2.14Motion to Change Venue
Venue in a criminal case may be changed “upon good cause shown by either party.” MCL 762.7. Generally, defendants must be tried in the county where the crime is committed. MCL 600.8312.37 “[U]nfair and prejudicial news comment on pending trials has become increasingly prevalent,” and “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influence.” Sheppard v Maxwell, 384 US 333, 362 (1966).
The moving party has the burden of showing good cause for a change of venue. MCL 762.7. “The burden of establishing that prospective jurors have been influenced by pretrial publicity is on the party seeking the change of venue, and merely showing that jurors have been exposed to pretrial publicity is not in itself sufficient.” People v Florinchi, 84 Mich App 128, 135 (1978). “‘[P]retrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.’” Skilling v United States, 561 US 358, 384 (2010), quoting Nebraska Press Ass’n v Stuart, 427 US 539, 554 (1976) (“news stories about Enron did not present the kind of vivid, unforgettable information [the United States Supreme Court] ha[s] recognized as particularly likely to produce prejudice, and [the trial city’s] size and diversity diluted the media’s impact”). The focus is on whether the moving party can secure a fair and impartial trial in the jurisdiction where the action is brought. In re Attorney General, 129 Mich App 128, 133 (1983). Convenience of the parties and witnesses does not constitute good cause. Id. at 133, 135.
Where potential jurors swear that they will put aside preexisting knowledge and opinions about the case and that they will be able to decide the case impartially based on the evidence at trial, such preexisting knowledge and opinions do not constitute good cause justifying a change of venue. People v DeLisle, 202 Mich App 658, 662-663 (1993).
“Federal precedent has used two approaches to determine whether the failure to grant a change in venue is an abuse of discretion. Community prejudice amounting to actual bias has been found where there was extensive highly inflammatory pretrial publicity that saturated the community to such an extent that the entire jury pool was tainted, and, much more infrequently, community bias has been implied from a high percentage of the venire who admit to a disqualifying prejudice.” People v Jendrzejewski, 455 Mich 495, 500-501 (1997).
In People v Cline, 276 Mich App 634, 638-642 (2007), the Court of Appeals reviewed the circumstances of the defendant’s case in light of the standards set out in DeLisle, 202 Mich App 658, and Jendrzejewski, 455 Mich 495, to determine whether the defendant’s counsel was ineffective for failing to bring a motion for change of venue. In Cline, 276 Mich App at 638-642, the totality of the circumstances surrounding the jury selection—including the fact that nine out of the selected jury panel of 14 heard about the case before trial, and 11 local newspaper articles about the case were published—did not overcome the jurors’ assurances that they could decide the case impartially.
B.Timing
It is the preferred practice for the trial court to defer ruling on a motion for change of venue until after jury selection has been attempted in the original county. People v Harvey, 167 Mich App 734, 741 (1988).
A district court has no authority to grant a motion for change of venue before a preliminary examination is held. In re Attorney General, 129 Mich App 128, 132 (1983). MCL 762.7, the statute granting courts of record authority to change venue in criminal cases, is only applicable to circuit courts in felony cases. In re Attorney General, 129 Mich App at 131.
An order for change of venue must be entered on a SCAO approved form. MCR 2.226(A); MCR 6.001(D). If the order “is not prepared as required under [MCR 2.226(A)], and the order lacks the information necessary for the receiving court to determine under which rule the transfer was ordered, the clerk of the receiving court shall refuse to accept the transfer and shall prepare a notice of refusal on a form approved by the [SCAO] and return the case to the transferring court for a proper order within seven business days of receipt of the transfer order.” MCR 2.226(B); MCR 6.001(D). Upon receipt of a refusal to accept a transfered case under MCR 2.226(B), the transferring court must “prepare a proper order in accordance with [MCR 2.226(A)] and retransfer the case within seven business days.” MCR 2.226(C); MCR 6.001(D).
37. However, certain exceptions apply as provided by statute. See, e.g., MCL 762.8 (providing that “[w]henever a felony consists or is the culmination of [two] or more acts done in the perpetration of that felony, the felony may be prosecuted in any county where any of those acts were committed or in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect[;]” MCL 762.3(3)(a) (providing that “[i]f an offense is committed on the boundary of [two] or more counties, districts or political subdivisions or within [one] mile thereof, venue is proper in any of the counties, districts or political subdivisions concerned[]”). See Section 2.12.