Legal opinion is divided over a proposal to change one of the oldest traditions in our justice system
John Rowan, QC vividly recalls the trial for the 1998 murder of Reporoa woman Beverly Bouma. The main Rotorua courtroom was being renovated, so the trial was in a much smaller courtroom and Rowan, one of the defence lawyers, was less than one metre from the jury.
One woman on that jury cried every day throughout the first week of the trial.
It's the sort of story that suggests jurors can be overly swayed by their emotions - the personal "myths and prejudices" cited in a Law Commission report this week, which suggested replacing the jury as we know it with a panel of a judge and two semi-professional jurors in some trials.
Rowan acknowledges the potential problem but, like other lawyers who spoke to the Weekend Herald, has doubts whether the jury system should make way for the commission's bold new idea.
Under the proposed system, lay jurors would be appointed for a fixed term of one to two years to sit on a certain number of cases and be given some training in criminal procedures. The verdicts would have to be unanimous and reasons given, unlike the current jury system.
The report pointed to international research, including in Australia, about the "array of myths and prejudices" held by jurors, especially in sexual offending cases.
The commission considered that the smaller, trained jury would mean rules of evidence could be dispensed with, such as that blocking prior convictions from being disclosed to a jury. It is a system used in Europe - including in Germany and Austria, where there is a more inquisitorial system than the adversarial system that applies here.
But the change would mean setting aside, at least in part, the long-standing tradition of a jury of 12 good men and women - the peers of the accused bringing society's values of the day to their decision-making.
All defence lawyers spoken to were strongly opposed to the proposal for reasons Robert Lithgow, QC put the most colourfully, saying the "fallacy" of the idea was "the myth that middle-aged judges and local worthies trained by civil servants have a better handle on sexual behaviours" than the broader cross-section of society that a panel of 12 can deliver.
It's a view Rowan echoes, saying two jurors were merely "paying token respect to the jury system".
Others - including Rowan, Criminal Bar Association president Tony Bouchier and barrister Warren Pyke - also questioned whether there was any evidence that it would result in any difference in the verdicts handed down.
Every lawyer has stories about "freaky stuff" from jurors, says Pyke, who is also the Law Society's Courthouse Committee convenor.
However, more research was needed on the extent to which any prejudice actually impacted on jury decisions. In general, on a panel of 12 those with more extreme views could be balanced and majority verdicts now allowed for such situations.
"So if you have oddball jurors with freaky ideas about things, they tend to be shuffled aside."
All three said it would further weaken a criminal justice system that had already been eroded by recent reforms aimed at speeding up the court system.
Those included the removal in 2009 of depositions hearings - pre-trial hearings where evidence was presented to decide if there was a case to answer at trial. Then there were last year's reforms restricting jury trials only to more serious offences.
Associate professor Elisabeth McDonald, a law lecturer at Victoria University, whose research on prosecuting rape cases fed into the Law Commission's paper, supported it, saying it would allow more evidence to be considered and help address the prejudices of jurors.
The biggest issue was in so-called "date rape" cases, in which the complainant and accused knew each other, rather than the more clearcut stranger rape cases. In such cases, where consent was the main issue, jurors often operated under "myths".
"Some might have the idea that if a woman wears a particular outfit, that means they're probably saying 'yes,' or if they've been out drinking by themselves and accept a ride home with someone, that that means 'yes'."
She said there was no evidence that such a change would increase conviction rates. But it would allow for more rigorous decision-making and the reasons for verdicts could be scrutinised - another way to ensure the considerations were relevant.
In nearly 20 years of trials there was one case in which Law Society President Jonathan Temm watched someone he believed was innocent be sent to jail by a jury. It's something many defence lawyers might claim regularly happens - but Temm was the prosecutor on that case and he had never forgotten it.
There were significantly more cases where people were acquitted when he had believed they were guilty. "So if you're a lawyer who subscribes to the view that it's better that 10 guilty men walk free than one innocent man is wrongfully convicted, then [the jury system] is probably working."
But while most defence lawyers rejected out of hand the proposal for the lay jurors, Temm also believed it should at least be looked at.
The Parole Board already used lay assessors alongside a district court judge and those lay assessors did have an impact on the board's decisions, often in favour for the parolee. "So I'm not prepared to accept that the judge and two jurors model is either simply not going to be the equal of or get better outcomes than the jury model, both for the defence and prosecution."
The final decision on the proposal will rest with Justice Minister Judith Collins. This week she was responding cautiously, saying great care had to be taken to balance out the rights of victims and the accused.
Some of the Law Commission's less radical reforms might get a warmer reception from the legal fraternity, such as a recommendation for specialist sexual abuse judges and lawyers, and a specialist court for those who plead guilty to go into treatment rather than receive a jail sentence.