Change of Venue

Increased reliance on social science before the trial

Change of Venue Motion

• A “change of venue” motion is made by one of the parties before the trial commences.

• The motion is made pursuant to the jurisdiction’s rules of civil or criminal procedure.

• Normally, the court will conduct a hearing where both the moving and non-moving parties may introduce evidence.

Why make this motion?

• 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

• To ensure this constitutional guarantee, the federal and state legal systems have recognized the occasional need to change the location of the trial where the local public opinion may render a fair jury unlikely.

What is the typical process?

• The motion is available in both criminal and civil trials—though the rules are somewhat different for each.

• After motion, court will conduct hearing. The moving party has the burden of proving why the particular venue will be unfair or impartial—and this is where social science is often used.

Why rely on social science?

• While courts may sometimes be empowered to grant the motion sua sponte, this is very rare.

• During the 1970s, legal scholarship began to focus on this issue, which brought it to the forefront. Many judges, however, remained somewhat skeptical. Social science became a way to introduce evidence and “proof” of partiality in the trial community.

Early Reflections: Judge Peter O’Connell, “Pretrial Publicity, Change of Venue, Public Opinion Polls”

• Judge O’Connell discussed this issue from a judge’s perspective while serving on a trial court (he currently presides on the Michigan State Court of Appeals).

• Essentially, he argues that bias and prejudice exist in society, but to ensure fair trials, the legal system must attempt to address and mitigate this fact.

• O’Connell argued that questioning jurors during voir dire may be easy, but he doubted that it would be helpful in determining relative prejudice.

• “This methodology is a little like asking a practicing alcoholic if he has his drinking under control; we are asking the person who has the prejudice to determine if the prejudice will affect his decision.”

• O’Connell, instead, advocated for social science to play an even greater role in pre-trial motions, specifically through public-opinion polling of the community.

Community Polling

• Like political or election surveys, social scientists now will often prepare opinion surveys to generate a picture of views inside the community in regard to their client’s case.

• It is important that the researcher surveys both the trial community and a “control community.”

• It is impossible to argue “relative partiality” without some

sort of starting point. The control group provides a benchmark by which the relative biases of each can be compared.

What kinds of questions?

• Category 1: Questions regarding the level of publicity the case has received – i.e. “How much have you heard about the case?”

• Category 2: Questions regarding specific issues to the case – i.e. “Do you believe that the defendant is guilty?”;

“What do you know about the defendant’s record?”

• Category 3: Questions regarding the general attitudes of the participants– i.e. Racial attitudes, defendants bias, attitudes toward

crime

Criminal Cases

• 6th Amendment guarantees defendants the right to trial within district of alleged crime, so prosecutors cannot make a motion.

• Defendants waive their right when they submit a motion to change this venue.

• Importantly, in federal courts (and most states) a defendant’s evidence regarding the motion is not available during discovery.

Pennsylvania v. Cohen (PA, 1980)

• Cohen was charged with murder and conspiracy to commit murder after allegedly planning to kill his fiancé's ex-boyfriend in Reading, Pennsylvania.

• After the body was found and police began the investigation, there were numerous stories in the two local newspapers, and coverage on the radio stations.

• In addition to general stories, the media also specifically focused on three areas of the case:

• 1.) The allegations of this being a “contract killing.”

• 2.) The “fact” that Cohen and his confederates were using drugs and alcohol at the time of the conspiracy.

• 3.) The love triangle that prompted the murder.

Cohen’s motion

• Before the trial convened, Cohen actually made two change of venue motions. Both were dismissed without explanation by the trial judge.

• Cohen’s presentation included: newspaper articles and testimony by Dr. Jay Schulman, a Columbia University professor and member of the National Jury Project, who was an expert on the impact of publicized criminal proceedings on public opinion.

• During second motion, Cohen introduced new articles and also a presentation by Dr. Robert Buckhout, also a member of the National Jury Project.

• Cohen also made a post-trial motion for a new trial, based on his claims of jury bias, which was again rejected.

• On appeal, the Pennsylvania Supreme Court held that the motion should not have been denied.

• Relying on Cohen’s evidence, the court found the public had no “cooling off” period (the time where the public’s interest in case wanes).

