1 Sylvester v. A.G. (1948) 1 P.D. 5, at 18.

2 Cohn, H., “On the Rights of the Accused” (1970) 26 HaPraklit42, at 44Google Scholar.

3 Aflalo v. State of Israel (1980) 34(iii) P.D. 561, at 575 (emphasis added). See also Kanir v. State of Israel (1981) 35 (iii) P.D. 505, at 515-516.

4 Zinder v. Head of Police Investigations Unit (1951) 5 P.D. 509.

5 Ibid.

6 (1980) 34(ii) P.D. 688Google Scholar.

7 Ibid., at 692. For other rules on the right of inspection, see Il Hozail v. Israel Police (1985) 39(iv) P.D. 124; Angel v. State of Israel (1986) 40(iii) P.D. 481.

8 2 L.S.I. [N.V.] 198, chap. 3, secs. 44-46.

9 Duncan v. Cammell Laird & Co. Ltd. [1942] 1 All E.R. 587.

10 (1957) 11 P.D. 403Google Scholar.

11 A certificate, signed by the authorized minister, must be submitted. The judge will then examine the material in camera and will hear arguments ex parte. This procedure was adopted by the legislature nine years later in secs. 45-46 of the Evidence Ordinance.

12 Applebaum v. Ben-Gurion (1960) 14 P.D. 1205, at 1264.

13 See Law of Evidence (Amendment) Law, 1968 (22 L.S.I. 222). Now sec. 44 of the Evidence Ordinance (New Version), 1971 (2 L.S.I. [N.V.] 198).

14 (1984) 38(iii) P.D. 729Google Scholar.

15 Ibid., at 738.

16 (1987) 41(iii) P.D. 533Google Scholar. The other two decisions were Il Shuebi v. Military Commander of Judea and Samaria (1986) 40(i) P.D. 219; Shakshir v. Military Commander of the West Bank (1989) 43(i) P.D. 529. Both decisions concern deportation orders based upon privileged information.

17 Nevertheless, even this progressive approach does not provide an ideal solution. Where the Supreme Court judge denies the petition for disclosure, the trial court (or the High Court of Justice in the case of a petition brought against a public authority) cannot examine the privileged material, unless the parties agree. Bach J. recently suggested that the law be amended so that the court be empowered to examine the privileged material in camera, without disclosing the contents to the petitioner or his attorney, in a manner similar to that provided under sec. 6(c) of the Emergency Powers (Detention) Law, 1979 (33 L.S.I. 89). See Shakshir, supra n. 16.

Professor Itzhak Zamir suggested a different approach in a lecture delivered to the Israel Academy of Sciences in December 1988. At present, the examination of privileged evidence is carried out by the judge while only representatives of the State participate. Prof. Zamir suggests that a lawyer representing the petitioner also participate. The lawyer would be appointed by the court or by the petitioner himself, but only from a list of lawyers who had obtained security clearance from the security services. While the lawyer would be enjoined from disclosing the evidence to the petitioner or any other person, he would be able to utilize the material in examining the State's witnesses and in his arguments before the court. See Zamir, , “Human Rights and State Security” (1989) 23 Is.L.R. 375Google Scholar.

18 A. G. v. Keinan (1953) 7 P.D. 619, at 643-648.

19 Kandil v. A.G. (1949/50) 2 P.D. 813, at 835; Zarka v. A.G. (1950) 4 P.D. 504, at 538-539.

20 All the changes are now included in secs. 152 and 162 of the Criminal Procedure Law (Consolidated Version), 1982 (36 L.S.I. 35).

21 State of Israel v. Mikhailshvili (1980) 94(i) P.M. 3.

22 State of Israel v. Butros et al. (1986) 40(ii) P.D. 658, at 661, per Ben-Porat J. A similar view was implied before by Barak J. in regard to extradition proceedings; see Angel v. State of Israel (1980) 34(iii) P.D. 98.

23 See Keinan, supra n. 18, at 643-644; Wigmore, , Evidence, vol. 2(Chadbourn, , rev. ed., 1979) sec. 273Google Scholar.

24 Criminal Procedure Law, supra n. 20, at secs. 152(b) and (c), and 161(b).

25 33 L.S.I. 141.

26 35 L.S.I. 136.

