Abstract

Keywords

Admissibility; expert forensic evidence; reliability; forensic science; reliability standards

……………………………………………………….

1 Introduction

Expert forensic evidence is frequently used in criminal proceedings and has created great possibilities for the administration of justice. 1

* Chevaure Du Pokoy. LLB (NWU) LLM (NWU). Lecturer, North-West University, Faculty of Law, Mahikeng Campus, South Africa. Email: Chevaure.DuPokoy@nwu.ac.za. ORCiD: https://orcid.org/0000-0002-1977-1302.

1 Dror and Morgan 2019 Journal of Forensic Science 8-10.

Despite the perceived success of expert forensic evidence, some criticism has been levelled against the so-called "infallibility" of this type of evidence. According to the NAS Report, 5

5 National Research Council 2009 https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf (hereafter the NAS Report) 7. In 2006 the National Academy of Sciences (NAS) was authorised to conduct a study on forensic science. The NAS subsequently established a committee to operate under the project title "Identifying the Needs of the Forensic Science Community". The NAS Report identified several factors contributing to faulty forensic science and also indicated how this influences criminal trials. In addition to this, the Report also suggested several reforms.

Many jurisdictions have had difficulties with the admissibility of expert evidence in criminal proceedings, 7

7 Meintjes-Van der Walt 2011 SALJ 149.

Difficulties with expert evidence are not unique to South Africa, as the country has and continues to face problems with this evidence in court. 10

10 Olckers 2013 Forensic Science International: Genetics 160.

The main argument put forward in this paper is that expert forensic evidence must be tested for reliability at the admissibility stage instead of leaving questions of reliability until the end of the trial, when the evidence is evaluated. In advancing this argument, the article considers the development of admissibility criteria in jurisdictions like the USA, and England and Wales. These jurisdictions operate with an adversarial system involving two parties ― the prosecution and the defence. 12

12 Griffin 2001 Am U Int'l L Rev 1244.

This article also examines problems with expert forensic evidence presented in criminal proceedings. Using the findings regarding the unreliability of many of the forensic science methods frequently used in courts, the need to consider the reliability of this evidence when it is admitted in criminal proceedings will be explained. The objectives of this article are thus: 1) to identify the problems associated with the expert forensic evidence typically used in criminal proceedings; 2) to determine the efforts that have been made by foreign jurisdictions such as the USA, England and Wales; and 3) to suggest the reconsideration of the current admissibility standard of expert forensic evidence in South African criminal proceedings by introducing a reliability-based test in addition to the existing standard.

2 The admissibility of expert forensic evidence in South Africa

Section 210 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the CPA) provides that:

No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings. 19

19 Section 210 of the CPA. Also see S v Gokool 1965 3 SA 461 (N) 457G.

Evidence is thus admissible if it is relevant and can assist the court with the issue in dispute. 20

20 S v Gokool 1965 3 SA 461 (N) 457G.

At the admissibility stage courts are not concerned with assessing reliability. This position was confirmed in Nduna v S, 25

25 Nduna v S (076/10) 2010 ZASCA 120 (30 September 2010).

The admissibility of expert forensic evidence in South Africa can be compared with the position in other common law jurisdictions like the USA, and England and Wales. In the USA, for instance, strict criteria for the admissibility of expert evidence are applied to exclude unreliable forensic evidence; this is done before it is left to the jury to evaluate this evidence. 31

31 Daubert v Merrell Dow 597. The court in Daubert also tasked judges with a "gatekeeper" role at the admissibility stage.

3 The problem of expert forensic evidence

There are several problems associated with expert forensic evidence, which include:

accreditation, the regulation of the forensic science profession, continued education, the training of court officials, quality assurance, biased testimonies, the lack of transparency with regard to the processes and procedures followed in the forensic community, incorrect interpretation of forensic evidence, lack of scientific knowledge, awareness by the legal profession and over-emphasis on the prosecuting perspective. 34

34 Olckers 2013 Forensic Science International: Genetics 160.

Some of these challenges have been addressed in some jurisdictions by adopting stricter admissibility criteria. However, South Africa has not actively participated in developing such criteria and continues to admit expert forensic evidence using traditional admissibility standards.

