Decision to record, Eichmann Adolf



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

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

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:

“…to 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

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

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

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

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

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

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

Presiding Judge Judge Judge

Last-modified: 1999/06/07