Warnings from the West: Identification and Expert Evidence as Causes of Wrongful Convictions and the Implications for South Africa (Part 2)

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In Part 1 of this study, the existing literature on eyewitness misidentification evidence as a cause of wrongful convictions, as well as adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding, are reviewed. In Part 2, a similar investigation is conducted of improperly applied and faulty forensic expert evidence in criminal trials in the comparator countries, and how such evidence contributes to legal and root causes of injustice. Parallels are drawn to the adversarial system as it functions in South Africa and predictions are offered regarding the possibility that in South Africa too, the reliance on questionable expert evidence and the sometimes over-reliance on valid expert evidence may lead to wrongful convictions. Worldwide, much effort has been invested in developing admissibility criteria for expert forensic evidence. In the United States of America, for example, more than 100 years of admissibility jurisprudence has been dedicated to developing admissibility standards that would filter out unreliable evidence. Yet our investigation reveals admissibility criteria have had less success than expected. We also investigate the abilities and inabilities of cross-examination and acquired defence expertise to reveal errors in forensic evidence. The article concludes with critical commentary on the way forward for the South African criminal justice system.