Change of Venue in the Criminal Case Context

by Professor Byron L. Warnken on May 27, 2015

In Baltimore, there has been a change of venue motion filed in the Freddie Gray case.  Here is a little bit of information about change of venue…

The Defendant has an absolute right to be tried in the jurisdiction where the crime allegedly occurred.  If the crime took place in Maryland, then the State of Maryland has personal jurisdiction over the Defendant and over the alleged crime.  The political subdivision is the county in which the crime allegedly occurred.  Maryland has 24 political subdivisions.  Just as Maryland has personal jurisdiction over the Defendant and over the crime, the county where the crime allegedly occurred has venue to try the case.  Although the Defendant has the right to be tried in the county in which the crime allegedly occurred, the Defendant also has a right to file for a change of venue.

If the Defendant files for a change of venue, the theory supporting a change of venue is that the Defendant is unable to obtain a fair trial in that venue, and is entitled to have the case moved to another venue in that same jurisdiction.  Most typically, a change of venue motion is denied.  The theory supporting denial of a change of venue motion is that, even if there has been inordinate publicity, through the use of extensive voir dire of potential jurors, the court will be able to impanel a fair and impartial jury.  Voir dire is the questions that the court asks potential jurors in an effort to discover potential biases and prejudices.  Voir dire questions posed to potential jurors must be answered by those potential jurors under oath or affirmation.  The Defendant has the right to have potentially biased or prejudiced jurors stricken so that the Defendant may obtain a fair and impartial jury.  Voir dire also entitles the Defendant to pose to the court questions, during voir dire, to help the Defendant learn what prejudices and biases potential jurors may have that may preclude one of more potential jurors from being able to decide the case based solely on the evidence that is presented at trial.  A fair and impartial jury is one that, although it may be familiar with the case, it has not formed an opinion as to guilt or innocence, and it will decide the case based solely on the evidence presented at trial.  Thus, publicity does not, by itself, entitle the Defendant to a change of venue.

However, if there is not only community saturation of information about the case, but there is community hostility toward the Defendant, the Defendant is entitled to relief toward his or her effort to obtain a fair and impartial jury.  In the hostility scenario, the Defendant may be entitled to some form of relief.  That relief may be afforded to the Defendant in one of two ways.  One method to deal with community hostility is to postpone the trial until such time as the community hostility has subsided.  One method to deal with community hostility is to move the case from that venue to another venue, in the same jurisdiction, where there is no such hostility or where there is a much lesser degree of hostility.

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Suppressing Illegally Obtained Statements

by Professor Byron L. Warnken on November 6, 2014

Five Theories to Suppress Illegally Obtained Statements

I.       Statement suppression theory #1 – Fourth Amendment “fruit of the poisonous tree”

If police make an illegal arrest, and then obtain a statement, the statement is likely to be suppressed, as a “fruit of the poisonous tree” of the illegal arrest, even if the statement was otherwise obtained constitutionally.  Thus, the statement is suppressed under the Fourth Amendment and not under the Fifth Amendment.

II.      Statement suppression theory #2 – involuntary statements under Maryland’s common law “promises & inducements”

If police obtain a statement by making the Defendant a promise or an inducement, even if the statement otherwise complies with the Fifth Amendment and the Fourteenth Amendment, the statement is inadmissible under Maryland’s common law prohibition against obtaining a statement based on “promises and inducements,” if the Defendant relied on that promise or inducement in making the statement.

III.    Statement suppression theory #3 – involuntary statements under the Due Process Clause of the Fourteenth Amendment, the Fifth Amendment privilege against compelled self-incrimination, &/or Md. Decl. of Rights art. 22

If police obtain a statement that is involuntary, under a totality of the circumstances, i.e., it is actually or subtly coerced and it is not voluntary, that statement is inadmissible, and it violates the Fifth Amendment privilege against compelled self-incrimination, the Fourteenth Amendment Due Process Clause, and/or the Md. Decl. of Rights art. 22.

IV.     Statement suppression theory #4 – statements that violate Miranda v. Arizona & its progeny

If police obtain a statement from a Defendant, while the Defendant is subject to custodial interrogation, for the statement to be admissible, the Defendant (1) must have been afforded the rights under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny; and (2) must have made a knowing and intelligent waiver of those rights.  Miranda rights include (1) the right to remain silent; (2) knowledge that any statement given may be used against the Defendant in a court of law; (3) the right to have counsel present during interrogation; and (4) the right to counsel during interrogation, at government’s expense, if the Defendant cannot afford counsel.

