n South African Journal of Criminal Justice - The law of evidence : seven wishes for the next twenty years




When I first came to the law of evidence many years ago as a law student, I was immediately fascinated by its many hues and textures. Here was a subject unlike any other. It was neither substantive nor entirely procedural; it rested upon archaic English foundations except when it did not; it had rationalist undertones but was replete with utterly counter-intuitive rules and propositions; it seduced with its tantalising ideas and concepts, yet frustrated with its reluctance to break free of hidebound thinking. In South Africa, in particular, where we had inherited a system based on jury trials, much seemed ripe for reconsideration and reform.

In short, I was quickly hooked. There seemed to be few other areas where an academic could so happily do what he enjoyed most - complain about the way things are and point out ways to make things better. As a young academic, I could not understand why the courts refused to embrace the challenge themselves. If, for instance, you have a rule that hearsay evidence should not be admitted because it is unreliable and prejudicial, and you have a rule that hearsay is, accordingly, inadmissible unless it falls within a recognised, existing exception, how can you defend a position that no exceptions can be created when you accept (as you must) that the existing exceptions cannot possibly be exhaustive and that instances must arise where reliable hearsay evidence demands, in the interests of justice, to be received?


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