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Published online by Cambridge University Press: 12 February 2016
Exclusion of evidence of similar facts has not been specifically dealt with in the law of Israel and therefore, according to Art. 46 of the Palestine Order-in-Council, 1922, English common law rules have been applied by the courts as a matter of course despite the absence of the jury system in this country—and regardless of the stipulation at the end of Art. 46. The influence of these rules, as applied in criminal cases, is the main theme of this article.
In the words of J. Stone,
… a fact is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand. When facts having characteristics in common with the main fact are tendered in evidence, the court must ascertain which common characteristics are the significant ones in order to determine relevance.
1 Stone, J., “Exclusion of Similar Facts Evidence: England” (1932) 46 Harv. L.R. 954, 955CrossRefGoogle Scholar (hereinafter referred to as “England”).
2 Thayer, , Preliminary Treatise on Evidence (1898) 269Google Scholar (hereinafter referred to as Thayer's Treatise); also in Thayer, , “Presumptions and the Law of Evidence” (1889) 3 Harv. L.R. 141, 147CrossRefGoogle Scholar (hereinafter referred to as Thayer-”Presumptions”). See also, Wigmore, J., A Treatise on the Anglo-American System of Evidence in Trials at Common Law (3rd ed., 1955) Vol. IGoogle Scholar §12 (1) (a) (hereinafter referred to as Wigmore); McCormick, , Handbook of the Law of Evidence (1954) 319Google Scholar (hereinafter referred to as McCormick); Agranat, P., in Shayovitch v. A.G. (1965) (III) 21 P.D. 421, 441. Admissibility may be described in the following formula: Admissibility = Relevancy-Exclusion.
3 See Thayer, , “Law and Logic” (1900) 14 Harv. L.R. 139, 140CrossRefGoogle Scholar; Thayer's, Treatise p. 264.Google Scholar
4 Orfield, L., Criminal Procedure Under the Federal Rules (1966) §26:440, p. 768Google Scholar (hereinafter referred to as Orfield).
5 See Wigmore, Vol. 1 §12 (1) (6).
6 See supra n. 2.
7 See Thayer, , “Law and Logic” (1900) 14 Harv. L.R. 139 at p. 141.CrossRefGoogle Scholar See also Cross, R., Evidence (3rd ed., 1967) 20Google Scholar, n. 3 (hereinafter referred to as Cross). See generally, Trautman, , “Logical or Legal Relevancy—A Conflict in Theory” (1952) 5 Vand. L.R. 385Google Scholar (hereinafter referred to as Trautman).
8 Stephen, , A Digest of the Law of Evidence (12th ed., 1946)Google Scholar Introduction (hereinafter referred to as Stephen); Indian Evidence Act, 1872, pp. 122–6.
9 As distinguished from hearsay evidence and from opinion evidence see infra n. 90 and text.
10 Nokes, , Introduction to Evidence (1962) 100Google Scholar (hereinafter referred to as Nokes) suggests: “The main ground for excluding similar facts would appear to be that they are often irrelevant to the facts in issue”. Halsbury's, Laws of England (3rd ed.) vol. 15, p. 321.Google Scholar “The rule is based on the ground that evidence of similar facts may be irrelevant”. We disagree, with all respect, that this is the analytical justification of the rule. One must, however, agree that this is the use frequently made of the rule.
11 Cross, p. 294; see also p. 21. For an extensive criticism see Wigmore, Vol. I, § 12 (1) (a); Thayer-“Presumptions” 143; Thayer's, Treatise, 266.Google Scholar
12 (1810) 2 Camp. 391; 170 E.R. 1194 (N.P.); see also Nokes at p. 111.
13 (1900) 82 L.T. 347 [1901] 2 Ch. 608; see also Nokes at p. Ill, and see a list of other similar cases in Halsbury's, Laws of England vol. 15, p. 291Google Scholar, §2, §§(5) f.n. (d). Cf. also, Harris v. D.P.P. [1952] A.C. 694 with Noor Mohamed v. R. [1949] A.C. 182 (P.C.); and see Cross, pp. 295–96.
