Academic journal article American Criminal Law Review

Change the Motion, Not the Venue: A Critical Look at the Change of Venue Motion

Academic journal article American Criminal Law Review

Change the Motion, Not the Venue: A Critical Look at the Change of Venue Motion

Article excerpt

I. INTRODUCTION

For a three week period in October and November of 2002, residents of the Washington, D.C. metropolitan area were paralyzed with fear, performing routine tasks--such as pumping gasoline or walking to work--only with significant caution. John Allen Muhammad and Lee Boyd Malvo, at the end of a sniper-shooting rampage unlike any in recent memory, killed ten people, wounded three others, and terrorized the entire metropolitan region. As the trial date neared, it became clear that the nature of these crimes had caused virtually all potential jurors to worry that they could have been victims of the shootings. (1)

On Christmas Eve 2002 in Modesto, California, a beautiful, expectant mother named Laci Peterson suddenly vanished. Her body and unborn child were discovered in April 2003 when they washed up on the San Francisco Bay shore. Laci's husband, Scott Peterson, became the principal suspect in the apparent murder. As the trial date neared, it became clear that many potential jurors had experienced profound emotional grief over the gruesome conclusion to the search for Laci. Thousands in the Modesto community had voluntarily searched parks and posted missing signs for a woman that many saw as an extended family member. (2) Leading up to trial, both cases elicited strong emotional responses in their respective communities. Both cases garnered immense pretrial publicity. Predictably, both cases commenced with defendants moving for a change of venue. (3)

The D.C. Sniper and Scott Peterson cases brought renewed attention to this powerful, yet understudied procedural device. The impact of venue on criminal verdicts first received widespread public attention in Powell v. Superior Court. (4) In Powell, a Ventura County, California jury acquitted four white police officers of criminal charges stemming from their videotaped roadside beating of an unarmed African-American motorist named Rodney King. (5) Commentators widely suggested that the trial judge's decision to move the trial from an urban and diverse venue in Los Angeles to a suburban and homogenous venue in Ventura County had an effect on the verdict. (6) The 45 deaths and $550 million in property damage that ensued as the city of Los Angles rioted in reaction to the Powell verdict underscored the need to better administer the change of venue motion. (7)

The public mistrust that resulted from Powell prompted a number of judicial and legislative reform proposals that called for consideration of the racial composition of venues during the choice of a new venue. (8) Judges and legislators alike, however, have yet to address the initial and more critical question of precisely how a judge should make a determination to change venue. In large part, this is due to the fact that no consensus exists regarding the meaning of an impartial jury, causing judges to pursue varied normative goals when determining the impartiality of jurors and, thus, when determining the need for a change of venue. This Note posits that a clearer articulation of the standard by which judges decide to change venue will ensure the motion's effectiveness and its legitimacy in the justice system.

Part II of this Note explores the historical and constitutional underpinnings of an impartial jury, which the Supreme Court has held must be composed of a fair cross section of the community. Part HI discusses the effect of pretrial publicity on juror decision-making in the modern media age by presenting a range of social science research and then describes appellate courts' less than adequate approach to policing such effects. Part IV introduces the highly discretionary change of venue motion process in the context of other remedial devices that courts have used to combat pretrial publicity. Part V emphasizes the need to assign relative weights to the various factors that judges consider in a change of venue decision. This section points out that inconsistent interpretations of prejudicial pretrial publicity have resulted in irreconcilable change of venue decisions. As such, this Note sets forth reforms that must occur to the change of venue motion to limit the discretion of judges. Specifically, this Note argues that the ascension of public opinion surveys as the primary indicator of the prejudicial pretrial publicity will curtail judicial discretion by making the change of venue process more empirical. A certain result of these reforms will be a clearer articulation of the current "interest of justice" standard.

II. THE PURSUIT OF AN IMPARTIAL JURY

A. The Constitutional Role of an Impartial Jury

The notion that a jury should consist of the defendant's peers is rooted in a historical role that modern-day juries no longer serve. (9) Under traditional Anglo-Saxon law, jurors contributed to the substance of a trial by testifying about the criminal activity at hand or about the credibility of the defendant. (10) Modern jurors no longer have a responsibility to be familiar with the defendant. (11) In fact, present-day voir dire strives to select jurors with minimal knowledge of the defendant and of the crime committed. As the jury's role has changed, the focus is no longer on selecting a jury of one's peers but, rather, on selecting jurors that can accurately reflect the opinions of the community and can act as impartial and fair arbiters of the case. (12)

During the years before the Declaration of Independence and throughout the political discourse between the Framers, the right to a jury trial in criminal cases was one of the few rights that received universal acceptance. (13) In drafting the Constitution, the Framers included in Article III a proposition that jury trials in criminal cases should be held in the district in which such crimes occurred. (14) The Framers likely included this provision as a response to the English practice in the 1760s and 1770s of transporting colonists to other colonies for trial in order to obtain juries sympathetic to the Crown. (15) To correct this abuse, the Article III venue provision limited the federal government's choice of forum to the state in which the crime occurred. (16)

The Sixth Amendment states that "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." (17) The Framers crafted the right to venue clause of the Sixth Amendment to create a compromise between two interests: the interest in protecting the defendant against inconvenience and the interest of the government in trying a person in an impartial environment. (18) The Judiciary Act of 1789, which was passed before the states ratified the Bill of Rights, underscored the importance of these interests by ensuring a change of venue if "great inconvenience," such as a rebellion, existed in the county where the crime occurred. (19)

In the nineteenth century, the Supreme Court first expressed that the right to an impartial jury was of paramount importance to the administration of justice. (20) In the latter half of the twentieth century, the Court refined this assertion by stating that an impartial jury was essential to minimal standards of due process. (21) The Due Process Clauses of the Fifth and Fourteenth Amendments require fundamental fairness in the prosecution of crimes and, therefore, support the need for an impartial jury. (22) If there has been extensive pretrial publicity and if remedial measures prove to be an inadequate method of ensuring a fair trial in the venue where the crime occurred, the Supreme Court has held that a defendant is entitled constitutionally to a change of venue to secure an impartial jury. (23)

The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process Clauses of the Fifth and Fourteenth Amendments override the venue provisions in both Article III and the Sixth Amendment in extraordinary cases. (24) A defendant waives his constitutional right to venue by filing a change of venue motion. (25) If, however, a defendant, in effect, waives his right to an impartial jury by failing to move for a change of venue, federal courts have created a presumption of impartiality and will not later dismiss the case based on subsequent assertions of bias from prejudice, absent extraordinary circumstances. (26)

B. The Imposition of the Fair Cross Section Requirement

Since Taylor v. Louisiana, (27) the Supreme Court has maintained that a petit jury must come from a fair cross section of the community in order to comply with the Sixth Amendment's guarantee of a right to a jury trial. (28) The fair cross section doctrine presumes a jury is more likely to be impartial if it consists of representatives of all segments of the community, who together express the "commonsense judgment of the community." (29) The fair cross section requirement enables juries to achieve the symbolic presence of the entire polity at every trial, since such a feat is not practically possible. (30)

The obvious and longstanding role of the jury is to decide the guilt or innocence of a defendant with the community's voice in mind. (31) However, the Supreme Court has also recognized the symbolic role of juries to protect citizens against arbitrary law enforcement, (32) the corrupt or overzealous prosecutor, (33) and the biased or eccentric judge. (34) Additionally, juries play an important role in preserving social order because as long as jury trials appear to be a viable forum for resolving controversies, citizens will bring their disputes to the legal system rather than settling them on the streets. (35) Thus, if the jury is to perform its designated functions--safeguarding liberty, protecting citizens against the government, representing the community, preserving social order, and determining guilt or innocence--the jury must consist of citizens who legitimately represent the community's collective interests. (36)

Two distinct types of bias--specific and general--can infect the minds of individuals and could disqualify them from jury service due to their lack of impartiality. Specific bias is a reaction to the particular case caused by a juror's personal knowledge of the defendant, victim, attorney, or by prejudice from pretrial publicity. (37) Courts use voir dire, peremptory strikes, limitations on publicity, and changes of venue as remedies to combat this type of bias. (38) General bias, on the other hand, develops from the different perspectives that jurors bring to the jury box, which generally arises from life experiences rather than from case-specific knowledge. (39) Race, class, gender, and even geography have a significant impact on general bias. (40) The fair cross section doctrine is absolutely essential to guard against general bias by creating a forum where jurors with different perspectives can inform each other during deliberation rather than relying on the sum of twelve independent votes. (41)

A central problem with the entire jury selection process and, therefore, with the current determination of whether or not to change venue is that there appears to be little consensus on what constitutes an impartial jury. The Supreme Court has explicitly stated that "[i]mpartiality is not a technical conception" and that "the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." (42) If an impartial juror is someone without bias, judges are wasting time and money conducting voir dire because in cases with significant media exposure, it is nearly impossible to assemble twelve people without opinions or prejudices. (43) If, instead, an impartial juror is one who can deliberate with fellow jurors and can apply the law based on evidence presented in court rather than on his or her own preconceptions, then voir dire should focus on whether a potential juror's opinions will obstruct fair deliberation rather than focusing on exposure to media coverage. (44) However, if an impartial jury is simply a panel of individuals which represent community biases, then the voir dire process should focus largely on the representativeness of jurors. (45) While impartiality may not be a "technical conception," lack of consensus on these normative views of impartiality has lead to unpredictable and inconsistent judicial assessments of prejudice during change of venue decisions.

III. THE PURSUIT OF AN IMPARTIAL JURY AMIDST PRETRIAL PUBLICITY

A. The Prevalence of Pretrial Publicity

The prevalence of pretrial publicity is one of the most significant impediments to the construction of an impartial jury. Pervasive and continuous media coverage in newspapers, on television, and on the Internet tend to occur in three types of criminal trials: (1) cases involving unusually repugnant facts appealing to voyeuristic tendencies, like the Scott Peterson trial; (46) (2) cases in which the nature of the crime is extraordinarily heinous, like the D.C. Sniper rampage; (47) and (3) cases where the victims or the defendants are well-known, like the O.J. Simpson trial. (48) Accordingly, jurors in any given judicial district are likely to have media exposure to trials of national interest as well as trials involving local residents.