3.1 Lack of reliability of frequently used forensic science methods

3.1.1 The definition of reliability

Reliability refers to the ability of the evidence to determine the truth. 35

35 Thompson 2012 SMU L Rev 604.

3.1.2 An overview of frequently used forensic science methods and the reliability thereof

3.1.2.1 Bitemark analysis

In 2009 the NAS Report 42

42 NAS Report 175. The NAS was authorised to conduct a study on forensic science and identify improvements that were needed to ensure the reliability of the science. The recommendations made in the report cover among other things recommendations related to forensic science disciplines, the admission of forensic science evidence in litigation and improving the methods, practices, and performances in forensic science, ultimately to improve its reliability in fact-finding.

3.1.2.2 Latent fingerprint analysis

Fingerprint analysis has been a valuable tool in establishing a person's guilt but also in demonstrating another's innocence. 46

46 NAS Report 142. Fingerprint analysis is known as "friction ridge analysis". It consists of experienced-based comparisons of impressions left by the ridge structures of hands on surfaces. Friction ridge analysis is an example of what the forensic science community uses as a method for assessing "individualisation", which is the conclusion that a piece of evidence (in this case a pattern left by friction ridges) comes from a single unambiguous source. See NAS Report 136.

South African courts believe that fingerprint evidence is a matter that must be left to the experts. 51

51 S v Nala 1965 4 SA 360 (A); S v Malindi 1983 4 SA 99 (T).

3.1.2.3 Firearm analysis

When it comes to firearm analysis, there is little that is known about the variabilities among individual tools and guns, which makes it difficult to specify how many points of similarity are necessary for any given level of confidence in the results. 53

53 NAS Report 154. In firearms analysis an attempt is made by examiners to determine whether ammunition is or is not associated with a specific firearm based on tool-marks produced by guns on the ammunition. This discipline is based on the idea that the tool-marks produced by different firearms vary enough to allow components of fired cartridges to be identified with particular firearms. See PCAST Report 104.

3.1.2.4 Hair analysis

The reason for using hair analysis as forensic evidence is rooted in the fact that human and animal hairs are frequently shed and can thus be transferred from an individual to a crime scene and from the crime scene to an individual. 56

56 NAS Report 156. Footwear analysis is known as "impression evidence". This type of evidence exists when an object such as a shoe leaves an impression at the crime scene or on another object or a person. A shoeprint is a two-dimensional type of

3.2 Expert forensic evidence and wrongful convictions: lessons for South Africa

Wrongful convictions can occur due to a series of events, from the commission of a crime to the trial. 59

59 Colvin 2009 Criminal Law Forum 181-182.

As in many jurisdictions, wrongful convictions are a reality in South Africa. However, this reality remains mostly unacknowledged, ignored or sometimes even denied. 63

63 Raphaely 2018 https://www.dailymaverick.co.za/article/2018-10-02-getting-it-wrong-guilty-until-proven-innocent/.

The Wits Justice Project 66

66 Wits Justice Project 2014 https://static.pmg.org.za/160920witsjustice.pdf.

The USA identified the misapplication of forensic science as the second most common factor contributing to wrongful convictions. 69

69 Innocence Project 2025 https://innocenceproject.org/misapplication-of-forensic-science/.

There have also been instances where faulty forensic evidence led to wrongful convictions in England and Wales. For example, the Law Commission's Consultation Paper 74

74 The Law Commission Admissibility of Expert Evidence 10-11.

3.3 Inadequacy of traditional trial safeguards

South African criminal courts have been described as unwilling to develop new admissibility criteria. This unwillingness can be attributed to the courtsˈ belief that traditional trial safeguards such as cross-examination, the rebuttal of expert evidence, and the adequate evaluation of the evidence at the end of the trial are sufficient in ensuring the reliability of the evidence. 80

