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71 Baylor L. Rev. 421 (2019)
Social Media, Venue, and the Right to a Fair Trial

handle is hein.journals/baylr71 and id is 443 raw text is: 


                        Leslie Y. Garfield Tenzer*

   Judicial failure to recognize social media's. influence on juror decision
making  has identifiable constitutional implications. The Sixth Amendment
right to a fair trial demands that courts grant a defendant's change of venue
motion  when   media-generated  pretrial publicity invades  the  unbiased
sensibility of those who are asked to sit in judgment. Courts limit publicity
suitable for granting  a defendant's  motion  to information  culled from
newspapers,  radio, and  television reports. Since about 2014, however, a
handful of defendants have  introduced social media posts to support their
claims  of unconstitutional bias  in the community.  Despite  defendants'
introduction of negative social media in support of their claims, these same
courts  have yet to include  social media  in their evaluation of pretrial
publicity bias. But social media is media, and as this article demonstrates,
trial court judges faced with  deciding change  of venue  motions  have  a
constitutional obligation to include social media in their evaluations.
    The collective refusal to treat social media the same as biased television,
radio, or print media, suggests an erroneous assumption on the part of lower
courts that social media is somehow  different. This article identifies three
reasons  as justification for dismissing social media: social media is too
recent a  medium  to fully understand and  analyze, social media  is not a
legitimate news source, and  social media is opinion based. Application of
pretrial social media publicity to long-standing Supreme Court  change  of
venue  doctrine, coupled with its exploration ofscientific and social research
on social media influence, debunk these lower court rationalizations.
    This article demonstrates that the reluctance of courts to consider social
media  evidence when  deciding whether  to grant a motion for a change  of
venue  is a violation of any defendant's Sixth Amendment right to a fair trial.
On  a larger scale, the article demands that courts embrace our new reality.

    'Professor of Law, Elisabeth Haub School of Law at Pace University. I gratefully acknowledge
the thoughtful advice and keen insights of participants of the Elisabeth Haub School of Law Faculty
Colloquium Series. I would especially like to thank Professor Wendy Tenzer for her attention to
this piece, and Richard Montalvo for his outstanding research assistance.

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