; (4) a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending; and (5) the interest of sound judicial administration, which encompasses concerns relating to providing a fair trial, witness convenience, and such matters as court congestion. In several states, an inherent judicial authority to change venue is recognized as to a change needed to obtain a fair and impartial trial. Most states, however, view the absence of a statutory authorization as having abrogated any authority for sua sponte venue changes that existed at common law.
Id. § 16.3(f), at 557-58 (quotations and footnotes omitted). But see Wafai v. People, 750 P.2d 37, 48 (Colo. 1988) (declining to decide whether docket *165congestion was proper reason for changing venue when trial court had “an independently sufficient reason for the venue change ... [i.e.,] to assure the defendant a fair trial within the speedy trial period”). Typical of those opinions recognizing the trial court’s inherent power to change venue upon its own motion is the following, from the Colorado Supreme Court:
In summary, we affirm the trial court’s change of venue on its own motion, based upon the inherent power of a trial court to promde the, defendant with a fair trial by an impartial jury. However, as the court in Croclcer v. Justices of Superior Court admonished, this power “should be exercised with great caution and only after a solid foundation of fact has been first established. Manifestly it should be resort,ed to only in aid of justice____” [Crocker v. Justices of Superior Court,] 94 N.E. [369,] 377 [(Mass. 1911)]. When the trial court determines that an impartial jury cannot be obtained, yet there is no motion for a change of venue, the court may act on its own motion to assure a fair trial.
Id. at 49 (emphases added).
New Hampshire does not by statute authorize a trial court to change the venue of a criminal trial. If, against the weight of authority from other jurisdictions, we were to recognize under the common law that trial courts have the inherent authority to change the venue of criminal trials upon their own motion, I am confident we would limit that authority to the achievement of a single goal: a fair and impartial trial. Because the change of venue in this case was not supported by any findings concerning the availability of a fair and impartial trial for the defendant in Cheshire County, I believe the trial judge correctly ruled that the change of venue was unconstitutional, and I would hold that under Part I, Article 17 of the State Constitution, a trial court in a criminal case may not, upon its own motion and without the express consent of the defendant, transfer a case from one county or district to another for reasons wholly unrelated to preserving the defendant’s constitutional right to a fair and impartial trial.
Such a holding would leave undecided a number of questions, including whether a trial court may change venue, upon its own motion and over a defendant’s objection, when the purpose of the change of venue is to secure a fair and impartial trial, protect the safety of the defendant or protect other constitutional rights, such as the right to a speedy trial. The Idaho Supreme Court has aptly explained one good reason for a rule disallowing any change of venue upon a trial court’s own motion: “under [such a rule], both parties have an opportunity to present their views on the necessity for a change of venue to the court before its decision on the issue.” State v. Ash, 493 P.2d 701, 704 (Idaho 1972); cf. Wafai, 750 P.2d at *16648 (“Before exercising its inherent power to change venue a court should afford the parties an opportunity to object and should hold a hearing on any such objections.”). As I have already noted, the concerns expressed in Ash were, in fact, realized in this case; the change of venue was a fait accompli by the time the respondent learned of it, and so he was afforded no opportunity to present his views or object, other than by filing a motion to reconsider in a court where his case was no longer pending, or litigating his case in Hillsborough County, the venue to which he objected.
Because the majority bases its decision upon waiver, and I would decide the case based upon the unconstitutionality of the venue change, I also disagree with the majority’s ultimate disposition of this case. Although it is not perfectly clear, it appears that we are remanding the case to Hillsborough County for delivery of a verdict based upon the trial that has already been conducted there. In my view, however, given that the change of venue was unconstitutional, the entire proceeding in Hillsborough County was void ab initio — a legal nullity. Thus, we are sending this case back for a verdict from a court that lacks constitutional authority to render one. Accordingly, I would remand to the trial court with instructions to transfer the case back to Cheshire County, where venue is undeniably proper. The current remedy for improper venue, it seems to me, is a trial in a county where venue is proper. Moreover, trial in Cheshire County would not implicate double jeopardy concerns for an even more fundamental reason than those stated by the majority: jeopardy did not attach in Hillsborough County, nor could it have attached there, because the entire proceeding there was a legal nullity. The disposition I advocate honors the respondent’s constitutional rights under Part I, Article 17, does not subject him to double jeopardy and denies him any benefit of “gaming the system.” See Delgado-Nunez, 295 F.3d at 497 (“A defendant would be able to game the system and obtain a free second shot at an acquittal by waiting for his trial to conclude and then challenging venue in the event of a conviction.”).
I readily concede that in light of the relief the respondent requested from the trial court — a judgment of acquittal based upon the State’s failure to prove venue — and the manner in which he requested it — by means of a motion filed at the close of the State’s case in a one-day trial — it would not be unfair to accuse him of trying to “game the system” by attacking venue only after jeopardy had attached. However, we have a greater concern than preventing this particular defendant from successfully gaming the system; our attention must be directed toward the next criminal defendant subjected to a sua sponte change of venue. I worry that under today’s holding, a trial court could change venue for any reason at all, and that ten days later, after the running of the *167reconsideration period, the defendant, through understandable inaction, could be found to have “waived” his right to contest venue. This does not seem a fitting way to treat a constitutional right.
Finally, I note that the trial court could have avoided this appeal entirely by: (1) specially assigning a trial judge and directing that the trial continue in Cheshire County; or (2) seeking the respondent’s consent beforehand. The former procedure would have resulted in a trial in the proper venue and embodies what I believe to be the correct balance between judicial convenience and a defendant’s rights under Part I, Article 17 of the State Constitution. The latter procedure would have foreclosed any subsequent meritorious complaint by the defendant that he was tried in the wrong venue. By following one or the other of these two suggestions, future trial courts can preserve the constitutional rights of criminal defendants and prevent us from having to decide the issues I have raised in this dissent.
To conclude, I would affirm the trial judge’s ruling that venue was changed unconstitutionally, and I would further hold that any proceeding conducted after an unlawful sua sponte change of venue is void ab initio— a legal nullity — and for that reason cannot be revived by a defendant’s subsequent failure to object. Accordingly, I would decide this case by holding that venue was never proper in Hillsborough County, that the respondent’s objection to venue was timely, and that because the Hillsborough County proceedings were a legal nullity involving neither the attachment of jeopardy nor a judgment of acquittal, the proper remedy is a remand with instructions to transfer the case back to Cheshire County for a trial in the correct venue.