III. Transfer for Trial

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

III. Transfer for Trial

Whether a motion to change venue should be granted is a case-specific and fact-intensive inquiry.²⁶ For example, although the current district may inconvenience the defendant, this fact may be outweighed by the likelihood of jury prejudice in other districts. If a court finds prejudice, though, it must transfer to a new venue.²⁷ When considering transfer for convenience, only an examination of the facts will determine whether the benefit to the defendant of a change in venue outweighs other considerations.²⁸ For this reason, trial courts are given great deference with respect to transfer decisions, and will only be overturned for an abuse of discretion.²⁹

A. Waiver of Venue

Constitutional rights can only be intentionally and voluntarily waived by defendants.³⁰ However, under the relevant case law, choice of venue can be either expressly or impliedly waived.³¹ Numerous courts have held that venue is a waivable privilege because it is "not a jurisdictional prerequisite and does not affect the power of a court to hear a case."³² Inaction on the part of the defendant, by not objecting to venue prior to trial, is considered waiver of the right to object to the choice of venue.³³ By regarding venue as "a nonfundamental aspect of jurisdiction which may be waived either by defendant's consent or by failure to object," several courts have held that the defendant's failure to raise a timely objection to venue before trial waived any venue violation.³⁴ Objections to venue must be raised in a timely manner³⁵ in order to preserve the claim of error.³⁶ A defendant must make objections to venue before the commencement of the trial in both federal and state courts,³⁷ keeping in mind that any significant change in the circumstances of the case, including dismissal of parties³⁸ or changes to the defendant's personal or health conditions,³⁹ might be sufficient to justify a later objection and transfer. Yet the court has the discretion to deny a transfer motion if a transfer of venue no longer promotes the interests of justice.⁴⁰

If the defendant waives the right to prosecution in the local venue, the court can transfer the case to another district.⁴¹ Defendants may request particular transferee districts, but the court is free to use its discretion in selecting the transferee district. By moving to change venue, the defendant communicates that she does not want the trial to take place in the district in which the alleged crime was committed even though that is her constitutional right.⁴² Once she has waived that right, the defendant cannot later object to a new venue as improper, because she voluntarily left the proper venue. Once in the new venue, the defendant may object to the venue of the new district court only on the basis of substantial concerns regarding convenience or impartiality of the community.⁴³ The defendant must suggest a specific district in her transfer motion. If the case is transferred to that district, she automatically waives any right to object to venue in that district.⁴⁴ A case may be transferred back to the original district if the circumstances that caused the transfer no longer exist.⁴⁵ Once venue has been waived, the court's jurisdiction is valid even if a defect is eventually discovered.

Pretrial publicity can significantly prejudice a jury pool.⁴⁶ It is for the defendant and her attorney to determine whether adverse pretrial publicity is so pervasive that the defendant should waive her right to be tried in the state and district in which the alleged crime was committed.⁴⁷

B. Federal Rule of Criminal Procedure 21

Federal Rule of Criminal Procedure 21 provides two independent reasons for granting a motion to transfer. Subsection (a) states that "[u]pon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial here."⁴⁸ This type of prejudice can be personal prejudice by a juror against the defendant, known as "actual prejudice," or community prejudice spawned by pretrial publicity. However, the judge must find that community prejudice makes it impossible to empanel an impartial jury, keeping the defendant from a fair trial.⁴⁹ Based on this finding, the court may select the district to which the case is trans-ferred.⁵⁰ Factors for selecting a transferee district may include a location outside of media coverage of the incident (although this concern is less prevalent in an age of global media), the size and schedule of the transferee court, ease of accessibility to the transferee district, and the presence of facilities to house witnesses who are in custody.⁵¹