14 Cf. Stephen, p. 20, illustrations (c). But cf. Union and Varnish Co. v. Dean (1927) 48 R.I. 288, 137 A. 469. One drum of paint admitted as proof that the other was also bad, since both were “of the same brand, sold by the same concern under the same warranty within six months”. James, , “Relevancy, Probability and the Law” (1941) 29 Calif. L.R. 689 at 693CrossRefGoogle Scholar, regards the decision as “a novel rule of substantive law [to protect the consumer, who does not have to try the second drum] which stands revealed behind a somewhat doubtful ruling on evidence”.
15 31 Mass. 518, 520 (Sup. Ct., 1833). See Lord Simon's opinion, in Noor Mohamed v. R. [1949] A.C. 182, where he suggests the exclusion of evidence as irrelevant and then adds “and if it was not relevant it was at the same time highly prejudicial”. Du Parcq L.J. apparently, rejected the evidence upon the exclusionary rule (at p. 192).
16 “Relevance is a matter of degree, and different views may sometimes be taken on the question whether a certain item of evidence is sufficiently relevant to be admissible”, Cross, p. 293.
17 See Frank J. in Ochs v. Comm. 195 2F. 2d 692 (2d Cir. 1952), 344 U.S. 827 (1952): “Line drawing may be difficult here as everywhere, but that is what courts are for”.
18 Makin v. A.G. for New South Wales [1894] A.C. 57, 65 per Lord Herschell.
19 See e.g., Shayovitch v. A.G. (1965) (III) 19 P.D. 421 at 440, §C; see also Jobara v. The State of Israel (1970) (II) 24 P.D. 747, 751. Sussmann, J., though contending that “the principle is clear”—an opinion which may be questioned—admits that “its application is fraught with difficulties”.
20 McCormick, p. 324.
21 Nokes, pp. 106 and 109. Cf. Shayovitch v. A.G. (1965) (III) 21 P.D. 421, 441 per Agranat P. For the two versions see also: (a) as an exclusionary rule: R. v. Bond [1906] 2 K.B. 389, 398, per Kennedy J.; U.S. v. Burr (1807) F. Cas No. 14694, per Marshall Ch. J.; Calo v. A.G. (1966) (II) 20 P.D. 181, 191, per Kister J.; and (b) as a rule of admissibility: R. v. Sims [1946] K.B. 531, 537, per Lord Goddard; U.S. v. Stircone 262 F2d 571, 576, per Goodrich J. and Shayovitch v. A.G. at p. 501 per Agranat P.
22 Shayovitch v. A.G. ubi supra at p. 446; see also McCormick, at p. 327. Lord Simon explained this approach in Harris v. D.P.P. [1952] A.C. 694, 705, as follows: “It is … an error to attempt to draw up a closed list of the sort of cases in which the principle operates: such a list only provides instances of its general application. Whereas what really matters is the principle itself and its proper application to the particular circumstances of the charge that is being tried”.
23 See People v. De Pomples 410 Ill. 587, 102 N.E. 2d 813 (1952); R. v. Ducsham [1955] O.R. 824, [1956] 1 D.L.R. 372; R. v. Evans [1950] 1 All E.R. 610.
24 See R. v. Francis (1874) L.R. 2 C.C.R. 128.
25 See Barrett v. Long (1851) 3 H.L.C. 395.
26 See State v. Lapage 57 N.H. 245, 294 (1876).
27 See State v. Gaines 144 Wash. 446, 258 Pac. 508 (1927).
28 See Copeland v. U.S. 152 F. 2d 709 syl. 1 (C.A.D.C. 1945).
29 “England” 983–84, see R. v. Straffen [1952] 2 Q.B. 911; for a brief analysis of the case see Cross, pp. 298–299.
30 Toledo St. L. & K. Ry Co. v. Bailey 145 Ill. 159, 33 N.E. 1089, syl. 3 (1893).
31 At p. 325.
32 Cf. Southern Traction Co. v. Kirksey 225 S.W. 702 (1920); Note, “Evidence-Admissibility of Habit to Prove Negligence” (1920) 30 Yale L.J. 195.
