n South African Journal of Criminal Justice - 'Dealing with differences' : admitting expert evidence to stretch judicial thinking beyond personal experience, intuition and common sense

Volume 19, Issue 2
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



Judges are often required to determine and evaluate the state of mind and behaviour of persons whose characteristics and life experiences differ markedly from their own. Given that, for example, most judges are men, it is likely that few judges have been raped or have undergone long-lasting physical and mental abuse. This task - 'dealing with differences' - forces judges to decide issues beyond the limits of their personal experience. In doing so, they frequently reject expert psychological opinion as irrelevant and thus inadmissible, preferring instead to rely exclusively on common sense and intuition. This dismissive attitude is unjustifiable. Although judges often draw fair and correct inferences when faced with 'difference', this will not always be the case. Advances in psychology suggest that lay observers frequently misunderstand the conduct of others which falls both within (and more pertinently) without the observers' experience. Judges too are such observers, and as such, may be greatly assisted by behavioural experts in cases of 'difference'. The courts therefore ought to widen the door to psychological opinion by sensibly applying the test for admissibility (ie is the expert <i>better able to draw inferences&lt;/i&gt; than the judge?). This approach will ensure that witnesses and accused persons are not prejudiced simply because they do not share certain characteristics or life experiences with a presiding officer.

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