Satellites, cable television, and other technologies have capitalized on an insatiable public curiosity, such that media outlets cover criminal activities in unparalleled scope and frequency. (49) New styles of investigative journalism and more protective libel laws have focused public attention on aspects of criminal investigations which were largely unknown or even confidential in the past. (50) With the advent of wire services, such as the Associated Press and Reuters, journalists not only report crimes before authorities apprehend a suspect, they actually have a role in prompting the investigation of criminal activity and in aiding in the apprehension of suspects. (51) Dramatic photographs of the victim, of the defendant being led away in handcuffs, or of emotional community responses represent the most inflammatory forms of pretrial publicity. (52) Since press coverage commences prior to the start of a trial, and certainly before the selection of a judge, the control of pretrial publicity is largely out of the court's hands. (53)

B. The Effects of Pretrial Publicity on Juror Decisonmaking

In deciding whether a potential juror has formed an opinion which renders him unconstitutionally prejudiced, courts must determine the nature and strength of the pretrial opinion formed. (54) The problem, however, as courts have long recognized, is that "[t]he point at which an impression too weak to warp the judgment ends and one too strong to suppress begins is difficult to discern." (55) In assessing the amount of prejudice in the venire, the court must understand the effect of pretrial publicity on juror decision-making. Social science research has long indicated that prejudicial pretrial publicity influences evaluations of defendants. (56) Social scientists have adopted two approaches, a field methodology and an experimental methodology, to study the impact of pretrial publicity on juror decision-making. (57)

The field methodology typically entails an examination of actual cases and asks respondents to express their judgments about the case. (58) In these studies, statistical analyses correlate the amount of pretrial publicity which has occurred in a particular jurisdiction with the judgments of potential jurors on particular issues in a case and on the overall verdict. (59) These studies showcase the relationship between media coverage and jury bias, thereby providing evidentiary support for the importance of the change of venue motion. However, these studies have some limitations, such as their failure to examine the content of pretrial publicity in detail or to account for facets of the actual trial experience like deliberation. (60)

One field study has shown that the possibility of juror predispositions of guilt is greater in venues where the crime occurred than in other venues. (61) Another study has indicated that jurors who have been exposed to more media sources are more likely to permit media to shape their opinions of guilt. (62) A recent study has shown that respondents' knowledge of a case from media sources did not decrease their self-reported ability to be impartial. (63) This is a notable finding in the change of venue debate because many courts currently assess juror impartiality based almost entirely on jurors' admissions during voir dire, in the form of excusal rates. (64)

Experimental studies manipulate the amount and the type of pretrial publicity that a respondent faces as part of simulated trial process. (65) These studies enable researchers to test whether certain types of pretrial publicity, such as information about prior convictions, produce prejudice, thereby unraveling the process by which prejudice develops. (66) This research method, however, is limited by the fact that neither the amount of publicity nor the time period which the researcher presents the publicity resembles pretrial publicity exposure in the real world. 67) Similarly, experimental settings fail to replicate the self-selected manner by which potential jurors actually consume pretrial publicity. (68)

One experimental study showed that knowledge of inadmissible information can exert a profound influence on assessments of guilt. (69) Another study indicated that factors such as the existence of a prior arrest record, a confession, or a passed or failed lie detector test significantly affect respondents' perceptions of guilt. (70) Subsequent studies have also concluded that negative publicity about a defendant's character has a great impact on respondents' perception of guilt. (71) A landmark study on pretrial publicity presented participants with publicity characterized as either "factual" or "emotional." (72) "Factual" publicity consisted of plain news reports detailing a defendant's previous conviction for armed robbery while "emotional" publicity provided details, such as a "graphic or lurid depiction" of a murder victim's injuries. (73) After deliberation, "emotional" pretrial publicity produced a twenty percent higher conviction rate than "factual" pretrial publicity, and observations of the deliberations suggested that "emotional" pretrial publicity made jurors who argued to convict more passionate about their stance. (74)

C. Treatment of Pretrial Publicity by Appellate Courts

In Irvin v. Dowd, (75) the Supreme Court, for the first time, reversed a conviction based on its assessment of prejudicial pretrial publicity. (76) In Irvin, the Court remanded a murder conviction in a case involving a murder in a small Indiana community. (77) The Court made specific note of the amount of newspaper headlines, articles, and pictures that appeared regularly in approximately ninety-five percent of the dwellings in the venue. (78) The Court found a barrage of inflammatory publicity immediately prior to trial that amounted to a "wave of public passion" that deprived the defendant of a fair trial. (79)

Following Irvin, the Supreme Court set forth the "totality of the circumstances" test in Murphy v. Florida, (80) which provides a standard by which appellate courts can review lower court determinations of pretrial publicity. (81) In Murphy, the trial court convicted defendant of assault with intent to commit robbery. (82) The trial court denied the defendant's change of venue motion, despite a voir dire record which demonstrated some knowledge in the community about a prior felony, because the record failed to indicate any juror hostility which would prevent partiality from being set aside. (83) The Court deferred to the trial court's decision to deny change of venue after pronouncing the "totality of the circumstances" test. (84) The test examines, among other things, the voir dire record, the atmosphere of the community at the time of the trial, and the length to which the trial court must go to select impartial jurors. (85)

In Patton v. Yount, (86) the Supreme Court held that it would only overturn a trial court's assessment of prejudicial pretrial publicity, under the "totality of the circumstances" standard, in the event of "manifest error." (87) In Patton, publicity in advance of a trial revealed the defendant's prior conviction for murder, his unconstitutionally obtained confession, and his prior plea of temporary insanity, all of which were not admitted into evidence at trial. (88) In spite of public knowledge of this information, the trial court denied the defendant's motion for change of venue. The Court concluded that the voir dire record and other circumstances surrounding the trial failed to support a finding of "manifest error" sufficient to overcome a "presumption of correctness" and, thus, the Court upheld the trial court's denial of change of venue. (89)

Some scholars have criticized the "totality of the circumstances" approach, and in essence the general effectiveness of appellate courts, because they feel appellate courts presume that pretrial publicity law will develop on a case-by-case basis. (90) The implication of this presumption is that trial courts assume significant discretion in determining the impartiality of juries and in creating remedial measures. (91) Currently, trial courts have great comfort that their discretion will not be disturbed. (92) However, this approach fails to encourage proactive judicial administration or the creation of concrete guidelines to assess pretrial publicity. (93) This lack of proactivity wastes judicial resources in the form of additional trials and makes it difficult for appellants to determine which facts may tip the balance for a reviewing court. (94) Most troubling, equal treatment under the law, the goal of the Fourteenth Amendment, suffers without greater certainty on judicial assessments of prejudicial pretrial publicity. (95)

IV. JUDICIAL RESPONSES TO PRETRIAL PUBLICITY

A. Remedial Controls on Pretrial Publicity

Trial courts have a constitutional duty to minimize the effects of the prejudicial publicity that surrounds a criminal trial without unconstitutionally chilling pretrial publicity. (96) The press can vigorously exercise its First Amendment rights, even if the result of such freedom is widespread public knowledge about pending criminal cases. (97) The Supreme Court has held that judges may not restrain the press from publishing truthful, lawfully obtained information about a criminal trial. (98) In fact, the Court has firmly indicated that the media performs a public benefit by reporting true occurrences in the criminal justice system because of the need to achieve legitimacy by promoting a type of government in which the citizenry is the final judge of the proper conduct of public business. (99) Because significant constitutional hurdles preclude the use of gag orders on the press, trial courts often employ devices that pose less direct restraints on pretrial publicity. (100)

Often, a trial court will order a postponement of proceedings in an attempt to dissipate the immediate publicity that surrounds the indictment of a suspect. (101) However, postponement is seldom an effective approach to combating pretrial publicity because media coverage often resumes as the new trial date approaches. (102) A judge may also use an extended form of voir dire to eradicate pretrial publicity in the jury box. However, voir dire presents not only the inherent difficulty of judges determining impartiality, but it is also possible that some jurors will not recognize their prejudice, (103) or worse, will be dishonest about their prejudice. (104) Moreover, voir dire puts the defense in an awkward situation of having to ask jurors about knowledge of the very prejudicial publicity which they seek to exclude from the trial. (105)

Judges sometimes use modified jury instructions, which instruct juries not to consider specific instances of prejudicial pretrial publicity. However, judicial instructions, standing alone, are unable to deter the deeply embedded biases that pretrial publicity can create because jurors are incapable of simply ignoring such information. (106) While juror deliberation is a necessary product of the fair cross section requirement, studies have shown that courts cannot rely on deliberation alone to mitigate the effects of pretrial publicity and, in fact, some studies find that deliberation and jury instructions may actually magnify bias. (107) Sequestration and change of venire are additional remedial measures that courts use to mitigate pretrial publicity. (108) These devices exact a tremendous burden on the lives of individual jurors and generate great costs for the judicial system. (109) The shortcomings of these devices move our focus to the change of venue motion.

B. Building a Change of Venue Motion

The idea of moving a trial to a venue that has been subject to less pretrial publicity seems like a certain way to impanel jurors who lack intense exposure to prejudicial information. Nevertheless, the very advances in mass media and technology that have prompted more defendants to seek a change of venue have also diminished the motion's effectiveness. (110) Similarly, a reduction in the size of judicial districts has increased the number of change of venue motions requested while at the same time decreasing the likelihood of procuring jurors with different views of the case. (111) In actuality, limited empirical evidence exists about the real effect that changes of venue have on verdicts due to the impossibility of trying the same case before juries in different venues and the difficulty of comparing circumstances across different cases. However, Powell demonstrated the impact that a change of venue can have on the perception and the legitimacy of verdicts. (112) Thus, a change of venue motion has a two-fold impact, which judges must keep in mind when making their decision: (1) the actual effect on the verdict; and (2) the effect on perceptions of legitimacy and fairness in the criminal justice system.

