Pardon Me?

Q: What gives the President the right to commute Scooter Libby’s sentence?

A: Last week, the big news was the President George W. Bush “commuted” the sentence of one Lewis “Scooter” Libby, a former aide to the Vice-President. For those of you fresh from hiding under your rock for the last two years, here’s a brief review of the facts.

Joe Wilson and Valerie Plame were husband and wife. Plame was the type of Federal agent whose secret identity as a Federal agent is not supposed to be revealed to anyone. She was the person who’s identity they disavowed any knowledge of at Mission Impossible headquarters. At some point, Wilson got involved in some political stuff, took a trip overseas that he probably should not have taken and, when he got back, said some things that made the current administration none too happy. Somehow, his wife’s name came up in the whole thing, a Washington Post journalist began sniffing around for a story, winding up at the desk of Lewis Libby, whose nickname has been “Scooter” since scooting about his crib. In the midst of that conversation he, allegedly, revealed Plame’s secret identity.

Scooter was brought in front of a grand jury, asked to testify, and put under the gun by Independent Prosecutor Patrick Fitzgerald who managed to keep Scooter busy running through enough circles that he eventually contradicted himself and, intentionally or not, committed perjury. Hence, he was brought up on charges of perjury and obstructing justice and some other counts. Interestingly, Scooter was not convicted of revealing the secret identity of a covert agent, which was how this whole thing started. And, as of today, no one has been prosecuted for that crime, vis-à-vis Plame. Scooter was then convicted of perjury, obstruction, and making false statements to a federal investigator.

Sidebar: If you told a federal investigator that his mullet was “a nice haircut,” could you be charged with making false statements to a federal investigator? Sorry. Bad lawyer humor. End sidebar.

So, under the Federal Sentencing Guidelines, which allow for about as much spontaneity as the Robert’s Rules of Order, Scooter was sentenced to thirty months in jail. All appeals, thus far, have failed. But, on Monday of last week, President Bush “commuted” Scooter’s sentence, leaving him with no jail time, a felony conviction, a $250,000 fine, and probation. How so?

Well, according to Article II, Section 2, the President has the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” A commutation, meaning literally “to change altogether,” falls under the category of a “Reprieve.” Thus, POTUS has the hyperbolic, “get out of jail free card” that you probably thought only belonged to Milton Bradley. Still, Scooter has not passed go and will not collect $200. He’s still a felon, subject to the terms of probation, and has to pay a hefty fine.

Presidents throughout history have wielded the gracious sword of pardons and reprieves. Clinton pardoned some 140 persons on his last day in office, H.W. Bush pardoned Reagan-era Iran-Contra officials, Carter granted amnesty to all draft dodgers, and George Washington even pardoned the leaders of the Whiskey Rebellion.

Is it a political weapon or a tool for the equalization of social justice? Is it used for high-paying former guests of the Lincoln Bedroom, or notorious felons wrongly convicted? No one is really sure. But, what is certain is that it is a unique tool given only to the President. It is one of very few areas in which there are no checks and balances. Reprieves and Pardons are, quite simply, the unique perks of Presidential power.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

How Long Does It Take?

Q: How long does a criminal trial typically take?

A: Returning to our ongoing serial look at the criminal trial process, my answer to the question should be obvious for those who have been reading this column these several months: it depends. What are the charges? Who are the witnesses? How many witnesses? How much evidence has to be presented? How long winded are the attorneys?

A trial consists of only a few basic parts: opening statements, presentation of the evidence, closing arguments, instructions, and deliberation. Opening statements we have already discussed. And, to an extent we have talked about the presentation of evidence too. What you may not know is how the parties take turns presenting the evidence.

Since the accused is always “innocent until proven guilty,” the State has the burden of proof. So, it is the State who puts on evidence first during what is called their, “case-in-chief.” Witnesses are called and asked questions to introduce evidence into the trial. This is called a “direct examination” because they are asking them “direct” questions to elicit evidence by way of a narrative. A textbook case of direct examination will involve questions that begin with “who,” “what,” “where,” and “when.” The goal of the questioner is to elicit a story, directed only by the questions asked.

