Prejudicial publicity and change of venue in civil trials
Hale, F Dennis
An extensive body of legal literature examines the issue of prejudicial publicity and the right of criminal defendants to an impartial jury. But the legal literature fails to examine the parallel right to a fair trial of parties to civil suits. This study examines chat issue of civil cases involving prejudicial publicity.
As newspaper courthouse reporters know, the majority of parties to judicial proceedings are involved in civil and not criminal cases. Many civil cases have consequences in damages and lost privileges that are just as severe as the penalties in criminal cases. Newspapers cover many of these more controversial civil cases because of their commitment to thorough coverage of local trial courts.
Of six textbooks on media law (Pember, Middleton and Chamberlin, Francois, Holsinger, Overbeck and Pullen, Zelezny),(1) none cited any civil cases concerning the issue. At most, the books offered a terse acknowledgment of the question. For example, in his chapter Media and the Justice System, Zelezny noted: “Though the Sixth Amendment applies only to criminal prosecutions, state constitutions or statutes typically set similar fair jury standards for civil trials as well.”(2)
This study consisted of a search of civil cases in which a change of venue was requested because of prejudicial community opinion that was linked to news coverage. A change of venue involves the moving of a trial to another county less influenced by the publicity. The reasons for such changes are not limited to prejudicial publicity and include such nonmedia factors as convenience for the court parties and witnesses.
In fact, most requests for venue changes in civil suits do not concern prejudicial public opinion. And of those cases that involve prejudicial community opinions, most do not involve news coverage. For example, in an article on venue in Wisconsin civil actions, only one page referred to the problem of prejudicial jurors. And there was no discussion of community prejudice caused by news coverage.(3) Most prejudice stems from non-media factors such as the pretrial actions and business dealings of the parties.
Earlier cases involving pretrial publicity and venue of civil suits were identified using the Index to Legal Periodicals, Current Law Index, Corpus Juris Secundum and Media Law Reporter. This uncovered a limited number of civil cases, and a significant body of journal articles about prejudicial publicity and criminal cases. But none of the journal articles discussed civil cases and prejudicial publicity. Shepard’s citations were used to examine the impact of the earlier cases and to assess the status of the law in the 1980s and 1990s.
Standards in criminal cases
The starting point for an analysis of prejudicial publicity in civil cases is the constitutional standard that applies to criminal cases. Three U. S. Supreme Court decisions in the 1960s provided the foundation for the law. In each case the court reversed a state murder conviction based on a denial of 14th Amendment due process because a change of venue had not been granted to a county unsaturated by prejudicial news coverage. Each case involved extensive pretrial publicity. Two standards were applied by the court.
Irvin v. Dowd(4) required evidence of a nexus between the prejudicial publicity and the community opinion. The court said that Leslie Irvin, who was accused of six murders, was denied a fair trial because of the bitter prejudice in the community that was reflected in the entire voir dire examination. The court concluded that Irvin should have been “tried in an atmosphere undisturbed by so huge a wave of public passion.”(5) As a result of the publicity, 268 of 430 prospective jurors were excused because they had fixed opinions about Irvin’s guilt. The transcript of the voir dire examination was 2,783 pages. Thus the court did not presume that the adverse publicity had an impact; the court required specific evidence of a nexus between the press coverage and the prejudicial public opinion.
A different standard was applied two years later in 1963 in Rideau v. Louisiana.(6) Rideau, accused of bank robbery and murder, confessed in a 20-minute television interview with the sheriff. The confession was broadcast three days in a row by a Lake Charles television station. The Supreme Court concluded that it was a denial of due process to try Rideau in a county in which the people “had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged.”(7) In effect the court created a category of sensational publicity that was inherently or presumptively prejudicial. The court noted that it was making its decision without any analysis of the voir dire examination.(8) Two dissenting justices decried the lack of a standard, saying the majority did not establish “any substantial nexus between the televised ‘interview’ and petitioner’s trial, which occurred almost two months later.”(9)
It is unclear what standard was applied three years later when the court reversed the murder conviction of Dr. Sam Sheppard.(10) One court reversed the conviction because of various due process violations including both pretrial and during-trial publicity. The court noted that “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.”(11)
In four subsequent decisions the Supreme court made it clear that a quantity of publicity did not automatically deny an accused a fair trial. In each case the court upheld the lower court conviction despite the publicity. In Murphy v. Florida the court said that Irvin, Rideau and Sheppard all had involved “trial atmospheres that had been utterly corrupted by press coverage.”(12) The Murphy court said the fact that most jurors had some knowledge of the accused’s criminal background and of the crime he was charged with was not presumptively prejudicial.(13) The court also refused to reverse murder convictions in Patton(14) and Dobbert(15) despite the quantity of publicity. In Patton, as well as Murphy, the court noted the considerable lapse of time between the publicity and the trial: four years in Patton and seven months in Murphy. And in Dobbert the court conceded that publicity often cannot be avoided: ” One who is reasonably suspected of murdering his children cannot expect to remain anonymous.”(16)
The same logic prevailed in Duwud Majid Mu’Mim.(17) Mu’Mim was in prison for a 1973 murder when he committed a second murder while on a prison work detail. The second murder was reported in 47 newspaper articles and in headlines that mentioned his confession. The defendant was sentenced to death by jurors who had been questioned only about the results of the publicity whether they had formed an opinion about the defendant’s guilt or were prejudiced against him. Only 26 prospective jurors were questioned. Eight of the twelve admitted that they had seen publicity about the case. Five justices ruled that the constitution did not require that individual jurors be questioned about the specific content of such publicity.
