Should Engrained Community Discrimination Constitute a Change of Venue?

June 21, 2021 Don Pumphrey, Jr. Criminal Defense Social Share

Notoriously engrained discriminatory beliefs congregated in a certain area or region can create problems in terms of juror impartiality. Impartiality is the quality of not being biased or prejudiced.[1] The Supreme Court has recognized these problems in the last fifty years, issuing rulings acknowledging that “local prejudice can be so incompatible with a defendant’s right to an impartial jury that a trial in that community violates due process and may require a change of venue.”[2]

The Prejudice Standard 

The leading test for determining if a change of venue should be granted is “whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possible put these matters out of their minds and try the case solely on the evidence presented in the courtroom.”[3] This test has most often been applied to cases where pre-trial media coverage has garnished outward hostility and apparent prejudice to a defendant. This threshold doesn’t seem difficult to meet given that media coverage of criminal trials has increased exponentially the last decade, ultimately pushing narratives on television and the internet that seem impossible to ignore. Yet, successful venue changes under this standard have become a rarity as they require a court to find that the pre-trial publicity contained false or inflammatory stories, often to a very extreme level. This can be seen in Foster, where the court found that a published column referencing the appellant as a “redneck, racist, gun-crazed punk” did not reach such an inflammatory level to warrant a change of venue.[4]

What is even more rare is a court recognizing that generationally engrained discriminatory beliefs and bias in certain areas, not pre-trial publicity, are valid reasons for change of venue. Few court cases have touched on this topic, however, Kilgore comes close.[5] The appellant, a gay African American man, alleged that a change of venue was required because the jury pool was homophobic and racist.[6] Specifically, he argued that “the trial counsel failed to (1) request individual voir dire on the issues of homosexuality or race; (2) effectively inquire into issues of bias concerning homosexuality or race; (3) elicit meaningful responses indicative of prejudice and (4) request additional peremptory challenges.”[7] To support these claims, he provided statements “from eight of the twelve selected jurors that [were] indicative of anti-homosexual sentiment.”[8] The court denied relief on all claims, stating that it wasn’t necessary to ask the jurors specific questions regarding their views on race or homosexuality.[9] Ultimately, Kilgore exemplifies that even when there is substantial proof of community bias that could substantially impact the impartiality of a jury, the level of prejudice required for a change of venue is high.

How to Prevent Engrained Discrimination from Obstructing Justice

There is no simple answer when it comes to the question of how we can prevent engrained community bias and discrimination from infecting jury panels. Those who do not believe such regions exist or that they can impact the impartiality of jurors will argue that creating distinct rules outlining what does and does not constitute engrained community bias will create a slippery slope, ultimately letting any defendant who thinks the jury will find them guilty to argue that they are being prejudiced due to underlying discrimination. This may be true, however,

trial courts must prioritize observing the general atmosphere in a community and determining whether or not it is sufficiently inflammatory against a defendant before impaneling a jury. To do so, “public opinion polls, pre-trial community surveys, focus groups, mock trials, as well as affidavits of members of the community, may all be of evidentiary value.”[10] Although these measures may not be completely accurate, they are a step in the right direction when it comes to recognizing that imbedded community discrimination can pose a real threat to court rulings and working to prevent such threats to justice.

How Can We Help?

Engrained community discrimination is a serious issue that requires an educated and trusted criminal defense attorney who can recognize the signs of a tainted jury pool. If you believe an impartial jury formed the basis of your conviction, call a Tallahassee criminal defense lawyer as soon as possible to explore your options. Don Pumphrey and the members of the legal team at Pumphrey Law Firm are well versed in this area of law and will be adamant in fighting for your constitutional right to an impartial jury. Call a defense attorney today at (850) 681-7777or send an online message to discuss your options during an open and free consultation with an attorney in our legal team.

This article was written by Sarah Kamide

[1] Impartiality, Dictionary.com (2021)

[2] Jordan Gross. If Skilling Can’t Get a Change of Venue, Who Can? Salvaging Common Law Implied Bias Principles from the Wreckage of the Constitutional Pretrial Publicity Standard, 85 Temp. L. Rev. 575 (2013),

[3] McCaskill v. State, 344 So. 2d 27, 28 (Fla. 2d DCA 1968).

[4] Foster v. State, 778 So. 2d. 906 (Fla. 2000).

[5] Kilgore v. State, 55 So. 3d 487 (Fla. 2010).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Gross, supra.

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