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

• Author: Visser, J
• DOI: https://doi.org/10.47348/SACJ/v34/i3a1
• Published date: 23 February 2022
• Date: 23 February 2022
• Citation: (2021) 34 SACJ 415
• Pages: 415-441

Independent judicial research of

forensic evidence in criminal trials

– A South African perspective

JO-MARí VISSER*

ABSTRACT

As forensic scientic evidence becomes not only more advanced but

progressively more important in criminal trials, so too does the pressure

on presiding ofcers 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 gatekeep ers of expert opinion and as such are

tempted to engage in independent judici al research of science and medicine

to accurately full this gatekeeping duty. This temptation is intensied 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 signicant advantages that could potentially secure more

accurate decisions. Th is article considers the legal positions on indepe ndent

judicial research in the USA and South Africa, reviews the pros and cons

of such research, and nds that a exible approach might alleviate some

dangers and exploit some advantages.

1 Introduction

In conducting legal research and securing credible and trustworthy

authority in support of ndings, presiding ofcers have access to a

wider array of sources than ever before. Over the last few decades the

Internet has become replete with easily accessible legal information

*BSc BMedSc Hon (UFS) MSc Med Crim (UP) LLB, LLD (UFS), Senior lecturer,

Department of P ublic Law, University of the Free St ate

https://doi.org/10.47348/SACJ/v34/i3a1

415

(2021) 34 SACJ 415

© Juta and Company (Pty) Ltd

published in websites,1 databases, journals, e-books, and more. Infact,

since 1995, American courts have been citing Internet resources at

an increasing rate and all indications are that this trend is likely to

continue.2

It is trite that judges and magistrates are permitted to conduct

independent legal research – online or otherwise – and search legal

authority beyond that offered by the parties to proceedings.3 Inother

words, presiding ofcers need not rely on the law presented by

counsel. Indeed, Judge McKeown4 in the Ninth Circuit of the United

States Court of Appeals in 2016, held that:

Judicial research into domestic law provides an appropriate analog (sic).

Although our common law system relies heavily on advocacy by the parties,

judges are free to undertake independent legal research beyond the parties’

submissions. It is no revelation that courts look to cases, statutes, regulations,

treatises, scholarly articles, legislative history, treaties and other legal

materials in guring out what the law is and resolving legal issues.

But this freedom to conduct legal research does not extend to

independent judicial research of facts. In 2007, the American Bar

Association (ABA) Model Code of Judicial Conduct drafted Rule2.9(C),

a restrictive rule that prohibits judges in American courts from

independently investigating facts in court cases and stipulates that

presiding ofcers may only consider information from two sources:

material adduced as evidence at trial and facts subject to judicial

notice.5 Comment 6 on Rule 2.9(C) explains that this restriction on

1 The Southern A frican Legal Informat ion Institute (SAFLII) is the la rgest local online

collection of legal i nformation and offers open access to case j udgments, legislation

and academic journals in line with the global Free Access to Law Movement –

SAFLII ‘About SAFLII’, [2021], available at http://www.saii.org/content/about-

saii-0, accessed on 7 Apr il 2021. The World Legal Information Inst itute (WorldLII)

similarly offers open access to legal materials from across the world, including the

USA.

2 A Torres ‘Is link rot destroying stare decisis as we know it? The Internet-citation

practice of the Texas Appellate courts’ (2012) 13 J Appellate Prac & Process 269

at269, 271.

3 HA Liou & JL Tran ‘Internet (re)search by judges, jurors, and lawyers’ (2019) 9

IPTheory 1 at 5.

4 De Fontbrune v Wofsy, 838 F.3d 992 (9th Cir. 2016) 999. See discussion in L iou and

Tran op cit (n3) 5.

5 American Bar Association ‘Rule 2.9: Ex parte communications’, Model Code of

Judicial Conduct, 14 February 2020, available at https://www.americanbar.org/

groups/professional_responsibility/ publications/model_code_of_judicial_conduct/

model_code_ of_judicial_conduct_ canon_2/rule2_ 9parte communications/, accessed

on 14 April 2021.

416 SACJ.(2021) 3

https://doi.org/10.47348/SACJ/v34/i3a1

© Juta and Company (Pty) Ltd