33 See Wigmore, Vol. II, §315; Fisch, , New York Evidence (1959)Google Scholar, §241.
34 Shayovitch v. A.G., ubi supra, at p. 446. See also Stone, J. “Similar Facts in Criminal Cases: America” (1937) 51 Harv. L.R. 988, 989CrossRefGoogle Scholar (hereinafter referred to as “America”). In both “America” and “England”, Stone says that the “admissibility version” is the “original rule” while the “exclusionary version” is “a much broader spurious rule”.
35 It must be emphasized that the traditional conservative English method is still followed in the United States. Even accepting the “admissibility version” of the rule, some American writers put it in a radical formulation: see Orfield, p. 813, §26:470 and Wigmore, Vol. 1, §194.
36 See supra n. 11.
37 See supra n. 10. Even McCormick sometimes uses the relevancy test: see e.g., p. 332. See also Orfield, p. 811 §28:470.
38 Nokes, pp. 110–111.
39 In clear, brief words McCormick at p. 333 bases the relevancy of character evidence upon human experience, in that “people generally act in keeping with their character”.
40 Fox, J., “Law and Logic” (1900) 14 Harv. L.R. 39, 40.CrossRefGoogle Scholar In his reply, Thayer in “Law and Logic”, p. 141, accused Fox of failing to observe the distinction between “relevancy” and “admissibility”.
41 Nokes, p. 113.
42 McCormick, p. 332.
43 E.g., Holcombe v. Hawson (1810) 2 Camp. 391; 170 E.R. 1194 (N.P.).
44 Nokes, p. 110. See also Phipson, on Evidence (11th ed., 1970) 217Google Scholar §§494–495, (hereinafter referred to as Phipson).
45 See e.g., Hollingham v. Head (1858) 27 L.J.C.P., 241, 242.
46 See e.g., R. v. Bond [1906] 2 K.B. 389, 938; See also Hollingham v. Head, ubi supra. In the Israeli Evidence Bill (See infra text at Part IV) the danger of undue prejudice and of misleading the judge has been omitted, probably out of respect for the judiciary. Sec. 7 (c) preserves the risks of confusing the issues and complicating the case. In like manner, the word “judge” in R. 303 (b) of the Model Code was replaced by the word “jury” in r. 45 (b) of the Uniform Rules.
47 Model Code R. 303; See also Uniform Rules, R. 45.
48 McCormick, p. 320, n. 29.
49 See Shayouitch v. A.G. (1965) (III) 21 P.D. 421, 441; Thompson v. American Steel and Wire Co. 317 Pa. 7 175 Atl. 541 (1934).
50 The title of chapter 6 of McCormick.
51 Harrison's Trial (1692) 12 How. St. Tr. 833, 874.
52 McCormick, p. 332.
53 Comments to sec. 7 of the Israeli Evidence Bill. The technical term originally used in the comments was eenooy ha-din (perversion of justice) or in Judge Alon's words in the Cooperative Research (infra n. 59 at p. 12), “improper, undue, excessive delay, not just any unqualified delay”.
54 Harris v. D.P.P. [1952] A.C. 694, 707 per Lord Simon.
55 McCormick, pp. 350 and 321. See also “England”, p. 985 showing that even in England there is interest in “a growth of a discretionary power in the trial judge”.
56 “America”, p. 989.
57 McCormick emphasizes (pp. 332–333) that “this is not a discretion to depart from the principle that evidence of other crimes, having no substantial relevancy except to ground the inference that the accused is a bad man and hence probably committed this crime, must be excluded. The leeway of the discretion lies rather in the opposite direction, empowering the judge to exclude the other crimes evidence, even when it has substantial independent relevancy, when in his judgment its probative value is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial”.
58 The comment to R. 55 explains: “An effort has been made to make the purpose of the rule more immediately apparent than does R. 311 of the Model Code. Hence we have followed the pattern of cataloguing the type of things which may be proved by such evidence. This is not generally good policy but in this instance an exception to the better rule of drafting seems helpful. The drafters contend that “the illustrative material could be eliminated without hurting the rule”. It is submitted, with due respect, that the addition of the illustrative material did change the meaning and scope of the rule.
