Lydia O'Hagan - Academia.edu (original) (raw)
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This paper examines a practice underpinning the exercise of the peremptory right whereby lawyers ... more This paper examines a practice underpinning the exercise of the peremptory right whereby lawyers use the internet to research prospective jurors with a view to challenge. Although it is unclear how common the practice is in New Zealand, the increasing availability of personal information online means that lawyers have a plethora of personal information about prospective jurors at their fingertips. Currently peremptory challenges are exercised in a discriminatory fashion on the basis of broad stereotypes. It is argued that pretrial research by lawyers on prospective jurors could secure a more impartial jury by providing a mechanism for uncovering attitudinal biases or predispositions of prospective jurors, meaning they will be exercised on the basis of stereotypes alone less often. Pretrial research by lawyers could also remedy the disparity of resources between prosecution and defence by providing an independent vehicle for obtaining information. This paper discusses the benefits of pretrial research of prospective jurors and argues that any drawbacks are limited. Potential guidelines for lawyers conducting pretrial research around the collection, use, retention and disclosure of information are proposed before concluding. This paper concludes that pretrial research of prospective jurors serves to protect, rather than undermine, the fundamental right of all parties to a fair trial.
The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our c... more The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our constitutional arrangements rest on the untrammelled principle of parliamentary sovereignty. This paper argues that the doctrine of parliamentary sovereignty is contrary to the sharing of powers provided for in the Treaty, as it concentrates ultimate law-making authority in one body. New Zealand’s constitutional history is canvassed briefly, with a specific focus on the Treaty and the basis of British Crown’s acquisition of sovereignty over New Zealand. It is noted that the current place of the Treaty within New Zealand’s constitution is within the vast powers of parliament - the Treaty can only have legal effect to the extent that Parliament provides for. After looking at examples from statute and common law it is concluded that, rather than limiting parliamentary sovereignty, the current approach ultimately reinforces the absolute and indivisible power of parliament. As such, it is a barrier to a Treaty partnership between the Crown and Maori. To truly give effect to the Treaty a change in the way in which public power in New Zealand is configured and exercised is necessary. Three models for Treaty-based constitutional reform are therefore discussed. The current constitutional review provides Iwi and the Crown with an opportunity to look beyond the confines of the doctrine of parliamentary sovereignty and forge a unique constitutional system that gives effect to the Treaty as New Zealand’s founding document.
This paper examines a practice underpinning the exercise of the peremptory right whereby lawyers ... more This paper examines a practice underpinning the exercise of the peremptory right whereby lawyers use the internet to research prospective jurors with a view to challenge. Although it is unclear how common the practice is in New Zealand, the increasing availability of personal information online means that lawyers have a plethora of personal information about prospective jurors at their fingertips. Currently peremptory challenges are exercised in a discriminatory fashion on the basis of broad stereotypes. It is argued that pretrial research by lawyers on prospective jurors could secure a more impartial jury by providing a mechanism for uncovering attitudinal biases or predispositions of prospective jurors, meaning they will be exercised on the basis of stereotypes alone less often. Pretrial research by lawyers could also remedy the disparity of resources between prosecution and defence by providing an independent vehicle for obtaining information. This paper discusses the benefits of pretrial research of prospective jurors and argues that any drawbacks are limited. Potential guidelines for lawyers conducting pretrial research around the collection, use, retention and disclosure of information are proposed before concluding. This paper concludes that pretrial research of prospective jurors serves to protect, rather than undermine, the fundamental right of all parties to a fair trial.
The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our c... more The Treaty of Waitangi has repeatedly been affirmed as New Zealand’s founding document, yet our constitutional arrangements rest on the untrammelled principle of parliamentary sovereignty. This paper argues that the doctrine of parliamentary sovereignty is contrary to the sharing of powers provided for in the Treaty, as it concentrates ultimate law-making authority in one body. New Zealand’s constitutional history is canvassed briefly, with a specific focus on the Treaty and the basis of British Crown’s acquisition of sovereignty over New Zealand. It is noted that the current place of the Treaty within New Zealand’s constitution is within the vast powers of parliament - the Treaty can only have legal effect to the extent that Parliament provides for. After looking at examples from statute and common law it is concluded that, rather than limiting parliamentary sovereignty, the current approach ultimately reinforces the absolute and indivisible power of parliament. As such, it is a barrier to a Treaty partnership between the Crown and Maori. To truly give effect to the Treaty a change in the way in which public power in New Zealand is configured and exercised is necessary. Three models for Treaty-based constitutional reform are therefore discussed. The current constitutional review provides Iwi and the Crown with an opportunity to look beyond the confines of the doctrine of parliamentary sovereignty and forge a unique constitutional system that gives effect to the Treaty as New Zealand’s founding document.