LAWGENRL 723 - Special Topic: Selected Topics in Law of Evidence and Criminal Procedure

Lecturer biography

Scott Optican is an Associate Professor at the University of Auckland Faculty of Law in New Zealand. A former member of the executive board of Fulbright New Zealand, he holds a BA degree in Rhetoric from the University of California at Berkeley (1982), a Masters degree (MPhil) in Criminology from the University of Cambridge, England, (1983), and a JD degree from Harvard Law School (1988). Scott interned at the Crime Prevention and Criminal Justice Branch of the United Nations in Vienna, Austria (1985), served as a prosecutor in the New York County District Attorney's Office (1990), and clerked for the Hon. Constance Baker Motley of the Federal District Court for the Southern District of New York (1989).

He specialises in evidence, criminal procedure, and comparative criminal procedure, and has written widely on criminal justice and policing issues arising under the New Zealand Bill of Rights. Scott is also a co-author of The New Zealand Bill of Rights (Oxford University Press 2003), the first comprehensive treatise on the protection of rights and freedoms under the New Zealand Bill of Rights Act 1990. In 2001, Scott was a Visiting Professor at the University of Oregon School of Law, USA, where he taught criminal law and criminal procedure. In June 2004, Scott taught comparative criminal procedure at the University of Auckland Faculty of Law with Professor Joshua Dressler, Frank R. Strong Chair in Law at the Ohio State University, Michael E. Moritz College of Law. He also taught comparative criminal procedure at the University of Western Ontario, Faculty of Law, Canada (2005) and at the University of Kansas School of Law, USA (2006).

In December 2005, Scott gave lectures on Western concepts of criminal procedure to Turkish lawyers, academics and judges attending seminars at the Bahcesehir University Faculty of Law in Istanbul, Turkey. He also travelled to Israel in Nov/Dec 2007 to be a visiting professor at the University of Haifa Faculty of Law. Scott’s co-authored book on the NZ Evidence Act 2006 - Mahoney, McDonald, Optican and Tinsley, The Evidence Act 2006: Act and Analysis - was published by Brookers in Dec 2007. A second edition appeared in 2010 and a fourth edition is scheduled for publication in July 2018. Scott also contributed a chapter on criminal procedure to Tolmie and Brookbanks (eds), Criminal Justice in New Zealand (LexisNexis 2007), and on evidence law in the New Zealand Supreme Court in Stockley and Littlewood (eds), The New Zealand Supreme Court: The First Ten Years (LexisNexis 2015). Recent articles include publications on the exclusion of illegally obtained evidence under s 30 of the NZ Evidence Act 2006, a comprehensive review of evidence law for the New Zealand Law Review, and a detailed examination of undercover police scenario cases in the New Zealand Supreme Court. Scott is the evidence law reviewer for the New Zealand Law Review and an editor of Te Wharenga - The New Zealand Criminal Law Review. He is also a member of the New Zealand Law Commission expert panels on search and seizure and evidence, and is a regular commentator in the New Zealand media on issues related to crime and justice.

Course outline

Prosecutors, defence lawyers, judges, police and other persons working in the area of criminal justice will be aware of the significant body of New Zealand evidence and criminal procedure law governing: (a) criminal investigations; and (b) criminal trial processes. This course will examine selected topics in evidence and criminal procedure, focussing on the Evidence Act 2006, the New Zealand Bill of Rights Act 1990, the Search and Surveillance Act 2012, and the Criminal Procedure Act 2011.


The laws of evidence and criminal procedure are examined through selected topics which can change from year to year. However, time permitting, the subjects covered will likely include (but may not be limited to) the following:

  • The exclusion of improperly obtained evidence
  • The legal control of police search and seizure
  • The legal control of police questioning practices
  • The right to silence and the privilege against self-incrimination
  • Propensity and veracity evidence
  • Cross-examination of sexual assault complainants
  • Hearsay
  • Pre-trial publicity and jury selection
  • Fair trial rights under ss 24-25 of the New Zealand Bill of Rights Act 1990


The aim of the course will be to examine selected areas of the law controlling police investigative practices and/or the conduct of criminal trials. In this regard, the course will assess the extent to which the laws designed to manage criminal investigations and criminal trial processes are achieving justifiable outcomes balancing the interests of both due process and crime control. The underling policy bases of evidence and criminal procedure rules will be scrutinised, together with case law applications of key provisions of the statutes referenced above. The goal of the course will be to encourage students to think critically about significant evidence and criminal procedure rules that shape both police investigations and the conduct of criminal trials.