Courts have been extraordinarily reluctant to grant changes of venue, particularly if the motion is based solely on claims of pretrial publicity. (113) Statistics compiled in the early 1990s indicate that California courts have granted an average of only about ten changes of venue per year, with a majority occurring in small, rural counties. (114) Judges resist changing venue because of their reluctance to admit that a defendant could only receive a fair trial in another jurisdiction. (115) Moreover, venue changes, particularly in federal court, are extremely costly and highly inefficient. (116) The high cost is undesirable to many judges because the new venue incurs a burden on facilities, despite the fact that the county where the crime occurred still pays the court COSTS. (117) Finally, judges avoid changes of venue because such changes may frustrate a local community's interest in resolving the case. (118)

The Federal Rules of Criminal Procedure provide that the decision of whether to change venue should commence "upon motion of the defendant" (119) and rely on the "convenience of parties and witnesses" and the "interest of justice." (120) There is no direction in the federal rules or advisory notes as to what specific factors the judge should consider in granting a change of venue motion. While each state possesses its own change of venue statute, many states, such as California, possess statutes which bear significant resemblance to the Federal Rules of Criminal Procedure and grant similarly broad discretion to the trial judge to determine if a change of venue is necessary. (121)

A defendant faces a strategic decision of whether or not to raise a change of venue motion because the pretrial publicity may actually be beneficial. (122) In 1990, Washington, D.C. Mayor Marion Barry faced fourteen charges of drug possession and perjury arising from a federal investigation that yielded a videotape of Barry smoking crack cocaine in a Washington hotel. (123) Barry chose not to seek a change of venue at trial, despite incessant pretrial publicity about the case that included an incriminating videotape. (124) The jury, drawn largely from a pool of African Americans, convicted Barry, an African American, of only one misdemeanor possession charge. (125) In a case that provided additional evidence of the impact of venue on verdicts, many credited the result on the mistrust of law enforcement that is pervasive in the D.C. African-American community. (126)

A defendant also faces a strategic decision of whether to raise a change of venue motion before or after voir dire. Certainly, a judge may have a greater incentive to deny a motion if he has already used public time and money to select a jury. (127) However, a defendant's motion may not possess enough evidence to support a change of venue motion before voir dire, and the findings from voir dire may be necessary to sustain the motion. (128) In deciding whether or not to grant a change of venue motion, a judge will review existing evidence and will request new evidence about alternative venues in order to determine whether granting the motion would serve the "interest of justice." (129)

V. THE NEED TO LIMIT JUDICIAL DISCRETION IN CHANGE OF VENUE DECISIONS

A. The Lack of Consensus Surrounding the "Interest of Justice" Standard

In exceptional cases, extremely high levels of pretrial publicity or other extraordinary circumstances will necessitate a change of venue without a significant evidentiary showing. (130) In most cases, however, judges will consider an array of factors as part of their assessment of the "interest of justice," which include: (1) the nature and extent of pretrial publicity; (2) the size and demographic composition of current and potential venues; (3) the nature and gravity of the offense; (4) considerations of the defendant and of the victim; and (5) the existence of any government-sponsored publicity.

1. Nature and Extent of Pretrial Publicity

The defense seeks to demonstrate that the nature and extent of the publicity surrounding a trial is so "widespread, inflammatory, adverse, and prejudicial as to raise a substantial doubt that defendant can obtain a fair trial." (131) The prosecution, on the other hand, seeks to show that the same publicity is "factual, informative, and accurate." (132) Motions for change of venue often rely heavily on the nature and extent of pretrial publicity because this factor has the capability of incorporating the impact of other factors. (133)

In most cases, a standard collection of evidence will form the evidentiary basis for demonstrating the nature and extent of pretrial publicity. Excusal rates during voir dire and public opinion surveys that demonstrate the public's perception of a defendant are seen as the most persuasive forms of evidence, considering the frequency with which judges rely on them in their change of venue opinions. (134)

Too much reliance on media and Internet broadcasts to display the nature and extent of pretrial publicity, however, may actually demonstrate that the dissemination of information has been equal in alternative venues. (135) In People v. Manson, (136) the trial court determined that publicity about the notorious Charles Manson cult murders permeated the entire state in a high, yet equal frequency and, therefore, the court denied Manson's change of venue motion. (137) In the wake of the attacks of September 11, 2001, this issue has extended to cases where prejudicial publicity has affected the entire country. (138) During the prosecution of John Walker Lindh, who American troops captured on the battlefield in Afghanistan in the months after the attacks, the court recognized the renewed sense of patriotism among Americans and the challenge that this political movement imposed on assembling a jury. (139) Ultimately, the Lindh court refused to grant a change of venue, reasoning that the defendant was just as likely to receive fair trial in the current district as in any other district because prejudice encompassed the entire country. (140) With this in mind, evidence of media coverage should always be but "one piece of the evidence" offered in support of a change of venue. (141)

a. Excusal Rates During Voir Dire

If a defendant raises a change of venue motion during or after voir dire, the voir dire record will likely represent the most persuasive evidence of pretrial publicity because the judge witnesses the gathering of this evidence first-hand. (142) From the voir dire record, a defendant must demonstrate that potential jurors' responses demonstrated actual prejudice. (143) This can be done most persuasively by reporting the percentage of potential jurors excused for preconceived notions of guilt because the court should question the reliability of other jurors' protestations of impartiality when a large percentage of veniremen admit to a disqualifying form of prejudice. (144) Additionally, a defendant can claim that high excusal rates demonstrate the appearance of widespread prejudice and that such high rates deny him a jury that is representative of a fair cross section of the community. (145) It is important to note that simply high rates of excusal will not warrant a change of venue because the percentage excused for preconceived notions of guilt is the relevant statistic. (146)

Moreover, it is equally important to note that a court's use of remedial measures during voir dire, such as assembling a larger jury pool, providing additional peremptory strikes, or drawing jurors from farther reaches of a judicial district, could give the court greater confidence in the venire and cause it to accept higher excusal rates. (147)

Courts must first reach some consensus on the relative importance of excusal rates and then reach some consensus on what excusal rate actually warrants a finding of prejudice. In Irvin v. Dowd, (148) the Supreme Court remanded a murder conviction, and effectively called for another change of venue, after citing a voir dire record where sixty-two percent of potential jurors were excused for fixed opinions of guilt. (149) In State v. Sette, (150) the Supreme Court of Appeals of West Virginia held that where almost fifty percent of potential jurors formed conclusions of guilt, the denial of a change of venue was reversible error. (151) However, in Patton v. Yount, (152) the Supreme Court upheld the denial of change of venue, despite the fact that seventy-seven percent of the veniremen indicated that they would carry an opinion into the jury box. (153) Also, in Parson v. State, (154) the Supreme Court of Delaware held that the dismissal of seventy-eight percent of prospective jurors for formed opinions of guilt did not warrant a change of venue in a highly publicized murder case. (155)

Excusal rates may be interpreted inconsistently due to courts taking a myopic view of the impartiality of a jury pool. (156) Some courts disproportionately focus their assessment of prejudice on the portion of prospective jurors who do not possess any opinion of the case rather than on the portion with preconceived notions of guilt. (157) Other courts make assessments of prejudice based on how quickly it selects a jury, thus failing to determine if the jury pool as a whole possesses prejudice. (158) Instead, courts must take a more complete view of the voir dire process by focusing on excusal rates rather than the relative ease of selecting a jury. As part of this process, courts should work to develop more concrete classifications of juror knowledge, so as to better understand the extent of prejudice in cases where there is near universal knowledge of a case. (159) If a defendant raises a motion before the completion of voir dire, a judge should make the defendant aware of the limited voir dire record and should consider the fact that only a limited record exists when making a change of venue decision. The multiplicity of ways which courts infer impartiality and the varied amount of reliance which courts place on assertions of impartiality raise serious questions about the reliability of excusal rates as the primary indicator of the nature and extent of pretrial publicity and, thus, the ability of such rates to provide consistent change of venue decisions.

b. Pubic Opinion Surveys

Public opinion surveys conducted in current and alternative venues will also be extremely persuasive to the court, particularly if a voir dire record does not exist when a defendant raises a motion to change venue. (160) In fact, one court actually denied a change of venue primarily due to a defendant's failure to submit a public opinion survey. (161) Sampling generally results in both the prosecution and the defense surveying the same judicial district, yet, submitting findings that contest one another, thus forcing courts to decipher the credibility of the two surveys. (162) In United States v. McVeigh, (163) the judge criticized public opinion surveys as "crude measures of opinion at the time of the interviews." (164) Courts have also challenged surveys for not choosing a sample of respondents that is representative of prospective jurors. (165)

As with excusal rates, scholars and courts have not reached an agreement on the relative importance of survey results, much less determined what percentage of perceived notions of guilt in a community warrants a finding of prejudice. One scholar has stated that thirty-five percent is sufficient, while another scholar has indicated that fifty percent is only marginal and sixty-five percent is a more convincing figure. (166) During the Scott Peterson case, one commentator stated that a seventy-five percent finding virtually guarantees a change of venue. (167) In State v. Anthony, (168) the Supreme Court of Kansas did not grant a change of venue in a murder trial where the defendant presented a public opinion survey which indicated almost sixty-four percent of respondents felt that the evidence was strong against defendant. (169) In State v. Baumruk, (170) however, the Missouri Supreme Court granted a change of venue in a murder trial where a defendant presented a public opinion survey which indicated just over seventy-one percent of respondents felt that the evidence was strong against defendant. (171) The inconsistency of these results demonstrates the need for guidelines which compel a uniform assessment of public opinion surveys.

Much of the above disparity results from the lack of uniform survey techniques and the lack of regulations surrounding the trial consulting industry, which conducts many public opinion surveys. (172) Trial consultants are given great latitude to develop the content and the testing parameters for public opinion surveys. (173) However, the trial consulting industry consists of highly-paid practitioners who lack ethical and education requirements. (174) The use of trial consultants also increases the possibility of fraud in the surveys. Allegations of fraud surfaced in the Scott Peterson case, where Professor Stephen Schoenthaler of California State University at Stanislaus instructed students in his criminology class to survey respondents on the telephone without providing them with adequate training and without providing a sufficient timeframe to complete the assignment. (175) After the judge granted a change of venue, several students admitted that they had falsified portions of the survey by providing fabricated results. (176) The American Society of Trial Consultants must take the lead on reforming its profession and assisting in the creation of concrete guidelines to enable public opinion surveys to carry paramount weight with judges facing a change of venue decision.

