VENUEVENUEVENUEVENUEVENUE
I. GENERAL PRINCIPLES
Generally, an offense must be prosecuted in the
county in which it was committed. See R. 3:14-1 for rule
and exceptions. Venue is not a jurisdictional matter and
the improper laying of venue is not of constitutional
dimension, but rather is a defect in the institution of
proceedings which must be raised by pretrial motion or
may be deemed to have been waived. State v. DiPaolo, 34
N.J. 279 (1961), cert. denied 368 U.S. 880 (1961); State
v. Greco, 29 N.J. 94, 103-105 (1959); State v. Zicarelli,
122 N.J. Super. 225, 233-234 (App. Div. 1973), certif.
denied 63 N.J. 252 (1973), cert. denied 414 U.S. 875
(1973); State v. Schultheis, 113 N.J. Super. 11, 19 (App.
Div. 1971), certif. denied 58 N.J. 390 (1971); State v.
Seaman, 114 N.J. Super. 19, 32 (App. Div. 1971), certif.
denied 58 N.J. 594 (1971), cert. denied 404 U.S. 115
(1972). See also N.J.S.A. 2C:1-14h,e (“elements of an
offense” defined, in relevant part, as a result of conduct
that [e]stablishes jurisdiction or venue).
II. MOTIONS FOR CHANGE OF VENUE
A motion for change of venue may be made only by
a defendant. R. 3:14-2. In a non-capital case, such
motions are governed by the standard set forth in State v.
Wise, 19 N.J. 59, 73 (1955). The test is 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. To
merit a change of venue the evidence submitted must be
“clear and convincing proof that a fair and impartial trial
cannot be had before a jury of the county in which the
indictment was found.” Id. at 73-74.
In a capital case, the standard under Wise, supra, is
not controlling. In State v. Biegenwald, 106 N.J. 13
(1987), the Supreme Court articulated that a change of
venue will be granted when it is necessary to overcome the
realistic likelihood of prejudice from pretrial publicity.
To assist trial courts in the determination of whether a
realistic likelihood or prejudice exists in particular cases,
the court adopted the federal court distinction between
cases in which the trial atmosphere is so corrupted by
publicity, while extensive, is not as intrusive, thereby
making the determinative issue the actual effect of the
publicity on the impartiality of the jury panel. See also
State v. Bey (I), 96 N.J. 625, 630 (1984); State v. Williams
(I), 93 N.J. 39, 67-68 n.13 (1988). “When there is a
reasonable likelihood that the trial of a capital case will be
surrounded by presumptively prejudicial media
publicity, the court should transfer the case to another
county. State v. Harris, 156 N.J. 122, 133 (1998).Generally, where there is a realistic likelihood that
the jury would be subjected to adverse trial publicity, an
acceptable alternative to a change of venue is the
impanelment of foreign jurors. State v. Williams, 93 N.J.
39, 67 n. 13 (1983). In a capital prosecution, however,
a court should change the venue rather than empanel a
foreign jury “when there is a realistic likelihood that
presumptively prejudicial publicity will continue during
the conduct of a trial.” State v. Harris, 156 N.J. at 146-
147.In determining whether to grant a motion for change
of venue, a trial court should analyze the publicity in
accordance with the five factors articulated in State v.
Koedatich, 112 N.J. 225, 271 (1988): 1) the nature and
extent of the news coverage; 2) the nature and gravity of
the offense; 3) the size of the community; 4) the
respective standing of the deceased and the accused; 5)
presence of any community hostility. Accord, State v.
Timmendequas, 161 N.J. 515, 551-552 (1999); State v.
Koedatich, supra, 112 N.J. at 282 (1988).In selecting the source from which to draw a foreign
jury, if the trial court exercises this option, the trial court
should consider racial demographics together with other
relevant factors including, but not limited to: the nature
and extent of pretrial publicity; the relative burdens of
courts in changing source of jury; the hardship to jurors
in traveling from home county to site of trial; and the
burden on the court in transporting jurors. State v.
Harris, 282 N.J. Super. 409 (App. Div. 1995). Racial
demographics should be a particularly weighty factor in
selecting the source of a foreign jury when the victim and
defendant belong to different races. Id. at 419-420.Another factor in the change of venue analysis is the
interplay with the Victim’s Rights Amendment. See State
v. Timmendequas, 161 N.J. at 554-556 (the burden to a
murder victim’s parents from a change of venue justified
decision not to change venue, but to empanel a foreign
jury).III. STATE GRAND JURY MATTERS
An indictment by a State grand jury is returned to the
assignment judge designated by the Chief Justice to
impanel the grand jury without designation of venue.
The assignment judge thereupon designates the county
of venue for purpose of trial. N.J.S.A. 2B:22-7,
superceding N.J.S.A. 2A:73A-8; see R. 3:6-11.