When the prosecutor is done asking direct examination questions, the witness is “tendered” (I.e., offered for further examination) to the Defendant for what is called “cross examination.” It is unknown exactly why they use the term “cross” other than to speculate that it is an examination from the party across the room. (Although, www.etymonline.com suggests dates the phrase “cross-examine” back to 1664. Impress your friends with that at your next dinner party!) Nonetheless, the goal of cross examination is altogether different from direct. During cross, the goal is to insert reasonable doubt into the evidence presented on direct. The type of question used also differs from direct. On cross, the Defendant is entitled to use “leading” questions, meaning questions that propose the answer and are typically answered “yes” or “no.” For instance, “Isn’t it true that you stole all the money and not the Defendant?”

After the Defendant finishes, the State gets another crack at the witness and can ask questions on “re-direct” examination. Then, when finished, the Defendant may opt to ask “re-cross” questions on those topics inquired into during “re-direct.” This back and forth usually does not go past this point and the witness is excused.

When the State is done presenting all of its evidence, it “rests” its case-in-chief, thus allowing the Defendant to put on his defense, if any, during his case-in-chief. A Defendant has a Constitutional right to present no evidence whatsoever and may choose to be silent, forcing the State to present evidence “beyond a reasonable doubt.” Sometimes, if the State has presented a weak case, and the Defendant has managed to poke holes in the State’s case-in-chief during cross, further presentation of defensive evidence is simply not needed. But, for the most part, at least some evidence is presented by the Defendant so as to give the jury a reason to find the existence of “reasonable doubt.”

So, how long does all of this take? That is the $64,000 question. Sometimes it takes a day, two days, a week, a month – it just depends on who is saying what about the where, when, how, who, and why, and what the other party’s response, if any, will be to it. Justice takes time.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Conspiracies: More Than Just Who is Watching

Q: What constitutes a conspiracy?

A: Whenever we hear the term “conspiracy,” images of dark rooms or back alleys, filled with smoke and unshaven henchmen usually come to mind. Perhaps you envision a scene not unlike something witnessed in the Godfather or on the Sopranos where two or more bad guys are deciding how someone is going to get “whacked.”

Your understanding of conspiracies, it is safe to say, comes largely from what Hollywood attempts to teach us. One of my favorite movies is Mel Gibson’s “Conspiracy Theory.” In that movie, Gibson plays a man who was programmed by the government to do its naughty bidding. Somehow, he gets away, but whatever deprogramming he was given failed to take. Thus, Gibson is a paranoid taxi driver, obsessed with a woman portrayed by Julia Roberts. No, Sidebar will not spoil the intrigue that results when the super-secret agency seeks to redeem Gibson and permanently deprogram him with the business end of a bullet. Suffice to say, despite its promising title, it is a horrible example of what is meant by a conspiracy.

A conspiracy, simply stated, is an agreement by two or more person to commit an unlawful act. With that definition, we hearken back to the dimly lit room filled with wayward ne’r-do-wells. A better understanding of what is meant by a criminal conspiracy is portrayed in the cheeky movies about Danny Ocean and gang – 11, 12, or 13 of them (take your pick). In each of the “Ocean’s” movies, we have a number of bad guys who, for some sick reason, greatly enjoy criminal activity, nearly lauding it to be as much of a calling in life as the priesthood might be.

The gang of 11, 12, or 13 get together, lay out plans of a casino, bank, house, or museum that plays host to an inordinate sum of money, and develop a plan to covertly relieve said edifice of all wealth stored therein. That is a conspiracy. Two or more people (in this case 11, 12, or 13) have agreed (with snarky dialogue) to commit an unlawful act (robbery, breaking and entering, wearing white after Labor Day, etc.).

But, as usual, Hollywood disappoints when it comes to truth in fiction. What the Silver Screen always displays as a long, drawn out, intricately planned conspiracy is usually not what happens. The law says that an agreement to commit an unlawful act need only exist for a mere moment in order to constitute a conspiracy. So, Jack could be walking down the street with Joe, see a car and say, “Hey, let’s steal this car.” If Joe say, “Ok, let’s,” a conspiracy has been created.

Importantly, co-conspirators share in the totality of the crime. Just because Joe did nothing more than ride in the passenger seat, while Jack picked the lock, hotwired the engine, and drove it to the docks, such passivity in conspiracy does not absolve Joe from being tried for the crime of conspiracy to commit grand theft auto.

Furthermore, conspiracy itself is a separate crime from the actual criminal activity. Thus, Jack and Joe can be tried for conspiracy to commit grand theft auto even if Patsy the Policeman catches them before they successfully execute the entire conspiracy.