V.      Statement suppression theory #5 – statements that violate the Sixth Amendment right to counsel

If police obtain a statement from a Defendant who has been formally charged, i.e., indicted or subject to a criminal information, the Defendant has a Sixth Amendment right to counsel.  For the statement to be admissible, the Defendant (1) must have been given the same rights as provided under Miranda v. Arizona; and (2) must have made a knowing and intelligent waiver of those rights.  Unlike Fifth Amendment Miranda, for which the Defendant must take steps to invoke the rights, the Sixth Amendment rights to counsel is self-executing, and the Defendant needs to take no steps to invoke the right.

In In re Darryl P., 211 Md. App. 112 (2013), in an incredible 63-page opinion, Judge Moylan masterfully summarized and synthesized the five theories of statement suppression.  The Juvenile was originally charged, as an adult, with first degree assault, second degree assault, and use of a handgun.  He was released on bail.  Eventually, he was indicted and re-arrested for those charges and four other charges.  Jurisdiction was transferred to juvenile court.  His motion to suppress an inculpatory statement was denied.  On an agreed statement of facts, he was found delinquent.

Judge Moylan carefully analyzed each of the five suppression theories.  On the first four theories, the State prevailed.  On the fifth, theory, the Juvenile prevailed and his delinquent adjudication was vacated.  The Juvenile’s first theory to suppress the confession was that police illegally arrested him and the confession was the fruit of the poisonous tree of that illegal arrest.  The Juvenile argued that the second arrest warrant was illegal under Md. Rules 4-212 and 4-216.1 because he was already on bail, which would have continued.

Judge Moylan noted that the confession could only be suppressed as a fruit of the poisonous tree if the poisonous tree was a Fourth Amendment violation and not a violation of the Maryland Constitution, a Maryland statute, or a Maryland court rule.  Maryland, like the majority of states, has no state exclusionary rule and suppression must be based on a Fourth Amendment violation. See Brown v. State, 397 Md. 89 (2007).  Because the arrest, in this case, was supported by probable cause, the arrest did not violate the Fourth Amendment, and there is no federal exclusion based on a violation of state law.  Virginia v. Moore, 553 U.S. 164 (2008).

In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court suppressed a confession, even though the police complied with the Fifth Amendment, because the confession was a fruit of the poisonous tree of the underlying arrest that violated the Fourth Amendment.  That was not this case.

The Juvenile’s second theory to suppress the confession was that the police violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981).  Judge Moylan noted that, under Miranda, if the Juvenile was subjected to custodial interrogation, he had a right to remain silent and a right to Fifth Amendment counsel.  He further noted that, under Edwards, if the Juvenile requested counsel, police could not question him until counsel was made available or until the Juvenile initiated further conversation with the police directly or indirectly related to the investigation.

In this case, the trial court found the Juvenile (1) was given Miranda warnings, (2) stated that he understood those rights, (3) never invoked his right to silence, (4) never invoked his right to counsel, and (5) responded to police questioning, all of which indicated a waiver of his right to remain silent and his right to counsel.

Judge Moylan concluded that the trial court’s findings were not clearly erroneous.  Even an ambiguous invocation of rights (here there was no invocation) is insufficient to trigger Miranda and Edwards.  After giving Miranda warnings, police may interrogate a suspect who has neither invoked nor waived Miranda.  Berghuis v. Thompkins, 560 U.S. 370 (2010).  The Court held that, in this case, there was no violation of Miranda and Edwards.

The Juvenile’s third theory (Maryland common law) and fourth theory (federal Fifth and Fourteenth Amendments and state Md. Decl. of Rights art. 22 and art. 24) to suppress the confession was that the police violated multiple voluntariness standards.  Maryland’s common law prohibits obtaining a confession induced by threat of harm or promise of advantage. Judge Moylan noted that all of the voluntariness theories descended from a common parentage.  The Court held that there was no involuntariness of any kind.

The Juvenile’s fifth theory to suppress the confession was that the police violated his Sixth Amendment right to counsel, and the Court of Special Appeals agreed.  The Sixth Amendment right to counsel attaches at the time of adversarial judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.  The right to counsel, even if attached, only applies during critical stages.