• The Court also cited, approvingly, the results of Dr. Schulman, Dr. Buckhout and the results of voir dire.

Dr. Schulman Dr. Buckhout

• 804 participants; random sample of registered voters were polled. – 65% were aware of

the case.– 30% (242 out of 804)

believed Cohen was guilty.

• 250 participants; random sample of registered voters were polled.– 79% were aware of

the case.– 57% (143 out of 250)

believed Cohen was guilty.

Results from Voir Dire

• 180 prospective jurors were called, and 169 of these jurors were available for the trial.– 105 out of the 169 available jurors had heard

of case and held an opinion. – 89 had a “fixed” opinion on guilt and had to be

excused by the court.– 89 out of 169 jurors in jury pool (53%) had to

be excused because of bias.

Case Wrapup:

• Court seemed to focus heavily on the fact that the trial judge simply refused to consider this evidence at all—let alone on its merits.

• Trial occurred during the initial stages of the introduction of social science research in this area; Pennsylvania Supreme Court probably wanted to send a clear message that “change of venue” motions should be taken more seriously, and social science evidence may be used to defend the motion.

Civil Cases

• Once again, normally only defendants may make the motion—the plaintiff files the case where they choose anyway.

• There are less cited cases granting a “change of motion” in civil cases. This may be related to a variety of factors: personal and subject matter jurisdiction; removal statutes; inevitable forum shopping; judicial reluctance.

• Unlike criminal trials, discovery would likely make this evidence available to the non-moving party.

Firestone v. Crown Center Redevelopment (MO, 1985)

• In 1981, suspended balconies at a hotel in Kansas City collapsed killing 114 people and injuring many more.

• Over 1,000 articles were published on the subject by the Kansas City Star and Kansas City Times. Countless television stories were also shown.

• Stories focused on the purported causes of the collapse, the possibility of criminal and civil penalties, and the ongoing investigations of local, state and federal prosecutors, and administrative agencies.

• The defendants made a change of venue motion. They introduced a random sample of 1,000 residents, but the trial judge refused to admit the survey.

• Defendants Survey:

– 1.) Have you heard, read, or seen any news coverage about the collapse? (98% said they had).

– 2.) Based on what you have heard, do you believe that in the current compensatory damage trials, the defendants, such as the contractors, designers, owners and operators of the Hyatt Hotel should be punished? (54% said yes, 14% said no, 10% had no comment, 22% were unable to comment).

• On appeal, the Missouri State Supreme Court affirms the trial court’s refusal to admit the survey. They fault the design:

– 1.) Knowledge “reveals nothing at all about his ability to deal fairly with a specific case” (Need to show a “nexus” between knowledge and prejudice).

– 2.) Use of “compensatory” term is too confusing.

– 3.) Defendants failed to mention that $20 million in punitive damages were already assessed (maybe less inclined to punish further with this in mind).

Change of Venue in other areas

• Difficulty in gathering witnesses.

• Availability of evidence.

• “Interest of Justice”

• Difference in laws/penalties/procedures

• Some reformers are arguing for more motions because of “docket congestion” in “plaintiff-favorable” jurisdictions (see Illinois Reform Law).

Other Prominent Examples

• CRIMINAL CASES• United States v. McVeigh (1996)• New York v. Boss (Diallo Case) (2000)• Virginia v. Muhammed (Sniper Case) (2003)

• MOTION DENIED: Enron trial judge denied motion, despite high evidence that people within Houston not only knew, but had been in many cases personally affected. (WHERE THEY COULD THEY HAVE GOTTEN A FAIR TRIAL?)

Moving Forward• Change of Venue motions will arguably be even more prevalent,

and will likely involve even more use of social science.

• The changing media has undoubtedly increased public exposure to cases and evidence: The internet, cable news television and legal channels such as Court TV provide instant access, and also in-depth legal analysis and insight. Legal experts, for example, conduct shows discussing the strength and weaknesses of case, and also predict what will happen at trial.

• The public also seems interested in these issues, as well, meaning they are likely to absorb more information.

• Scholarly research will be needed to determine whether this increased visibility will really impact the impartiality of jurors.

Key Question:

• Even with increased community knowledge, can the process of jury selection efficiently and accurately narrow down the jury pool to include those without any preconceived notions?