In conclusion, during the last three decades the Supreme Court has articulated the due process requirement that pretrial publicity should not interfere with the right of a criminal defendant to he tried by an impartial jury. However, intense publicity does not presumptively deny an accused a fair trial; and jurors do not have to be ignorant of the crime and of the accused’s background. The Supreme Court has yet to review a civil case in which pretrial publicity threatened a fair trial.
Civil cases with prejudicial publicity
A search of earlier civil cases disclosed a limited number in which a court agreed that a change of venue was required because of news coverage which posed a threat to an impartial jury. The procedure in such cases was for one of the parties to present evidence that news coverage affected public opinion such that it would be difficult to select an unbiased jury. Thus prejudicial publicity posed a problem for civil cases that were tried before juries and not judges.
The Montana McGraff case illustrated how the process works. The survivors of a fisherman who was murdered by a rancher sued the rancher’s estate in a civil action for damages for wrongful death. The defendant, the executor of the estate, requested a change of venue because of community hostility. The state’s civil code required a change of venue “when there is reason to believe that an impartial trial cannot be had therein.”(18) The executor produced affidavits of citizens who testified about the community hostility. The plaintiff countered with other affidavits, including a newspaper editor and a state senator, denying any hostility. A dissenting justice questioned the sincerity of those who denied the prejudice: “It is only natural that officials and residents of that or any other county should defend the good name of their county. It would be surprising and against human nature if they did not.”(19)
The court majority partially favored the defendant who claimed prejudice, noting that “there is at least as much evidence that he can get a fair trial as that he cannot.”(20) The majority returned the case to the trial court to permit a renewed motion for a venue change “if it develops that a fair and impartial jury cannot be obtained.” The majority explained that “every member of the court is desirous of assuring the defendant a fair trial.” In a second decision on the same case the state supreme court agreed that a change of venue no longer was necessary, noting that “prejudice, if any, may have subsided.”(21) Three years had lapsed since the killings.
It was difficult to divine a specific standard in these few civil cases in which a change of venue was favored. In Anthrop the Indiana Court of Appeals agreed that the publication of one story provided grounds for the venue change. At the beginning of a trial to condemn land for public schools, the local daily published a story and picture of a family’s forcible eviction from its home. The school district promptly filed an emergency affidavit for a venue change, which was granted over the objections of the other party. The appellate court did not discuss a legal standard for such a change; it simply emphasized that it was not an abuse of discretion for the lower court to approve the venue change.(22)
In only one case did an appellate court reverse a decision of a trial court denying a venue change. In Castle it was unclear as to how much of the public hostility stemmed from press coverage of a man’s conviction for carnal knowledge of a juvenile, and how much stemmed from general public scorn for the felon in the small county of 4,700. The Minnesota Supreme Court reversed the lower court and ruled that a change of venue was mandated by statute “when an impartial trial cannot be had in the county wherein the action is pending.”(23) Affidavits attested to severe prejudice. The court noted, “It has been said that there is nothing so essential in the administration of justice as the avoidance of seeming partiality.”(24)
Community prejudice also was overwhelming in the Sinderbrand decision by a New Jersey trial court which was not reviewed by an appellate court. The case involved a popular physician who had been unsuccessfully prosecuted for misprescribing drugs. The original criminal case attracted extensive coverage by the local paper, regional television, metropolitan dailies and a syndicated Jack Anderson column. The trial court judge noted that no previous New Jersey court had permitted a change of venue in a civil case because of local prejudice. In Sinderbrand the maligned physician was suing the state board of medical examiners and the deputy state attorney general. The judge ruled in favor of the government defendants and a change of venue: “The magnitude and one-sided quality of this publicity make it doubtful that defendants can obtain a fair trial in Atlantic County.”(25)
Thus a few courts have granted venue changes in civil cases because of prejudicial publicity and the threat to an impartial jury. But there is little precision concerning the evidentiary requirements for such a venue change. For example, none of these cases involved a systematic analysis of the voir dire examination, and none of the cases involved scientific proof such as a public opinion poll that demonstrated causality between the press coverage and hostile public opinion. These decisions more closely resembled the U.S. Supreme Court decision, Rideau, where prejudice was presumed from a spectacular instance of news coverage, a televised confession. Dissenters in that case bemoaned the lack of an articulated standard.