59 Originally published in Hebrew in 1952 by the Ministry of Justice. (English translation, Harvard, 1953. For a symposium on the bill see, the Harvard Law School—Israel Cooperative Research on Israel's Legal Development, 1953, cited as Cooperative Research.
60 Ibid., sec. 4.
61 Attention should be drawn to the fact that admissibility under sec. 4 is even wider than under the English relevancy test. See Israeli Evidence Bill, comments to sec. 4, para. 3. But see Morgan's notes in Cooperative Research, supra n. 59 at p. 7.
62 Witness the inclusion of sec. 7, the absence of which would, probably, have resulted in a narrowing of the scope of admissibility, perhaps by including the provisions parallel to R. 311. Morgan saw “in the combination of sec. 4 and sec. 7 an excellent and, at the same time, simple forensic working tool”. With all due respect, it is difficult to accept Sussmann J.'s contention, based on his “experience as a trial judge”, that there seems to exist no “necessity for enacting sec. 7” (p. 13).
63 McGormick, p. 322; see also Wigmore, Vol. 1, §§70–81. Moore v. Davies (1930) 27 S.W. 2 & 153, syl. 3; Burrow v. State 166 Ark. 138, 265 S.W. 642 syl. 2 (1924).
64 McCormick, loc cit. And see Wigmore, Vol. 1, §§55–69.
65 Uniform Rules, R. 47; see also RR. 48–49; Wigmore, Vol. I, §§191–213; McCormick, pp. 323–324.
66 McCormick, p. 325. See also sec. 22 of the Defamation Law (1965) 19 L.S.I. 254. In summarising this Law, Baker, H. said in The Legal System of Israel (1968) 95Google Scholar: “In a criminal or civil case for defamation no evidence may be adduced, and no witness may be examined with regard to his defective character, past, acts, or opinions, save to the extent to which those particulars directly concern the defamation constituting the subject-matter of the case”.
67 Cross, p. 292. Cross' definition of “disposition” (p. 291) is “a tendency to act, think or feel in a particular way”.
68 McCormick, p. 324.
69 “[I]t does not prove a man guilty of a particular crime to show that he is a man who would commit a crime or that he is generally disposed to a crime or even to a particular crime”. Thompson v. R. (1819) A.C. 221. As to the application of Thompson's ratio in Israel, see Aricha v. A.G. (1951) 5 P.D. 1200, 1205: in a charge of incest with a daughter, evidence of female relatives of the accused that he used to make immoral suggestions to them was rejected. Cf. R. v. Ball [1911] A.C. 47. See also Cross, p. 297.
70 Ubi supra n. 30 at 162, and see text there.
71 McCormick, pp. 340–1; see also Wigmore, Vol. 1, §§92–97.
72 Model Code R. 307 (2); see also Uniform Rules, R. 49.
73 E.g., Smith v. Boston & M.R. Co. 70 N.H. 53, 47 Atl. 290. syl. 1 (1900), (the uniform habit of the victim of slackening the speed of his riding when arriving at a train crossing, was accepted as proof that he acted in the same way on his fatal ride).
74 E.g., Comm. v. Torrealba 316 Mass. 24, 54 N.E. 2d 939, syl, 12 (1944) (the custom of a shop to give a sales slip with each purchase was accepted as evidence that it would have done so also on the specified occasion when the defendant was caught with goods with no sales slip). See McCormick, pp. 344–350, §§163–7; Wigmore, Vol. 3 §963; Wigmore, Vol. 2, §§177, 252, 301–304, 321, 458, 463–464; Stubly v. Beachboard, 60 Mich, 401, 422, 36 N.W. 192, syl. 2 (1888); Woodward v. Buchanan [1870] L.R. 5 Q.B. 285.
