oa Comparative and International Law Journal of Southern Africa - Newly discovered DNA-evidence: what South Africa can learn form the American experience



Where a convicted person has exhausted all recognised legal procedures pertaining to appeal and review and further evidence has since become available which materially affects the conviction, such a person can apply to be pardoned by the President, in which circumstances section 327 of the Criminal Procedure Act empowers the President to enact such pardon. After evaluating this procedure, it can be said that it adequately provides for the admissibility of newly discovered evidence, but that it falls short where a claim of innocence can be conclusively proven with newly discovered DNA evidence. The probative force of DNA-evidence necessitates that its admissibility be treated differently from the usual types of newly discovered evidence. Measures similar to those currently awaiting approval in the United States of America should be put into place to ensure access to post-conviction DNA testing in appropriate cases. The essence of these measures is that a convicted person must be given the opportunity to apply to a court to have such evidence tested. In addition, provision should be made to ensure that all evidence was secured in relation to the investigation or prosecution of a crime and that could be subjected to DNA testing, be preserved for at least the period of time that any person remains subject to incarceration in connection with the investigation or prosecution.


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