 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. House2/24/1999
the jury are under an influence inimical to the accused." (emphasis added)); People v. Proctor, 842 P.2d 1100, 1113 (Cal. 1992) (" defendant failed to carry his burden of proving there was a reasonable likelihood that jurors drawn from Shasta County would have formed such fixed opinions as a result of the pretrial publicity that they could not make the required determinations with impartiality." (emphasis added)).
{42} However, when the State moves for a change of venue over the defendant's objections, the nature of the State's burden depends upon whether the venue from which it seeks a change is the constitutional vicinage in which the crime allegedly occurred. The constitutional right to a trial in the "district in which the offense is alleged to have been committed" rests solely with the accused. See N.M. Const. art. II, § 14. The State has no equivalent constitutional right. Thus, when the State, against the defendant's objections, exercises its statutory right under Section 38-3-3 to move the trial from this constitutional vicinage, it must demonstrate why the defendant's constitutional right should be overridden. Under these circumstances the State bears a greater burden of proof than that applicable to other venue motions. Ashley v. State, 72 So. 647, 648 (Fla. 1916) ("Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county."). The State bears a greater burden than mere probability when the vicinage is involved. See Commonwealth v. Reilly, 188 A. 574, 580 (Pa. 1936) (" he prosecution's request for a change [from the constitutional vicinage] should be much more strictly scrutinized than one by the accused; before the court is moved to act, there should be the most imperative grounds."); State v. Manning, 495 S.E.2d 191, 195 (S.C. 1997) (" ecause a defendant's right to be tried in the county where the alleged offense occurred is defeated when the prosecution's request for a change of venue is granted, a court should exercise great care and deliberation when changing venue at the request of the prosecution, and the state's motion and evidence supporting its motion should be strictly scrutinized to ensure the defendant's right is not abused.").
{43} We conclude that, when moving, over the defendant's objections, for a change of venue from the district in which the crime allegedly occurred, the prosecution must prove with clear and convincing evidence that a fair trial in that district is a practical impossibility. Cf. Higginbotham v. State, 101 So. 233, 239 (Fla. 1924) (" ny attempt to deprive the accused of his right to be tried in the county where the crime was committed, except where it is practically impossible to procure an impartial jury, and this practical impracticability is established by an actual test . . . is in violation of the Constitution."); Ashley, 72 So. at 649 (" hen upon a counter showing it does not clearly and affirmatively appear that an impartial jury to try the accused cannot be obtained in the county where the crime is alleged to have been committed, the application to change the venue should be denied.").
" lear and convincing evidence is something stronger than a mere "preponderance" and yet something less than "beyond a reasonable doubt." For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|