Change of Venue in a Criminal Case

Sometimes the defense tries to get the defendant's case out of one court and into another.

The venue in a criminal case is the court that will hear the matter. In a typical case, jurisdiction would rest with a state, while venue would lie in a particular county—usually the county where the crime occurred.

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.

Change Needed?

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.

Grounds for Change

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:

  • a judge who is prejudiced against the defendant, and
  • in capital cases, a jury pool that’s predisposed for or against the death penalty.

Pretrial Publicity

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 frequency of the publicity
  • whether the publicity has been objective or slanted against the defendant
  • whether the publicity is recent or old, and
  • the size and character of the community exposed to the publicity.

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.

Requesting a Change

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.)

Waiver

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.

Consult an Attorney

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.

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