2. Size and Demographic Composition of Current and Potential Venues

The number of eligible jurors that reside in a jurisdiction is also a factor in a change of venue decision. (177) In smaller districts, judges can better gauge the media consumption of potential jurors. (178) Smaller jurisdictions also become more saturated with pretrial publicity than larger jurisdictions. Jurors in those jurisdictions have fewer media outlets, which results in less dilution of the prejudicial publicity. (179) Moreover, potential jurors in relatively smaller jurisdictions tend to be more cohesive. This is due to low migration, greater knowledge and curiosity of the crime due to the existence of less criminal activity, and the existence of a relatively small range of cultural views in the community. (180) However, the small size of a jurisdiction is not, by itself, enough to warrant a change of venue because such a standard would result in no trials occurring in small jurisdictions. (181)

A defendant is not entitled to a jury of any particular racial or gender composition. (182) As such, the racial composition of the district in which the charged crime occurred is largely irrelevant in a change of venue decision. (183) In the aftermath of Powell, however, racial composition of alternative venues could have an effect on a choice of venue decision because statutes in many jurisdictions now compel judges to consider the racial similarity of alternative venues before moving a trial. (184)

3. Nature and Gravity of Offense

Society takes great interest in serious and grave criminal offenses, such as murder and rape, because these acts deviate significantly from moral expectations in human behavior. (185) The expectation of greater publicity surrounding these actions prompts many judges to permit the passage of time between an arrest and a trial in serious criminal cases. (186) Serious and grave criminal offenses also increase the severity of the punishment that will result from a guilty verdict. The death penalty further challenges the effectiveness of traditional methods of assessing pretrial publicity due to the jury's role in imposing such a penalty. (187) Since every capital case involves a situation where potential jurors must exercise moral judgment as part of their decisions to confer the death penalty, the severity of a charge is not dispositive in a change of venue decision. (188) However, serious crimes with severe penalties increase the need for greater limitations on judicial discretion, in favor of concrete guidelines, because of the heightened prospect of creating significant public mistrust if a verdict appears inconsistent or unfair.

4. Considerations of the Defendant and of the Victim

Criminal cases which involve high-profile defendants or high-profile victims face immense media scrutiny, irrespective of the nature or gravity of the offense. (189) High-profile individuals consist both of those who are famous prior to their criminal offense and those who are famous wholly due to the occurrence of a criminal offense. (190) In these cases, a defendant will argue that the increased media coverage surrounding the case makes it impossible to assemble jurors free of biases about the case. (191) However, a somewhat circular relationship exists in high-profile cases because the notoriety of parties creates more publicity and then the added publicity creates more notorious parties. This relationship, coupled with the increased ubiquity of media exposure, makes this factor not dispositive in a change of venue decision.

A judge also considers the needs of victims when deciding a change of venue motion. Many states have enacted victim's rights laws, which require the judge to consider the emotional and financial impact of a change of venue on the victim and the victim's family. (192) In federal cases, the Justice Department may have to accommodate the costs of victims. (193) The relative burdens on interested parties, such as the distance and accessibility of the new venue, will be a part of the judge's consideration of the change of venue motion, insofar as it does not infringe on a defendant's constitutional right to a fair trial. (194)

5. Government-Sponsored Publicity

The need to account for government-sponsored publicity as part of a change of venue decision underscores the entire purpose of the Sixth Amendment venue protections to protect the defendant against overzealous government power. (195) Inflammatory media sound bytes by government officials can become focal points during the court's analysis of the prejudicial effect of pretrial publicity. (196) Statements by government attorneys, particularly those in violation of ethical guidelines set forth by the American Bar Association, can be especially persuasive to potential jurors because of their official sponsorship. (197) As such, the court will examine the source of the contested pretrial publicity and, specifically, will consider the heightened impact on prospective jurors of publicity resulting from the actions of victims or of government officials. (198)

B. Decreasing Judicial Discretion through the Use of Public Opinion Surveys

The "interest of justice" standard provides broad discretion to judges to enable them to make change of venue decisions amidst the varied existence of the above factors. To the extent possible, however, legislatures and judges must articulate which factors have the greatest impact on change of venue decisions and must assign some relative weights to these factors. (199) Increased disclosure of change of venue procedures safeguards the uniformity and predictability of the process and promotes perceptions of legitimacy, fairness, and equal treatment under the law. Further, these efforts will provide attorneys with greater direction when drafting their motions and will transfer more control over the change of venue process to the parties in a case. Finally, making changes of venue judgments more transparent provides appellate courts with a record that is more conducive to review under the "totality of the circumstances" standard. This will ameliorate the current environment where we have a largely ineffective appellate process that rarely overturns trial court judgments.

Central to the reform of the change of venue motion is the role of public opinion surveys. These surveys must carry paramount importance in a change of venue decision. The use of excusal rates as a measurement of the nature and extent of pretrial publicity and of juror prejudice is highly problematic because unclear notions of juror impartiality play a significant role in the judicial interpretation of these rates. (200) Additionally, excusal rates should not be the most important measure of juror prejudice because judges have varying levels of comfort with the measure based on their administration of voir dire. (201)

The ascension of the role of public opinion surveys should coincide with the increased use of court-appointed experts, who will ensure the reliability of public opinion surveys by remaining impartial. (202) Further, court-appointed experts will eradicate the time-consuming practice of assessing the credibility of two conflicting surveys and will decrease the use of trial consultants. However, because these court-appointed experts will in fact be trial consultants, aforementioned reforms must be implemented to improve educational requirements and ethical standards in the trial consulting profession. Moreover, in the wake of the Scott Peterson case fraud allegations, courts should allow greater discovery of survey work and should require the submission of raw survey data to provide oversight over survey techniques and findings. (203)

In line with the increased weight placed on public opinion surveys, courts should assume a role in developing the surveys. Acting through a court-appointed expert, courts should require parties to agree on the design of the survey, on the questions presented in the survey, and on polling areas reached by the survey before the start of trial. This consensus between parties should decrease concerns about the veracity of the findings. More specifically, though, legislatures, judges, and trial consultants must create and publicize guidelines which set forth specific information that all public opinion surveys should solicit. First, the guidelines should require the acquisition of information related to the nature and gravity of the offense, the considerations of the defendant and of the victim, and the existence of any government-sponsored publicity. Second, the guidelines should bring the lessons of Powell to the forefront of a change of venue decision. The guidelines should require the acquisition of demographic information, including race, gender, and geography and the acquisition of information related to the size of the venue. These two reforms will end the current practice of weighing a multitude of factors independently and subjectively. Finally, the guidelines should account for the proliferation of modern media. Public opinion surveys must consider the new mediums by which people acquire information, such as the Internet.

In drafting the public opinion surveys, experts and parties must also account for advancements in social science research. Surveys should be required to determine if inadmissible or bad character evidence exists in the public sphere, so as to address experimental studies that have shown that the presence of such information has a significant impact on opinions of guilt. (204) Because field studies have shown a positive correlation between media exposure and opinions of guilt, surveys should measure both the intensity of public opinion and the frequency of media exposure. (205) The landmark research that distinguishes between "factual" and "emotional" publicity demonstrates that surveys should also measure the type of publicity which respondents have seen. (206) The final question on surveys should be a catch-all question addressing respondents' preconceived notions of guilt.

After incorporating these reforms, public opinion surveys will reveal the magnitude of public interest that a judge stands to affect by making a change of venue decision. Courts will also have greater confidence in the responses to the catch-all question, since respondents will have been exposed to considerations which the court as well as the parties deem important through prior questions. Thus, the percentage of preconceived notions of guilt which warrants a change of venue could be set definitively at an agreed upon percentage. Certainly, the record created by the individual questions could be used to rebut a finding from the catch-all question if there is a clear discrepancy. To prepare for such a case, the guidelines should mandate that the judge, with the help of the court-appointed expert and the parties, pronounce the relative weight of each question at the onset of the trial, based on the circumstances at hand. The use of reformed public opinion surveys as the basis of change of venue decisions will replace subjective judgments under the "interest of justice" and "totality of the circumstances" standards with empirical, transparent, and comparable judgments.

VI. CONCLUSION

The Sixth Amendment provides a criminal defendant with the right to an impartial jury. Supreme Court jurisprudence has confirmed that this right is essential to minimum standards of due process. The Court has resolved that an impartial jury can only come from a fair cross section of the community in order to dispel specific and general notions of bias. Despite the clarity of this holding, however, the Supreme Court has yet to clearly articulate what actually constitutes an impartial jury or to delineate the procedures by which courts should construct such a jury. Judges continue to hold and to apply normative views on juror impartiality that range from jurors who are free of bias, are able to set aside biases and concentrate on evidence presented in court, or are simply representative of the biases in the community. After Powell, some judges possess yet another normative view which focuses on the legitimacy of the verdict and the need to avert public mistrust in the justice system.

Amidst scientific studies that establish the effect of pretrial publicity on juror decision-making and in view of the limitations presented by many remedial controls of pretrial publicity, the concept of moving a trial to a venue with less prejudicial publicity appears to provide a preferable method of impaneling impartial jurors when extensive pretrial publicity exists. Yet, the nebulous "interest of justice" standard that is currently used to make change of venue determinations does not account for the varied interpretations of juror impartiality or for the varied effects that pretrial publicity has on juror decision-making. Further, judges consider an array of evidentiary support under this standard, including: (1) the nature and extent of pretrial publicity; (2) the size and demographic composition of current and potential venues; (3) the nature and gravity of the offense; (4) considerations of the defendant and of the victim; and (5) the existence of any government-sponsored publicity. Even within the first factor, judges put varied reliance on excusal rates and public opinion surveys.

