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Filing A Motion For A Change Of Venue In Colorado

By Colorado Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Filing A Motion For A Change Of Venue In Colorado may seem like an easy thing to do – but it is not. Change of venue motions are rarely granted even in the most high profile cases.  In some cases – a change of venue may actually result in being tried in a more hostile county than the original county where the crime is alleged to have occurred.

This web article addresses the nature of a change of venue motion and the pros and cons of attempting to obtain a change of venue.

Filing A Motion For A Change Of Venue In Colorado

Filing A Motion For A Change Of Venue In Colorado

High Profile – High Publicity Cases And Colorado Change Of Venue Laws

If you believe your case has received a massive amount of media coverage – most likely the articles or television coverage will not come close to the kind of publicity required for a change of venue.

In order to obtain a change of venue in Colorado based on prejudicial pretrial publicity  – the defendant must prove that

• The publicity is widespread.

• At least some of the publicity is inaccurate and inflammatory.

• The pretrial publicity has prejudiced the defendant and has caused widespread belief of the defendant’s guilt within the potential jury pool.

Here is the Colorado Procedural Rule Governing Colorado’s Change Of Venue Law(see as well – the Colorado statutory provisions that follow the procedural rule).

Rule 21. Change of Venue or Judge

(a) Change of Venue.

(1) For Fair or Expeditious Trial. The place of trial may be changed when the court in its sound discretion determines that a fair or expeditious trial cannot take place in the county or district in which the trial is pending.

(2) The Motion for Change of Venue.

(I) A motion for a change of venue shall be in writing and accompanied by one or more affidavits setting forth the facts upon which the moving party relies, or in lieu of such affidavits the motion, with approval of the court, may contain a stipulation of the parties to a change of venue.

(II) The written motion and the affidavits shall be served upon the opposing party 7 days before the hearing; the nonmoving party may submit a written brief or affidavit or both in opposition to the motion.

(III) As soon as practicable, the court may hold a hearing on the motion.

(3) Effect of Motions. After a motion for a change of venue has been denied, the applicant may renew his motion for good cause shown, if since denial he has learned of new grounds for a change of venue. All questions concerning the regularity of the proceedings in obtaining changes of venue or the right of the court to which the change is made to try the case and execute the judgment, and all grounds for a change of venue, shall be considered waived if not raised before trial.

(4) Order of Change. Every order for a change of venue shall be in writing, signed by the judge, and filed by the clerk with the motion as a part of the record in the case. The order shall state the court to which venue has been changed and the date and time at which the defendant shall appear at said court. The bond made, if any, shall remain in force and effect.

(5) Disposition of Confined Defendant. When the defendant is in custody, the court shall order the sheriff, or other officer having custody of the defendant, to remove him not less than 7 days before trial to the jail of the county to which the venue is changed and there deliver him together with the warrant under which he is held, to the jailer. The sheriff or other officers shall endorse on the warrant of commitment the reason for the change of custody, and deliver the warrant, with the prisoner, to the jailer of the proper county, who shall give the sheriff or other officer a receipt and keep the prisoner in the same manner as if he had originally been committed to his custody.

(6) Transcript of Record. When a change of venue is granted, the clerk of the court from which the change is granted shall immediately make a full transcript of the record and proceedings in the case, and of the motion and order for the change of venue, and shall transmit the same, together with all papers filed in the case, including the indictment or information, complaint, or summons and complaint, and bonds of the defendant and of all witnesses, to the proper court.

….

(7) Imprisonment. When after a change of venue the defendant is convicted and sentenced to imprisonment in the county jail, the sheriff shall transport him at once to the county where the crime was committed if that county has a jail or other place of confinement.

Here Are The Most Relevant Colorado Statutes Governing Colorado’s Change Of Venue Law
Colorado Law C.R.S. 18-1-202: (sets the standard for the regular “Place of Trial”)

…criminal actions shall be tried in the county where the offense was committed, or in any other county where an act in furtherance of the offense occurred.

If you seek to change the location of a trial – your motion to do so must fall under Section 16-6-101.

C.R.S. 16-6-101. Grounds for change of venue.

(1) The place of trial may be changed:

(a) When a fair trial cannot take place in the county or district in which the trial is pending; or

(b) When a more expeditious trial may be had by a change in the place of trial from one county to another;

or

(c) When the parties stipulate to a change in the place of trial to another county in the same judicial district or to a county in an adjoining judicial district.

Section 16-6-102 provides that a motion for change must be accompanied by one or more affidavits setting forth the facts upon which the defendant relies, or by a stipulation of the parties.

And Section 16-6-103 provides for a change of venue to another county within the judicial district in certain limited circumstances not applicable here.