Oh, sure, there is a whole lot more to the doctrine of conspiracy. But at least now you know that conspiracy is a whole lot more than something that involves big brothers, black helicopters, and super-secret spy agencies.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

And So It Begins

Q: What is an opening statement?

A: Our ongoing series on the criminal trial has worked itself through indictment and arraignment, and discussed most of the players of the criminal trial, including the jury itself. It appears, therefore, that all the players are in place. How does the trial begin?

Once the jury is assembled and in place, the judge calls the case on for trial. Usually that is done much less dramatically than what we used to see Judge Wapner and his bailiff do. Judges may, but rarely do, bang the gavel to quiet the courtroom, but usually, the bailiff’s demand that, “All rise! The Court of [Insert county name] is now in session, the Honorable [Insert full name of judge] presiding,” usually gets the attention of the gallery.

Sidebar: You may recall from Perry Mason, or other courtroom dramas, hearing the bailiff say, “Oyez! Oyez! Oyez!” and going on to call the trial to order. This is true. In fact, many courts still use the crying of “Oyez!” to open the court proceedings. The Supreme Court of the United States still does, as does the Supreme Court of Appeals of West Virginia. “Oyez!” is of Latin-Old French origin meaning, “Hear Ye.” The practice of using this interjection at the beginning of a trial dates back to the days when the Town Crier would wander the community using the exclamatory statement to secure the attention of his countrymen. Since the uttering of the phrase both gets the attention and signals that a serious matter follows, “Oyez” has become as much of a staple of courtroom tradition as the gavel has. End sidebar.

With the courtroom’s attention fixed, the Judge calls the name of the case, State v. John Doe, and the case number, 07-F-1. He then notes the presence of the prosecuting attorney, the attorney for the defendant, and that the defendant is present, in person. All of this, of course, is being dutifully recorded by the court reporter.

What happens next is most adequately described as a procedural roadmap. Remember juries are made up of ordinary folk who have little or no experience with the legal process. There is no required course in high school civics called, “Juries 101,” nor is the book, “Juries for Dummies” readily available, so most jurors are come to the adjudicatory process not knowing what to expect.

The judge welcomes the jury and begins his portion of the roadmap. He instructs them as to their duty as triers of fact and distinguishes that duty from his own duty as all matters legal. He informs them that objections and private discussions may arise that they need not concern themselves with; that’s the judge’s job. The judge sounds much like a bad episode of Dragnet during his monologue: “Only the facts, jurors.”

He then affords the attorneys the opportunity to make an opening statement. An opening statement serves the purpose of presenting to the jury what each attorney thinks the facts will prove. The ideal opening argument is less persuasive and more informative, less of a legal argument and more of a factual presentation. It is the first step of the old adage, “Tell them what you are going to tell them, tell them, and tell them what you told them.” It alerts the jury to the theory of the case that the attorney has chosen, providing markers for the jury to remember throughout the trial. In short, it gives, in the form of an outline, the jury a sneak peak at the attorney’s game plan.

Once each side has made their opening statement, the trial is officially underway.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Juries Are All About the Facts

Q: What is the role of the jury in a criminal trial?

A: Trials follow arraignments, which follow indictment, which are produced by grand juries, which are assembled after criminal charges are filed against an alleged criminal. There are four essential roles in a criminal trial: the prosecutor, the defendant, the judge, and the jury. The prosecutor, as you might have guessed, prosecutes the defendant, who defends himself as necessary. The judge presides over all matters of law in the trial. It is the unique province of the jury to determine the facts of the case.

Juries are picked from a random sampling of the defendant’s peers, as the Sixth Amendment to the U.S. Constitution requires. In felony cases, twelve jurors are required to constitute a petit (as opposed to a “grand”) jury. The West Virginia Code requires that a qualified panel of at least twenty jurors be presented in order for a jury of twelve to be picked.

When twenty random names are picked from the list, the process of voire dire (pronounced, “vwah-deer”) begins. Voire dire literally means, “to speak the truth” and is used to produce a jury whose minds, as one court has said, “wholly free from bias or prejudice.” Typically, the judge begins the voire dire process by asking a litany of general questions: “Do you know the lawers?”, “Do you know the defendant?”, etc. Once the judge has determined that there are twenty qualified, prospective jurors, he allows each attorney to voire dire the jurors.