The ascension of public opinion surveys as the primary form of evidentiary support in the change of venue process will decrease judicial discretion by enabling the assignment of relative weights to the aforementioned factors. In the reformed change of venue process, the court will take an active role in developing the survey, under the direction of promulgated guidelines. These guidelines will account for the state of modern media coverage, the fallout from past judicial decisions, and the results of social science studies. Further, reformed change of venue decisions will create a contestable record that will enable appellate courts to provide desperately needed judicial oversight. In all, increasing the empirical nature of change of venue decisions will better comport with the fair cross section requirement and will promote perceptions of legitimacy, fairness, and equal treatment under the law within the "interest of justice" standard.

(1.) See Lynn Anderson, Deep Feelings Grip Families After Verdict, BALT. SUN, Dec. 19, 2003, at 12A.

(2.) See John Cote, Tale of Two Cases: Are Peterson and D.C. Sniper Trials in the Same Category?, MODESTO BEE, July 3, 2003, at A1. (3.) See id.

(4.) 283 Cal. Rptr. 777 (Cal. Ct. App. 1991).

(5.) See Powell, 283 Cal. Rptr. at 788 (holding that change in venue was necessary to achieve fair trial).

(6.) See Laurie L. Levenson, Change of Venue and the Role of the Criminal Jury, 66 S. CAL. L. REV. 1533, 1537 (1993) (stating that venue change to non-diverse county impacted Powell verdict); see also David Margolick, Riots in Los Angeles: The Verdict; Switching Case to White Suburb May Have Decided Outcome, N.Y. TIMES, May 1, 1992, at A20 (noting that the "outcome of the case may have been decided when Judge Stanley Weisberg ... transferred the case from the city to Simi Valley").

(7.) See Levenson, supra note 6, at 1539 n.26.

(8.) See Sheryl Stolberg, LA. Riots Weigh Heavily on Scales of Justice System Courts, L.A. TIMES, May 14, 1992, at Al, A18; see also K. Winchester Gains, Race, Venue and the Rodney King Case: Can Batson Save the Vicinage Community?, 73 U. DET. MERCY L. REV. 271, 292 (1996) (discussing legislative proposals to reform change of venue motion in New Jersey and California).

(9.) See Levenson, supra note 6, at 1546 (discussing historical role of juries in criminal cases).

(10.) Id.

(11.) Id. at 1547 (discussing evolution of juries in criminal trials).

(12.) Id.

(13.)

   The right to jury trial in criminal cases was among the few
   guarantees of individual rights enumerated in the Constitution
   of 1789 and it was the only guarantee to appear in both the original
   document and the Bill of Rights.

   Even before the Declaration of Independence, the First Continental
   Congress's Declaration of Rights of 1774 had proclaimed the fight
   to jury trial. Twelve states had enacted written constitutions
   prior to the Constitutional Convention, and the only right that
   these twelve constitutions declared unanimously was the right of a
   criminal defendant to jury trial.

Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. CHI L. REV. 867, 870 (1994) (footnotes omitted).

(14.) "The Trial of all Crimes, except in Cases of Impeachment, shall be ... held in the State where the said Crimes shall have been committed...." U.S. CONST. art. III, [section] 2, cl. 3.

(15.) Scott Kafker, Note, The Right to Venue and the Right to an Impartial Jury: Resolving the Conflict in the Federal Constitution, 52 U. CHI. L. REV. 729, 741 (1985).

(16.) Id.

(17.) U.S. CONST. amend. VI.

(18.) Kafker, supra note 15, at 746 ("While the [S]ixth [A]mendment right to venue was intended to protect a defendant against inconvenience and prejudice, this was not its only purpose; the Framers also intended to protect the government's interest in trying a person accused of crime in an impartial environment.").

(19.) Judiciary Act of 1789, ch. 20, 1 Stat. 73, 88 (1789). Congress required that all capital crimes be tried in the county where the crime was committed, but it included an exception that allowed for a change of venue if there was "great inconvenience" in the county. In such a case, the trial would take place outside the county (but within the state).

(20.) See Reynolds v. United States, 98 U.S. 145, 154 (1878) (stating that a juror must, above all, "be indifferent as he stands unsworn" pursuant to the Sixth Amendment).

(21.) See Irwin v. Dowd, 366 U.S. 717, 722 (1961) ("[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair [jury] hearing violates even the minimal standards of due process.") (citations omitted). (22.) See U.S. CONST. amends. V, XIV.

(23.) See Groppi v. Wisconsin, 400 U.S. 505,510 (1971) (holding that, in some cases, "only a change of venue [is] constitutionally sufficient to assure ... [an] impartial jury").

(24.) United States v. McVeigh, 918 F. Supp. 1467, 1469 (W.D. Okl. 1996) (noting that right to an impartial jury and due process fundamental fairness requirement serve as foundation for Fed. R. Crim. P. 21(a), providing for change of venue to protect against prejudice).

(25.) Id. at 1469-70.

(26.) See United States v. Abbott Laboratories, 505 F.2d 565, 572 (4th Cir. 1974) (noting that a "defendant who has unused means to protect his rights should not lightly be granted the extreme remedy of dismissal of the charges against him on less than a conclusive showing that the unused means would be ineffective"). (27.) 419 U.S. 522 (1975).

(28.) Taylor, 419 U.S. at 537-38.

(29.) See id. at 530 (noting that broad representative character of jury assures diffused impartiality and reflects "common sense judgment of the community"). "The other major function of the fair cross section doctrine is that it serves the appearance of justice: the public will be more likely to retain confidence in the justice system if it sees that the system is overseen by all segments of the community." Peters v. Kiff, 407 U.S. 493,503 (1972) (Marshall, J., plurality opinion).

(30.) See Stanley M. Weisberg, Out of the Frying Pan or into the Fire ? Race and Choice of Venue After Rodney King, 106 HARV. L. REV. 705, 712 (1993) (noting that this result fosters public participation in criminal justice system).

(31.) See Alschuler & Deiss, supra note 13, at 873-74 (describing the role of colonial juries in nullifying crime of libel in years leading up to Revolutionary War).

(32.) Williams v. Florida, 399 U.S. 78, 87 (1970).

(33.) Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (noting the fight to be tried by jury of one's peers is "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge").

(34.) Id.

(35.) Newton N. Minow & Fred H. Cate, Who Is an Impartial Juror in an Age of Mass Media?, 40 AM. U. L. REV. 631,655 (1991).

(36.) Id. at 656 (stating that in order for the jury to perform functions assigned to it, the jury must be composed of informed citizens who represent community and thereby reflect community's collective interests and experiences).

(37.) Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 MD. L. REV. 107, 121 (1994) (describing two types of jury bias and various judicial mechanisms used to guard against them).

(38.) Id.

(39.) Id. at 121-22.

(40.) See id. at 117 (arguing that twelve white men with no discernable bias nevertheless are likely to reach different conclusions than twelve similarly unconnected, unbiased black women).

(41.) See id.

(42.) Irwin v. Dowd, 366 U.S. 717, 724-25 (1961) (quoting United States v. Wood, 299 U.S. 123, 145-46 (1936)).

(43.) Minnow & Cate, supra note 35, at 654 (discussing the ineffectiveness of using voir dire to attain jurors without bias).

(44.) Id. (concluding that voir dire can be used to identify jurors who can apply law irrespective of views).

(45.) "Canada and Great Britain have rejected the practice of questioning jurors about their background and attitudes.... These countries recognize the obvious fact that every juror brings opinions, biases, and prejudices to the jury box. Juries are used ... because they are supposed to represent the interests and the breadth of their communities' moral sense." Id. at 656.

(46.) See supra note 2 and accompanying text (describing Peterson case).

(47.) See supra note 1 and accompanying text (describing D.C. Sniper case).

(48.) Former football star O.J. Simpson was acquitted of charges that he murdered his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman. For information on this case, and to see an example of the scope of trial publicity, see CNN, O.J. Simpson Trial, http://www.cnn.com/US/OJ/index.html (last visited Mar. 4, 2005).

(49.) See Minow & Cate, supra note 35, at 635 (describing proliferation of modern media in terms of increase in cable television subscriptions and average hours of newspaper, radio, and television use); Erika Patrick, Note, Protecting the Defendant's Right to a Fair Trial in the Information Age, 15 CAP. DEF. J. 71, 77-78 (2002) (discussing new types of information available on the Internet, such as chat rooms, as well as ability to view information quickly and retroactively).

(50.) See Minow & Cate, supra note 35, at 635 (noting the press' role in driving the president out of office during the Watergate scandal).

(51.) The popular Fox network show "American's Most "Wanted" is illustrative of media involvement in prompting and directing criminal investigations.

(52.) See Minnow & Cate, supra note 35 at 633 (describing impossibility of shielding jurors from prejudicial information reported by media prior to trial).

(53.) Id. Of course, the First Amendment serves as limit on the power of courts to control publicity once the trial has commenced. See infra notes 97-99 and accompanying text. (54.) Reynolds v. United States, 98 U.S. 145, 155-56 (1878).

(55.) See Briley v. Commonwealth, 279 S.E.2d 151,155 (Va. 1981) (citing Slaughter v. Commonwealth, 38 Va. (11 Leigh) 688 (Va. 1841)).

(56.) See, e.g., Christina A. Studebaker & Steven D. Penrod, Pretrial Publicity: The Media, the Law, and Common Sense, 3 PSYCHOL. PUB. POL'Y & L. 428, 433 (1997) (describing leading studies of prejudicial effects of pretrial publicity).

(57.) Id.

(58.) Id.

(59.) Id.

(60.) Id. at 446-47.

(61.) Id. at 434. A study performed by Nietzel and Dillehay in 1983 found respondents in the venues where cases were scheduled for trial were more likely to know details about the cases, including inadmissible information, and were more likely to believe that defendants were guilty than respondents in alternative venues (with differences between venue and alternative sites ranging from sixteen percent to as high as forty percent).

(62.) See Studebaker & Penrod, supra note 56, at 434. A study conducted by Constantini and King from 1980 to 1981 found that between two and thirty percent of "poorly informed" respondents thought the defendants were guilty versus fifty-four to sixty-six percent of "well-informed" respondents thought the defendants were guilty.

