Expert Evidence and the Right to a Fair Trial: A Comparative Perspective

ABSTRACT

This article, through a comparative analysis of the law applicable in South Africa, the Netherlands, and England and Wales, examines the right of an accused to a fair trial and, in particular, the defence's right to challenge expert evidence. Issues canvassed include: whether cross-examination is an appropriate tool for testing expert evidence, the extent to which ‘equality of arms’ can be achieved in light of the disparity of resources available to the prosecution and the defence, and whether the adversarial system should be modified by the addition of inquisitorial features where expert evidence is given. The article further examines factors that could influence counsel's ability to challenge expert evidence, and suggests criteria for establishing whether the interests of justice require that legal aid be granted for the purpose of challenging such evidence. It is concluded that the fairness of a criminal trial in which expert evidence is given should be judged holistically.