Motion for Change of Venue

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 [________________] COUNTY, NEBRASKA

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 Nebraska, pursuant to Neb. Rev. Stat. § 29-1301 et seq.

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, Nebraska.

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

[________________________________]
[________________________________]
[________________________________]

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 severe, 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 and impartial trial cannot be had therein, 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 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 I, Section 11 of the Nebraska Constitution guarantees that "[t]he right of trial by jury shall remain inviolate."

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).

IV. STATUTORY AUTHORITY

15. Neb. Rev. Stat. § 29-1301 provides: "All criminal cases shall be tried in the county where the offense was committed ... unless it shall appear to the court by affidavits that a fair and impartial trial cannot be had therein. In such case the court, upon motion of the defendant, shall transfer the proceeding to any other district or county in the state as determined by the court."

16. Neb. Rev. Stat. § 29-1302 provides that all costs, fees, charges, and expenses accruing from a change of venue, together with all costs incurred in the trial, shall be paid by the county in which the indictment was found or information filed.

17. The Nebraska Supreme Court has held that a motion to change venue is addressed to the discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Galindo, 278 Neb. 599 (2009).

V. FACTORS FOR COURT CONSIDERATION

18. Nebraska courts consider the following factors in evaluating a motion for change of venue:

☐ The nature of the publicity
☐ The degree to which the publicity has circulated throughout the community
☐ The degree to which the venue could be changed to ameliorate the problem
☐ The length of time between the dissemination of the publicity and the date of trial
☐ The care exercised and ease encountered in jury selection
☐ The number of challenges exercised during voir dire
☐ The severity of the offense(s) charged
☐ The size of the area from which the venire was drawn

See State v. Galindo, 278 Neb. 599 (2009); State v. Ryan, 233 Neb. 74 (1989).

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

VI. PROPOSED ALTERNATIVE VENUE

20. The Defendant respectfully proposes that this matter be transferred to [________________] County, Nebraska.

21. 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.

22. In the alternative, the Defendant requests that the Court select any other district or county in the state that is free from the prejudice described herein, as authorized by Neb. Rev. Stat. § 29-1301.

VII. SUPPORTING AFFIDAVITS AND EVIDENCE

23. 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, Nebraska, 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
Nebraska Bar No.: [________________]
[ADDRESS LINE 1]
[ADDRESS LINE 2]
[CITY], Nebraska [ZIP CODE]
Telephone: [________________]
Facsimile: [________________]
Email: [________________]

PROPOSED ORDER

IN THE DISTRICT COURT OF [________________] COUNTY, NEBRASKA

Upon consideration of the Defendant's Motion for Change of Venue, the supporting affidavits and evidence, 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 [________________] County, Nebraska, for all further proceedings.

IT IS FURTHER ORDERED that the Clerk of this Court shall make a certified transcript of all proceedings and transmit the same, together with all original papers, to the Clerk of the receiving court.

IT IS FURTHER ORDERED that all costs, fees, charges, and expenses accruing from this change of venue shall be paid by [________________] County, pursuant to Neb. Rev. Stat. § 29-1302.

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], Nebraska [ZIP CODE]
Telephone: [________________]
Email: [________________]

_________________________________________
[DEFENSE ATTORNEY NAME]

NEBRASKA STATE PRACTICE NOTES

• Burden of Proof: The defendant must demonstrate by affidavit that local conditions and pretrial publicity make it impossible to secure a fair trial. State v. Galindo, 278 Neb. 599 (2009).
• Standard of Review: The trial court's ruling on a change of venue motion is reviewed for abuse of discretion.
• Mere Exposure Insufficient: Mere jury exposure to news accounts does not presumptively deprive a defendant of due process; the publicity must be pervasive and misleading.
• Presumption of Prejudice: In rare cases of extraordinarily inflammatory publicity, prejudice may be presumed without a showing of actual juror bias.
• Cost Allocation: All costs from the change of venue are borne by the county where the indictment was found or information filed. Neb. Rev. Stat. § 29-1302.
• Inadequate Facilities: In counties with populations of 4,000 or fewer inhabitants lacking adequate jury trial facilities, cases may be transferred to an adjoining county. Neb. Rev. Stat. § 25-412.01.
• Court Discretion: The court determines the county of transfer; the defendant's proposed venue is a recommendation, not binding.