(63.) Id. at 434-35. Research obtained by Moran and Cutler in 1991 revealed that a group which most strongly endorsed the proposition that there was "a lot of evidence" against the defendant also had the highest proportion of respondents who thought they could be fair and impartial at trial.

(64.) See infra notes 148-159 and accompanying text (discussing the inconsistencies present in the judicial interpretation of excusal rates); see also Neil Vidmar, When All of Us are Victims: Juror Prejudice and "Terrorist" Trials, 78 CHI.-KENT L. REV. 1143, 1147 (2003) (criticizing reliance by many federal and state courts on juror assurances of impartiality and citing studies which question validity of practice).

(65.) See Studebaker & Penrod, supra note 56, at 435.

(66.) Id. at 447.

(67.) Id. at 446.

(68.) Id. at 447.

(69.) Id. at 436. A 1975 study found that more than seventy-two percent of jurors exposed to the stories containing inadmissible information voted to convict, whereas less than forty-four percent of the jurors not exposed to this information voted to convict. Id.

(70.) See Studebaker & Penrod, supra note 56, at 436. A study conducted in 1979 determined that the combination of all three factors resulted in the highest levels of perceived guilt. Id.

(71.) Id. at 436-37. A 1994 study found that mention of a defendant's low-status job or of statements by a neighbor had a significant impact on student jurors when they subsequently viewed a trial. Id.

(72.) Kramer et al. Pretrial Publicity, Judicial Remedies, and Jury Bias, 14 LAW & HUM. BEHAV. 409 (1990). While many prior studies focused on pretrial publicity's potential to bias juror judgment, this study gave more attention to the effectiveness of available judicial remedies for combating such biases. However, the study still provided fruitful data on the behavior of juries in dealing with exposure to pretrial publicity.

(73.) Id. at 414.

(74.) Id. at 424.

(75.) 366 U.S. 717 (1961). Irvin gained access to the Supreme Court by virtue of an Indiana statute that allowed only a single change of venue. His case was moved from Vanderburgh County to neighboring Gibson County, which was in the same rural media coverage area. Two subsequent requests to remove the trial to a location much further away from Evansville, Indiana, were denied. Irvin, 366 U.S. at 717.

(76.) Id. at 727-28.

(77.) Id. at 720. Irvin was originally charged and convicted only with the murder of Whitney Wesley Kerr in Vanderburgh County. During a police interrogation he admitted to five other murders in the surrounding area that were unsolved, causing a great commotion in the local news coverage area. See Irvin v. State, 139 N.E.2d 898, 898 (Ind. 1957) (noting that Irvin escaped from jail after his first conviction).

(78.) Irvin v. Dowd, 366 U.S. 717, 725 (1961). An example of the prejudicial media coverage includes a reporter's story soliciting man-on-the-street opinions from local residents, not only as to Irvin's guilt, but even as to what punishment he should receive. This report was later broadcast over the local stations before Irvin was convicted at trial.

(79.) Id. at 728 (recognizing that, with a life at stake, it is important to ensure defendant receives a fair trial).

(80.) 421 U.S. 794 (1975).

(81.) Murphy, 421 U.S. at 800.

(82.) Id. at 794.

(83.) Id. at 796.

(84.) Id. at 803.

(85.) Murphy v. Florida, 421 U.S. 794, 799-803 (1975) (applying totality of circumstances test).

(86.) 467 U.S. 1025 (1984).

(87.) See Patton, 467 U.S. at 1031.

(88.) Id. at 1029.

(89.) Id. at 1040.

(90.) Robert Hardaway & Douglas B. Tumminello, Pretrial Publicity in Criminal Cases of National Notoriety: Constructing a Remedy for the Remediless Wrong, 46 AM. U. L. REV. 39, 64 & n.213 (1996).

(91.) Id. at 64-65, 67.

(92.) See id. at 67 (observing that with "no curative review from the higher court, a lower court is not encouraged to exercise judicial restraint, and arbitrariness, therefore, actually is encouraged").

(93.) See id. at 65 (noting that the totality of the circumstances test is "necessarily backward looking.... The current approach allows trial courts to use whatever techniques they may choose, in hopes that, on review, they got it right").

(94.) See id. at 66 (questioning whether minor changes in facts of various notable cases would have caused reviewing courts to change the assessment of prejudice).

(95.) See Hardaway & Tumminello, supra note 90, at 66-67. ("One state's circus is another state's solemn proceeding.... A test this wide (in fact, it is so wide it is circular) leads to unequal results within a jurisdiction, and among the jurisdictions. Moreover, standardization is unlikely to occur considering the futility of appeal.").

(96.) See Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) (asserting that "the courts must take [remedial] steps by role and regulation that will protect their processes from prejudicial outside interferences"); see also Hon. Robert M. Takasugi, Jury Selection in a High-Profile Case: United States v. DeLorean, 40 AM. U. L. REV. 837, 840 (1991) (outlining procedures author used to provide fair trial in highly publicized case over which he presided).

(97.) See U.S. CONST. amend. I.

(98.) See Nebraska Press Ass'n v. Smart, 427 U.S. 539, 570 (1976) (refusing to allow trial court to proscribe publication of information obtained at public heating and finding that prior restraints bear initial presumption of unconstitutionality). (99.) M. at 598.

(100.) See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (asserting that judges may institute a gag order only when the publication of information will have a "substantial likelihood" of materially prejudicing a proceeding). A "gag order" is a judge's order directing parties, attorneys, witnesses, or journalists to refrain from publicly discussing the facts of a case. See BLACK'S LAW DICTIONARY 346 (8th ed. 2002).

(101.) See Jaime N. Morris, The Anonymous Accused: Protecting Defendants' Rights in High-Profile Criminal Cases, 44 B.C. L. REV. 901, 913 (2003) (discussing reasons that trial courts postpone cases to guarantee an impartial jury).

(102.) See id. at 929-30 (adding that postponement may also diminish accuracy and reliability of a witness' testimony and create backlog of docket in case's jurisdiction).

(103.) See Studebaker & Penrod, supra note 56, at 440-41 (describing results of study which showed that "well informed" jurors who later find guilty verdict are also highly likely to assert impartiality); see also Mu'Min v. Virginia, 500 U.S. 415, 429-31 (1991) (holding that unless adverse publicity and media attention justify presumption of prejudice, court should believe potential juror's statements about potential biases).

(104.) See Charles H. Whitebread & Darrell W. Contreras, Free Press v. Fair Trial: Protecting the Criminal Defendant's Rights in a Highly Publicized Trial by Applying the Sheppard-Mu'Min Remedy, 69 S. CAL. L. REV. 1587, 1611 (1996) (stating that prospective jurors are not likely to admit in the courtroom a formation of opinion regarding a highly publicized case).

(105.) Studebaker & Peurod, supra note 56, at 442.

(106.) Judge Learned Hand called such instructions a "placebo," requiring the jury to perform "mental gymnastics" which are beyond the powers of human nature. See Minow & Cate, supra note 35, at 648 (quoting Nash v. United States, 54 F.2d 1006, 1007 (2d. Cir. 1932)); see also Takasugi, supra note 96, at 840 (stating that jurors often attempt to respond positively to implicit cues provided by the judge rather than explicit instructions).

(107.) See Studebaker & Penrod, supra note 56, at 444 (describing the results of study which found that deliberation accentuated effects of pretrial publicity).

(108.) See David D. Smyth III, A New Framework for Analyzing Gag Orders Against Trial Witnesses, 56 BAYLOR L. REV. 89, 133 (2004) (stating that change of venire occurs when "a pool of prospective jurors is brought from a county that has received none or significantly less of the publicity associated with a trial to the site of the trial itself").

(109.) Robert S. Stephen, Prejudicial Publicity Surrounding a Criminal Trial: What a Trial Court Can Do to Ensure a Fair Trial in the Face of a "Media Circus," 26 SUFFOLK U. L. REV. 1063, 1090-91 (1992) (explaining devices used to ensure fair trial).

(110.) See Morris, supra note 101, at 931 (stating that "the current ability of the media to instantaneously reach a vast number of people with one telecast has decreased the chances of finding unbiased jurors in any alternate locale").

(111.) See generally Kafker, supra note 15, at 746-747 (providing data on the number of judicial districts by state and the number of judicial districts in densely populated urban areas).

(112.) See supra notes 4-8 and accompanying text.

(113.) See Minow & Cate, supra note 35, at 646-47 n.96 (stating that the judge can appeal to jury instructions as a cure for prejudice from pretrial publicity).

(114.) Levenson, supra note 6, at 1539 n.27 (citing STATE BAR OF CAL., OFFICE OF RESEARCH, REPORT ON THE COLLOQUIUM ON CHANGE OF VENUE IN CRIMINAL CASES 11 n.22 (1992)). Craig Cooley, an attorney for Lee Malvo in the D.C. Sniper Shooting case and a veteran of sixty death penalty cases, was quoted saying, "[A change in venue is] an extremely rare situation." Garth Stapley, Experts Say Jury Bias Surveys Would Be Better Closer to Trial, THE MODESTO BEE, June 5, 2003, at A1.

(115.) Minow & Cate, supra note 35, at 647.

(116.) Morris, supra note 101, at 932; see Garth Stapley, Trial Site on Docket; If it Moves, Costs Climb, THE MODESTO BEE, Jan. 8, 2004, at A1 ("Santa Clara billed Sonoma County about $120,000 per month to hold the trial of Richard Allen Davis, who killed 12-year-old Polly Klaas....").

(117.) See Morris, supra note 101, at 932 n.278 (noting that at least seventeen states restrict venue changes, in part, because of the expense to the host county). But see Stephen Kiehl, Towns Measure Media's Wallet for Sniper Trials, BALT. SUN, Aug. 14, 2003, at A1 (describing how towns in Virginia sought to host the Sniper trial due to economic benefits from increased business activity).

(118.) Minow & Cate, supra note 35, at 647.

(119.) FED. RULE CRIM. P. 21(a). "Upon the defendant's motion, the court must transfer the proceeding against the defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there."

