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Another Bain beat-up

By Steven | March 2, 2009

I think the SST overplayed its lead story on the Bain jury. The headline:

David Bain murder retrial: Jurors must be tested for bias – expert

The first two paras:

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. The retrial is set to start in the High Court in Christchurch on Friday.

What’s a “top” law professor? (Scott Optican is an associate professor, actually, and I’ve got a lot of time for him, but I don’t have any idea why he’s toppier than any other senior academics).

More importantly, Optican never says in the article that Bain jurors “must” be tested, which is surely the operative part of that headline. He thinks it might be a good idea, and it’s a chance for the lawyers involved to made an application that’s never been granted before in NZ. But that’s not a “must”, which suggests that the trial would necessarily be unfair without it.

And on that point, of course, we have Yvette Tinsley (a colleague of mine, rightly described as one of NZ’s leading jury researchers) saying she can’t rule out possible jury prejudice caused by pre-trial publicity. Well, that’s not really the thrust of what she says. She says her research found little evidence of such prejudice and concluded that any prejudice was likely to be minimised by the process of jury deliberation. Of course, no-one can ever rule out the possibility of prejudice, though, she points out.

Was this really a front-page lead?

Topics: Contempt of Court, General, Media ethics | 37 Comments »

37 Responses to “Another Bain beat-up”

  1. Andrew Geddis Says:
    March 2nd, 2009 at 8:30 pm

    I’m just surprised to see Scott agreeing to talk to the SST after Steve Braunias’ rather uncharitable column on him a few months back. Shows he either has a remarkably low ego, a remarkably forgiving nature, or a remarkably thick skin!

  2. ross Says:
    March 3rd, 2009 at 10:23 am

    Steven,

    With respect to your colleague, my understanding is that there has been little research into juries in New Zealand. The problem, it seems to me, and I know Maryanne Garry from Victoria University has raised this point, is that research typically asks jurors after the event. It gives jurors wiggle room because jurors might say “well, I wasn’t biased but I think my fellow jurors might have been”. We want to be seen in the best possible light, meaning that jurors’ post-trial comments might not be so accurate. What would be an interesting research project would be to tape jurors’ deliberations and then ask jurors about their memory of those deliberations week or months later. I suspect that jurors’ memories of events would be quite different from what actually occurred.

    Having said that, Optican’s suggestion about asking jurors about their knowledge of the Bain case is also fraught. I mean, if you thought Bain was guilty and you were not prepared to consider the evidence about to be presented, would you confess to this and risk being kicked off the case? You might downplay the true extent of your knowledge.

  3. Graeme Edgeler Says:
    March 3rd, 2009 at 11:37 am

    Having said that, Optican’s suggestion about asking jurors about their knowledge of the Bain case is also fraught. I mean, if you thought Bain was guilty and you were not prepared to consider the evidence about to be presented, would you confess to this and risk being kicked off the case? You might downplay the true extent of your knowledge.

    Or the reverse. I don’t see that the idea is “fraught”, however. The problem you raise cannot be made worse by questioning jurors, it just might not be fixed as much as we might hope.

  4. ross Says:
    March 3rd, 2009 at 12:10 pm

    I agree, Graeme, that the problem cannot be made worse. However, the Judge and those observing a trial might be fooled into thinking that the jury is unbiased and free from prejudice simply because jurors have been questioned before the commencement of the trial. That would be a mistake.

    I would prefer, if questioning is to occur, for jurors to be quizzed about their understanding of reasonable doubt. I think it would also be useful if they can demonstrate they have a reasonable understanding of the English language. Both are pretty important in the context of a trial.

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