Section 971.22. Change of place of trial.

 

(1)  The defendant may move for a change of the place of trial on the ground that an impartial trial cannot be had in the county. The motion shall be made at arraignment, but it may be made thereafter for cause.

(2)  The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The district attorney may file counter affidavits.

(3)  If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the defendant, if he or she is in custody, shall be held and where the record shall be kept. If the criteria under s. 971.225 (1) (a) to (c) exist, the court may proceed under s. 971.225 (2) .

1981 c. 115 . Relevant factors as to whether a change of venue should have been granted include: 1) the inflammatory nature of publicity concerning the crime; 2) the degree to which adverse publicity permeated the area from which the jury would be drawn; 3) the timing and specificity of the publicity; 4) the degree of care exercised; 5) the amount of difficulty encountered in selecting the jury panel; 6) the extent to which the jurors were familiar with the publicity; 7) the defendants use of challenges available in voir dire 8) the state's participation in adverse publicity; 9) the severity of the offense charged; and 10) the verdict returned. State v. Hebard, 50 Wis. 2d 408 , 184 N.W.2d 156 (1970). While actual prejudice need not be shown, there must be a showing of a reasonable probability of prejudice inherent in the situation. Gibson v. State, 55 Wis. 2d 110 , 197 N.W.2d 813 (1972). The timing, specificity, inflammatory nature, and degree of permeation of publicity is extremely important in determining the likelihood of prejudice in the community. State ex rel. Hussong v. Froelich, 62 Wis. 2d 577 , 215 N.W.2d 390 (1974). When news stories concerning the crime were accurate informational articles of a nature that would not cause prejudice and 4 months had elapsed between the publication of the news stories and the trial, it tended to indicate little or no prejudice against the defendant. Jones v. State, 66 Wis. 2d 105 , 223 N.W.2d 889 (1974). There was no abuse of discretion in not changing the venue of a prosecution for 1st-degree murder when the transcript of the hearing on the issuance of the arrest warrant was sealed, the preliminary examination and other hearings were closed to the public and press, the police and prosecutor refused to divulge any facts to the public and press, and press reports were generally free from the details of incriminating evidence, straightforward, and not incendiary. State v. Dean, 67 Wis. 2d 513 , 227 N.W.2d 712 (1975). Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza, 80 Wis. 2d 122 , 258 N.W.2d 260 (1977). The right to venue where the crime occurred is not a fundamental right of a criminal defendant. The decision to move for a change of venue is a tactical judgment delegated to counsel that does not require the defendant's personal concurrence. State v. Hereford, 224 Wis. 2d 605 , 592 N.W.2d 247 (Ct. App. 1999), 98-1270 .