(120.) FED. RULE CRIM. P. 21(b). "Upon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties and witnesses and in the interest of justice."

(121.) See Levenson, supra note 6, at 1540-41 (detailing the California change of venue law in California Penal Code Section 1033(a) which asks the judge to determine if "it appears that there is a reasonable likelihood that a fair and impartial trial cannot be held in the county"); see also State v. Wessinger, 736 So.2d 162, 173 (La. 1999) (suggesting that the judge should compare the circumstances in the case at hand to comparable cases to determine if a change of venue is necessary); Commonwealth v. Karenbauer, 715 A.2d 1086, 1092 (Pa. 1998) (asserting that a request for change of venue is in the sound discretion of the court because it is in the best position to assess the atmosphere of the community and judge the necessity of the change).

(122.) See Miller v. State, 571 S.E.2d 788, 795 (Ga. 2002) (denying change of venue motion in a felony murder prosecution of a juvenile because pretrial publicity actually generated empathy for the defendant).

(123.) Michael York & Tracy Thompson, Barry Guilty on I Count, Cleared on 1, Mistrial Declared on 12 Other Charges: Government Faces Tough Decision Over Whether to Continue Case, WASH. POST, Aug. 11, 1990, at A1.

(124.) Brown, supra note 37, at 107.

(125.) Id.

(126.) Id. at 151-52.

(127.) See State v. Fox, 631 N.E.2d 124, 130 (Ohio 1994) (stating that "the interests of judicial economy, convenience, and reduction of public expenses necessitate that judges make a good faith effort to seat a jury before granting a change of venue").

(128.) See Rolling v. State, 695 So.2d 278, 285 (Fla. 1997) (stating that the trial court must evaluate pretrial publicity based on a two-pronged test: "(1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury"); People v. Jendrzejewski, 566 N.W.2d 530, 535 (Mich. 1997) (holding that there was no abuse of discretion in denial of motion for change of venue based on pretrial publicity where publicity was not "extensive or prejudicial," as shown by record of jury voir dire). But see State v. Verge, 34 F.3d 449, 453-54 (Kan. 2001) (stating that difficulty in empanelling an unbiased jury did not warrant a change of venue, despite a defense study revealing that prospective jurors in a neighboring county were much less knowledgeable about the case).

(129.) See McGown v. Superior Court, 142 Cal. Rptr. 262, 265 (Ct. App. 1977) (stating that two factual issues could be considered by the judge in deciding on a new venue: (1) the presence or absence of prejudicial publicity in a possible new county; and (2) the relative hardship involved in trying the case in various locations).

(130.) See United States v. McVeigh, 918 F. Supp. 1467, 1470 (W.D. Okla. 1996) (stating that "no detailed discussion of the evidence is necessary" in granting a change of venue because "the effects of the explosion on that community are so profound and pervasive"). But see United States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) (no abuse of discretion in denial of change of venue where publicity in the case did not establish a presumption of inherent prejudice and of utter corruption by press entities).

(131.) Dewberry v. State, 4 S.W.3d 735, 744 (Tex. Crim. App. 1999) (quoting Appellant's Motion for Change of Venue).

(132.) State v. Means, 547 N.W.2d 615, 622 (Iowa. Ct. App. 1996) (enumerating factors to consider in assessing pretrial publicity's effect on a change of venue ruling).

(133.) See generally Defendant's Motion for Change of Venue, People v. Peterson, (Cal. Sup. Ct. Jan. 8, 2004) (No. 1056770), available at http://courttv.com/trials/peterson/docs/defensevenue.html.

(134.) Studebaker & Penrod, supra note 56, at 450.

(135.) Patrick, supra note 49, at 85.

(136.) 132 Cal. Rptr. 265, (Cal. Ct. App. 1976).

(137.) Manson, 132 Cal. Rptr at 309-310; see also Rees v. Peyton, 341 F.2d 859, 863 (4th Cir. 1965) (holding that a change of venue that remained in Virginia would not necessarily ease defendant's concerns about pretrial prejudice because "[o]bviously, the same broadcasts and telecasts heard and seen in the county would extend over the State generally"); John Cote, Prosecutors: Peterson Fueled Publicity, MODESTO BEE, Jan. 3, 2004, at A1. Prosecutor David Harris echoed this sentiment during the Scott Peterson change of venue hearing by stating that "when there has been this much publicity, there is no point in a change of venue." Id.

(138.) See generally Vidmar, supra note 64, at 1156-1173 (describing the patriotic and anti-terrorism sentiments that spread across the United States after September 11, 2001).

(139.) See id. at 1156-73 (showcasing a study that demonstrated ubiquitous national prejudice against "American Taliban" John Walker Lindh and how this challenged traditional notions of general and specific bias).

(140.) See United States v. Lindh, 212 F. Supp.2d 541, 550-51 (E.D. Va. 2002) (describing the results of studies which tested public opinion and media coverage in a wide variety of national markets).

(141.) Patrick, supra note 49, at 86.

(142.) See State v. Bishop, 753 P.2d 439, 459 (Utah 1988).

(143.) See United States v. Nelson, 347 F.3d 701, 708 (8th Cir. 2003) (suggesting that a finding of "actual prejudice" could lead to a finding of abuse of discretion with regard to the denial of a change of venue motion); Scieszka v. State, 578 S.E.2d 149, 152 (Ga. Ct. App. 2003) (stating that a change of venue is necessary when the "jury selection process show[s] actual prejudice to a degree that rendered a fair trial impossible").

(144.) See Murphy v. Florida, 421 U.S. 794, 803 (1975) (stating that the trial court must question reliability when a large percentage of veniremen admit to a disqualifying form of prejudice); see also Jones v. State, 481 S.E.2d 821,824 (Ga. 1997) (stating that failure to show high excusal rate was a significant factor in denying change of venue motion).

(145.) See supra notes 27-45 and accompanying text (discussing the fair cross section requirement).

(146.) See Commonwealth v. Morales, 800 N.E.2d. 683, 689 (Mass. 2003) (fact that sixty percent of venire members were excused on some ground of cause did not justify change of venue because the percentage disqualified due to "prejudice" is the relevant percentage); Roach v. Commonwealth, 468 S.E.2d 98, 109 (Va. 1996) (holding that although over fifty percent of prospective jurors were excused for cause, the change of venue motion was denied because a large number of jurors were struck for views on death penalty rather than views about defendant's guilt).

(147.) See United States v. Blom, 242 F.3d 799, 804 (8th Cir. 2001) (asserting that assembling a jury pool three times the normal size and excluding the jurors who reside near the crime scene helped mitigate pretrial publicity and enabled the trial court to properly deny change of venue).

(148.) See supra notes 75-79 and accompanying text (discussing Irvin in the context of appellate interpretations of pretrial publicity).

(149.) See Irvin v. Dowd, 366 U.S. 717, 727 (1961) (268 out of 430 prospective jurors were dismissed).

(150.) 242 S.E.2d 464 (W.Va. 1978).

(151.) Sette, 242 S.E.2d at 468.

(152.) 467 U.S. 1025 (1984).

(153.) Patton, 467 U.S. at 1029-30 (noting that eight out of the fourteen seated jurors had admitted that at some time they had formed an opinion as to the defendant's guilt).

(154.) 275 A.2d 777 (Del. 1971).

(155.) Parson, 275 A.2d at 785-86. But see Foley v. Commonwealth, 942 S.W.2d 876, 881 (Ky. 1996) (citing McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986)) (holding that the dismissal of 112 out of 153, 73%, prospective jurors did warrant the need for a change of venue).

(156.) See Harvey v. State, 887 S.W.2d 174, 177 ('rex. App. 1994) (setting aside the voir dire record where it excused only twelve percent of prospective jurors because other evidence relating to media coverage convinced the court of "taint" in the case).

(157.) See, e.g., Leisure v. Bowersox, 990 F. Supp. 769, 796-97 (E.D. Mo. 1998) (emphasizing that although ninety-five percent of prospective juror had heard something about the case, two-thirds of the jury pool admitted to having no opinion of the case).

(158.) See, e.g., Harris v. State, 537 So.2d 1325, 1328-29 (Miss. 1989) (stating that the defendant was not entitled to change of venue because forty-five jurors were left for consideration after twelve members had been accepted out of the initial eighty-two jurors screened).

(159.) Michael G. Mooney, Stayner Trial Set for South Bay: Santa Clara County Picked Over Sacramento in Sightseer Deaths, MODESTO BEE, Jan. 23, 2002, at A1 (quoting Craig Haney, a psychology professor at the University of California at Santa Cruz, stating "[a]ny recognition rate over ninety percent is considered by researchers to be unusually high").

(160.) See Studebaker & Penrod, supra note 56, at 450.

(161.) See State v. Erickstad, 620 N.W.2d 136, 140 (N.D. 2000) ("Mere quantity of media coverage is not the focus; rather,... defendants [need to] submit qualified public opinion surveys, other opinion testimony, or any other evidence demonstrating community bias caused by the media coverage.").

(162.) See John Cote, Prosecutors: Peterson Fueled Publicity, MODESTO BEE, Jan. 3, 2004, at A1. In the Scott Peterson case, Stephen Schoenthaler, a sociology professor at California State University, said his results showed that "there is clear evidence that a fair and impartial trial cannot be had in Stanislans County. Id. The determination that a fair trial could not be held in the county where the crime occurred contradicted a finding by Ebbe Ebbesen, a psychology professor at the University of California at San Diego, who said, "We found no evidence from our survey that moving to another venue would make any difference in the ability of Scott Peterson to receive a fair trial." Id.

(163.) 918 F. Supp. 1467 (W.D. Okla. 1996).

(164.) McVeigh, 918 F. Supp. at 1473 ("Human behavior is far less knowable and predictable than chemical reactions or other subjects of study by scientific methodology. There is no laboratory experiment that can come close to duplicating the trial of criminal charges.... That is the very genius of the American jury trial.").

(165.) See, e.g., State v. Bishop, 753 P.2d 439, 459 (Utah 1988) (denying a change of venue motion after voicing reservations about whether the survey properly measured the views of jurors who report for jury service).