Civil cases denying a change of venue
If standards were unclear in the decisions granting a change of venue, they were equally vague in the appellate decisions that denied a change of venue.
Timing of the publicity was important. Judges minimized the impact of coverage that predated the beginning of the trial. Arizona Water Company concerned a city’s compensation for a private water plant that it was acquiring through condemnation proceedings. Six years before the trial the media provided extensive coverage of the city’s decision to condemn the private water plant. In upholding the trial court’s denial of a venue change, the Arizona Court of Appeals wrote: “Due to the nature of the publicity and the remoteness from the date of trial, it does not appear that it was sufficient to allow a change of venue.”(26) Timing of publicity also was a factor in Bryson; news coverage occurred three years before the trial.(27)
Even timely publicity was irrelevant if it did not reach a significant proportion of prospective jurors. Basic Electric Power Cooperative involved compensation for easements for high voltage transmission lines.(28) During the three months before the trial, the cooperative’s magazine reported that property owners were demanding $30,000 an acre when $7,600 was the fair price. And the magazine warned that costs would be passed on to the cooperative’s customers. However, only a minority of the prospective jurors subscribed to the magazine. The appellate court agreed that the voir dire examination was sufficient to assure an impartial trial.
Judges in Basin Electric Power Cooperative also referred to the tone of the publicity — that it was not inflammatory.(29) The Wisconsin Court of Appeals also mentioned the noninflammatory nature of publicity in upholding a decision to deny a change of venue in Central Auto, Co.(30) The court cited a criminal decision of the Wisconsin Supreme Court, Hope,(31) that upheld a denial of a venue change in a murder case despite the publication of 24 newspaper articles.
The Hope court noted the “objective, informational and noneditorial” nature of the coverage which did not “rise to the inflammatory level” of Rideau.(32) Rideau was similarly cited in a civil case of the Georgia Court of Appeals, Claxton Poultry Co. Extensive press coverage was called inflammatory by the plaintiff but evenhanded by the defendant. The justices said that the accounts did not resemble the “utterly corrupting and sensationalistic coverage” of Rideau.(33)
These decisions upholding a denial of a venue change followed the logic of the U.S. Supreme Court’s decisions on criminal cases. The courts were requiring a spectacular instance of prejudicial coverage, similar to Rideau’s televised confession. Or they were requiring specific evidence that the publicity infected public and juror opinion. Thus in Clausi a New York appellate court conceded that the articles and broadcasts had “some effect upon public opinion.” But the court concluded that “the record is devoid of any factual situations” that would preclude a fair and impartial trial.(34)
Standards were never enunciated with any precision in these civil cases with extensive publicity. If there was an overriding principle, it was one of deference by the appellate courts to the trial courts. Appellate judges repeatedly referred to the broad discretion of the trial judges. The Michigan Court of Appeals noted the extensive adverse publicity that pre-dated the $56,000 jury verdict against local physicians and a hospital. But the Bryson court concluded: “While defendants do show unusually extensive publicity and the trial judge might conceivably have granted the motion for change of venue, there was no abuse of discretion in denying the motion.”(35) The Minnesota Supreme court ruled similarly in Sander(36) which involved the drowning of three children in a construction water hole. The defendant requested a change of venue and noted the extensive publicity in newspapers and the striking headlines and photographs, Articles reported that the children were poor and that the contractor was insured. Eighteen affidavits favored a venue change, and 15 opposed it. The Minnesota court upheld the trial court’s denial of a venue change. A Florida appellate court ruled identically in Florida East Coast Railroad Co.(37) The case involved articles critical of a railroad’s failure to protect dangerous crossings and failure to pay local taxes. The appellate court said the trial court had considerable discretion in selecting venue.
