NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
Go to Federal Manuals Table of Contents - Go to Capital Punishment Table of Contents

Chapter 2: Capital Punishment Handbook: Pre-Trial And Preliminary Stage Issues

        2.3  Pre-Trial Publicity And Venue

In Irvin v. Dowd, 366 U.S. 717 (1961), the Supreme Court held that if prejudicial pretrial publicity jeopardizes a defendant’s right to a fair trial by an impartial jury, the trial judge should grant a defendant’s motion for a change of venue. According to the Court’s decision in Murphy v. Florida, 421 U.S. 794 (1975), a defendant may challenge a trial court’s denial of a change of venue by showing that pretrial publicity created either “actual prejudice” or “inherent prejudice” among the jurors. A showing of actual prejudice focuses on the voir dire responses of the jurors, as in Irvin, and establishes actual prejudice if the responses demonstrate actual juror partiality or hostility that cannot be laid aside.

To establish inherent or presumed prejudice, on the other hand, the focus is on the content, volume, and distribution of the publicity regardless of voir dire responses. In Rideau v. Louisiana, 373 U.S. 723 (1963), the Supreme Court concluded that where highly prejudicial publicity may deprive the defendant of a fair trial, the Court will apply the inherent prejudice test. In Patton v. Yount, 467 U.S. 1025 (1984), the Court indicated that the inherent prejudice test is applied only in cases where extreme and inflammatory publicity is distributed immediately prior to trial, creating a “huge . . . wave of public passion.” Id. at 1033 (quoting Irvin v. Dowd, 366 U.S. 717, 728 (1961)). Otherwise, the inquiry is limited to the actual prejudice standard.

Mu’Min v. Virginia, 500 U.S. 415 (1991) (holding trial court need not question prospective jurors about specific content of exposure to news reports; accused is only entitled to know whether juror can remain impartial; trial court’s finding of juror impartiality may be overturned only for manifest error).

Patton v. Yount, 467 U.S. 1025 (1984) (holding passage of time between first and second state murder trials rebutted presumption of prejudice created by adverse pretrial publicity that existed at time of first trial).

Murphy v. Florida, 421 U.S. 794 (1975) (noting defendant must show trial setting was “inherently prejudicial” or that jury selection process “permits inference of actual prejudice”).

Rideau v. Louisiana, 373 U.S. 723 (1963) (holding that due process requires change of venue where impartial jury cannot be seated due to pervasive prejudicial pretrial publicity).

Irvin v. Dowd, 366 U.S. 717 (1961) (holding defendant entitled to change of venue where pretrial publicity had tainted jury pool).

Fetterly v. Paskett, 163 F.3d 1144 (9th Cir. 1998) (holding, in capital murder prosecution, a change of venue is not necessarily required despite extensive pretrial publicity which focused mainly on factual aspect of charge).

Ainsworth v. Calderon, 152 F.3d 1223 (9th Cir. 1998) (finding no presumptive or actual prejudice in capital petitioner’s change of venue challenge).

Gallego v. McDaniel, 124 F.3d 1065 (9th Cir. 1997) (holding petitioner carries burden of showing presumptive prejudice due to pretrial publicity), cert. denied, 524 U.S. 917 (1998), and cert. denied, 524 U.S. 922 (1998).

Thompson v. Borg, 74 F.3d 1571 (9th Cir.) (holding that awkwardly phrased comment regarding knowledge that defendant previously pled guilty by venireman during jury selection does not amount to pretrial publicity), cert. denied, 519 U.S. 889 (1996).

Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir. 1993) (holding prejudice could not be presumed from pretrial publicity to require change of venue because news coverage, including details of murder and defendant’s criminal history, was factual rather than inflammatory and most of publicity occurred six months before jury selection; no actual prejudice from pretrial publicity even though almost all jurors had heard or read about case prior to trial), cert. denied, 510 U.S. 1191 (1994).

Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991) (following Austed, holding district court on habeas has no sua sponte duty to order all exhibits relevant to pretrial publicity unless petitioner demonstrates inability to do so), cert. denied, 506 U.S. 888 (1992).

Harris v. Pulley, 885 F.2d 1354, 1359-65 (9th Cir. 1988) (holding community prejudice insufficiently inflammatory to deny defendant a fair trial; actual prejudice not demonstrated by mere showing of exposure to pretrial publicity, and no actual prejudice demonstrated in voir dire), cert. denied, 493 U.S. 1051 (1990).

Austad v. Risley, 761 F.2d 1348, 1354 (9th Cir.) (en banc) (holding petitioner must produce pretrial publicity exhibits on own unless proves inability to do so), cert. denied, 474 U.S. 856 (1985).

LaGrand v. Lewis, 883 F. Supp. 451 (D. Ariz. 1995) (holding where effect of printed media coverage of crimes was not to inflame comity passions but rather to inform public of local government bodies, prejudice is not presumed), aff’d sub nom. LaGrand (Karl) v. Stewart, 133 F.3d 1253 (9th Cir.), and cert. denied, 525 U.S. 971 (1998).

Bonin v. Vasquez, 794 F. Supp. 957 (C.D. Cal. 1992) (holding denial of change of venue motion due to extensive pretrial publicity by review of criteria including gravity of offense, community population, status of defendant and victims, and volume of media coverage did not deprive defendant of right to fair trial), aff’d, 59 F.3d 815 (9th Cir. 1995), and cert. denied, 516 U.S. 1051 (1996).

Fetterly v. Paskett, 744 F. Supp. 966 (D. Idaho 1990) (holding that need not show actual prejudice if media coverage invoked such a probability of prejudice that failure to change venue inherently lacking in due process), cert. denied, 506 U.S. 1002 (1992).

Sophia R. Friedman, Note, Sixth Amendment–The Right to an Impartial Jury: How Extensive Must Voir Dire Questioning Be?, 82 J. Crim. L. & Criminology 920 (1992) (arguing that majority opinion in Mu’Min failed to adequately address issue of whether defendant’s Sixth and Fourteenth Amendment rights were compromised).

Stephen Jones and Holly Hillerman, McVeigh, McJustice, and McMedia, 1998 U. Chi. Legal F. 53 (1998) (focusing on First, Fifth and Sixth Amendment issues relating to the change of venue resulting from pretrial publicity, the media’s access to sealed documents, restrictions on extra judicial statements, broadcasting of hearings and special arrangements for press during trial).

Robert S. Stephen, Note, 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 (1992) (analyzing trial court devices used to balance interests of defendant, state, and media in highly publicized criminal cases).

Michael J. Whellan, Note, What’s Happened to Due Process Among the States?

Pretrial Publicity and Motions for Change of Venue in Criminal Proceedings, 17 Am. J. Crim. L. 175 (1990) (examining various standards state court judges apply in determining whether pretrial publicity justifies change of venue and proposing uniform standard).