The Oscar Pistorius murder trial started in March and today, it’ll be up to the single trial judge to render her verdict. A lot has been said about the possible outcomes and the broader social impact, but for me the case highlights striking differences between the the South African and U.S. Criminal Justice systems.
No Jury
There are no juries in South Africa criminal trials, and so it will be up to Judge Thokozile Masipa to first recount the evidence and then render a verdict. In The U.S. every criminal defendant has a right to trial by jury, no matter how minor the offense. Here, the judge decides issues of law, the jury is the finder of fact and must apply the facts to the law to reach a verdict. Jury trials can often be an advantage to the defendant since verdicts must be unanimous. Even a single holdout juror will cause a hung jury and a mistrial. Here, a defendant can waive their jury trial right and try the case to a single judge.
The hearsay rule is very different
If hearsay is not kept in check, trials become little more that people testifying about what they told other people, and what other people told them. South African law keeps hearsay out, but defines it as, “evidence…the probative value of which depends upon the credibility of any person other than the person giving evidence.” This is very different from the U.S. rule defining hearsay as, “any out of court statement offered to prove the truth of the matter asserted.”
South African courts allow a witness who is testifying to recount their own statements made outside of court or those of others who will also be witnesses. That generally can’t happen here. In the U.S., even the testifying witnesses’ own out of court statements are inadmissible hearsay when they are offered to prove the truth of what they said. As a side not, South Africa does not appear to have an equivalent to our Bruton rule. If you know what that means, you might find it interesting.
Cross examination is crazy
In the U.S. lawyers cross examining a witness can ask leading questions. These questions are designed to suggest the answer: “In fact, you don’t have so much as a Bandicoot at your facility, do you?” In South Africa, lawyers can cross examine by argument and that would be completely improper here: “I put it to you sir, that your so-called ‘marsupial emporium’ does not contain a single marsupial and that you have perpetrated a fraud on the good people of Pietermaritzburg!” In the U.S. attorneys will craft their questioning to suggest a certain line of reasoning, but any explicit argument of the point must be saved for the closing argument.
The judge could find Pistorius guilty of murder, of a lesser homicide charge, or acquit him all together. Whatever verdict she reaches, South Africa does have double jeopardy protection and so Pistorius can’t be tried again for the same crime once a verdict is returned.