The attorney might ask if the jurors have heard anything about the case, if they have a prejudice against particular crimes, if their work gives them special knowledge about the matter to be tried, etc. Attorneys have even been known to ask about whether jurors listen to talk radio in an attempt to peg one’s political persuasion. The goal of each attorney is, superficially, to obtain an impartial jury. In reality, each is attempting to determine which jurors are more likely to be sympathetic to their position.

Once the attorneys are finished, they are permitted to exercise their “strikes.” Strikes come in two forms: “peremptory” and “for cause.” Each gets four peremptory strikes, meaning, they can cut a juror for any reason they want. Strikes “for cause” are limitless, but can only be exercised when true instances of bias or prejudice are shown. For instance, if an Elbonian is the defendant in the criminal case, and a potential juror is the sworn enemy of the Elbonian people, that juror might be stricken “for cause.” But, if that same juror’s dislike of the Elbonians is based solely upon the way Elbonians are described in the comic “Dilbert,” it is likely that the juror could be rehabilitated and the prejudice dissipated.

When the panel of twenty prospective jurors is complete, eight must be stricken. The prosecution and defense take turns striking jurors, until the number remaining is twelve. Exactly why jurors are struck peremptorily is largely unknown – even to most attorneys. Many have theories about the ideal jury, but if you asked most attorneys, they would probably tell you that certain jurors are struck mostly on “gut instinct.”

It may be an imprecise science, but it is remarkable how often well-balanced juries are chosen. It is not uncommon for juries to have a coal miner sitting beside an executive sitting beside a homemaker. The greater the cross-section of society that juries represent, the more objective the jury becomes.

It is its objective nature that makes trial by jury such a hallmark of our democracy.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

The Waiting Game

Q: Why does it take so long to get from arraignment to trial?

A: When last we left our alleged criminal, he had just posted bail. We assume, then, that he is out and about under a variety of conditions. Meanwhile, attorneys are busy prepping the case for trial.

Quick review: Our alleged criminal was arrested, indicted by a large and in charge grand jury, which produced an indictment, that invited him to an arraignment, where he entered a plea, and the court secured his continued participation by attaching him to a hefty bond. The next step, you would think, would be the trial. But, in a weird way, you would be wrong. The next step is actually what we call the “pre-trial period.”

Dear Sidebar, You went to four years of college, three years of law school, studied for and passed the bar exam all to prepare you to come up with a fancy term like “pre-trial period?” Isn’t there a Latin phrase that you could use to make us actually think you are smart? Signed, the Anti-Hyphen Defamation League.

Dear Anti-Hyphenites, Absolutimus notus. Signed, Sidebar.

The pre-trial period is simply a period of time for both side of the case to investigate the charges, develop trial theories, make pre-trial motions, and, generally, get to know the ins-and-outs of the case. It is a period of time that can be quite lengthy. For instance, if the crime requires collaboration with the scientific community (e.g. coroner, crime lab, forensics, DNA, handwriting expert, etc.), those tests or experiments may take some time to complete – especially if there is a backlog of cases preceding yours.

Actually, criminal trials usually come to trial quite quickly. Most criminal cases go from arraignment to trial (or plea agreement) in under a year, at most, two years. Civil cases are usually much longer, going from complaint to trial (or settlement) anywhere from one to ten years.

The answer to why criminal cases go to trial more quickly is found in the Sixth Amendment of our U.S. Constitution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..” Although, I am not sure any “accused” is going to actually “enjoy” the speedy trial, we understand what is meant. The further and further you get away from the alleged crime, the more witnesses disappear, memories fade, and evidence becomes unavailable. In short, the case becomes much more difficult to try and defend.

In West Virginia, our Constitution terms “speedy trial” as one conducted “without unreasonable delay.” What is more, the Legislature has passed a law that entitles a criminal defendant to have his or her case tried within three terms of court following the indictment. Since, in the calendar year, there are three terms of court in West Virginia, this means that a criminal defendant has the right to have his or her case tried one year from being indicted. Of course, there may be strategic reasons for the criminal defendant to continue or delay the start of a trial beyond the three-term rule. Nonetheless, a speedy or un-delayed trial, is a constitutional and legislative right for the criminal defendant.

In reality, the answer to the question requires the asking of another question: why does it not take longer? Considering the amount of investigation, research, and planning that is required, a year or two is not so bad.

