Where Should Defendants Stand Trial for Harming Massive Numbers of Victims?

Technological and social changes over the past century have made it easier for people hurt each other, whether it is physically, economically, or emotionally.  As a result, a new kind of crime has emerged.

Most crimes harm just a few victims – a theft from a single business, the murder of one or two people, etc.  In today’s interconnected world, however, prosecutors also occasionally charge crimes that involve hundreds, or even thousands, of victims.

The most obvious example are mass casualty attacks, which seem to be a growing phenomenon due to communications advances and global instability.  In the business world, too, increasing economic integration means that high-level financial fraud and workplace-safety violations can harm huge numbers of investors or employees.  Even one-on-one criminal offenses may take on a social dimension when they are filmed, shared, and discussed over the internet.

This phenomenon of “mass victimization” poses several problems for the criminal law.  One particular challenge is deciding who has the right to determine the location of the trial: the individual defendant, or the victimized community?

So far, courts seem to have come down on the side of the community.  But this approach also risks violating the defendant’s constitutional right to an impartial jury.

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to a trial “by an impartial jury of the State and district wherein the crime shall have been committed.”

This is the right to “venue,” sometimes called “vicinage.”  The Sixth Amendment assigns this right to the “accused” – it prevents the government from prosecuting the defendant in an inconvenient or unfavorable location.  The right to venue was added to the Constitution as a response to the British practice of taking rebel sympathizers from America and prosecuting them in unfriendly and far-off English courts.

In a case of mass victimization, however, the defendant’s interests may change.  If a large numbers of victims live in the “State and district” where the crime occurred, then it might be difficult for the defendant to find unbiased jurors in that venue who weren’t affected by the crime and haven’t viewed the resulting media coverage.  As a result, the defendant will have a strong interest in moving the case far away, to a different location.  This is called a motion to transfer venue.

The issue of transferring venue has arisen in several recent instances of mass victimization.  In each case, the court denied the defendant’s request to move the trial.  To name just a few:

The Boston Bomber asked to transfer his case to D.C., arguing that everybody in Boston was a victim of the attack and he could not receive a fair trial there.  The court said no.

The CEO of Enron similarly asked to move his trial out of Dallas, where the company had been headquartered.  He appealed his case all the way to the Supreme Court, which also said no.

The police officers involved in Freddy Gray’s death tried to get their cases moved out of Baltimore, once again, to no avail.

There are multiple additional examples, which also generally feature losing defendants.

Given this losing streak, it seems there is a strong sense among judges (implicit if not explicit), that in cases of mass victimization, it is important to hold the trial in the community where the crime occurred, since so many there suffered from it.  Indeed, some scholars have even argued that the public of each district has a constitutional right to participate in the trials of crimes that occur there.

Yet this argument is hard to square with the Sixth Amendment’s equally clear requirement that the defendant receive an “impartial” jury.   The more victims of a crime in a certain community, the more likely it is that community members will be biased against the defendant, based on their familiarity with the victims, their exposure to negative press coverage, and the social pressure to convict.  When a community feels a connection to the crime, therefore, the community can’t be trusted to remain impartial in trying it.

Cases of mass victimization are obviously difficult and emotional, given that they involve harm on a large scale.  But our law requires us to protect individual rights, even in unpopular cases.   When a defendant is accused of harming an entire community, judges must be ready to ensure a fair trial by moving the case to a different venue.