80 Edmond and San Roque 2012 CICJ 51-53.

Studies have revealed that cross-examination may be ineffective in assessing the strengths and weaknesses of expert evidence or in exposing weaknesses in the methodology used by the expert. 82

82 Edmond and San Roque 2012 CICJ 51, 55; and McQuiston-Surrett and Saks 2009 Law and Human Behavior 439.

Like cross-examination, calling a defence expert witness is vital in challenging the prosecution's evidence. 85

85 Meintjes-Van der Walt 2001 SAJHR 309.

4 Trends in foreign jurisdictions aimed at filtering out unreliable expert forensic evidence

4.1 The United States of America

Advances in the scientific domain have prompted the decision to improve the admissibility requirements for expert forensic evidence in USA courts. 90

90 PCAST Report 40.

When the court confirmed the "reliability" test as a prerequisite for the admissibility of expert testimony, it also determined that presiding officers must be the "gatekeepers" of justice. 97

97 Daubert v Merrell Dow 579.

1. Whether the theory or technique can be (and has been) tested.

2. Whether the theory or technique has been subjected to peer review and publication.

3. The known or potential rate of error of a particular scientific technique.

4. The existence and maintenance of standards controlling the technique's operation.

5. A scientific technique's degree of acceptance within a relevant scientific community.

The idea behind Daubert was to bring reliable forensic evidence into court by adopting criteria for the admissibility of this evidence. 100

100 Young and Goodman-Delahunty 2021 Psychological Injury and Law 305.

The USA offers comprehensive coverage of forensic science evidence, particularly its treatment in court. Undoubtedly there have been some major developments in developing standards to ensure the reliability of forensic evidence in court. The USA's standards for the admissibility of forensic evidence have influenced the development of admissibility standards for this type of evidence in other jurisdictions as well. 103

103 Olaborede and Meintjes-Van der Walt 2020 PELJ 8.

4.2 England and Wales

In 2011 the Law Commission 104

104 The Law Commission was established in terms of the Law Commission Act, 1965 for the purpose of promoting the reform of the law. The report followed after a consultation published by the Commission. In the report the Commission sets out and explains certain recommendations for reforming the law governing expert evidence in criminal proceedings. The decision to address the law on expert evidence was prompted by a call for reform from the House of Commons' Science and Technology Committee. See The Law Commission Expert Evidence in Criminal Proceedings iii and 1.

Criminal Procedure Rule Part 19 contains several provisions relevant to expert evidence. 111

111 Stockdale and Jackson 2016 JCL 352.

It is essential to recall the principle that is applicable in determining the issue of admissibility; the court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted. If there is, then the court leaves the opposing views to be tested before the jury.

CrimPD 19A.5 113

113 Criminal Practice Directions (2015) 19A.5.

1. The extent and quality of the data on which the expert opinion is based, as well as the methods that were used.

2. If the opinion is based on an inference, whether the opinion properly explains how safe or unsafe the inference is.

3. If the opinion is based on the results of the use of any method, whether the opinion takes proper account of the matters.

4. The extent to which the material forming the basis of the expert's opinion has been reviewed by others with the relevant expertise.

5. The extent to which the expert's opinion falls outside the expert's field of expertise.

6. The completeness of the information that was available to the expert and whether the expert considered all information to arrive at the opinion.

7. Whether there is a range of expert opinions on the matter, and if there is such a range, whether the expert's preference has been properly explained.

8. Whether the opinion of the expert followed established practice methods, and if they were not followed, whether the reason for such diversion was properly explained.

Stockdale and Jackson 115

115 Stockdale and Jackson 2016 JCL 362.

5 A clarion call: developing admissibility standards to test reliability

Having considered the current accommodating approach to the admissibility of expert forensic evidence in criminal cases in South Africa, the problem of the reliability of forensic evidence, and the developments made in foreign jurisdictions, at this juncture the paper seeks to determine a way forward for South Africa.

