Concept
Transfer for Prejudice
Venue and transfer
Transfer for Prejudice
Rule 21(a) supplies the first of the two grounds for moving a properly brought prosecution, and its wording is mandatory. On the defendant's motion, the court must transfer the proceeding against that defendant to another district if it is satisfied that prejudice against the defendant in the transferring district is so great that a fair and impartial trial cannot be had there.1 Rule 21(b) says the court may transfer for convenience, so the choice of verb marks the line between the two grounds. The mandatory verb follows from what is at stake. A criminal trial depends on a decision-maker who has not already settled on guilt, and when the court finds that the local jury pool cannot supply one, nothing remains to be weighed, because no step taken later in the case can repair a verdict from a prejudiced jury. The court's judgment therefore operates at the point of deciding whether the standard is met, and once it is satisfied, the remedy follows.
The same rule carries a counterweight that explains why the threshold is demanding. Moving a trial away from the place of the offense has costs of its own, since the community where the crime occurred has the greatest interest in a just resolution and may be better placed to judge the issues fairly.2 A court therefore does not treat every unfavorable news story as a reason to relocate. The usual source of the problem is media coverage of a sensational case that leads prospective jurors to believe the defendant guilty before the trial begins, and courts have other tools for that problem, including a postponement so that public feeling can abate and jury selection procedures that identify and exclude prejudiced jurors.3 A move also accomplishes little when press coverage is not confined to the locality where the case was filed.4 Outside the federal system the standards for a change of venue are mainly a matter of local law, while Rule 21(a) governs the federal one.5 The subsections below take these ideas in order: the standard the rule sets, the kinds of local pressure that can meet it, and the alternatives a court may try first or turn to when a move would not help. The first of these is the text of the mandatory standard itself.
The Mandatory Standard
The previous section established that Rule 21(a) speaks in mandatory terms. The standard itself sits in a single sentence whose clauses each do separate work, so it is easiest to learn by reading them in the order they operate. On the defendant's motion, the court must transfer the proceeding against that defendant to another district if it is satisfied that prejudice against the defendant in the transferring district is so great that the defendant cannot obtain a fair and impartial trial there.6 A fair trial in this sense is a trial before an impartial and disinterested tribunal that follows regular procedures, and that is the interest the transfer exists to protect.7
The first two steps follow from whose interests the rule serves. The motion requirement keeps the decision with the person the place-of-trial guarantees protect, as the prior section explained, and the rule's reference to the proceeding against that defendant ties the inquiry to a particular person. Community feeling attaches to individuals, so a notorious defendant may face a district that has already decided guilt while a co-defendant whom the coverage never named does not, and the court moves only the proceeding against the defendant who shows the problem.8 The fifth step marks the difference from the discretionary convenience ground taught later: once the court is satisfied about prejudice, nothing remains to be weighed.
The third step does the subtler work, because the unit of measurement is the whole transferring district. The Advisory Committee's note to the 1966 amendment explained that a defendant has a right to transfer only when a fair and impartial trial is unavailable at any place where the district holds court, while prejudice tied to one courthouse is cured by the judge fixing the place of trial inside the district under Rule 18.9 The reason is functional. Moving the trial to another courthouse in the same district removes local prejudice at a lower cost, since the case stays in the community with the greatest interest in the outcome. The court therefore asks whether a fair trial is available anywhere in the district, and students lose the issue when the facts show heavy coverage in a single city and an unaffected courthouse elsewhere in the district.