More recent developments
This study began with an examination of early civil cases in which a change of venue was requested because of prejudicial news coverage. Twelve cases were found. In four the appellate courts agreed that a change of venue was appropriate (McGraff, Anthrop, Castle, Sinderbrand).(38) In eight the appellate courts agreed that the trial courts properly exercised their discretion in denying a venue change (Arizona Water, Bryson, Basin Electric Power Cooperative, Central Auto, Claxton Poultry, Clausi, Sander, Florida East Coast Railroad).(39)
These twelve cases extended from 1950 to 1980, with two in the 1950s, four in the 1960s, four in the 197’s and two in 1980. Eleven states were represented. Four were decided by three state supreme courts: Montana, Minnesota and North Dakota; and seven were decided by seven intermediate, appellate courts: New Jersey, New York, Indiana, Arizona, Wisconsin, Michigan and Florida. No pattern was evident in the decisions; rural and urban states were represented from different geographic regions. Except for Minnesota, no state had more than one case. Thus there was no opportunity for a court to refine a legal doctrine.
In 1993 Shepard’s citations were used to evaluate the impact of the original 12 cases and to search for more recent cases. This involved an examination of a mean of 24 years of citations for each of the twelve cases. Some 92 citations were found for the 12 cases. Thus a case was only cited a mean of eight times, or one time every three years. This indicated that these early cases did not make a significant impact on the law. This area of the law was not litigated.
Another indication of the lack of impact of the early cases was the number of citations by courts outside of the original state. Only 12 percent of the 92 citations were by out-of-state courts.
The 12 cases were cited for a variety of reasons other than the specific issue of prejudicial publicity. Only three of the 92 citations for the 40 years concerned the substantive issue of prejudicial publicity in civil suits. In all three cases the appellant relied on a public opinion poll to argue for a change of venue. And in all three cases the venue change was denied.
Rutledge involved a punter for Arizona State University who sued his coach for physical abuse. Following the third poor punt against the University of Washington in 1978, the Arizona coach punched the punter. The kicker unsuccessfully argued for a change of venue because of the local popularity of the coach. A telephone survey of 400 registered voters found that 99 percent recognized the coach, 78 percent recognized the punter, 38 percent felt indifferent toward the coach and 41 percent felt indifferent toward the punter. The Arizona Court of Appeals upheld the denial of a change of venue because of the lack of “objective indications of jurors’ prejudice.”(40) There was some question about the nexus between the publicity and the favorable community opinion about the coach. How much of the public opinion stemmed from the overall coverage of the football team and its coach; and how much stemmed from the specific incident involving the coach and the punter?
A more recent case was the 1980 decision of the North Dakota Supreme Court, Jerry Harmon Motors. An automobile dealership was suing a bank in a city of 26,000. Because of adverse publicity, the dealership requested a change of venue. In a unanimous decision, the state supreme court upheld the trial court’s denial of a venue change. The court conceded that press coverage had been pervasive for several months but that the coverage had not been inaccurate or misleading. A telephone survey introduced at the trial concluded that it would be virtually impossible to seat a panel of jurors without an inherent bias against the automobile dealership. The state supreme court dismissed the results of the survey and concluded that a fair trial was achievable.(41)
The most dramatic of the three recent cases on prejudicial publicity and civil trials was the 1985 decision of the Missouri Supreme Court, Firestone. It also involved an unsuccessful attempt to rely on a public opinion poll to convince a trial court to grant a venue change. The state supreme court upheld the denial, concluding that “publicity, even adverse publicity, in itself will not call for a change of venue unless actual prejudice is shown.”(42) The court concluded that publicity had subsided during the year before the trial and consisted primarily of coverage of court cases.
Firestone concerned a $15 million personal injury claim against the Hyatt Regency Hotel in Kansas City after the collapse of the hotel’s indoor skywalk. The Missouri Supreme Court upheld the decision of the trial court to exclude from evidence a telephone survey of 1,000 Kansas City adults. The survey found that 98 percent saw coverage of the disaster. Some 54 percent agreed that defendants such as the hotel designers and owners should be punished. The other 46 percent were unsure or said no.(43) But the survey was unpersuasive with the trial and supreme court, and the trial was held in the same city in which the accident occurred.
This study found that the courts have recognized remedies for prejudicial publicity in civil cases. However, such legal challenges occurred less often in civil cases than they did with criminal matters.
Only rarely did a court grant a change of venue in a civil case when prejudicial publicity was alleged. However, it should be noted that such success also is elusive in criminal cases. During one five-year period, jury bias caused by prejudicial coverage was raised in 368 criminal appeals. Only 6 percent of appeals resulted in new trials.(44)
The battle over prejudicial publicity in civil cases was won or lost at the trial level. Appellate courts granted the trial judges broad discretion and generally supported the lower-court decision whether it favored the plaintiff or the defendant.
