Denver Bar Association
May 2010
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Perspective on a New Zealand Murder Trial

by Patrick Thiessen

For most Americans, New Zealand brings to mind images of stunning natural beauty vividly portrayed in the Lord of the Rings movie trilogy. Though the scenery certainly is amazing, I decided to learn about the New Zealand legal system by watching a three-week long murder trial. Although the trial followed formal New Zealand procedure, it certainly was not ordinary.

It involved one mistrial, a courtroom power outage, a hostile witness swearing vehemently at the prosecuting attorney and an earthquake. There are a number of differences between a Colorado trial and New Zealand trial, and perhaps by highlighting these, I can provide a way of thinking about New Zealand beyond what you may have seen on the silver screen.

The case involved a victim who had been brutally murdered at night by a blow to the head with the blunt end of a hatchet. The Crown (the prosecution) charged a local gang member with murder for swinging the hatchet. Additionally, the Crown charged three other fellow gang members with New Zealand’s equivalent of complicity to commit murder for aiding, abetting or inciting the murder of rival gang members. The victim had been wearing rival gang colors, but he was not a member of any gang.

The courtroom was very similar to Colorado courtrooms, but one key difference was that the four defendants sat together at a table behind their attorneys, rather than next to them. The judge, attorneys and court staff wore robes, but not wigs. There were two Crown attorneys and each defendant had two attorneys, for a staggering total of 10 attorneys. Each time an attorney entered or exited the room he or she bowed slightly toward the judge. Counsel addressed the judge as "sir," and used "my friend" in place of "opposing counsel."

Under New Zealand’s Legal Aid structure, the eight defense attorneys were all private attorneys. They are paid at a statutory rate by the government because most of New Zealand does not have a public defender’s office. Defendants can choose their defense attorney, as long as the attorney has the proper experience rating required for the trial (with murder being the highest rating), and the attorney agrees to take the case.

Similar to Colorado, prospective jurors were chosen at random from among registered voters who had been summoned to appear. Interestingly, New Zealand has jury trials only for criminal cases and not for civil cases, except for those involving defamation. The attorneys each had four peremptory challenges, but there was no voir dire of the jurors. Voir dire of prospective jurors is almost never done in New Zealand. There are no limits on issuing challenges for proper cause, but proper cause may be difficult to discern without voir dire.

On the first day, a jury was empanelled, and the attorneys gave their opening addresses. On the second day, a juror revealed to the judge that he was related to the victim, after having been asked this exact question the prior day. The judge declared a mistrial. Not enough jurors responded to their jury summons to empanel the second jury. The judge used a statute that permits court personnel to take to the streets to summon members of the general public walking by, or face a $750 fine if they refuse. Interestingly, a similar method was used by a Greeley judge in January 2008.

A new jury of seven men and five women was empanelled. Only one juror appeared to be Maori, New Zealand’s indigenous people, although all four defendants were Maori. A second trial began at the end of the second day.

The presentation of evidence was similar to what occurs in a Colorado trial, with most evidentiary issues determined pretrial. Not once did I witness an attorney contemporaneously object to the form of a question or evidence presented, although I am told that this is permitted. Another key difference is that there is no rule against asking one’s own witnesses leading questions during direct examination and trial testimony frequently consisted of the Crown reading long, detailed questions and the witness agreeing with a quick "yeah," or "yes." This led to the unfortunate effect that one is warned of in trial advocacy: the attorney dryly drove the narrative rather than the witness. Cross-examination was similar, but lacked some of the theatrics of a Colorado trial because the attorneys may not approach but instead have a court clerk hand impeaching documents to the witness.

The closing arguments were quite long, with the Crown prosecutor using nearly five hours and each defense counsel speaking for at least one hour. During one of the defense attorney’s closing, an earthquake hit with a magnitude of 5.1 on the Richter scale. The judge humorously quipped, "Your words have moved the earth."

Following closing arguments, the judge gave a two-hour "summing up." As is typically done, the judge orally summarized the evidence heard and the closing arguments for the jury. He stated that he was not providing an exhaustive review of the arguments and that the jury was free to disregard his summary or consider evidence that he had not mentioned. He also provided the jury with written instructions regarding the burden of proof and the law. These instructions included a decision aid for the jury that contained a series of "if then" statements that the jury answered yes or no to arrive at a verdict.

During deliberations, the jury had access to all of the exhibits, including video footage (surveillance video from a grocery store and a convenient store purportedly placing the defendant near the scene of the crime) that it was permitted to review. The jury also could consult the transcript of all trial testimony, a relatively recent reform, excluding counsels’ closing arguments and the judge’s summary. The jury deliberated for one-and-half days before announcing a unanimous guilty verdict against all four defendants in front of a full courtroom of court watchers and members of the defendants’ and the victim’s families.

Though the rules and procedure in this New Zealand trial may have differed from what may occur in a Colorado trial, the earnestness with which both counsel and the judge pursued justice would have translated into any courtroom in Colorado. New Zealand is not simply a sanctuary for natural beauty, but a country with a carefully crafted legal system that I was fortunate enough to witness.

 
Patrick Thiessen at The Pinnacles on Coromandel Peninsula in New Zealand. Patrick Thiessen and his wife Molly enjoy the sights at Tongariro Crossing in New Zealand.

Patrick has been living and working in New Zealand for one year after graduating from the University of Colorado Law School in 2008. E-mail him at prthiessen@yahoo.com.


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