Motion for Change of Venue - Montana

TABLE OF CONTENTS

1. Caption
2. Motion for Change of Venue
3. Statement of Facts
4. Grounds for Change of Venue
   - A. Pretrial Publicity
   - B. Community Prejudice
   - C. Convenience of Parties and Witnesses
   - D. Safety Concerns
5. Constitutional Basis
6. Statutory Authority
7. Factors for Court Consideration
8. Proposed Alternative Venue
9. Supporting Affidavits and Evidence
10. Conclusion and Prayer for Relief
11. Proposed Order
12. Certificate of Service

IN THE DISTRICT COURT OF THE [____] JUDICIAL DISTRICT

OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF [________________]

MOTION FOR CHANGE OF VENUE

COMES NOW the Defendant, [DEFENDANT FULL LEGAL NAME], by and through [his/her/their] attorney, [DEFENSE ATTORNEY NAME], of [LAW FIRM NAME], and respectfully moves this Honorable Court for an Order changing the venue of the above-captioned matter from [________________] County to another county within the State of Montana, pursuant to Mont. Code Ann. § 46-13-203.

In support of this Motion, Defendant states as follows:

I. STATEMENT OF FACTS

1. The Defendant is charged with [CHARGES AND STATUTORY CITATIONS] by [Information/Indictment] filed on [__/__/____].

2. The alleged offense(s) occurred on or about [__/__/____] in [________________] County, Montana.

3. The case is currently set for trial on [__/__/____] before the Honorable Judge [________________].

4.

[________________________________]
[________________________________]
[________________________________]

II. GROUNDS FOR CHANGE OF VENUE

A. Pretrial Publicity

5. The above-captioned matter has received extensive and prejudicial pretrial publicity in [________________] County, including but not limited to:

☐ Television news coverage on [STATION(S)] on the following dates: [________________________________]

☐ Newspaper articles published in [PUBLICATION(S)] on the following dates: [________________________________]

☐ Radio broadcasts on [STATION(S)] on the following dates: [________________________________]

☐ Online media coverage and social media discussion, including: [________________________________]

☐ Other forms of publicity: [________________________________]

6. The nature and extent of such publicity has been [inflammatory/prejudicial/pervasive] and has included .

[________________________________]

7. Due to the population of [________________] County (approximately [____] residents), the saturation of pretrial publicity is particularly acute, making it virtually impossible to empanel an impartial jury.

B. Community Prejudice

8. In addition to pretrial publicity, the community of [________________] County harbors such prejudice against the Defendant that a fair trial cannot be had, as demonstrated by:

☐ Public statements made by community leaders or officials: [________________________________]

☐ Organized community actions against the Defendant: [________________________________]

☐ Social media campaigns or petitions: [________________________________]

☐ The nature of the alleged victim's standing in the community: [________________________________]

☐ Other demonstrations of community prejudice: [________________________________]

C. Convenience of Parties and Witnesses

9. A change of venue would serve the convenience of the parties and witnesses and promote the interests of justice because:

☐ The majority of defense witnesses reside in [________________] County.

☐ Key evidence is located in [________________] County.

☐ Travel to the current venue imposes an undue burden on: [________________________________]

☐ Other convenience factors: [________________________________]

D. Safety Concerns

10. A change of venue is necessary to ensure the safety and security of the Defendant, counsel, witnesses, jurors, and/or court personnel because:

☐ Threats have been made against the Defendant: [________________________________]

☐ Threats have been made against defense counsel or witnesses: [________________________________]

☐ Public demonstrations or protests have occurred at or near the courthouse: [________________________________]

☐ Law enforcement has expressed security concerns: [________________________________]

III. CONSTITUTIONAL BASIS

11. The Sixth Amendment to the United States Constitution guarantees the Defendant the right to a trial "by an impartial jury of the State and district wherein the crime shall have been committed."

12. The Fourteenth Amendment to the United States Constitution guarantees the Defendant the right to due process of law, which includes the right to a fair trial before an impartial jury.

13. Article II, Section 24 of the Montana Constitution provides that "[i]n all criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury."

14. The United States Supreme Court has recognized that when pretrial publicity or community prejudice is so pervasive as to render a fair trial impossible, a change of venue is constitutionally required. Sheppard v. Maxwell, 384 U.S. 333 (1966); Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana, 373 U.S. 723 (1963).

IV. STATUTORY AUTHORITY

15. Mont. Code Ann. § 46-13-203(1) provides that the defendant or the prosecution may move for a change of place of trial on the ground that there exists in the county in which the charge is pending "such prejudice that a fair trial cannot be had in the county."

16. Under Mont. Code Ann. § 46-13-203(2), if the district court determines that such prejudice exists, the court shall do one of three things — and a transfer of the cause is only the first of them: (a) transfer the cause to any other county in which a fair trial may be had; (b) direct that a jury be selected in any county where a fair trial may be had and then returned to the county where the prosecution is pending to try the case; or (c) take any other action designed to ensure that a fair trial may be had. Defendant respectfully submits that [SPECIFY WHICH REMEDY AND WHY].

17. If a change of place of trial is ordered and the case is later retried, Mont. Code Ann. § 46-13-205 requires that the cause be returned to the county in which the charge was originally properly filed for further proceedings.

