Abstract:
Throughout history, the use of mental health professionals as expert
witnesses has elicited criticism. The criticism stemmed from the
alleged lack of scientific rigour in mental health sciences and the
accompanying bias of expert witnesses. As the use of mental health
professionals in court increased, so did the associated problems, with
bias remaining at the forefront. The same challenges plague the South
African courts today and despite various evidentiary and procedural
rules2 aimed at addressing the problems, these have not achieved much success. The contribution traces the origins of the expert witness,
in particular the mental health expert, in the English legal system until
the nineteenth century. By examining the shift in the position of the
expert witness from a neutral informant in the eighteenth century to a
partisan witness in the nineteenth century, a parallel is drawn between
the historical position in England and the current position in South
Africa. Drawing on the past failures and successes of the English
legal system in this regard, and briefly considering the current position
in England, recommendations are made to address the problem of
partisan mental health experts within the South African context.
Description:
This research is based on one of the chapters of the author's doctoral thesis published in 2021, titled A Regularity Framework for Psycho-Legal Assessments in South Africa (LLD thesis, University of Pretoria). (http://hdl.handle.net/2263/78604)