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When Can You Get a Change of Venue for a Criminal Trial?

By Mark Wilson, Esq. on February 04, 2015 | Last updated on March 21, 2019

The Boston Herald reported today that the 1st U.S. Circuit Court of Appeals has given the judge in charge of accused Boston Marathon bomber Dzhokhar Tsarnaev's case until 5 p.m. tomorrow to rule on a change of venue request.

This is apparently the third change of venue request Tsarnaev's attorneys have filed with Judge George A. O'Toole. The defense wants the trial conducted in a different state, claiming that Tsarnaev wouldn't be able to get a fair trial in Massachusetts.

So when can a defendant move for a change of venue?

Fairness and Impartiality

A "venue" is the geographic location where a court proceeding is held. In Tsarnaev's case, that venue is the District of Massachusetts, a federal judicial district that encompasses the whole state. (Some states are divided into more judicial districts, depending on how populous the state is.)

The Constitution affords a criminal defendant the right to a fair and impartial trial, which includes jurors who haven't already made up their minds about the defendant's guilt or innocence before ever seeing any evidence in court. If no impartial jurors -- or not very many -- can be found in the venue where the crime occurred, then the trial can be moved to a place where impartial jurors can be found.

Tsarnaev's lawyers claimed that there's no way he could receive a fair trial in the same district where such a notorious crime occurred. The most recent motion for a change of venue, filed January 22, supported that claim with questionnaires completed by over 1,300 prospective jurors, 68 percent of whom already believe Tsarnaev is guilty, and 65 percent of whom claim a "connection or expressed allegiance to the people, places, and/or events at issue in the case."

What Are the Rules for a Venue Change?

The Federal Rules of Criminal Procedure give two reasons for moving a criminal trial to another district, including a district in another state. These are:

  • If the defendant can't obtain a "fair and impartial" trial in the district; or
  • For the convenience of the parties, victims, witnesses, or "in the interest of justice."

When a venue change is granted because of a perceived lack of fairness and impartiality, it's often because the crime alleged was incredibly newsworthy. For example, the 2009 criminal trial against Johannes Mehserle, the Bay Area Rapid Transit police officer later convicted of involuntary manslaughter for killing Oscar Grant, an unarmed train rider, was moved from Oakland, California, to Los Angeles after a judge determined Mehserle couldn't get a fair trial in Oakland.

Of course, moving a trial to a different place can be controversial. The trial of the LAPD officers accused of beating Rodney King in 1991 was moved from Los Angeles County to nearby Ventura County after a judge determined the officers couldn't get a fair trial. Ventura County, however, was predominantly white, leading to speculation that the officers wouldn't have been acquitted in a more racially mixed county.

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