27 This provision was recently considered in a fundamental decision by the Supreme Court. A soldier named Moshe Va'aknin was suspected of swallowing packages of narcotics. Military Police investigators forced him to swallow salt water. As a result, Va'aknin regurgitated the drugs, which were later offered as exhibits at his trial and constituted the basis for his conviction. The High Court of Justice accepted his argument that the investigators' acts constituted an “other harassment” under sec. 2(1) of the Protection of Privacy Law. The conduct was thus an invasion of privacy under the Law, and the evidence became subject to the exclusionary rule under sec. 32 of the Law which excludes such evidence unless admitted at the discretion of the court. Va'aknin v. Military Court of Appeals (1983) 37(ii) P.D. 393. That decision was given by a two-to-one majority. The decision was reversed by an expanded bench in an Additional Hearing in 1988. The Court ruled four-to-one that the Protection of Privacy Law does not apply at all to offences involving a trespass upon the person such as the assault upon Va'aknin by the investigators. It is further implied in the opinions of three of the judges that, in light of the Supreme Court's consistent precedent refraining from excluding unlawfully obtained exhibits, it should not be assumed that the legislature intended to introduce inconspicuously a substantial and revolutionary change by the indirect means of the Protection of Privacy Law. Military Court of Appeals v. Va'aknin (1988) 42(iii) P.D. 837.

28 See, e.g., Yassin v. A.G. (1963) 17 P.D. 1541, at 1555; Artzi v. A.G. (1966) 20(i) P.D. 225, at 231.

29 (1979) 33(iii) P.D.376, at 381Google Scholar.

30 (1980) 34(iv) P.D. 533Google Scholar.

31 Ibid., at 539.

32 (1984) 38(i) P.D. 197Google Scholar.

33 Ibid., at 249. And following Mu'adi, see e.g. Avrushmi v. State of Israel (1987) 41(i) P.D. 387.

34 See Mu'adi, supra n. 32, at 225, per Goldberg J., and at 252, per Kahan P.

35 See e.g. Attorney General v. Preliminary Investigating Judge (1959) 13 P.D. 5, at 23.

36 See e.g. Malka v. A.G. (1950) 4 P.D. 429, at 436; Salton v. State of Israel (1973) 27(ii) P.D. 346, at 351.

37 Avitan v. State of Israel (1977) 31(iii) P.D. 527. The prosecution's witness testified during examination-in-chief, but refused to answer any questions under cross-examination other than to state that what he had told the police was correct. In a majority decision, the Supreme Court held that the testimony given in examination-in-chief must be ignored. In the absence of other evidence sufficient to maintain a conviction, the appellant was acquitted.

38 For a recent discussion on the subject, see Harnon, E., “Examination of Children in Sexual Offences — The Israeli Law and Practice” [1988] Crim. L.R. 263Google Scholar.

39 9 L.S.I. 102.

40 But this legal arrangement applies also where the child is an eyewitness to the crime or a suspected perpetrator.

41 For the latest decision in this debate, see Danino v. State of Israel (1986) 40(iv) P.D. 249, especially per Nathanyahu J. On the absence of a statutory standard regarding the minimal qualifications of a youth interrogator and the need to ensure high standards, see e.g. supra n. 38, at 268-271.

42 Yehudai v. A.G. (1957) 11 P.D. 365, at 367.

43 Cr. C. 1899/84 (Ashdod) Ron Roni, para. 6 (unpublished).

44 Cr.A. 906/83 (Tel Aviv) (unpublished).

45 Criminal Procedure Law, 1965 (19 L.S.I. 158), secs. 106- 112. The provisions have since been amended and are now in secs. 116-122 of the Consolidated Version.

46 Criminal Procedure Law, 1965, sec. 111, now sec. 122 in the Consolidated Version. In 1981, the Law was amended so that this procedure could be adopted as an additional measure to counteract the phenomenon of witness intimidation. Pre-trial depositions are since permitted also in instances where the court “finds that there is danger that pressure, threats, intimidation, force or the promise of a benefit will keep the witness from giving truthful testimony in the course of the trial”. Criminal Procedure (Amendment No. 15) Law, 1981, (35 L.S.I. 224) sec. 10 (now sec. 117 of the Criminal Procedure Law (Consolidated Version)).

47 Abu Mahsan v. State of Israel (1974) 28(ii) P.D. 302.

48 Haroush et al. v. State of Israel (1985) 39(i) P.D. 253.

49 Ibid., at 266, per Goldberg J.

50 See Criminal Procedure (Amendment No. 15) Law, 1981, supra n. 46.

51 It should be noted, however, that in a recent case, involving a request to recall a witness who had given testimony in a pre-trial deposition so that she could be cross-examined again, the Supreme Court adopted a careful and balanced approach. See Hatib v. State of Israel (1987) 41(iv) P.D. 805, at 808-810, per Bach J.

