High-profile military prosecutions sometimes generate intense media coverage long before the panel is ever seated. When that happens, the accused may argue that the publicity has so poisoned the potential pool of members that a fair trial is impossible at the original location. The legal question is what level of pretrial publicity actually justifies moving the trial, and the answer is more demanding than many people expect. Mere notoriety is not enough.
A Note on the Governing Rule
It is worth being precise about where this remedy lives in the Rules for Courts-Martial. The change of place of trial, often called a change of venue, is addressed under Rule for Courts-Martial 906(b)(11), which lists it among the motions for appropriate relief that the defense may raise before trial. Rule for Courts-Martial 911, by contrast, governs assembly of the court-martial, the point at which the members are formally brought together and after which substitution of members and the military judge generally requires good cause. A motion to change the place of trial because of prejudicial pretrial publicity is properly framed under the appropriate-relief provision at Rule for Courts-Martial 906(b)(11), and it is ordinarily litigated well before assembly. Understanding this distinction helps ensure the motion is raised under the correct rule and at the right time.
The Constitutional Foundation
The right being protected is the constitutional guarantee of an impartial trial. In the civilian context, the Supreme Court in Sheppard v. Maxwell held that publicity that is massive and pervasive can inherently prejudice a defendant’s right to a fair trial, and that when a trial is saturated by such coverage, the trial judge should take protective measures, including postponing the proceedings or transferring them to another venue. This principle carries into the military system, where the same fairness concerns apply to the selection of an impartial panel.
But the Supreme Court has also been clear that publicity alone does not automatically equal prejudice. In Skilling v. United States, the Court emphasized that prominence does not necessarily produce prejudice, and that jurors need not be totally ignorant of the facts and issues involved. The relevant question is not whether potential members have heard about the case, but whether they can set aside what they have heard and decide the case on the evidence presented in the courtroom.
What Does Not Qualify
Several things that defendants often cite do not, by themselves, justify a change of venue. General awareness of a case in the community is insufficient. The fact that the case has been reported, even widely, does not establish prejudice. Accurate, factual news coverage, however extensive, is treated differently from inflammatory or sensational material. And the mere possibility that some potential members may have formed preliminary impressions does not require relocation, because the law assumes that careful jury selection can identify and remove those who cannot be impartial.
In short, notoriety is not the test. If it were, no widely reported case could ever be tried where it occurred.
What Does Qualify
The publicity sufficient to warrant a change of venue is publicity that is so pervasive and prejudicial that an impartial panel cannot realistically be seated at the original location. Drawing on the constitutional standards, the kind of coverage that supports relief tends to share several features. It is inflammatory rather than merely factual, presenting the accused in a sensational or one-sided light. It is pervasive, saturating the local community rather than appearing in scattered reports. And it is likely to produce actual bias in the pool from which members will be drawn, rather than merely informing the public that a trial is occurring.
The defense generally must show more than that coverage existed. It must demonstrate that the coverage was of a nature and volume likely to prevent the seating of members who can decide the case solely on the evidence. Where coverage has disclosed prejudicial material such as a confession, prior misconduct, or other matters a panel should not consider, and where that material has been broadly disseminated, the case for relief is stronger.
The Role of Voir Dire and Other Alternatives
A central reason courts rarely grant a change of venue is that other remedies usually address the problem first. The most important of these is voir dire, the questioning of prospective members about what they have heard and whether they can remain impartial. A thorough voir dire allows the military judge to identify members who have been exposed to prejudicial coverage and to excuse those who cannot set it aside.
Other tools include a continuance to let the effects of publicity fade over time and instructions directing members to decide the case only on the evidence presented. Because these measures can frequently cure the risk that publicity poses, a military judge will typically consider them before concluding that the only adequate remedy is to move the trial. A change of venue tends to be reserved for the situation in which these lesser measures cannot ensure an impartial panel.
How a Military Judge Evaluates the Motion
When the defense moves for a change of place of trial based on pretrial publicity, the military judge weighs the nature, extent, and timing of the coverage; whether it was factual or inflammatory; how broadly it reached the community from which members will come; and whether voir dire and other safeguards can produce an impartial panel despite the publicity. The defense bears the burden of persuading the judge that, given all of this, a fair trial cannot be had at the current location. The decision is committed to the military judge’s discretion and is made on the specific record of each case.
The Bottom Line
Pretrial publicity warrants a change of venue only when it is so pervasive and prejudicial that an impartial panel cannot be seated at the original location, and when lesser remedies such as thorough voir dire and a continuance cannot cure the resulting risk. General awareness, accurate reporting, and even substantial media attention do not meet that bar. The accused must show inflammatory, saturating coverage likely to produce actual bias, and must overcome the system’s strong preference for solving publicity problems through careful member selection rather than relocation. The motion is properly brought as a request for appropriate relief under Rule for Courts-Martial 906(b)(11) and decided in the sound discretion of the military judge.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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