In this case, Judge Moylan held that, when the Juvenile was taken before a District Court Judge and made bail, he was “accused” and thus entitled to counsel on the three original charges.  The right to counsel applies at the first appearance before a judicial officer when told of the formal accusation against him, and restrictions are placed on his liberty.  Rothgery v. Gillespie County, 554 U.S. 191 (2008).  The Sixth Amendment right to counsel is “offense specific,” and it only applied, at that time, to the pending three charges and not to the other four charges that came six weeks later.

Once he was an accused, the police were prohibited, absent a waiver, from questioning him without counsel present. Unlike Fifth Amendment counsel, which is a protection against compelled self-incrimination, Sixth Amendment counsel is the right to rely on counsel as a “medium” between the Juvenile and the State.

In this case, the Juvenile was subjected to more than two hours of intense questioning without counsel present.  Judge Moylan noted that waiver of Sixth Amendment counsel must entail something more than a mere waiver of Fifth Amendment counsel during custodial interrogation.  He stated that the right to Sixth Amendment counsel is broader than Fifth Amendment Miranda counsel.  He also stated that the Supreme Court has not squarely addressed waiver of Sixth Amendment counsel, other than to recognize that a waiver of Fifth Amendment counsel is not necessarily a waiver of Sixth Amendment counsel.

In this case, the Juvenile retained private counsel two months before the interrogation that resulted in the confession.  Judge Moylan stated that compliance with Miranda in no way means that there was no Sixth Amendment violation.  The CSA held that, in this case, there was not a knowing and intelligent waiver of the Sixth Amendment right to counsel.  The Court stated that, because the Juvenile was on bail and not subject to arrest, counsel would have insisted on no interrogation.  The Court held that Fifth Amendment counsel only comes into existence when unambiguously invoked, but that Sixth Amendment counsel comes into existence, automatically, whether or not invoked, at the moment of formal charging, and it applies at every critical stage, including whenever uncounseled interrogation begins.  The Court reversed.

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Should I Accept a Guilty Plea?

September 25, 2014

In most criminal cases, the Defendant is afforded an opportunity to accept a guilty plea.  The question is, if a plea can be negotiated, should the Defendant accept a guilty plea?  No two cases are alike, and there is no “one size fits all” answer to whether to accept a guilty plea.  Here are some [...]

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A Thank You to the Baltimore Bar Library

August 5, 2014

On July 17th, I was able to speak at the Baltimore Bar Library about the updates to the criminal law of Maryland in the past year since my treatise was published.  It was a privilege and an honor. It was remarkable how quickly the year since the original publication went by.  Ultimately, I decided to [...]

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Police Must Have a Warrant to Search a Cell Phone

July 5, 2014

For 40 years, the Supreme Court’s jurisprudence has been strongly pro-government on issues of Fourth Amendment search and seizure.  On June 25, 2014, in Riley v. California, 2014 WL 2864483, the Supreme Court ruled 9-to-0 in favor of the Defendant in two companion “cell phone” cases. Background To comply with the Fourth Amendment, police must [...]

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The First Annual Update

June 24, 2014

I spent about 35 years completing my treatise, Maryland Criminal Procedure.  There are more than 10,000 cases, rules, and statutes.  Thankfully, I had someone else complete those massive tables. After 35 years to get the first edition done, I managed to complete the first annual supplement in only one year.  Of course, I only had [...]

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The Supreme Court and Consent Search

March 9, 2014

SCOTUS Plays Fast and Loose with Consent Search In the era of the Warren Court in the 1960’s, the Supreme Court held that, searches and seizures were per se unconstitutional unless the police obtained a warrant, subject to a very few, carefully delineated, and well guarded, exceptions to the warrant requirement.  Nearly a half century [...]

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I Was In a Car with Drugs…

February 7, 2014

Well, I was not in a car with drugs but if you’re reading this, maybe you were. If I am in a car that is stopped, and there are drugs, what can the police do to me?  The answer to that question depends on a couple of variables.  What is your status and where are the drugs? There [...]

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Can I Withdraw My Guilty Plea?

January 30, 2014

My lawyer kept telling me that he was going to work out a good deal or me.  He worked out a deal with the prosecutor.  The Judge might have been involved in working out the the deal, but I am not sure.  We went to court.  I am not a lawyer.  It was all so confusing to [...]

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Affluenza and the Law

December 14, 2013

The vast majority of people, including attorneys and judges, have never heard of the term “affluenza.”  Beginning now, we may be hearing more about it because it has worked its way into legal language.  What is it and how might it be used in the law? The word affluenza is a combination of “affluence” and [...]

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