Next week, we begin the trial.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Sometimes Law Not Enough

Q: Will more gun laws prevent another Virginia Tech tragedy?

A: Before beginning to offer critical comment and opinion on the thought of gun laws, Sidebar wishes convey its deepest condolences to the families of the victims in Blacksburg. Little can pacify the pain that unmasked evil has wrought upon you. May God comfort you as you grieve.

“We are a nation of laws and not of men,” said the scholar. Yet, when a lunatic stands at the opposite end of the barrel, laws seem to have little meaning. Men, meaning mankind, seem to make the nation in that moment; not the laws being flouted by the merciless.

Ever since there have been guns, the debate has swirled: who should have them and how should they be used? As our country was founded, those who kept the power wielded the weapon. The Patriots of old were oppressed by the firearms of the British Regulars. In adopting our Constitution, it became evident that sometimes it is necessary for civilians to bear arms. More than that, it was obvious that sometimes it is necessary for civilians to bear arms against the intrusion of government. Hence, our Second Amendment.

Less than a century ago, the fully automatic rifle was not yet even a dream. Black powder had given way to Remington’s cartridges, muzzleloaders to Winchester’s rapid repeater. In the last few decades, as guns became ever more efficient at their task, it was apparent that this experiment in democracy needed to take steps to regulate guns. In the recent past, bills like the Brady Bill and others have imposed stiff waiting periods upon prospective gun owners, forcing gun sellers to do extensive background checks. Gun laws have done about everything possible to prevent good guns from falling into bad hands.

And yet, we have Columbine and, now, Virginia Tech, not to mention the untold thousands of murders carried out by the pull of a trigger.

More gun laws will not prevent more murders, just as more training with guns will only increase the efficiency of loons with bullets. Pop psychologists and political pundits have been quick to call for more gun legislation, more restrictions, as if statutes, codes, or regulations could bring evil to a halt. Through it all Archie Bunker’s words to his daughter’s lament about guns killing people give voice to our internal irony, “Would it make you feel better if they was all killed by knives?” Inanimate objects, no matter how deadly, do not cause mayhem unless acted upon by the animate.

Our society has lost the concept of personal responsibility. We have, for too long, said, “It is someone else’s problem!” or “Let the government handle it.” Meanwhile, our sense of community – a guardrail against extremity – has faded. Along with it, we have become egocentric to a fault. More than that, we shift the blame. Murderers murder because they were not hugged enough as children. Juvenile criminals no longer commit crimes, they “act out.” Politicians do not lie, they “spin the truth.” All the while, the real problem is right under our nose and we refuse to smell it: evil is real, palpable, and prevalent.

Perhaps the Virginia Tech shooter exhibited signs of insanity before his inexplicable rampage, but what did his community do about it? The parents blame the school, the school blames the professors, the professors blame the judge, the judge the hospital, the hospital the government – and round and round we go shifting the blame until we exasperatingly give up and call for the easy resolution with no real lasting effect: more laws.

Sometimes this “nation of laws” needs to remember that laws are written by, and for, the governed, but laws are only as good as the humans that agree to be bound by them.

Perhaps we ought to outlaw ourselves.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Immunity is Catching

Q: I saw a judge on Law & Order threaten to through out an immunity agreement. Can judges really do that?

A: My colleagues are going to poke fun of me, but I really do enjoy a good episode of Law & Order. I wish real court life was that succinct. They go from crime, to investigation, to indictment, to trial and conviction in one, neat hour. And, for the most part, the legal wrangling is pretty spot on, though not entirely complete.

To answer this question fully, you need to understand the idea of immunity. Of course, most of us know about the idea of being “immune” from a disease, meaning the disease has no affect on the person with immunity. Well, it is not unlike that in the law.

There is the classic, “sovereign immunity.” Quite simply, to say that the “sovereign” is “immune” is to say that the state is not liable for certain aspects of their governance. The term “sovereign” is derived from the English common law and was a reference to the King who was absolute in his power, beneficently ruling with the authority of a little god in his country. Thus, since he was instilled in the monarchy by the authority of God himself, the king could do no wrong. Hence, he could not be liable in court either. Patriots put that notion down; but the idea that the government – made of, by, and for the people – was limited in its liability remained. Today, the government is immune from most legal actions alleged against it, though exceptions do, indeed, exist to provide adequate redress for wrong action.

