MISCELLANEOUS MATTERS: Pretrial Publicity: Burdens

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (a challenge for change of venue based on pervasive pretrial publicity is reviewed by an appellate court for an abuse of discretion). 

(servicemembers are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, not pretrial publicity; pretrial publicity by itself is not enough, however, for a change of venue; instead, an accused is entitled to a change of venue if the pretrial publicity creates so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial). 


United States v. Simpson, 58 MJ 368 (the defense may raise the issue of unfair pretrial publicity by demonstrating either presumed prejudice or actual prejudice; to establish presumed prejudice, the defense must show that the pretrial publicity (1) is prejudicial, (2) is inflammatory, and (3) has saturated the community; depending on the circumstances of the case, the potential for prejudice may be ameliorated through measures such as a continuance, change of venue, sequestration, and regulation of public comment by counsel; to establish actual prejudice, the defense must show that members of the court-martial panel had such fixed opinions that they could not judge impartially the guilt of the accused; without such a showing, evidence that the members had knowledge of highly significant information or other incriminating matters is insufficient).

(where appellant failed to show that the community was saturated with inflammatory prejudicial material, where relatively few of the articles directly referred to appellant, and where the members were ordered to avoid media coverage of trainee abuse issues, appellant failed to demonstrate presumed prejudice).

(where the military judge permitted counsel to conduct extensive individual voir dire of the court-martial panel prior to trial on the merits, where the examination of the members revealed that the members had encountered very little information about the trial or related matters, where appellant did not seek a change in venue on the basis of unfair pretrial publicity, and where appellant did not cite unfair pretrial publicity as the basis for challenging any of the members of the court-martial panel, appellant failed to demonstrate that he was the victim of actual unfair pretrial publicity).

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