(Editor’s note: The information in this special series is for educational purposes only and is not intended to address any particular case, nor should any articles be taken as legal advice.  Always consult with an attorney on any legal matter.)

For this week’s Q&A, I was asked to talk about what happens when a defendant seeks a change of venue or venire in a criminal case. Occasionally, a defendant will file a motion to change venue or venire. Venue refers to the location where the trial will occur and venire refers to the location from where the jury will be called.

The defendants will usually argue that abundant pretrial publicity makes it so they cannot receive a fair trial. The judge has to make sure a trial is fair. The commonwealth, too, has to protect any conviction from being overturned on appeal due to an avoidable error that occurred in the trial.

Normally, the commonwealth and defense have the right to have a case decided by a jury made up of citizens of the county where the crime occurred and for the trial to occur at the courthouse in that same county. The idea is that an offender should be judged by a jury of his peers. Some cases receive more publicity than others and I think that is why I was asked to discuss this topic this week.

If a defendant believes that he will be unable to select a fair jury, he can file a motion to move the trial or to bring jurors from another county to hear the case. A defendant has to demonstrate that such a change is actually necessary. That is, he must show that a fair and impartial trial cannot be held in the county in which the crime is alleged to have occurred.

The jury selection process (called “voir dire”) is designed to filter out any potential juror who may have heard something about the case and that, because of that prior knowledge, they are unable to be a fair and impartial juror. The commonwealth will usually respond to a defendant’s request to move the trial or select outside jurors by suggesting that an attempt at jury selection to pick fair and impartial jurors should be made before such a request should be granted. Relevant case law supports this strategy for a trial court to delay ruling on a motion because it is only after jury selection is attempted that a court can determine whether the pretrial publicity in a case has made a fair trial impossible in that jurisdiction.

Criminal proceedings are often attended by the media and the media routinely publishes reports about criminal cases in the county. This includes not only weekly reports of what occurred on regular Thursday plea days and sentencing hearings but also articles regarding arrests, preliminary hearings, trials and other pretrial matters. It is not uncommon for a potential juror, during the jury selection process, to indicate that he or she read articles related to a particular case. The jury selection process is intended to determine not only if someone has heard about a particular case but whether that fact impacts his or her ability to be a fair and impartial juror — to decide the case based on the evidence presented at trial. This is particularly true because the judge may say that some evidence obtained by police is not allowed to be used in a trial but it may have been included in media reports about the case. The jury can only consider what is presented in the courtroom.

Merely asserting an abundance of pretrial publicity does not support a change of venue or venire. That is not the only relevant inquiry. The inquiry includes, among other things, (1) whether the publicity was sensational, inflammatory and slanted toward a conviction rather than factual and, only if the defendant is able to prove that, then the next inquiry is (2) whether the publicity was so extensive, sustained and pervasive that the community must be deemed to have been saturated with it and that there was insufficient time between the publicity and trial for it to have dissipated. There will be a presumption where the defendant is able to prove that the publicity was sensational, inflammatory and slanted toward conviction rather than factual or objective, that such publicity revealed his prior criminal record or referred to confessions.

These motions are not regularly granted. In fact, I have only had one case where such a motion was granted. In that case, although there was a lot of publicity, the initial motion to move the trial was denied but, during jury selection, it became clear to the judge that the majority of potential jurors likely heard about the case and heard negative opinions about the defendant to the extent that the judge believed that moving the case to another county with jurors from that other county was the best course of action.

Despite people in the community asking questions about cases or asserting things they think are factual but have been ruled out by the police, we are not really able to address these things most of the time. Our comments, if any, usually would be tailored to items in the public record. But I would reiterate that tips from the public are always appreciated and should be made to the police agency handling that particular case.