It is possible in a civil case to succeed with a motion for a change of venue. But to be successful, more is needed than evidence of extensive press coverage. The coverage must have been one-sided and it must have been available to prospective jurors near the time of the trial. The strongest case may be made for reportage that is inflammatory. But traditional journalistic practices make such inflammatory reportage unlikely.
Even if the reportage is inflammatory, its impact on prospective jurors is only conjectural. Affidavits by local citizens that allege community bias are not influential.
The strongest argument for a change of venue could be made with hard evidence from survey data indicating that potential jurors in fact absorbed the prejudicial coverage and that it affectively changed their opinions. Three of these cases involved attempts to use surveys to establish community bias. But the surveys were quite unsophisticated and did not establish the specific exposure to news content, the resultant public opinions, and the nexus between media exposure and public opinion formation.
1. Don R. Pember, Mass Media Law, 6th edition, Dubuque, Iowa: Wm. C. Brown Communications, 1993; Kent R. Middleton and Bill F. Chamberlin, The Law of Public Communication, 3rd edition, White Plains, New York: Longman, 1994; William E. Francois, Mass Media Law and Regulation, 6th ed., Prospect Heights, Illinois: Waveland Press, 1994; Wayne Overbeck and Rick D. Pullen, Major Principles of Media Law, 1992 edition, Fort Worth, Texas: Harcourt Brace Jovanovich, 1992; Ralph Holsinger, Media Law, 3rd ed., New York: McGraw-Hill, 1994: John D. Zelezny, Communications Law: Liberties, Restraints, and the Modern Media, Belmont, California: Wadsworth, 1993.
2. Zelezny, Ibid., p. 242.
3. Sam J. Recht, Venue in Civil Actions in Wisconsin. 1960 Wisconsin Law Review pp. 663-682.
4. Irvin v. Dowd, 66 L.Ed.2d 751 (1961).
5. Ibid., p. 759.
6. Rideau v. Louisiana, 10 L.Ed.2d 663 (1963).
7. Ibid., p. 665.
8. Ibid., p. 664.
9. Ibid., p. 667.
10. Sheppard v. Maxwell, 16 L.Ed.2d 600 (1966).
11. Ibid., 620.
12. Murphy v. Florida, 44 L.Ed.2d 589 at 594 (1975).
14. Patton v. Yount, 81 L.Ed.2d 847 (1984).
15. Dobbert v. Florida, 53 L.Ed.2d 344 (1977).
16. Ibid., 362.
17. Duwud Majid Mu’Mim v. Virginia, 59 U.S.L.W. 4519 (1991).
18. McGraff v. McGillvray. 339 P.2d 478 at 485 (1959).
20. Ibid., 481.
21. McGraff v. McGillvray, 342 P.2ed 736 at 738 (1959).
22. Anthop v. Tippecanoe School Corporation, 295 N.E.2d 637 at 642 (1973).
23. Castle v. Village of Baudette, 125 N.W.2d 416 (1963).
24. Ibid., 418.
25. Sinderbrand v. Schuster, 406 A.2d 1344 (1979).
26. Arizona Water Company v. City of Yuma, 436 P.2d 147 at 157 (1968).
27. Bryson v. Stone, 190 N.W.2d 336 (1971).
28. Basin Electric Power Cooperative v. Boschker, 289 N.W. 2d 553 (1980).
29. Ibid., 558.
30. Central Auto Co. v. Reichert, 273 N.W.2d 360 (1978).
31. Hope v. State, 246 N.W.2d 122 (1976).
32. Ibid., 126.
33. Claxton Poultry Co., Inc. v. City of Claxton, 271 S.E. 2d 227 at 232 (1989).
34. Clausi v. Hudson Cement Co., 273 N.Y.S.2d 906 at 907(1966).
35. Op. cit., note 27, at 341.
36. Sander v. Dieseth, 40 N.W.2d 844 (1950).
37. Florida East Coast Railway Co. v. Hardee, 167 So.2d 68 at 69 (1964).
38. Op. cit., notes 18, 21,22, 23 and 25.
39. Op. cit., notes 26, 27, 28, 30, 33, 34, 36 and 37.
40. Rutledge v. Arizona Board of Regents, 711 P.2d 1207 at 1227 (1985).
41. Jerry Harmon Motors v. First National Bank, 440 N.W.2d 704 (1989).
42. Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 at 102 (1985).
44. Dale Spencer, Coverage Seldom Cause for Conviction Reversal. presstime, October 1982, pp. 16-17.
Hale is director of the school of mass communication at Bowling Green State University in Bowling Green, Ohio.
Copyright Ohio University Summer 1994
Provided by ProQuest Information and Learning Company. All rights Reserved