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State v. Biegenwald3/5/1987
ster the jury or to order a change of venue, or to require a foreign jury. Moreover, its short continuance of the trial and its imposition of a gag order after several months of adverse publicity were ineffective and did not prevent the resumption of adverse publicity. We turn then to the question whether the voir dire examination was itself sufficient to overcome the severe prejudice generated by the adverse pretrial and trial publicity.
Our own appellate role must be understood. This Court has recognized the need for the independent and scrupulous evaluation of the voir dire examination by the appellate court to resolve the claims raised by adverse pretrial publicity. See State v. Van Duyne, 43 N.J. 369, 386 (1964). In Sheppard v. Maxwell, supra, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, the Supreme Court has also considered the standard of appellate review where defendant complains that the community from which the jury was drawn was so tainted by publicity that due process and the sixth amendment were transgressed. The reviewing court must, in that situation, make an independent evaluation of the facts and circumstances regarding publicity and of the jury voir dire examination to determine whether the publicity was so pervasive and prejudicial or the jurors' professions of impartiality sufficiently doubtful that a new trial is required.
A corollary of this Court's ruling in State v. Williams, supra, is that if a defendant makes a showing of a realistic likelihood of prejudice from adverse publicity, he should be entitled to a change of venue. For that reason, we also considered in Williams the burden of proof necessary in order to secure a change of venue. In adopting the new standard of the "realistic likelihood" of jury taint, we specifically overruled the former test for a change of venue announced in State v. Wise, 19 N.J. 59, 73 (1955). That was "whether an impartial jury could be obtained from among the citizens of the county or
whether they are so aroused that they would not be qualified to sit as a jury to try the case." The operative standard now governing judicial review of a trial court determination that a defendant's right to an impartial jury was not violated and a change of venue was not required is the substantive test of Williams and the procedural test of Van Duyne. Our standard in this kind of case is the Van Duyne requirement of an independent appellate evaluation of the record, applying the Williams "realistic likelihood" test for determining whether the jury right has been violated and a change of venue is required.
In my opinion, an independent evaluation of the facts relating to the nature and extent of the adverse pretrial publicity makes it abundantly clear that there was a realistic likelihood that defendant could not receive a trial by a fair and impartial jury, and that, in the face of this adverse publicity, the voir dire efforts of the trial court were ineffective to neutralize the effects of the resultant prejudice. Thus, it is reversible error for the trial court not to have granted a change of venue.
In denying defendant's motion for a change of venue, the trial court obviously believed that the voir dire could be an effective antidote to the prejudicial publicity. The court relied simply on its own experience that every prospective juror would not have read every article or would forget what he or she read by the time the trial began. However, the prejudicial impact of adverse publicity on the jury became immediately evident. Both prospective and final jurors had become familiar with the case through the publicity, learning o
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