Learning outcomes

On completion of this course students should be able to:

  • Understand the legal rules of and policy bases behind the evidence and criminal procedure topics covered in class
  • Understand the concepts of due process and crime control as a framework within which to analyse rules of evidence and criminal procedure
  • Think and comment critically about the interpretation and application of the rules of evidence and criminal procedure studied in class
  • Generate proposals for reforming the rules of evidence and criminal procedure studied in class
  • Generate an appropriate research topic (that will form the basis of the research essay) on a matter of evidence or criminal procedure law of the student’s choosing


  • 90% research essay of 6,500 words
  • 10% class participation


Each student is required to submit a research essay of no more than 6,500 words (including an abstract/synopsis of 100 words). The essay is to be original work, relying on secondary and primary sources, on an evidence or criminal procedure topic of the student’s choosing. It MUST be the work of the enrolled student. Another person, other than the enrolled student, MUST NOT write the essay nor do the research on behalf of the enrolled student. Plagiarism is forbidden and, in that regard, each student should read the University’s plagiarism policy and adhere to it. Students must also use proper legal citations and include a bibliography at the end of their typed essay. The essay should be comprised of properly crafted sentences as note form is unacceptable. The use of sub-headings and a table of contents is encouraged - and footnotes rather than in-text referencing should be used. All essays are to comply with the New Zealand Law Style Guide.

Descriptive essays are not encouraged. Instead students are expected to engage with relevant legal issues (of their own choosing) by: explaining and critiquing the law and its underlying policies; providing a conceptual analysis of the law; examining the operation of the law in practice; and developing proposals for reform.

Essays must be submitted to the University of Auckland Faculty of Law, by 12 noon on Friday 1 June 2018. Extensions will not be granted lightly (and only on sickness and compassionate grounds) and must be requested formally through the Postgraduate Manager.

Class participation and attendance

Each student is expected to make individual contributions to seminar discussions throughout the course. Students will be individually assessed on the quality of their contributions. Apart from exceptional circumstances, ALL students are expected to attend ALL six classes during the six-week term.

Students will be individually assessed on the quality of their in-class contributions and with reference to the following criteria:

  • The extent to which the student has identified important and relevant issues for discussion
  • The depth and thoroughness of understanding of the seminar material
  • The strength and clarity of the arguments presented
  • The overall lucidity of the contributions
  • The extent to which issues are placed in their wider context
  • The extent to which the student has displayed a grasp of relevant doctrinal and normative matters
  • The analysis and synthesis of material
  • The ability to draw cogent conclusions about the relevant legal issues involved

Class participation will be assessed over the whole six weeks of the course. Quality rather than quantity will be evaluated. However, if a student is not present for all the classes - as is expected - it will be impossible to achieve the maximum marks possible (even if a student’s contributions are valuable when he or she does speak). Students are reminded that the full range of marks is available to the lecturer in assessing class participation. Please also be assured that the lecturer is very aware that mistakes are part of learning. Accordingly, ‘getting the law right’ is not the key focus of the class participation component of assessment. Indeed, if students knew all the law from the outset, there would be little point in them enrolling in the course. Rather, class participation is evaluated to assess students’ imaginative understanding of, and engagement with, the materials under discussion in the course.

Course details

Semester: One
Second half of semester (26 April-31 May)
Day: Tuesday (six classes)
Time: 5-8pm
Location: Building 810, Room 3.40
Level 3, 1-11 Short Street
Value: 15 points
Assignment due date: Friday, 1 June 2018 at 12 noon

Contact details

Postgraduate Student Adviser
Student Centre
Auckland Law School
Level 2, 1-11 Short St