4.5 Change of Venue

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

4.5 CHANGE OF VENUE

Both the United States and Virginia Constitutions guarantee an accused a trial by a jury that is not only impartial but also drawn from the jurisdiction where the crime was committed. ¹⁷⁸ Because capital cases often

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attract extensive publicity, conflict can arise between these guarantees when considering whether venue should be changed to ensure that the jury will be impartial. ¹⁷⁹

Change of venue issues are rooted in the right to an impartial jury. A trial court may use several means of ensuring that right. The trial judge may, for example, (i) permit individual voir dire, (ii) sequester the jury panel, or (iii) grant a continuance to allow time for the impact of highly unfavorable publicity in the community to diminish. ¹⁸⁰ In addition, when an impartial local jury cannot be obtained, section 8.01-363 of the Virginia Code permits the court to summon a jury from another city or county. ¹⁸¹

One of the most important factors bearing upon appellate review of change of venue questions is the relative ease or lack thereof with which a jury is selected. Both federal and Virginia cases note as relevant the number of prospective jurors challenged or excused because of their possible inability to put aside impressions formed from pretrial publicity. ¹⁸² In Shifflett v. Commonwealth, ¹⁸³ the court noted that only eight prospective jurors were excluded because of prejudice or fixed pretrial opinions, and a disinterested and impartial jury was selected in less than a day. ¹⁸⁴ In Newberry v. Commonwealth, ¹⁸⁵ however, a change of venue was granted when 100 persons were summoned on five occasions and only 16 were tentatively qualified as jurors. "It is the ease of seating the jury that is the relevant factor, not the ultimate result of that process"; thus, it was error for the trial court to deny a motion for a change of venue solely because the court had ultimately been able to

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seat an impartial jury. ¹⁸⁶ If the trial court takes the motion for a change of venue under advisement pending the outcome of voir dire, it is incumbent upon defendant "to renew the motion before the jury [is] empaneled and sworn, or at least remind the court that it [is] still pending and that he want[s] the court to rule on it." ¹⁸⁷ Failure to renew the motion for a change of venue may amount to implicit consent to the seating of the jury.

Section 19.2-251 of the Virginia Code permits motions for change of venue to be made by either the prosecution or the defense at least seven days before the day fixed for trial. The Commonwealth and the defendant may stipulate to the necessity for a change of venue, but if the Commonwealth opposes a change of venue, there is a presumption that a defendant can receive a fair trial in the county or city in which the offense occurred. ¹⁸⁸ The defendant must overcome this presumption by "clearly demonstrating widespread prejudice against him." ¹⁸⁹ Stockton v. Commonwealth ¹⁹⁰ described the burden as one of clearly showing "that there is such a widespread feeling of prejudice on the part of the citizenry as will be reasonably certain to prevent a fair and impartial trial." ¹⁹¹

It is clear that a defendant is not entitled to a jury completely ignorant of the case and has the burden of justifying a change of venue. The ultimate question is whether jurors are able to lay aside opinions they may have formed as a result of pretrial publicity and render a verdict based on the evidence presented in court. ¹⁹² Accordingly, the accused is required to establish a "reasonable likelihood" that jury prejudice will prevent a fair trial. ¹⁹³

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The decision to transfer venue is a fact-oriented one that depends on the "totality of the circumstances." ¹⁹⁴ Some courts have reflected the "super due process" requirements of capital cases when applying the change of venue standards, ¹⁹⁵ but, in Mu'Min v. Virginia, ¹⁹⁶ the United States Supreme Court showed great deference to the voir dire practices of trial judges. The Court held that, even in a capital case with extensive pretrial publicity, defendants have no Sixth Amendment right to have prospective jurors examined about the content of publicity to which they have been exposed.

A few cases have found prejudice based on the sheer volume of pretrial publicity, ¹⁹⁷ but volume of coverage alone, especially if accurate and moderate in tone, is not likely to mandate a change of venue. ¹⁹⁸ Merely conclusory affidavits asserting that the accused cannot receive a fair trial will not justify a change of venue, ¹⁹⁹ but affidavits from a diverse group of residents that disclose the polarization of public opinion may justify the change. ²⁰⁰

Several types of publicity are particularly significant when determining whether a pretrial motion for change of venue should be granted:

1. Publication of a confession is one of the strongest grounds for change

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