Courts describe the purpose of the standard in terms of the fair-trial right it protects. In United States v. Marcello the court called Rule 21(a) a procedural device that preserves the accused's constitutional right to a fair and impartial trial, identified prejudicial publicity as perhaps the most common threat to that right, and explained that the rule spares the defendant from standing trial in a tainted atmosphere and then depending on appeal to secure the right.10 That purpose accounts for the predictive character of the standard, because a rule that waited for proof of a corrupted verdict would offer only the remedy it exists to avoid. The constitutional backdrop appears in Sheppard v. Maxwell, which directed that where there is a reasonable likelihood that prejudicial pretrial news will prevent a fair trial, the judge should continue the case until the threat abates or transfer it to another county not so permeated with publicity.11
The text asks whether the court is satisfied, and the harder question is how much the defendant must show to satisfy it. Read literally, a provision phrased this way calls for a finding, presumably under the preponderance standard, that a fair and impartial trial is not a realistic possibility in the district, and some state opinions applying such provisions speak of a showing that a fair trial is impossible.12 Federal courts and other state courts applying similar language have said instead that the defendant need show only a reasonable or substantial likelihood that a fair and impartial trial cannot be obtained there, and a handful of states write a reasonable-likelihood test into the statute, which has been read to demand less than a showing that prejudice is more probable than not.13 Because the formulations vary from court to court, an answer should state the rule's own words and report the showing as a point on which courts differ. The defendant carries the burden throughout, since the defendant is invoking an exception to the crime-committed rule and is the one with access to the evidence of local feeling.14
A constitutional floor sits beneath whatever standard a jurisdiction adopts. In Groppi v. Wisconsin the Supreme Court struck down a state law that barred venue changes in misdemeanor cases, as applied to a defendant who claimed that community prejudice would prevent selection of an unbiased jury, because a defendant must have the opportunity to show that a change of venue is required in that defendant's own case.15 The lesson is that a state may not forbid a venue change to a defendant who shows community prejudice, since a change may be the only route to a fair trial. Rule 21(a) is the federal rule that supplies the remedy, and every state jurisdiction likewise recognizes authority to grant a timely defense motion for that purpose.16
The two scenes differ in a single fact, how far the prejudice reaches, and that fact moves the result from a mandatory transfer to a choice of courthouse inside the district.
Publicity and Community Pressure
The prejudice that Rule 21(a) most often addresses comes from publicity. In a small percentage of sensational or high-profile cases, media coverage of the crime or the prosecution disposes prospective jurors to believe the defendant guilty before the trial begins.20 The harm appears when members of the public are later called for jury service, because a person who has already settled on guilt may be unable to put that conviction aside and judge the case solely on the trial evidence.21 The defect is serious because a verdict is supposed to rest on proof offered in court, tested by cross-examination, and open to objection, while a news report supplies conclusions that passed through none of those filters. A court applying the rule has observed that a fair and impartial trial is perhaps most often endangered by prejudicial publicity, and it pointed to Supreme Court decisions including Sheppard v. Maxwell and Rideau v. Louisiana for the point that a conviction obtained in an atmosphere contaminated by such publicity will not stand.22 Those two decisions also show two different ways in which publicity does its damage.
In Rideau v. Louisiana the sheriff interviewed the accused, the entire interview was filmed with a sound track, and a local television station showed it to its audience on three occasions before the arraignment, with the accused admitting his part in the crime.23 The defendant moved for a change of venue, asserting that being tried in that parish would be a travesty of justice and would violate his right to a fair and impartial trial.24 A single item carried the prejudice there, and it was an especially potent one, because it put the accused's own admission before the very community that would supply the jury.
Sheppard v. Maxwell shows prejudice built by volume over weeks rather than delivered in one broadcast. Hundreds of reporters, cameramen, and onlookers gathered when the jury viewed the scene of the murder, a newspaper rented a helicopter to photograph the jurors on that tour, and an eight-column headline previewed testimony about the defendant's temper that was never produced at trial.25 After that story the defense moved for a change of venue, a continuance, and a mistrial, and the trial court granted none of them.26 A court assessing a Rule 21(a) motion therefore looks both at what was published and at how thoroughly it saturated the place where jurors would be drawn.
Publicity is the lead example, but the rule's reach is wider. Rule 21(a) does not list causes of prejudice; it asks whether prejudice against the defendant in the transferring district is so great that the defendant cannot obtain a fair and impartial trial there.27 Read by that purpose, the language readily covers adverse pretrial publicity, and it also covers a community uproar that deprives the accused of a fair trial apart from any effect on the jury, as by threatening disruption of the trial, violence against the accused, or the intimidation of witnesses.28 The two kinds of harm strike at different places. Publicity works on the decision-maker, and the question is often whether strong community sentiment may bear on otherwise fair-minded jurors.29 Threats work on the proceeding itself, since a trial loses its reliability when defense witnesses stay silent out of fear or the accused cannot safely appear, even if every juror seated is open-minded. In light of Groppi v. Wisconsin, which holds that a state must allow a change of venue when a fair trial cannot be had in the district of prosecution, such threats should be recognized as grounds for a change even where a statute is drawn more narrowly than the federal rule.30 Chambers v. Mississippi, mentioned earlier, already shows pressure beyond the press, because the venue change there was granted in response to the defendant's claim that adverse publicity and the hostile attitude of the local police and sheriff's staffs would prevent a fair trial in Woodville.31
Neither ground succeeds on bare assertion, because the court must be satisfied that the prejudice is great enough to defeat a fair trial in the district, so the reach and intensity of the pressure matter. In United States v. Lindh the court treated the case as easily distinguishable from United States v. McVeigh, where transfer was ultimately granted because the Oklahoma City bombing had a unique and extraordinary impact on the district in which the case was filed, leading the judge to find that the two defendants could not obtain a fair trial at any place where the court sat in the state.32 The courthouse where the McVeigh trial would have been held had itself suffered collateral damage in the bombing, and Lindh found none of the features that motivated transfer in McVeigh present to the same degree.33
The two scenes differ in the reach and force of the pressure, and that difference decides whether the court's satisfaction is possible. On an exam stem, the usual error is to treat juror bias as the only ground for a prejudice transfer, which overlooks the threats of violence and witness intimidation that can defeat a fair trial even before an open-minded jury.