52 Evidence Ordinance Amendment Bill (No. 3), 1974, H.H., no. 1103, p. 88Google Scholar.

53 Evidence Ordinance Amendment Bill (No. 4), 1978, H.H., no. 1352, p. 258Google Scholar.

54 In justification of this position, it was argued in the Knesset that if the witness' appearance in court for cross-examination would always be a pre-condition to admissibility of the statement, criminal elements would see to it that the witness did not appear, either by hiding him or by actually eliminating him. See the statement of the Chairman of the Knesset Law and Constitution Committee at the end of the debate in Sitting 274 (26 November 1979), 87 Divrei HaKnesset 640–641Google Scholar.

55 Indeed, in the first Supreme Court appeal of a conviction based on sec. 10A, Landau P. expressed surprise at this omission. Cohen v. State of Israel (1981) 35(iii) P.D. 94, at 98-99.

56 Evidence Ordinance (Amendment No. 4) Law, 1979 (34 L.S.I. 13).

57 See, e.g., Cohen, supra n. 55, at 97-99, per Landau P., and State of Israel v. Tobol (1985) 39(iii) P.D. 596, at 601-605, per S. Levin J.

58 State of Israel v. Ashkenazi (1986) 40(ii) P.D. 361, at 369.

59 See, e.g., Omri v. State of Israel (1979) 33(ii) P.D. 681, at 695, per Shamgar J.; State of Israel v. Estate of Silverman (1983) 37(iv) P.D. 281, at 287, 295, per Shamgar P., and Tobol, supra n. 57, at 608-609, per Nathanyahu J.

60 Examples of these differences in approach can be found in the majority and minority opinions in the appeal of the Tobol case, supra n. 57; in comparing Ashkenazi, supra n. 58, to Huli v. State of Israel (1981) 35(iii) P.D. 477 and Oshri v. State of Israel (1984) 38(i) P.D. 113; the majority and minority opinions in Abu Hatzeira v. State of Israel (1982) 36(iv) P.D. 141; and in Hazan v. State of Israel (1987) 41(i) P.D. 512 as opposed to the minority in Abu Hatzeira (obiter dictum).

61 This trend reached new heights in the Additional Hearing in the Tobol case, (1988) 42(iv) P.D. 309Google Scholar. In its decision, the Supreme Court touched upon several fundamental principles of the criminal procedure system in a manner that may affect the future of Israeli Evidence Law. It would, therefore, be more appropriate to analyse the decision in the framework of an article devoted to it. In the present context, I shall only note that the majority opinion appears to create yet another inroad against the defendant, which does not contribute to the necessary balance in this area. One expression of this can be found in the decision itself in the unusual response of the minority judges. Based on their experience, they fear “the possibility that the new rule will increase the danger of miscarriage of justice in individual cases beyond the proper safety factor”. It would appear that they are joined in that fear by more than a few others.

62 There was, in fact, a Mandatory Ordinance dating from 1926 concerning the provision of counsel for indigent defendants (Laws of Palestine, vol. II, chap. 113, p. 1145Google Scholar). Under that Ordinance, where it appeared desirable for the administration of justice that an indigent person charged with a serious offence (i.e. brought before a district court) have legal assistance, the President of the District Court could (but was not obliged to) authorize the appointment of counsel at the public expense.

In a 1949 appeal before the Jerusalem District Court we find the text of a letter sent by the defendant to the Magistrates' Court judge: “I, the prisoner Eliahu Ben Shaul Va'aknin, ask of his honour the judge that he permit me to obtain a government lawyer as I am a new immigrant and I do not have the means to pay money for a private lawyer”. The Court denied the request for lack of authority.

Occasionally, lawyers volunteered to represent such defendants pro bono and without an appointment by the Court. Such was the case in the above matter, in which the late Dr. Frank succeeded in overturning the conviction and an eight-month sentence. The case was remanded to the Magistrates' Court for a new trial in which the volunteer lawyer represented the defendant. (1951) 4 P.M. 111Google Scholar.

63 15 L.S.I. 196.

64 A. v. Commander of the Military Police Investigations Unit (1975) 29(ii) P.D. 169, at 172.

65 In addition, an obligation was established for appointing counsel for mentally detainees whose hospitalization the court intends to order, or where the court is considering hospitalizing a mentally-ill defendant in absentia. Treatment of Mentally Sick Persons (Amendment No. 2) Law, 1975 (29 L.S.I 126).

