Has Social Media Destroyed a Federal Rule? The False Promise of Transfer to Cure Prejudice in the Social Media Era

Under Federal Rule of Criminal Procedure 21(a), criminal defendants can move to have their case transferred out of the local district if local prejudice is so high that impartial jurors cannot be found. Scholars and some courts have been quite fond of transfer for prejudice under Rule 21(a), especially in cases of extreme local prejudice. Courts have continued to grant transfer motions in these cases. And scholars have largely defended these grants of transfer, arguing that transfer is the best way to guarantee a fair trial when local prejudice is high. This Note challenges this traditional thinking and advocates for a counterintuitive way to guarantee the defendant a fair trial: Eliminate transfer for prejudice under Rule 21(a) altogether. To make this argument, this Note first argues that the Rule s main benefit to defendants, as identified by courts and scholars, is that it allows defendants to move a trial to a less-prejudiced jury pool when local prejudice is high. But this benefit has been stripped away by social media. Social media has made it so transferable cases under the current doctrine will always have national coverage, thus making any transfer pointless at eliminating prejudice because all districts will be equally prejudiced. At the same time, social media has exacerbated some of the harms of the Rule by making a prejudicial transfer-a transfer that harms the defendant-likely. This harm, along with other harms outlined in this Note, shows how leaving the Rule in place actually threatens a defendants right to a fair trial, and therefore, elimination of the Rule will better protect a defendant s right to a fair trial.