18. Venue is a constitutional right that may be waived by the defendant, but when the defendant affirmatively seeks a change of venue due to prejudice, the court must evaluate the merits of the request. State v. Kills on Top, 241 Mont. 378, 787 P.2d 336 (1990).

V. FACTORS FOR COURT CONSIDERATION

19. Montana courts consider the following factors in evaluating a motion for change of venue:

☐ The nature and extent of pretrial publicity
☐ Whether the publicity is inflammatory or merely factual
☐ The size of the community and the likelihood that jurors have been exposed to the publicity
☐ The length of time between the publicity and the trial
☐ The degree of difficulty in empaneling a jury during voir dire
☐ The severity and notoriety of the charged offense(s)
☐ Whether the publicity contains information not admissible at trial
☐ Whether public officials have made statements implying guilt

20. Application of these factors to the present case demonstrates: [________________________________]

VI. PROPOSED ALTERNATIVE VENUE

21. The Defendant respectfully proposes that this matter be transferred to [________________] County, [____] Judicial District, Montana.

22. The proposed venue is appropriate because:

☐ It is sufficiently distant from [________________] County to minimize the impact of pretrial publicity.
☐ The proposed county has not experienced the same degree of media coverage or community prejudice.
☐ The proposed county has adequate courtroom facilities and resources.
☐ The proposed county is reasonably accessible to the parties, witnesses, and counsel.
☐ Transfer to this venue would serve the interests of justice.

23. In the alternative, the Defendant requests that the Court select an appropriate venue that is free from the prejudice described herein.

VII. SUPPORTING AFFIDAVITS AND EVIDENCE

24. In support of this Motion, the Defendant submits the following:

☐ Exhibit A: Affidavit of [DEFENDANT / DEFENSE COUNSEL] regarding grounds for change of venue
☐ Exhibit B: Copies of media articles and news reports concerning this case
☐ Exhibit C: Screenshots or printouts of social media posts and online commentary
☐ Exhibit D: Affidavit(s) of community members regarding local sentiment
☐ Exhibit E: Survey or poll results regarding community awareness and prejudice (if available)
☐ Exhibit F: Documentation of threats or safety concerns
☐ Exhibit G: [OTHER SUPPORTING DOCUMENTATION]

VIII. CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, the Defendant respectfully requests that this Honorable Court:

1. Grant this Motion for Change of Venue;
2. Transfer the above-captioned matter to [________________] County, Montana, or such other county as the Court deems appropriate;
3. Order such further relief as the Court deems just and proper.

Respectfully submitted this [__/__/____].

[LAW FIRM NAME]

_________________________________________
[DEFENSE ATTORNEY NAME]
Attorney for Defendant
[BAR NUMBER]
[ADDRESS LINE 1]
[ADDRESS LINE 2]
[CITY], Montana [ZIP CODE]
Telephone: [________________]
Facsimile: [________________]
Email: [________________]

PROPOSED ORDER

IN THE DISTRICT COURT OF THE [____] JUDICIAL DISTRICT
OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF [________________]

Upon consideration of the Defendant's Motion for Change of Venue, and the Court being fully advised in the premises:

IT IS HEREBY ORDERED that the Defendant's Motion for Change of Venue is GRANTED.

IT IS FURTHER ORDERED that this matter is transferred to the District Court of the [____] Judicial District of the State of Montana, in and for the County of [________________], for all further proceedings.

IT IS FURTHER ORDERED that the Clerk of this Court shall transmit certified copies of all papers and proceedings in this case to the Clerk of the receiving court.

DATED this [__/__/____].

_________________________________________
Honorable [________________]
District Court Judge

CERTIFICATE OF SERVICE

I hereby certify that on the [__/__/____], I served a true and correct copy of the foregoing MOTION FOR CHANGE OF VENUE and all attached exhibits upon the following by the method indicated:

☐ Hand Delivery
☐ U.S. Mail, postage prepaid
☐ Electronic Filing/Service
☐ Facsimile

[PROSECUTOR NAME]
[COUNTY] County Attorney's Office
[ADDRESS LINE 1]
[CITY], Montana [ZIP CODE]
Telephone: [________________]
Email: [________________]

_________________________________________
[DEFENSE ATTORNEY NAME]

MONTANA STATE PRACTICE NOTES

• Timing: Mont. Code Ann. § 46-13-110(1) requires the court to hold an omnibus hearing within a reasonable time after a not guilty plea but not less than 30 days before trial, and § 46-13-110(3)(j) expressly lists "motion for change of place of trial, 46-13-203 through 46-13-205" among the pretrial matters the parties must be prepared to discuss there. Raise the motion at or before the omnibus hearing; confirm the current waiver consequences and any local scheduling order before relying on a particular deadline.
• Burden of Proof: The defendant bears the burden of demonstrating that prejudice in the community is so pervasive that a fair trial cannot be had. State v. Kills on Top, 241 Mont. 378 (1990).
• Venue vs. Jurisdiction: The Montana Supreme Court has clarified that venue is not a jurisdictional element and may be waived, but jurisdiction may not. State v. Stegall, 2018 MT 254.
• Transfer Procedures: When venue is changed, the case is transferred to a court mutually agreeable to the parties or, if they cannot agree, to the nearest appropriate court willing to accept the case.
• One Change Only: Generally, a defendant is entitled to one change of venue, absent new circumstances arising after the first change.
• Costs: Costs associated with the change of venue are typically borne by the county from which the case is transferred.