Judicial or civil immunity attaches to judges and civil servants acting in their official capacity. Thus, a judge cannot be sued for a certain ruling from the bench and a police officer cannot be prosecuted for arresting you. However, even that has a down side: if either wield their judicial or civil power to intentionally harm someone, thus taking them outside of their proscribed role, they could face legal action.

Spouses also carry immunity, as do clergy, lawyers, and doctors. This type of immunity is called “testimonial” immunity and serves as a tool to promote confidentiality. Thus, a wife may refuse to provide testimony against her husband, a priest need not tattle on his parishioner, a lawyer cannot reveal the confidences of his client, and the doctor retains a privilege over his patient’s revelations. Yet even those testimonial privileges can be pierced in rare circumstances and the testimony that was once immune can be compelled.

Then there is the type of immunity that prompts this question: immunity agreements. We are all aware of the perp that agrees to “turn state’s evidence” in exchange for not being prosecuted for a crime, or receiving a lesser punishment. That is an immunity agreement. Essentially, it is a contract. The lawbreaker agrees to rat on his pal and, in return, the prosecutor he is helping agrees not to nail him on the crime that his testimony naturally implicates him.

Can such an agreement be overturned by a judge? Let me give you the classic law school professor answer: it depends. On the one hand, no it is a contract and, under the law of contract, once the rat sings, the state has to stand silent. But, on the other hand, if the scofflaw welshes on the deal, the state is not obligated to honor its end of the bargain and the judge can overturn the immunity agreement.

The easy answer? Yes. (But aren’t you glad you read this whole article to get that?!)

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Venues: They are a Changin'

Q: What is a “change of venue?”

A: Before an answer to this question can be properly understood, you must understand that the Sixth Amendment to the Constitution of the United States guarantees an alleged criminal the right to a “speedy and public trial, by an impartial jury of the State and district” where the crime allegedly occurred. Key in on that word “impartial;” its importance will be shown shortly.

Here’s what normally happens. A criminal is arrested and indicted for the commission of a crime. Ultimately, the criminal defendant will get the opportunity to defend the charges brought against him in an appropriate court of law. That defense takes place in the form of a trial. Criminal trials are presided over by a judge and a jury. The judge governs matters of law, while the jury is the determiner of facts. That jury, for a criminal trial, consists of twelve individuals who are residents of that county.

Most of the time, we are blissfully unaware of all the sordid details of the crimes that happen within our community on a routine basis. But what happens when a “high-profile” case comes to trial? Trials for cases that have already been tried in the court of public opinion present an especially difficult issue when it comes time to make payment on that Constitutional guarantee of an impartial jury.

Sometimes, the projected jury pool could be so vastly biased that it is necessary to find another jury pool. Enter “change of venue.” Venue is simply the place where the trial will occur. When we speak of changing venue, lawyers mean that the trial needs to change location. So, if the case is pending in County X, but County X is determined to be frightfully biased, the trial of the case is moved to County Y, using all the lawyers, witnesses, and even judges that would have been used in County X, but jurors from County Y in an effort to ensure impartiality.

Changes of venue are few and far between. One reason for that is the law, which requires a defendant to prove “the existence of a locally extensive present hostile sentiment against him,” as one court put it. The Rules of Criminal Procedure require the existence of “so great a prejudice against the defendant” that no “fair and impartial trial” can be had in the place the law demands trial. Proof of such a pervasive bias is undeniably difficult.

Why? Well, say there are 80,000 people residing in the current venue. The jury only needs to be twelve people. We all know that you, dear readers, keep well-informed of the goings-on of this county, but not all of our fine residents do – by this paper, radio, or television. It is safe to say, frankly, that most of our neighbors have no idea what is going on down at the courthouse. Only twelve people who know nothing of the criminal defendant or alleged crime need to be found to secure impartiality. Finding those twelve can be surprisingly less difficult than you may think.

The reason the burden is so heavy upon a criminal defendant is that there are great costs to changing venue. Where do you go to be free of the bias? What does it cost to transport the entire trial to the new place of venue? What evidence must make the trip?
Our system of justice functions well to ensure impartiality. It depends upon the honesty of prospective jurors to confess bias, should they have any. Empanelling “an impartial jury of the State and district” where the crime allegedly occurred happens far more often than not.

Impartial juries: just one more indication of your importance to the assuaging of injustice in this fine country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.