No CrossRef data available.
Article contents
Miscarriage of Justice and the Right to Representation
Published online by Cambridge University Press: 04 July 2014
Extract
In modern criminal procedure it is generally held that reliability of results and basic fairness in criminal trials require that a defendant have legal counsel. Prevention of miscarriage of justice is tied closely, in the minds of policy makers and judges, with vigorous representation by competent counsel. As against these presuppositions how should one understand a modern system of criminal procedure, such as that in Israel, that does not have a broad right of representation for suspects or defendants in criminal cases?
It is by now axiomatic in England and the United States that nearly all defendants in criminal cases have a right to representation. This right encompasses not just the opportunity to bring one's privately retained counsel to court, but also an irrebuttable claim by indigents to have the counsel's bill paid by the state or other public entity. The right to counsel is a broad right, entailing a principle of equality in which representation by counsel is independent of the defendant's ability to pay. In Israel, in contrast, the right to representation in criminal cases is significantly narrower.
- Type
- Research Article
- Information
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997
Footnotes
*
Associate Professor of Law, Tel Aviv University, Chief State Public Defender.
References
1 LaFave, and Israel, , Criminal Procedure Treatise (2nd ed.) Section 11Google Scholar; Mann, K., “Judicial Review and Fundamental Values: The Right to Counsel in American Law and Its Development in Israeli Law”, (1988) 13 Iyunei Mishpat Google Scholar.
2 See Schulhofer, S. and Friedmann, D., “Rethinking Indigent Defense: Promoting Effective Representation for All Criminal Defendants”, (1993) 31 Am. Crim. L.R. 73 Google Scholar.
3 For definition of entitlement to counsel, see The Public Defender Law, 1995, S.H. p. 8, section 18 and the accompanying Regulations: Public Defender Regulations, K.T. 5759, 9.6.1996; Public Defender Order (Representation of Indigent Defendants), K.T. 5759, 9.6.1996. In addition, however, State appointed counsel is provided in all cases of pretrial detention, and for defendants who suffer from mental or physical disability. Criminal Procedure Law (Consolidated Version), 1982, sections 15, 21 (36 L.S.I. 35).
4 This is defined in section 18(b) of the Public Defenders Law, 1995, supra n. 3, and in section 15(d) of the Criminal Procedure Law (Consolidated Version), 1982.
5 Research conducted in the mid-eighties showed that 50% of the defendants in magistrates courts were unrepresented at arraignment. See Mann, K., Representation of Criminal Defendants in the Tel Aviv Courts, Jerusalem Institute for Israel Studies (1987)Google Scholar.
6 Data collected by the staff of the Public Defender's Office in 1995 showed that the rate of non-representation of defendants in arrest hearings rose to 90% in non-metropolitan communities surrounding Tel Aviv (on file, Public Defender's Office, Tel Aviv district).
7 For most of this period, there existed only an ad hoc system of appointment of counsel in criminal cases, whereby judges and court administrators would appoint state-remunerated defense counsel. This has changed in recent years, with the enactment of the Public Defender Law, 1995, supra n. 3; see also Marshak-Merom, D., “Designing a Model for the Public Defender of Israel” (1994) 4 Plilim Google Scholar.
8 This finding reflects in part the attitude of many judges who believe that representation by appointed counsel is often inadequate. In his interview study of judges, Professor Eliahu Harnon found that most judges believe that private attorneys give better representation. Harnon, E., Legal Aid in Criminal Proceedings, Theory and Practice in Comparative Perspective (Jerusalem, 1983) 147–148 Google Scholar.
9 This situation changed in the mid-nineties and was indicated most clearly by the appointment of a national commission to investigate the potential for false confessions within the then current rules of criminal procedure. Report, Commission in the Matter of Convictions on the Sole Basis of Confessions, and in the Matter of the Grounds for the Granting of a New Trial. (Jerusalem, December 1994) [hereinafter: Goldberg Commission].
10 It should be noted that Israel's judiciary has proven to be distinctively free of corruption. There have been no revelations of instances of decisions given as a result of corrupt influence. This record is, of course, not always the case even in developed western democracies.
11 The integrity of a legal system is bound to the question of how often that system malfunctions. Self-admitted malfunctions may be seen as exacting a high price in terms of the standing and integrity of the system in the eyes of the public. Only after a very well entrenched sense of security is achieved can a system reveal its own malfunctioning. This sense of system maturity is reflected in the Goldberg Commission Report, supra n. 9, Introduction, p. 7.
12 In this respect, a recent revision of the law defining the courts authority to grant retrials may lead to the granting of motions for retrial, even after appeal. Post-conviction retrials open the way for discovery of miscarriage of justice, a route of judicial review that was traditionally closed in Israel. See Courts Law (Consolidated Version), 1984, 38 L.S.I. 271, section 31, and Courts Law (Amendment No. 22) 1996. S.H., no. 1567, p. 108, 29.2.1996.
13 Supra n. 8.
14 Report, The Commission for the Examination of Legal Aid in Criminal Case, State of Israel, 1986.
15 Public Defender Law, supra n. 3.
16 For a recent analysis of on-going deficiencies of legal aid in criminal cases, see Uviller, H. Richard, Virtual Justice: The Flawed Prosecution of Crime in America (Yale University Press, 1996)Google Scholar [lamenting the difficulty in attempting to achieve competent counsel with the present system of defense rules — judges reluctant to oversee defense performance.]
17 See Report of the Attorney General's Committee of Poverty and the Administration of Criminal Justice (1963) [“ … insofar as the financial status of the accused impeded vigorous challenges, it constitutes a threat to the viability of the adversary system” pp. 10-11].
18 See Feeley, Malcolm M., The Process in the Punishment: Handling Cases in a Lower Criminal Court (Russel Sage Foundation, 1979)Google Scholar [studying defense attorney's doing of substantive as compared to formal justice], and McConville, M. and Mirsky, C., “Understanding Defense of the Poor in State Courts: The Sociological Context of Non-Adversary Advocacy”, (1985) 10 Studies in Law, Politics and Society 217 Google Scholar.