66 See Criminal Procedure (Amendment No. 15) Law, 1981, supra n. 46, secs. 2-5.

67 See text at nn. 48-49.

68 See Criminal Procedure (Amendment No. 9) Law, 1988(S.H.no. 1261, p. 184)Google Scholarsec. 2.

69 The leading case is Amiel v. State of Israel (1974) 28(i) P.D. 622.

70 “It is commonly known that the courts are helpless when required to appoint a lawyer who is willing and able to take up the role of appointed counsel. It would be superfluous to point out the direct and indirect negative consequences of this phenomenon…” State of Israel v. Afargan (1987) 41(iv) P.D. 147, at 150, per Goldberg J. (regarding a charge of murder in the course of an armed robbery). In another, more recent case of armed robbery, the defendant was sentenced to a thirteen-year prison term. On appeal, it was found that the Haifa District Court had been unable to find a lawyer willing to accept an appointment as defence counsel. Hajaj v. State of Israel (1988) 42(iv) P.D. 54.

71 The study was conducted on behalf of the Ministry of Justice in the framework of the Harry Sacher Institute for Legislative Research and Comparative Law. See Harnon, E., Legal Aid in Criminal Proceedings (Jerusalem, 1983, in Hebrew)Google Scholar.

72 The results of another study were recently published by Dr. Kenneth Mann of Tel Aviv University. According to his findings, 25% of the defendants before the District Courts are unrepresented, and 70%(!) of defendants before Magistrates' Courts are unrepresented. See Mann, Kenneth, “Criminal Defendants and their Representation by Lawyers” (1987) Dapei Diyun 14(Jerusalem Institute for Israeli Research)Google Scholar.

73 The following table clearly portrays Israel's place in this matter relative to four other countries:

Expenditures for Legal Aid in Criminal Proceedings (in U.S. Dollars)

(This table is taken from E. Harnon, supra n. 71, at 198.)

74 Report of the Commission Examining Legal Aid in Criminal Matters (Jerusalem, 1985)Google Scholar. There was a minority opinion of two of the members of the Commission against the public defender system.

75 See Criminal Procedure (Amendment No. 12) Regulations, 1989(K.T. 5181)Google Scholar. See, for example, the notice on the adjustment of legal fees published in October 1989(K.T. 5222)Google Scholar.

76 I am grateful to Mr. Elisha Zidon, advisor to the Minister of Justice, for providing me with these figures.

77 Report, supra n. 74, at sec. 2(0.

78 Ibid., at sec. 2(a).

79 Ibid., at sec. 2(b).

80 Katalan et al. v. Prison Service (1980) 34(iii) P.D. 294.

81 The term was coined by Landau J. in an earlier decision and was adopted by Barak J. in Katalan, ibid., at 298.

82 Packer first published his thoughts on this topic in “Two Models of the Criminal Process” (1964) 113 U. Pa. L. R. 1CrossRefGoogle Scholar. Several years later, an updated version appeared in his book The Limits of the Criminal Sanction(Stanford University Press, 1968) 149–246Google Scholar. His writings caused other scholars to grapple with his views and to evaluate criminal proceedings by means of various models. See e.g., Goldstein, Abraham S., “Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure” (1974) 26 Stan. L. R. 1009CrossRefGoogle Scholar.

83 Supra n. 74, at sec. 2(c).

84 Ibid., at sec. 2(d).

85 Ibid., at sec. 2(e).

86 See text at nn. 71-74.

87 See e.g. Aflalo, supra n. 3, as quoted in the introduction.

88 See, e.g., Alon v. State of Israel (1982) 36(iv) P.D. 449, at 465-475; Mu'adi, supra n. 32, at 259-265; Biazi v. Levi (1988) 42(i) P.D. 446, at 476-477; Military Court of Appeals v. Va'aknin, supra n. 27.

89 See Evidence Ordinance, secs. 3 and 4.

90 Evidence Ordinance, chap. C.

91 Citrin v. The Bar Association Disciplinary Court for the Tel Aviv District (1987) 41(ii) P.D. 337.

92 Ashworth, , “Excluding Evidence as Protecting Rights” [1977] Crim. L. R.723, at 732–733Google Scholar.

93 Supra n. 74, at sec. 2(d).

94 Kremnitzer, M., “Rethinking Criminal Process” (1988) 17 Mishpatim 475Google Scholar.

95 See ibid, particularly at 492-496.

96 Shtruzman, U., “The Naked King or the Dominance of the Jury in Israeli Courts” (1988) 13 Iyunei Mishpat 175Google Scholar.