Pre-trial disclosure of expert evidence: lessons from abroad

• Jurisdiction: South Africa
• Citation: (2000) 13 SACJ 145
• Published date: 24 May 2019
• Author: Lirieka Meintjes-van der Walt
• Pages: 145-159
• Date: 24 May 2019

ARTICLES • ARTIKELS

Pre-trial disclosure of expert evidence:

lessons from abroad

LIRIEKA MEINTJES -VAN DER WALT*

1 Introduction

Fairness and efficiency in the administration of justice depend in large

measure upon the quality of information available to litigating parties. It has

been said that

'the right to make full answer and defence

and the right to be

presumed innocent until proven guilty are the most sacred ideals of the

modern criminal justice system' (my emphasis).

1

Pre-trial disclosure by

the prosecution is one way in which the defence is able to adequately answer

to the case to be met and competently challenge evidence. In the context of

expert evidence, in particular, the criminal justice system cannot be expected

to adequately deal with scientific evidence without pre-trial disclosure.

2

Grossman

3

very aptly distinguishes disclosure from the indictment and

discovery. All three methods are concerned with notification to the defence

of issues that must be dealt with at trial. Indictment only provides notice of

the prosecution's basis for liability, while discovery and disclosure are

directed at providing notice of the evidence available to the prosecution. He

continues by holding that discovery involves a broader pre-trial opportunity

to direct questions at prosecution witnesses on the record (such as in a

preliminary inquiry).

4

Disclosure on the other hand refers, according to

Grossman, to the prosecution's duty to provide the defence with access

to existing evidence without any corresponding pre-trial right to cross-

examine or challenge the prosecution on the evidence provided'.

5

It is in this

sense that the term 'disclosure' will be used for purposes of the discussion

below.

* B JURIS LLB (UPE) LLM (Rhodes),

Senior Lecturer in Law, Rhodes University.

1

BK Grossman 'Disclosure by the Prosecution' 1988 30

Criminal Law Quarterly

346 351.

2

P Giannelli 'Criminal Discovery, Scientific Evidence, and DNA' (1991) 44

Va L Rev

791.

3

Grossman op cit (n 1) 351.

4

Ibid.

5

Idem.

145

(2000) 13 SACJ 145

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