The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Recording of the Proceedings


The Attorney General requests the Court to permit the recording of the public proceedings in this case on videotape films with sound tracks, for the purpose of television broadcasts and cinema showings in Israel and abroad. He submitted to us a written contract between the Government of Israel and the Capital Cities Broadcasting Corporation, a company registered under the laws of the State of New York, by which the Government has granted that company the exclusive right to make such recordings, "subject to the rules of court." If by these last words the parties to the contract meant rules of court in the ordinary sense of that term, i.e., rules of a legislative character, it must be pointed out that no such rules exist here, nor is there anyone competent to make them.

As to taking pictures in the courtroom, it appears from Section 40(b) of the Courts Law, 5717-1957, that this matter is left to the discretion of the court which hears the case. This provision applies to the visual part of the proposed recording. As to the recording of sound for the purpose of broadcasting outside the courtroom, we know of no relevant statutory provision, but in our opinion this matter, too, is left to the discretion of the court, by virtue of its power to control the proceedings conducted before it, which is an inherent power.

The first question arising before us is whether the proposed recording is likely to impair the normal and proper course of the proceedings in the case through disturbances caused by the processes of the recording. We have made an inspection and ascertained the mode of functioning of the recording machines. We have satisfied ourselves that these machines stand concealed behind netted apertures, and that the persons operating them are likewise concealed; the machines record pictures by the ordinary lighting in the room and make no noise whatsoever. In this respect, i.e., as regards the possibility of a disturbance during the proceedings, we are absolutely satisfied that there will be none.

Dr. Servatius, Counsel for the Defence, has strongly opposed the request of the Attorney General. His main arguments are the following:

(a) The knowledge that the proceedings are being recorded for television and cinema may induce the witnesses not to give their evidence truthfully, both because they may be afraid of persons outside the courtroom who may be watching their televised evidence and because of a desire to play-act before a world-wide audience.

(b)The television broadcasts are apt to lead to a distorted presentation of the proceedings, e.g., by omitting the arguments of the Defence.

Alternatively, Dr. Servatius has requested the Court to make its consent conditional upon the Capital Cities Broadcasting Corporation undertaking that in disseminating the pictures and recordings it will give an objective presentation of the proceedings.

The representatives of the parties have not called our attention to any precedents in this matter. We shall do well to first of all refer to the basic rules concerning the publicity of judicial proceedings. In Cr.A.152/51, Piskei Din VI, 17, p. 23 sec., the Supreme Court laid down three rules to be followed by a court, the first being:

"' conduct the proceedings between the parties - both in civil and criminal cases - in public and in the view of all persons."

One of the purposes of these rules is, as stated there:

"'to expose the trial of every case to the critical eye of the public, as a measure by itself calculated to exclude any possibility of a biased or prejudiced proceeding..."

Ibid., p. 24, the following is quoted from Bentham:

"Only in proportion as publicity has place can any of the checks applicable to judicial justice operate. Where there is no publicity, there is no justice... Publicity is the very soul of justice... It keeps the judge himself while trying under trial. The security of securities is publicity."

In Cr.A.230/56; 4/57, Piskei Din XI 750,753, the Supreme Court quoted Lord Halsbury's remark in MacDougall v. Knight that the publication of what takes place in court "is merely enlarging the area of the court and communicating to all that which all have the right to know."

True, these remarks were aimed at the dangers of a trial in camera, and their authors did not envisage the technical media of mass information developed in this century, such as radio and television. But if it is correct that publication is "communicating to all that which all have the right to know," then there is no limit to the desirable extent of publicity. On the contrary, in the same measure as the circle of persons interested in a particular trial is wider, it is desirable that the publication of what happens at that trial should be more comprehensive, provided, of course, that the publication is accurate and fair. This Court is aware that the case to be heard before it will arouse great interest in Israel and throughout the world.

As to the accuracy of publication, there can be no doubt that direct visual and sound recording in the manner intended will render the proceedings in the courtroom with complete faithfulness, far more accurately than the written word. We therefore hold that, in view of the aforesaid fundamental considerations - widest possible publication, for the benefit of every person desiring to be informed, and exposure of the court to the judgment of the public - a television broadcast of what happens in the courtroom is not only not objectionable, but serves important interests of justice, and that we must not withhold the approval of the Court from this method merely because it constitutes an innovation.

Let us now revert to the objections of Defence Counsel.

His first objection does not commend itself to us at all. The approved method of discovering the truth in our criminal procedure is the examination of the witness in the sight of the court and the free appraisal of his evidence by the court. To the extent that this method does not prevent the possibility of giving false testimony under the influence of persons outside of the courtroom, that possibility exists whether the evidence is recorded for television or whether it is only recorded in writing, for in either case anyone can know what the witness said in court. On the other hand, cases are conceivable where a witness will be more accurate in his evidence precisely when he knows that he is testifying in the sight of a public beyond the walls of the courtroom. As Bentham says (quoted by Wigmore, On Evidence, 3rd ed., vol.III, p.33):

"Environed as he sees himself by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths."

The same applies to the danger of witnesses play-acting while giving evidence. Where such a danger exists, it may be assumed that the witness will want to play-act before the spectators and journalists in the courtroom no less than before the television camera.

More serious is Defence Counsel's second objection, concerning fragmentary publication likely to distort the picture of what happens in the courtroom. We wish to add on our part that a danger also exists of publication in a manner which is unfair or unbecoming to the dignity of the court. A further difficulty is that the court can exercise no direct control over publications abroad by imposing criminal or civil sanctions. However, we ultimately concluded that these dangers, too, do not outweigh the favourable aspects of the proposed recording. These dangers, too, exist in any case in respect of written publication in the local and foreign press, and in any event the court can, if necessary, react to television publications which distort or are unfair or unbecoming to the dignity of the court, and which are brought to its notice, by immediately withdrawing its permission for the recording.

On these grounds, we permit the photographing and recording of the public proceedings in this case by the Capital Cities Broadcasting Corporation by means of videotape films, and the publication of the pictures and recordings by television and cinema showings. This decision, of course, is given subject to the Court's power to stop the photographing or

recording, or to prohibit publication temporarily or permanently at any stage of the trial, if the Court, in its discretion, deems it necessary so to do.

Needless to say that the Court will see to it that the fact that the proceedings before it are published by television and cinema does not in any way alter the manner of conducting the trial, and we do not doubt that the representatives of the parties will conduct themselves accordingly.

We do not think that there is room for confirmation of the contract between the Government and the Capital Cities Corporation by this Court, since the terms of that contract are of no concern to this Court, save as stated in this Decision

Given this day, 22 Adar 5721 (10 March 1961)

Presiding Judge

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