The state of evidence
presented to our courts by so-called expert witnesses is alarming. Some of
these people are indeed experts, but are called on to testify on matters
outside their actual field of expertise.
Some, who are actual experts in the relevant field, hold eccentric or
minority views, not shared by many of their colleagues. Others, again, are
self-appointed experts, without any actual qualifications or recognition by colleagues,
eager to share their opinions with the world.
This past month I was
troubled by some of the evidence given by a psychologist in the DJ Donald
Sebolai case, illustrating the problems caused by asymmetric use of experts.
I’ve known Dr Saths
Cooper for many years as a distinguished and honorable psychologist, but his
evidence in the Sebolai case made me uneasy.
Dr Cooper testified
that the accused’s story of his girlfriend’s death was probably true, because
he repeated the same story while under hypnosis. This should not have been
permissible because, in most parts of the world, evidence obtained by or under
hypnosis is not accepted or allowed to be presented in court.
Read: Can you trust your memory?
Hypnosis involves rendering
the person very highly suggestible, to the point that they become likely to
accept uncritically whatever is suggested to them. There isn’t a shred of
evidence that statements made in a hypnotic state are in any way more likely to
be credible and truthful than when made in an ordinary state of mind. Though
hypnosis may increase the amount of accurate information recalled, it also
increases the amount of inaccurate information “recalled” and reported. People can lie under hypnosis!
Another reason for
serious concern is that he said the accused “was not even aware that he had
been hypnotised at the time”. This is problematic because any health
professional carrying out any procedure on anyone, whether administering a
drug, conducting even minor surgery, or hypnotizing them, is required to get informed
consent from the patient, which was clearly not possible if he wasn’t aware
that he was being hypnotised.
Assessing the whole case
When cross-examined by
the prosecutor, Dr Cooper said he was confident in his techniques, but admitted
they were not “fool proof”. There is also no indication what scientific
research Dr Cooper used to support his various assertions
He was also challenged
for having relied solely on his meetings with the accused and interviews with
his sister and boss, and ignoring the contents of the docket and all evidence.
He’s quoted as saying, “With all respect ma'am, my job is not to assess the
case but to assess the state of mind of the accused. [Looking at the facts of
the case] is the court's job.”
It is, however, is very much the expert’s job
to assess the whole case as it reflects on the accused’s state of mind through
the entire relevant period. It’s
impossible to properly assess that state of mind in an interview without
knowing all available evidence that could be relevant. An expert who
deliberately ignores available evidence and can’t relate his assessment to all
the facts of the case is not a functional expert, or useful to any court.
He was described as
having taken the accused “back to the scene of the murder through hypnosis”, and
being convinced that his version of events was truthful and probable. Truth is not something one can assign to any
statement made under the influence of dissociation or hypnosis.
Read: Going under
Cooper has been a
leading figure in the Natal Indian Congress, the Black Consciousness movement,
AZAPO, and other organizations, was a political detainee, and eventually Vice
Principal of UDW, and even a Chairman of the Road Accident Fund. He has excellent qualifications in
psychology, has been elected President of the Psychological Society of South
Africa, and is an Honorary Professor of Psychology at the School of Social
Sciences of the University of Limpopo.
Dealing with the need for expertise
The South African
justice system is highly sloppy in how it deals with the need for expertise. By
not adequately checking the qualifications of every one claiming to be an
expert, and whether their theories can be taken seriously, is doing serious damage
to its effectiveness, misleading and confusing courts and potentially leading
to serious miscarriages of justice.
Another problem is the
unequal availability of experts. Most private citizens can’t afford to hire an
expert, however much it might help their case. Rich defendants, however, can
bring in as many experts as they wish (as in the Oscar Pistorius case). What
makes the situation even more unbalanced is that prosecutors also can’t get the
experts they really need for effective prosecution unless there’s someone
available for free within the system. This means that they run the risk of losing
long and expensive cases because they can’t get the expert advice and evidence
Read: The Oscar Pistorius trial is super confusing
Why do we need experts?
circumstances all judges would be wise, well-educated and with a wide general
knowledge. This is however not how
things are, and many criminal and civil cases involve essential technicalities
which only experts in a particular field can understand, explain, and apply to
But some experts forget
their role and become hired mercenaries, fighting for whichever side’s paying
them and treating their area of knowledge like a buffet, picking and selecting
only those bits that suit them. This is why it is essential that both sides
have access to expert advice, so that they can offer the court objective,
balanced and accurate explanations.
When experts are bought
It’s commonplace that
an expert feels pressure from the lawyers who involved him “to adapt his
opinion towards the position most helpful to their case”. If he is not to become a mercenary whose
opinion is for sale, he must resist those pressures. I have noticed with
distress how some “experts” express contradictory views in different cases, emphasizing
different facts, and omitting others, depending on what is be most helpful to the
legal team that hired them. Experts
should be paid for their time and effort, but not their opinions.
Dumani in his excellent
analysis of such situations, wrote: “It is my view that expert witnesses who
give evidence of an opinion not
generally held, could be guilty of perjury, while those who suppress relevant information
may be guilty of obstructing the course of justice.“
Ask your psychiatrist
What's wrong with psychiatry?
Introducing the International Academy of Hypnosis Reference
Aspects of expert
evidence in the criminal justice system. Msebenzi Dumani. Dissertation for
Master of Law degree, Nelson Mandela Metropolitan University.