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 becom es not only more advanced but

progressively more importa nt in crimin al trials, so too doe s the pressure

on presiding ofcers to accur ately assess such evidence, not only for

admissibilit y but also reliabilit y. 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 tempt ation is intensied by

the information explosion on the I nternet and the vast ar ray of available

information, both leg al and non-legal in natur e. While court s are entitled

to conduct legal research in decid ing disputes, controversy and ambig uity

exist on whether judicial r esearch on facts should be al lowed. In South

Africa, the Con stitutional Cour t in S v Van der Walt 2020 (2) SACR 371 (CC)

focused on procedural fai rness and held that independ ent judicial research

violates accused persons’ rig ht to challenge evidence in term s of s 35(3)(i) of

the Constitution. But a blan ket prohibition on this t ype of judicial researc h

excludes many signicant advantages t hat could potentially se cure more

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

judicial research in t he USA and South Afr ica, reviews the pros and cons

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

dangers and exploit some advantages.

1 Introduction

In conducting legal research and securi ng 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) MS c Med Crim (UP) LLB, L LD (UFS), Senior lect urer,

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

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

415

(2021) 34 SACJ 415

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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 li kely to

continue.2

It is trite that judges and magistrates are permitted to conduct

independent legal research – online or other wise – 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 20 07, the American Bar

Association (ABA) Model Code of Judicial Conduct draf ted 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 journ als in line wit h the global Free Access to L aw Movement –

SAFLII ‘About SAF LII’, [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 of fers open access to legal mater ials from acros s the world, including the

USA.

2 A Torres ‘Is link rot dest roying stare decisis as we know it? The Inte rnet-citation

practice of the Texas Appell ate courts’ (2012) 13 J Appellate Pr ac & Process 269

at269, 271.

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

IPTheory 1 at 5.

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

Tran op cit (n3) 5.

5 American Ba r Association ‘Ru le 2.9: Ex parte commun ications’, Model Code of

Judicial Conduct, 14 February 2020, avai lable at https://ww w.ameri canbar.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.

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