According to Edmond, 116

116 Edmond 2012 International Journal of Evidence and Proof 41.

The obvious response is that a reliability-based standard should be established to accompany the current relevance standard. This is not to suggest that courts do away with relevance as a standard, but instead to suggest that courts consider reliability in addition to relevance. Canadian Justice, Justice Sopinka, correctly stated that the concept of relevance is broad enough to encompass an assessment of reliability. 118

118 R v Mohan 1994 2 SCR 9 paras 22-23.

In the process of establishing reliability the expert should at the very least furnish the criteria for testing the accuracy and objectivity of his/her opinion. 119

119 S v Mkhize 1998 2 SACR 478 (W) 16.

1. the validity of the underlying principle;

2. the validity of the technique applying that principle;

3. the proper application of the technique on a particular occasion (this is regarding an examination of the functioning of any instrument employed in the technique to ensure the accuracy of results, adherence to the correct procedures, and qualification of experts conducting the procedure and/or interpreting the results).

Similarly, the Federal Rules of Evidence 121

121 Federal Rules of Evidence Rule 702: Testimony by Expert Witnesses (Act 2 of 1975).

the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys with respect to its ultimate reliability determination. 124

124 Kumho Tire Co v Carmichael 526 US 137 (1999) para 142.

Additionally, the court stated that the trial court possesses great discretion in determining whether the Daubert factors are a reasonable measure of reliability in each court. 125

125 Kumho Tire Co v Carmichael 526 US 137 (1999) para 152.

The following proposed guidelines could be used by courts to determine the reliability of expert forensic evidence. The court could require the expert witness to establish the following when adducing evidence of a scientific nature:

(a) The method ― this is concerned with the scientific method relied upon by the expert and whether it is accepted within the relevant scientific community as valid and reliable. The acceptance of the technique would be established by evidence of the publication of the validity and applicability of the method.

(b) The application of the method ― this is concerned with whether the expert reliably applied the method when analysing the evidence.

(c) Peer review ― this is related to whether the method has been peer-reviewed. According to a survey 126

126 Gatowski et al 2001 Law and Human Behavior 433-447.

(d) Interpretation of results ― this relates to the expert's interpretation of the results and whether his/her assertions about the results were scientifically valid.

6 Conclusion

Forensic science is a highly specialised field that requires special attention. The nature of this evidence demands that there be specialised rules aimed at evaluating the evidence to ensure that the most accurate evidence is admitted in court. Unfortunately, courts have generally played an inconsistent and ineffective role in supervising and evaluating forensic scientific evidence, which has not assisted in responding to the crisis associated with forensic evidence. 128

128 Edmond et al 2013 U Denv Crim L Rev 32.

In Holtzhauzen v Roodt 130

130 Holtzhauzen v Roodt 1997 3 All SA 551 (W).

Edmond 133

133 Edmond 2012 International Journal of Evidence and Proof 40.

This article has clarified that certain kinds of traditional forensic evidence frequently used in court lack reliability and continue to be used. In justifying the need for reform, the occurrence of wrongful convictions due to unreliable forensic evidence has also been discussed. This discussion has revealed that there is a link between wrongful convictions and unreliable forensic evidence. This relationship warrants attention, and suggests that there is a need to determine what can be done to limit the occurrence of such wrongful convictions. Unfortunately, these problems with forensic evidence methods are rarely addressed and effectively dealt with in South African criminal courts, while international trends consistently show the making of conscious efforts to address this problem. Foreign jurisdictions such as the USA and England and Wales have made significant efforts to develop rules to scrutinise the reliability of the expert forensic evidence proffered in court. It now becomes imperative for South Africa, too, to join the conversation and keep abreast of these developments.

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List Of Abbreviations