(166.) Garth Stapley, Experts Say Jury Bias Surveys Would Be Better Closer to Trial, THE MODESTO BEE, June 5, 2003, at A1.

(167.) Id.

(168.) 898P.2d 1109 (Kan. 1995).

(169.) Anthony, 898 P.2d at 1117 (poll of 366 persons with over 97% public recognition of the case); see also State v. Verge, 34 P.3d 449, 453 (Kan. 2001) (holding that change of venue not necessary where sixty-four percent of respondents believed defendant was either definitely guilty or probably guilty); State v. Higgenbotham, 23 P.3d 874, 882 (Kan. 2001) (holding change of venue not necessary where defendant presented a public opinion poll of 302 residents indicated that over 95% of respondents recalled the case and over 60% of respondents believed defendant was probably or definitely guilty).

(170.) 85 S.W.3d 644 (Mo. 2002).

(171.) Baumruk, 85 S.W.3d at 649 (overturning a lower court for ignoring a poll that found about seventy percent of St. Louis Country residents remembered the shooting and that of those who had heard about the shooting, ninety-eight percent believed that Baumruk was either definitely guilty or probably guilty).

(172.) See generally Franklin Strier & Donna Shestowsky, Profiling the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice and What, If Anything, To Do About It, 1999 WIS. L. REV. 441 (1999).

(173.) See Jason Deafen, Peterson Attorneys Take New Local Poll, ALAMEDA TIMES-STAR, Feb. 4, 2004, at A1 (during the Scott Peterson trial, the defense used trial consultants to conduct a telephone public opinion survey with questions which ranged from whether or not people would convict a defendant based solely on DNA evidence to their thoughts on extramarital affairs and their knowledge of boating).

(174.) Strier & Shestowsky, supra note 172 at 446-49; see also id. at 478 ("The American Society of Trial Consultants (ASTC) has a Code of Professional Standards. These standards are rather anemic, however, and not nearly as rigorous as those of the American Psychological Association (APA)."). However, limiting entry by licensing may drive up the fees of the field's practitioners. Id. at 489.

(175.) Kimi Yoshino & Mark Arax, College Probes Allegations of Survey Fraud, THE LOS ANGELES TIMES, Jan. 13, 2004, at B1.

(176.) See Garth Stapley, Trial Moved; Survey Flawed? Students Say They Faked Poll Results, THE MODESTO BEE, Jan. 9, 2004, at A1 ("The students said Schoenthaler told them they could expect people further away to know less about the case. They said they fabricated the surveys accordingly.").

(177.) See Levenson, supra note 6, at 1539 n.27 (emphasizing the fact that most changes of venue in California occurred from small, rural jurisdictions).

(178.) See People v. Hayes, 989 P.2d 645, 669 (Cal. 1999) (holding that change of venue was not required, despite the fact that the population of the county was less than 200,000, because the jury was selected from both rural and urban areas, and because many prospective jurors did not subscribe to papers which covered events); Commonwealth v. Crews, 640 A.2d 395, 399 (Pa. 1994) (indicating that the combined circulation of 6,500 papers in a county of more than 41,000 residents was not sufficiently high to indicate widespread inflammatory publicity).

(179.) Cf. People v. Dennis, 950 P.2d 1035, 1067 (Cal. 1998) (stating that the large size of the county suggested that any prejudicial effect from extensive publicity was diluted or neutralized).

(180.) See United States v. Livoti, 8 F. Supp. 2d 246, 249 (S.D.N.Y. 1998) (conceding that although the holding of a celebrated trial in a smaller city may sometimes exacerbate publicity problems, the diverse nature of a Manhattan jury pool obviated those concerns).

(181.) See State v. Clark, 851 So. 2d 1055, 1075-76 (La. 2003) (stating that accepting defendant's proposition that small parishes become oversaturated with pretrial publicity in capital cases would preclude these parishes from ever holding a capital case).

(182.) See Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (holding that a jury must be selected from a representative cross-section of the community, including women); see also J.E.B. v. Alabama, 511 U.S. 127, 145-46 (1994) (addressing gender); Powers v. Ohio, 499 U.S. 400, 409 (1991) (addressing race).

(183.) See State v. Davis, 107 S.W.3d 410, 417 (Mo. Ct. App. 2003) (stating that the statistical disparities in the racial composition of two judicial districts are irrelevant for the purpose of change of venue).

(184.) See Gains, supra note 8 and accompanying text (mentioning the legislative reforms after Powell).

(185.) See supra notes 1-2, 48-49 and accompanying text (discussing the popular interest in serious crimes).

(186.) See Morris, supra note 101, at 905 (discussing the value of passage of time on juror impartiality); Patton v. Yount, 467 U.S. 1025, 1034 (1984) ("That time soothes and erases is a perfectly natural phenomenon, familiar to all.").

(187.) See United States v. McVeigh, 918 F. Supp. 1467, 1473 (W.D. Okla. 1996) (describing the judge's concern with a survey's inability to account for the expanded role of juries in death penalty cases, where the jury must make a moral judgment based on aggravating and mitigating circumstances that are specific to the defendant); Roach v. Commonwealth, 468 S.E.2d 98, 108 (Va. 1996) (showing how the court strikes jurors for bias related to their views on the death penalty).

(188.) People v. Hart, 976 P.2d 683, 714 (Cal. 1999) (explaining that the severity of the charge in a capital case does not in itself require a change in venue).

(189.) Hardaway & Tumminello, supra note 90, at 44-45 (describing different types of cases which attract media attention).

(190.) See John Cote, Prosecutors: Peterson Fueled Publicity Useless, Says Deputy DA, Claiming that Defense Spread Awareness, MODESTO BEE, Jan. 3, 2004, at A1.

(191.) See Hardaway & Tumminello, supra note 90, at 75-78 (discussing the trial strategies when dealing with a famous victim and with a famous defendant). See generally Defendant's Motion for Change of Venue at 3, People v. Peterson, (Cal. Sup. Ct. Jan. 8, 2004) (No. 1056770) (arguing that defendant Peterson cannot receive a fair trial in Stanislaus County due to the publicity created by his notoriety), available at http://courttv.com/trials/peterson/ docs/defensevenue.html.

(192.) See State v. Timmendequas, 737 A.2d 55, 75-76 (N.J. 1999) (describing victim's rights in New Jersey). But see United States v. Lindh, 212 F. Supp. 2d 541, 551-52 (E.D. Va. 2002) (refusing to consider the convenience of the defendant during a change of venue decision).

(193.) FED. R. CRIM. P. 18 (requiring that due regard be given to the convenience of the defendants and the witnesses).

(194.) Timmendequas, 737 A.2d at 76 (discussing some of the burdens on the victim's family that can be considered and clarifying that taking those concerns into consideration does not constitute error, as long as the defendant's constitutional rights are not infringed by that decision).

(195.) See Nevers v. Killinger, 990 F. Supp. 844, 862-63 (E.D. Mich. 1997) (stating that prejudicial statements made by the mayor and the police chief to the media made an impartial trial impossible and required that a change of venue be granted).

(196.) See Jennifer Robbennolt et at., Assessing Pretrial Publicity Effects: Integrating Content Analytic Results, 24 LAW & HUM. BEHAV. 317, 322 (2000). A study by Tankard, Middleton, and Rimmer in 1979 found that roughly two-thirds of the newspaper stories contained at least one statement that was prohibited by the 1968 version of the ABA guidelines concerning lawyers' dissemination of potentially prejudicial information about defendants. Id.

(197.) See Studebaker & Penrod, supra note 56, at 429-30. In 1995, the American Bar Association identified six specific types of information that lawyers should not disseminate because of their potentially prejudicial impact: (1) the prior criminal record of the accused; (2) the character or reputation of the accused; (3) the existence of any confession, admission, or statement given by the accused (or the refusal to make a statement); (4) the performance of any examinations or tests (or the refusal to submit to an examination or test); (5) the possibility of a plea of guilty to the offense charged or to a lesser offense; and (6) any opinion as to the accused's guilt or innocence or as to the merits of the evidence in the case. See People v. Jendrzejewski, 566 N.W.2d 530, 542-43 (Mich. 1997) (stating that lack of "officially sponsored" statements made the publicity less prejudicial).

(198.) See United States v. Stevens, 83 F.3d 60, 66 (2d Cir. 1996) (indicating that government release of information is an "important factor in weighing the prejudicial effect of pre-trial coverage").

(199.) See generally M. Shanara Gilbert, An Ounce of Prevention: A Constitutional Prescription for Choice of Venue in Racially Sensitive Criminal Cases, 67 TUL. L. REV. 1855, 1868-88 (1993) (discussing the closer scrutiny that should be paid to the phrase "interests of justice").

(200.) See supra notes 148-159 and accompanying text (discussing the inconsistencies present in the judicial interpretation of excusal rates); see also supra notes 63-64 and accompanying text (discussing a field study which has shown that knowledge from media sources did not decrease a juror's self-reported ability to be impartial).

(201.) See supra note 147 and accompanying text (discussing the use of use of remedial measures during voir dire, such as assembling a larger jury pool, providing additional peremptory strikes, or drawing jurors from farther reaches of a judicial district).

(202.) FED. R. EVID. 706 (governing the use of court appointed experts).

(203.) See Strier & Shestowsky, supra note 172, at 484-86 (calling for allowing the discovery of consultant surveys).

(204.) See supra notes 69-71 and accompanying text.

(205.) See supra note 62 and accompanying text.

(206.) See supra notes 72-74 and accompanying text.

Vineet R. Shahani, Georgetown University Law Center, J.D. expected 2005; University of Michigan, B.B.A. 2000. I would like to thank Professor Heathcote Wales for his substantive input and Professor Amy Dillard for helping me write like a lawyer. I would also like to thank Brian Lewis, Karen Reynolds, Jennifer Smolansky, Jeremy Sanders, Sean Hewens, and the rest of the staff of the American Criminal Law Review for their invaluable support, comments, and assistance. Of course, any remaining errors are mine.

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