When is a change of venue necessary to have an impartial jury in a highly publicized criminal case?

The federal judge presiding over the criminal trial of Dzhokhar Tsarnaev (suspected Boston marathon bomber) recently denied Tsarnaev’s motion to move the venue of the trial out of Boston. Thus, the death penalty trial will continue to be held in the Boston courthouse located just a few miles away from the April 15, 2013 bombing. The defense had argued in its motion that the trial should be held in Washington, D.C., where the poll they had conducted showed that only a third of those surveyed believed Tsarnaev to be “definitely guilty” (as opposed to over half of those surveyed in the Boston area who responded the same).

In denying the defense’s motion, the judge stated that it “stretches the imagination to suggest that an impartial jury cannot be successfully selected from this large pool of potential jurors.” Citing to the 2010 case of Enron CEO Jeffrey Skilling, the judge compared the potential jury pool in Boston to that of Houston—where Skilling was tried—as a comparably-sized metropolitan area. 

While it would be nearly impossible to find anyone even outside of Massachusetts who has not heard of the Boston bombings, he noted that the Constitution does not require that potential jurors be wholly unaware of the circumstances of the crime—it is sufficient that they put aside their impressions or opinions and render a verdict based on the evidence presented at trial.

The ABA Principles for Juries and Jury Trials states that, in criminal cases, change of venue should be granted whenever there is a substantial likelihood that a fair and impartial jury cannot be found, and a showing of actual prejudice should not be required. It also suggests that courts may use the same venue for the trial but select the jury from a different pool. In using the original venue, courts should consider the facilities, security, and convenience of victims, court staff, and parties; and they should balance the possible inconvenience to the jurors. 

On very rare occasions, a prosecutor might make a motion to change venues if he or she believes the pool of potential jurors is biased towards the defendant. For the third murder trial of Ryan Widmer, a man accused of drowning his wife, the prosecutor moved to change the venue, claiming that the defense tainted the potential jury pool by collaborating with the press and producing “sensationalized” stories. 

What if the incident was not only highly publicized, but also racially charged? Would that be enough incentive for the judge to allow a venue change? In 1991, Rodney King was the victim in a Los Angeles County police brutality case. 

The officers on trial were white, and King was black. The Superior Court of Los Angeles County allowed a transfer of venue due to the extreme nature of the pretrial publicity—a video of the attack was broadcast on the news and incited outrage among the people of Los Angeles. 

The court reasoned that a transfer of venue was necessary for the defendants to have a fair trial, so the venue was moved from downtown Los Angeles to the predominately white Ventura County. The jury ended up acquitting the defendants; rendering a verdict which sparked the infamous Los Angeles riots. 

The real-world implications brought about by this jury verdict caused many to advocate for changes in venue to reflect the demographics of the county the case came from. Demographics may be an important consideration not only to try to avoid something like the Los Angeles riots, but also to ensure the defendant gets tried by a jury of his or her peers.

Should there be required changes of venue in highly publicized criminal cases? That issue is still up in the air, and it looks as if courts are given some discretion for now. If I were the prosecutor in the Tsarnaev case, I would definitely take advantage of the fact that the jury members sitting in front of me probably passed the scene of the crime on their way to the courthouse that morning.

If the jury renders a guilty verdict, there will likely be an appeal based upon the refused motion. Keeping the King case in mind, while the Tsarnaev case has no racial implications, it may illicit strong feelings from the public. If the jury acquits Tsarnaev, the jury members may suffer criticism (or worse) from family, friends, and the people of their city for making the “wrong” choice.