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Call for tougher juror bias test in Bain murder retrial
– Sunday, 01 March 2009
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HIGH PROFILE: The retrial of David Bain has sparked a call for tougher testing for bias among jurors.
A top law professor has called for tougher testing of jurors to minimise the risk of prejudice in the retrial of David Bain on five murder charges.
His comments come as one of New Zealand's leading jury researchers says it is impossible to be sure that pre-trial publicity about Bain's case will have no effect on a jury's verdict.
Associate Professor Scott Optican, of Auckland University's law faculty, told the Sunday Star-Times that Bain's retrial for allegedly murdering five members of his family in Dunedin in 1994 was the perfect case for defence and prosecution lawyers to apply for pre-trial examination of jurors to enable a more rigorous selection process. The retrial is set to start in the High Court in Christchurch on Friday. In 1995, the Court of Appeal ruled "that in wholly exceptional cases, a trial judge may properly exercise the judicial discretion of allowing jurors.
While it was legally allowed in New Zealand, he was unaware of any cases where that had been done.. to be cross-examined before taking their seats"..
"If I was prosecuting or the defence, I think I would be very interested in finding out something more about these jurors.
Questions for potential jurors could be submitted to the judge, who would decide whether [they could] be quizzed, Optican said. You want people who haven't made their minds up and who haven't been exposed to too much evidence on the case.
"It's important to understand anything that the jurors know or whether they bring any biases about the case."
An example could be weeding out jurors who had read books on the Bain case or had closely followed media coverage, he said."
An example could be weeding out jurors who had read books on the Bain case or had closely followed media coverage, he said. ."
In America, grilling potential jurors was standard and commonly called "voir dire", French for "look say". He doubted it would add much time to the trial but would help ensure it was fair. He said another way was by finding out more about potential jurors' views to eliminate unsuitable people.
The research examined 48 trials in 1998, with about a quarter being high profile and complex cases.
While New Zealand's sole major research into criminal trial juries found pre-trial publicity had minimal impact on verdicts, co-author Dr Yvette Tinsley, a Victoria University senior law lecturer, admitted Bain's case was hard to assess. I think it's still possible for a jury to be conscientious, regardless, in the face of publicity.
"I couldn't say confidently the pre-trial publicity won't have any effect [on Bain's case] but you feel the group dynamics will minimise that.
Meanwhile, Bain's ex-lawyer, Michael Guest, said jury selection had been an easy task for his client's first trial in 1995, when he faced charges of murdering all five members of his family."
The research, published in 1999, showed some jurors were affected by pre-trial media publicity but were kept in line by the rest of the panel. He could have been anyone's son, anyone's brother. He could have been anyone's son, anyone's brother. Most of your clients look like criminals but David didn't, so it wasn't a problem."
At the end of the three-week trial, the 12 jurors – seven men and five women -found Bain guilty of murdering his parents, two sisters and brother in Dunedin on June 20, 1994. He was sentenced to life in jail with a 16-year non-parole period and spent 13 years behind bars until the Privy Council found a substantial miscarriage of justice had occurred and quashed his convictions in May 2007. A retrial was ordered and Bain was bailed five days later.
Guest said the plethora of publicity on Bain's case plus increasingly complex trials -the retrial was expected to last three months – made jury selection more challenging.
A key was examining for people who stood by the concept of proving someone's guilt beyond reasonable doubt, rather than caring whether the person was guilty or not.
He said jurors with technical minds, including university lecturers, teachers or engineers, might also be useful in considering complex evidence, such as about DNA.
"Also, if you thought that the police evidence was strong or stronger, you might look for people you could swing into a sympathy defence. For example, some people who might not be as quick-witted as some other people."
In New Zealand, defence lawyers get the list of potential jurors' names, occupations and addresses just days before a trial, although the Crown or police usually have their details for longer. Under the amended Juries Act, either side can challenge four people each for any reason for a jury seat and can also turn away an unlimited number if they had links to the case.
Guest, a Dunedin city councillor, said he would closely watch the retrial. "There are five people in the graveyard in East Taieri cemetery who were clearly killed by someone else. The question is who. We may never get that answered."