Simplification of the South African criminal trial process: a psycholinguistic approach

[摘要] English:In this research the validity of the following two hypotheses are testedwithin the broad framework of the right of an accused person to a fair trial,as embodied in section 35 of the Constitution of the Republic of SouthAfrica, Act 108 of 1996:.. The criminal trial process is a communicative process in essencewhich aims at ensuring a fair trial for undefended accused persons;and�?Ineffective communication takes place during the criminal trialprocess.The concept of a fair trial is discussed within a jurisprudential andcommunicative framework. In order for the criminal trial process to complywith the constitutional requirement of a fair trial the process itself has to befair. The aim of the criminal trial process is thus to ensure a fair trial.However, in order to be fair, the process must be intelligible and accessibleto all participants, especially in the case of undefended accused persons.It is pointed out that the criminal trial process is indeed a communicativeprocess and that various factors impact negatively on communication.Distorted communication is one of the factors leading to an undefendedaccused not receiving a fair trial.The criminal trial process is identified as a primarily oral process. Proceduralexplanations given to accused persons during the process are identified andthe content of these procedural explanations is ascertained within theframework of case law and legal literature. These procedural explanationsare indeed instances of communication between the presiding officer and theundefended accused. It is accordingly submitted that the first hypothesis issupported by both the positive law and communication theories.In order to test the validity of the second hypothesis, a field study wasundertaken, employing a qualitative research methodology. Ten samplecases were identified and attended at court 30, Gelvandale Magistrate'sCourt, Port Elizabeth. The undefended accused persons in those cases werechosen as subjects of the empirical research. The purpose of the field studywas to determine the level of intelligibility of procedural explanationsafforded to the subjects by the presiding officer. In order to evaluate the information gathered during the field research, anorm to test the intelligibility of the procedural explanations had to beadopted. After evaluating available norms, the psycholinguistic approach ofthe Charrows was adopted. The performance of the subjects who took part in the field study wasevaluated. It became evident that the subjects who took part in the fieldstudy, on average, understood only 37% of the procedural explanationsafforded to them by the presiding officer. It is accordingly submitted thathighly ineffective communication took place during the field research and thesecond hypothesis is supported by the results of the field study.The low level of intelligibility of the procedural explanations may have theresult that on average, the undefended accused persons who took part inthe research project did not receive a fair trail. Suggested instances of remedial action are accordingly advanced. It issuggested inter alia that legal aid should be afforded to undefended accusedpersons on a much larger scale and that a multi-disciplinary task team beappointed to re-address the position of the undefended accused.

[发布机构] University of the Free State