Filing A Motion For A Change Of Venue In Colorado – The Only Remedy For Prejudicial Pretrial Publicity Is In The Selection Of An Impartial Jury

Only in an extreme case will a trial judge grant a change of venue on the basis of pretrial publicity without attempting the jury selection process.  In most cases – the jury selection process will establish in the eyes of the trial judge that the defendant can obtain a fair trial… by establishing that a “fair jury can be impaneled.”

Changes of Venue will most likely occur – if at all – when there is a high level of publicity in the original district where the crimes are alleged to have occurred, but not much publicity in other neighboring  districts to which the case could be transferred. Cases of local and intense prejudicial publicity – especially in the smaller jurisdictions are most likely to fit this profile.

A motion to change venue is most likely to be granted if:

(1) the publicity attending his case was so pervasive and inflammatory that prejudice must be presumed,

or

(2) actual prejudice exists on the part of the jury pool.

Actual Prejudice Is Nearly Impossible To Define

One Colorado case had this to say about “actual prejudice.”

“The existence of such a prejudice is difficult to prove. Indeed it may go unrecognized in those who are affected by it. … It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to something not included in the evidence. That something has its most powerful effect if it generates strong emotional responses and fits into a pattern of normative values.”

Filing A Motion For A Change Of Venue In Colorado – Documenting The Prejudicial Influences Of The Media

To be successful at a change of venue in Colorado you must begin with as many facts as are available to you at the time the motion is filed.  Such things as copies of newspaper coverage; internet coverage (printed from web sites); listings of tv and radio coverage and other such media sources which include circulation data which demonstrate the likelihood that prospective jurors have been exposed to the negative media coverage … is where you start.

As more news stories come in – supplemental memoranda are filed with additional facts as uncovered by closely following the media coverage. Along with the sources supplied there must also be the disclosure of evidence of the case, a confession – illegally seized evidence – op ed pieces, and the like.

Filing A Motion For A Change Of Venue In Colorado – The Use Of Social Science Experts

Experts in the social sciences who can testify about the measurement of community attitudes regarding a defendant level of guilt and overall case familiarity are also important.

Federal Standards For Demonstrating The Kind Of Prejudice That Will Justify A Change of Venue

Federal Courts have given some guidance to when a change of venue motion – while clearly a  fact-specific inquiry – may exist.

Look For:

Extensive Publicity — There has been extensive publicity, such as “voluminous newspaper articles … paint[ing] a black and bleak picture” of the defendant.

Close Attention To Procedural Moves — “Close attention” has been paid to pre-trial “procedural moves” in defendant’s case and “every aspect of the [defendant’s] life [has] become[] grist for the reporter’s mill.”

The Effect On Local Vicinage — The crime alleged has had a “profound and pervasive” effect on the local vicinage. “matter of peculiarly local interest”); or there is “repetition of emotionally intense stories” of victims.

A Jurors Stake In Outcome — Potential jurors “feel a personal stake in the outcome,” whether emotional or financial.

Plea Deals And Witnesses — There have been highly publicized plea deals involving others alleged to have committed offenses similar or related to the one with which the defendant has been charged, and the local media covered those events with particular intensity and speculated how witnesses would be “star witness” in the defendant’s case.

Related Proceedings — There are or have been highly publicized related proceedings.

Timothy McVeigh – The Test Case For Changes Of Venue

Where Juror’s Cannot Be Trusted To Be Truthful In Jury Selection (Voir Dire)

In the Timothy McVeigh case – the Courts addressed the limitations of using jury selection to control the prejudicial impact of negative pretrial publicity.

“While the Court has acknowledged that “[i]t is not required [] that the jurors be totally ignorant of the facts and issues,” it cautioned that the availability of “widespread and diverse methods of communication … cannot foreclose inquiry as to whether, in a given case,” a defendant is deprived of liberty without due process because of jurors’ preconceptions.

…. when the probability of prejudice is great because of deeply-rooted passions or recent massive publicity, the efficacy of voir dire in screening the prospective jurors is diminished…  the prejudice that may deny a fair trial need not be limited to “bias or discriminatory attitude.” It can, in fact, be the product of something as understandable as pride”

The decision to proceed as a defense tactic with a motion for a change of venue may have major effects on the outcome of a Colorado criminal trial.  You should consult an experienced Denver Colorado Criminal Defense Lawyer

Filing A Motion For A Change Of Venue In Colorado

The Law Offices of H. Michael Steinberg, in Denver, Colorado, provides criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer who will provide you with a free initial case consultation to evaluate your legal issues and answer your questions with an honest assessment of your options.

Helping Clients To Make Informed Decisions on Filing A Motion For A Change Of Venue In Colorado.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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