Under normal circumstances, a criminal case is to be prosecuted in the county in which the offense is alleged to have been committed. If the indictment or information alleges two or more offenses that occurred in more than one county, the defendant may be prosecuted in any county in which one or more of the offenses is alleged to have been committed.256 A defendant, however, may move for a change of venue to a different county on the ground that prejudice in the community against the defendant will deny the defendant a fair trial.257 Such a motion may be made at or before arraignment, or at such other time as provided by the court or the rules of court.258
A change of venue to a different county may be granted, upon motion of the defendant, only if the court is satisfied that there exists in the county where the prosecution is pending a reasonable probability of so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in that county.259 To make such a showing, a defendant must present evidence of highly inflammatory or sensationalized pre-trial publicity sufficient for the court to presume prejudice. Routine informational pre-trial publicity will not give rise to a presumption of prejudice in the venire panel that has been or will be summoned for jury duty.260
In the absence of a showing of inherently prejudicial pre-trial publicity, the defendant must establish actual prejudice through voir dire. Actual prejudice will not be shown by the fact that one or more jurors has some knowledge of the defendant’s case. Instead, the defendant must show that it is impossible to impanel a jury whose members cannot lay aside their impressions or opinions and reach a verdict based on the evidence presented in court.261 In one instance, the trial court exercised its discretion to move a criminal trial from Kent County to Sussex County where the defendant had been indicted for committing similar crimes against the same victim in each county, with the alleged crimes occurring in towns in close proximity to a common border, where, had the crimes all been committed in one county, they could have been joined in a single indictment. The trial court, however, explicitly left open the possibility of having the trial returned to Kent County if the Sussex County court determined such action was in the interests of justice.261.1
The decision to grant or deny a request for a change of venue is within the discretion of the trial court.262
256. Super. Ct. Cr. R. 18; Comm. Pls. Ct. Cr. R. 18; Fam. Ct. Cr. R. 18; J.P. Ct. Cr. R. 14; Ald. & M. Ct. R. 13.
257. Super. Ct. Cr. R. 21; Fam. Ct. Cr. R. 21. Prior to 1977, Article I, § 9 of the Constitution of the State of Delaware provided that a transfer to a different county was not permitted unless the trial court determined that an impartial trial could not be had in the county in which the action was commenced. In 1977, that provision was removed. 60 Del. Laws. C. 519; 61 Del. Laws c. 80 (May 31, 1977). Since then, it has been held that principles related to change of venue in criminal cases should be in accord with prevailing concepts of due process under the Sixth Amendment to the Constitution of the United States. McBride v. State, 477 A.2d 174, 184-86 (Del. 1984).
258. Super. Ct. Cr. R. 22; Fam. Ct. Cr. R. 22.
259. Super. Ct. Cr. R. 21(a); Fam. Ct. Cr. R. 21(a). Dawson v. State, 581 A.2d 1078, 1088 (Del. 1990), vacated on other grounds, 503 U.S. 159 (1992); Riley v. State, 496 A.2d 997, 1014 (Del. 1985), cert. denied, 478 U.S. 1022 (1986).
260. Sykes v. State, 953 A.2d 261, 272 (Del.), cert. denied, 129 S.Ct. 452 (2008); Cooke v. State, 910 A.2d 279, 283 (Del. 2006); Dawson v. State, 581 A.2d 1078, 1088 (Del. 1990), vacated on other grounds, 503 U.S. 159 (1992); Riley v. State, 496 A.2d 997, 1014 (Del. 1985), cert. denied, 478 U.S. 1022 (1986).
261. Dawson v. State, 581 A.2d 1078, 1088-91 (Del. 1990), vacated on other grounds, 503 U.S. 159 (1992); Riley v. State, 496 A.2d 997, 1015 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); State v. Cook, 910 A.2d 279 (Del. Super. 2006).
261.1. State v. Southerland, ID No. 9812008963, Vaughn, J. (Del. Super. Apr. 13, 1999).
262. Dawson v. State, 581 A.2d 1078, 1088 (Del. 1990), vacated on other grounds, 503 U.S. 159 (1992); Riley v. State, 496 A.2d 997, 1015 & n.22 (Del. 1985), cert. denied, 478 U.S. 1022 (1986).
© 2010 David L. Finger