Case Number
HCJ 11339/05
Date Decided
10-8-2006
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.
Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope is no longer suited to present conditions and legal realities. It today constitutes an obstacle to conducting effective criminal trials. The time has come to depart from the all-encompassing rule and to determine a new point of balance between the competing values that lie at the heart of the Kinsey rule, and the rule as it is interpreted today can no longer stand.
All the Justices agreed that the Kinsey rule should generally no longer be applied and that it should not be applied in this case; they differed on how sweepingly it should be rejected.
Justice Levy (with whom Justice Grunis agreed) concluded that the Kinsey rule should be rejected outright. While the court should exercise great caution when considering the credibility of the testimony of a witness-accomplice, whose separate trial has not ended, against the defendant, the right to a fair trial, which was protected by the Kinsey rule, should be protected instead by other means. The two most important such protections in this setting are the requirement of supporting evidence for the testimony of a witness-accomplice in s. 54A of the Evidence Ordinance, and the privilege against self-incrimination in s. 47(b) of the Evidence Ordinance. These should be interpreted broadly so that any incriminating statement made during the testimony of the witness-accomplice in the trial of the defendant may not be used directly or indirectly against the witness-accomplice in his subsequent trial.
Justice Procaccia argued that the proper balance between the conflicting values will be achieved by a selective cancellation of the Kinsey rule, which will leave the trial court judicial discretion, in exceptional cases, to order the hearing of the witness-accomplice’s testimony only after his trial has ended.
President Beinisch, whose views were endorsed by President Emeritus Barak, Vice-President Rivlin, and Justice Naor, staked out an intermediate position. The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state.
Petition granted.
Keywords
Administrative Law -- Judicial review, Evidence -- Testimony
