A Jury of Your Peers?

Abstract

The right of an accused to trial by jury has traditionally been seen as a fundamental protection for the citizen against the Crown, and, in the words of Lord Devlin, it is “the lamp that shows that freedom lives”. As such, it should be remembered that trial by jury is a right of the accused, rather than the right of the community. This paper does not seek to consider all issues concerning the defendants’ rights in criminal jury trials in New Zealand. Rather, the parameters of this paper are constrained to exploration of several key issues pertaining to the defendant’s interest in peer representation. The Law Commission has revisited the issue of peer representation several times in the past few decades. Although acknowledging present jury representation issues, the Law Commission continues to emphasize the community’s interests over the defendant’s fair trial rights affirmed in the New Zealand Bill of Rights Act 1990. This paper therefore analyses the failures of present jury representation from the defendant’s point of view and contemplates how peer representation may best be achieved, with a focus on the source of one’s peers, but also with due consideration of the impact of in-court jury selection procedures.