Alternatives to Transfer
Transfer under Rule 21(a) is one of several responses a court has when hostile publicity threatens a fair trial, and the others are usually cheaper and less disruptive. A court can grant a continuance, which is a postponement of the trial date so that public feeling has time to subside, and it can use jury selection procedures that let the defense identify and exclude jurors who were prejudiced by what they read or watched.37 A move to another courthouse inside the same district may also be enough, because the judge fixes the place of trial within the district under Rule 18, and the Advisory Committee's note to the 1966 amendment left prejudice tied to one location to be handled that way.38 Sheppard v. Maxwell presents these options as a menu: where there is a reasonable likelihood that prejudicial pretrial news will prevent a fair trial, the judge should continue the case until the threat abates or transfer it to a county not so permeated with publicity.39
The same opinion shows how far a judge's options extend beyond choosing a location. It said the trial judge should have raised sequestration of the jury with counsel on the judge's own initiative, and it described measures such as barring lawyers, parties, witnesses, and court officials from releasing prejudicial information outside the courtroom and warning reporters against publishing matter that was never introduced in the proceedings.40 It added that a reversal on appeal is only a palliative and that the real cure lies in measures that prevent prejudice at its inception.41 Those tools work on the source of the prejudice by limiting what reaches the community, while transfer changes which community receives it. A court weighing a transfer motion can therefore ask whether the problem is better solved by controlling the flow of information than by relocating the audience.
Courts have a structural reason to prefer narrower measures when they work. Moving a trial out of the locality where the crime occurred has a cost: that community has the greatest interest in a just resolution of the case and may be better able to judge the issues fairly.42 Each narrower tool fits a different kind of problem. A continuance fits a temporary surge of passion, because anger tied to a news cycle fades with the passage of time. Jury selection questioning fits prejudice that lives in individual jurors, because the examination can find those jurors and remove them from a panel whose other members are open-minded. A within-district move fits a local pocket of hostility, because the Rule 21(a) inquiry measures the whole district, and a courthouse elsewhere in it offers a cheaper cure that keeps the case close to home.43 Transfer is what remains for prejudice that these tools cannot reach and that a new location would not simply repeat.
These alternatives are tools a court weighs, and the text of Rule 21(a) does not make them steps the defendant must complete first. The rule directs the court to transfer the proceeding against the moving defendant once it is satisfied that prejudice in the transferring district is so great that no fair and impartial trial can be had there, and nothing in that sentence conditions transfer on a prior attempt at a continuance or careful questioning of jurors.44 The alternatives matter at a different point, in the court's assessment of how deep the prejudice runs. A judge who concludes that a short postponement or probing jury selection will produce an impartial panel has in effect found the prejudice less severe than the rule requires. Students lose points when they describe the alternatives as a mandatory first step that the defendant must exhaust before moving.
Transfer also has a practical limit that explains why courts are sometimes reluctant to order it. A change of venue solves the publicity problem in some cases, but it accomplishes little when press coverage is not confined to the place where the case was first brought, since the jurors in the new district will already have been exposed to the same stories.45 The question for the court is therefore whether the prejudice is local to the district or travels with the case, and whether any courthouse in the district offers a different atmosphere.
The two scenes differ in one fact, whether the prejudice stays in the district or follows the case elsewhere, and that fact decides whether relocation offers any real relief.