KEY POINTS:
An obscure judicial tool more often seen in American television dramas than New Zealand courtrooms could be the best way to ensure David Bain gets a fair trial if he is sent back to court, says one legal expert.
Auckland University law school Associate Professor Scott Optican said the process of quizzing jurors on their prior knowledge of the case - known as a voir dire - was one measure that could be used to ensure the 35-year-old received a fair trial.
Optican said the voir dire - legally acceptable, but virtually unheard of in this country - was common in the United States, and was a good way of finding "12 fair-minded people" in trials where the details were well known publicly.
Bain was this week released from a minimum 16-year prison sentence after the London-based Privy Council quashed his convictions for the 1994 slaying of his parents and three siblings.
Crown Law is still deciding whether it will retry Bain.
A voir dire would involve the questioning of would-be jurors - either by the judge, or lawyers - to determine any bias or preconceived ideas of guilt or innocence.
"There could be a very very good argument for generating as much information as possible about the knowledge, sympathy and prejudices of the jury [pool]".
Optican said it was vital any Bain retrial be seen to be scrupulously fair, to ensure "a publicly respected verdict". It was vital any future verdict was definitive, and the voir dire process could be used in conjunction with measures such as a change of trial venue from Dunedin, and a pre-trial suppression order.
The Crown would also be well advised to "bend over backwards" to ensure Bain received the best possible resourcing for his defence.
But prominent defence lawyer Gary Gotlieb says a reasonable jury, when given all the evidence, would likely reach a sensible verdict without the court having to get involved in voir dire jury selections.
However, Gotlieb believes any move to retry Bain would be "a nonsense" anyway.
"I just think in his case, why use taxpayers' money to do the whole performance. I just can't see what you are going to gain from it."
And the idea of effectively cross-examining jurors received a lukewarm response from Law Commission deputy president Warren Young.
Young said the voir dire process was "undesirable", and "inappropriate" for the New Zealand legal system.
"There's no evidence, in general terms, [that] asking questions of jurors before trial really does elicit prejudice. If they dislike people with red hair, are they going to open up to you?"