Rule 21(b) continues: "Upon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice."⁵² This subsection provides grounds for transfer independent of any finding of prejudice. Under Rule 21(b), transfer of venue can occur for any one of the stated reasons, although none is determinative. For example, even if a venue is inconvenient for the defendant, a motion for transfer may still be denied if other factors outweigh the benefits of transfer. Rule 21(b) instructs that actions may be wholly or partially transferred; thus, transfer may be granted to some or all of the defendants, or transfer may be granted for some or all of the counts charged to one defendant.⁵³ In cases of convenience there may be only parts of a criminal proceeding that require a more convenient venue for the defendant(s), witnesses, or evidentiary findings.⁵⁴

As noted previously, the grant or denial of a motion for change of venue is within the trial court's discretion. Absent abuse of discretion by the trial court, the ruling will not be disturbed on appeal.⁵⁵ The receiving court does not decide whether the transfer was in the interest of justice, because the decision to transfer is in the sole discretion of the transferring court. However, the question of whether the alleged offense was committed in the receiving district is reviewable by the transferee court.⁵⁶

Furthermore, a defendant cannot be forced to accept a change in venue.⁵⁷ If the defendant chooses to exercise his constitutional right to have the case tried in the district where the crime was committed, the government may not object to this venue. Because the government initially brought the charges in the district, it has impliedly agreed to the venue.⁵⁸

C. State Rules on Venue Transfer in Criminal Cases

Many states rules regarding transfer of venue in a criminal case mirror Rule 21, by separating prejudice and convenience as independent grounds for a motion to transfer.⁵⁹ For example, California allows for transfer when there is a "reasonable likelihood" that a fair and impartial trial cannot be had in the present county.⁶⁰ California also conducts a fact-specific evaluation of any motion to transfer.⁶¹ Massachusetts has adopted the same time frame as the federal rule, such that motions to change venue must be made before trial.⁶² Massachusetts, like other states, has further identified factors a court should consider in granting a motion to transfer for convenience of the parties.⁶³ Overall, state law governing venue transfers in criminal cases is very similar to federal law, except that states have all drafted their own codes and constitutions protecting a defendant's venue rights.⁶⁴

D. Motion to Transfer

A motion to transfer must be made in the court in which the prosecution of the case is pending.⁶⁵ The motion will be dismissed if brought in the incorrect court. Absent a request, a court may not order a change of venue sua sponte.⁶⁶ A motion to transfer must also be made after indictment because prior to indictment offenders are not defendants within the meaning of the Rule, and the court has no authority to transfer grand jury proceedings from one district to another.⁶⁷ Furthermore, in a multidefendant case, a defendant who did not move to transfer may not be transferred against his will.⁶⁸

A motion to transfer venue should be made as early as possible. If the motion is made later in the trial preparations, a greater showing of inconvenience may be required.⁶⁹ Courts may also deny motions to transfer when a defendant has previously announced that she is prepared to go to trial in that district.⁷⁰ Additionally, before granting a change of venue on the ground that a jury would be prejudiced against the defendant, a judge must determine, at voir dire, that an impartial jury cannot be empaneled.⁷¹ The court may delay a ruling on a transfer motion until it has adequate time to establish that an unprejudiced jury cannot be selected.⁷² A judge may summon a large jury pool in order to achieve the selection of an impartial jury.⁷³

In certain very limited situations, the prosecution can move to transfer the case out of the transferee district, but this requires a much stronger evidentiary showing than that proffered by the defendant.⁷⁴ In all cases, the court must make a fact-intensive inquiry when determining whether a case should be transferred.

1. Transfer for the Convenience of Parties

Most states do not recognize a transfer for convenience of the parties.⁷⁵ When determining if a motion for transfer should be granted on convenience grounds, the court may consider the physical location of parties, witnesses, and evidence. A transfer for convenience protects the defendant from an unfair prosecutorial advantage, thus protecting the defendant from districts where it may be more difficult to gather defense evidence.⁷⁶ The primary reason for granting a transfer is to avoid hardships to the defendant, the defense attorney, and witnesses.⁷⁷

a. Relative Locations

A defendant may request a change of venue for convenience of...