Warnings From the West: Identification and Expert Evidence as Causes of Wrongful Convictions and the Implications for South Africa (Part 1)

Abstract

Being wrongfully convicted of a crime is arguably one of the most dreadful examples of injustice in any criminal justice system. This phenomenon has been recorded and studied in Western, predominantly adversarial, jurisdictions such as the United States of America, England-Wales, Canada, and Australia since the late twentieth century. Factors that have been found to contribute to wrongful convictions include eyewitness misidentification, faulty forensic evidence, prosecutorial misconduct, inadequate defence, and many more. While adversarial safeguards such as cross-examination and acquired expertise are thought to diminish the chances of wrongful convictions by revealing unreliable evidence, an increasing number of researchers are concerned that these safeguards have little effect on accurate fact-finding in criminal trials. In South Africa, where individual reports of wrongful convictions in the predominantly adversarial criminal justice system have been recorded in the media, no systems exist to track or investigate the injustice of false convictions. The objective of Part 1 of this article is to review the existing literature on eyewitness misidentification evidence as cause of wrongful convictions as well as those adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding. Parallels are drawn to the adversarial system as it functions in South Africa, and the possibility of misidentification as root and legal cause of wrongful convictions locally is considered.