Independent judicial research of forensic evidence in criminal trials – A South African perspective

Abstract

As forensic scientific evidence becomes not only more advanced but progressively more important in criminal trials, so too does the pressure on presiding officers to accurately assess such evidence, not only for admissibility but also reliability. In the United States of America (USA), judges are mandated to act as gatekeepers of expert opinion and as such are tempted to engage in independent judicial research of science and medicine to accurately fulfil this gatekeeping duty. This temptation is intensified by the information explosion on the Internet and the vast array of available information, both legal and non-legal in nature. While courts are entitled to conduct legal research in deciding disputes, controversy and ambiguity exist on whether judicial research on facts should be allowed. In South Africa, the Constitutional Court in S v Van der Walt 2020 (2) SACR 371 (CC) focused on procedural fairness and held that independent judicial research violates accused persons’ right to challenge evidence in terms of s 35(3)(i) of the Constitution. But a blanket prohibition on this type of judicial research excludes many significant advantages that could potentially secure more accurate decisions. This article considers the legal positions on independent judicial research in the USA and South Africa, reviews the pros and cons of such research, and finds that a flexible approach might alleviate some dangers and exploit some advantages.