n South African Law Journal - A critical investigation into prosecutorial discretion and responsibility in the presentation of expert evidence

Volume 131, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



South African prosecutors are encumbered with the responsibility of deciding on the strength of cases before proceeding with criminal litigation. Unfortunately, few guidelines and directives exist to assist prosecutors in the exercise of this discretion, prompting prosecutors to leave important considerations of expert evidence admissibility and reliability to the judicial fact-finder, who is often in no better position to pronounce on the reliability of complicated expert evidence. This article aims to rationalise a greater emphasis on prosecutorial responsibility in the evaluation of expert evidence and the exercise of the discretion to prosecute during the pre-trial stages. The few guiding principles that are available to prosecutors in deciding on the strength of cases based on evaluations of the evidence in case dockets will be reviewed. Additionally, the need for closer pre-trial examination of expert evidence, especially scientific evidence, will be demonstrated. It is argued that prosecutors are generally ill-equipped to make judgements on the reliability of expert evidence, but that it is essential to the ultimate accuracy of fact-finding during trial that prosecutors improve on this role.

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