75 R. v. Fisher, [1910] 1 K.B. 149, 152, per Channel, J. Cf. Aricha v. A.G. (1951) 5 P.D. 1200, 1205, per Landau J. and Govarah v. State of Israel (1970) (II) 24 P.D. 747, 751, per Sussmann J.; see also, Cross, p. 296.
76 Nokes, p. 113.
77 “England”, p. 984. To illustrate the “end test”, cf. the decision in Govarah v. State of Israel, ubi supra, with that rendered in Azulay v. A.G. (1967) (II) 21 P.D. 44; and R. v. Baily [1924] 2 K.B., 300 with R. v. Shellaker [1914] 1 K.B. 414.
78 Cross, p. 292.
79 R. v. Bond [1906] 2 K.B. 389, 420–421 per Lawrence J. This doctrine is called also the “doctrine of chances or coincidence”, Wigmore, Vol. 2, §302. See also Shayovitch v. A.G. (1967) (III) 21 P.D. 421, 454.
80 See Morgan's, Foreword to the Model Code, p. 8.Google Scholar As to the hearsay evidence rule see e.g., Morgan, , Some Problems of Proof Under the Anglo-American System of Litigation (1956).Google Scholar
81 Orfield, p. 830, §26:484 says: “In some cases, proof of other offences may be harmless error where the trial is by the court without a jury but not if before a jury”. See also Stowe, “Evidence of Similar Facts” (1922) 38 L.Q.R. 63 (hereinafter referred to as Stowe). McCormick, p. 327; Morgan, p. 44. See also Stone, “England”, p. 951. It may seem of significance that R. 45 (b) of the Uniform Rules has replaced the word “judge” in R. 303 (b) of the Model Code (“danger of misleading the judge”) by the word “jury”. There are of course other justifications for the rule which apparently do not seem to relate to the jury system.
82 See Morgan, , Foreword to the Model Code, p. 10Google Scholar; Introduction to the Israeli Evidence Bill, p. II.
83 The leading Israeli cases (not including those from the Mandatory era) are: Aricha v. A.G. (1951) 5 P.D. 1200; Donnenfeld v. A.G. (1951) 5 P.D. 341; Gechtman v. A.G. (1954) 5 P.D. 577; Shemaya v. A.G. (1952) 6 P.D. 765; Mizrachi v. A.G. (1953) 7 P.D. 306; Cohen v. A.G. (1954) 8 P.D. 1234; Brilliant v. A.G. (1954) 8 P.D. 1315; Meir v. A.G. (1955) 9 P.D. 1218; Chelamsky v. Investment Co., Yitzhak & Sons Ltd. (1961) 15 P.D. 1625; Shayovitch v. A.G. (1965) (III) 19 P.D. 421; Callo v. A.G. (1966) (II) 20 P.D. 188; Naaman v. A.G. (1966) (IV) 20 P.D. 187; Azulay v. A.G. (1967) (II) 21 P.D. 44; Govarah v. State of Israel (1970) (II) 24 P.D. 747.
84 Shayovitch at p. 447; but see Callo at p. 191 where Kister J., in a minority opinion implicitly adopted the more conservative approach. Here, as in admissibility in general, the personal views of the judge are certainly of significance.
85 See the Introduction to the Israeli Evidence Bill, p. II: “after we have thus prepared the judge and trained him, after he has been selected and found worthy of his office, we do not trust him, his education, or his ability to draw distinctions. Instead we make him close his eyes and forbid him to listen lest he see and hear unscreened and unreliable evidence and possibly use it as the basis for his judgment. It is like having a driver successfully pass all his driver's and mechanic's tests, but in the end, out of fear of a traffic accident, giving him a horse to pull his car and forbidding him to use his motor”.
86 Morgan, , Foreword to the Model Code, p. 8.Google Scholar
87 This factor is of much greater significance in the United States, and it is this perhaps which has influenced the liberalization of the rule in that country.
88 Even where there is no need to examine the evidence itself, or where it is on the face of it unadmissible and immediately rejected, it goes without saying that the very fact of objecting may be tactically harmful. Cf. Morgan, , Foreword to the Model Code, p. 6.Google Scholar
89 See Harnon, , “Evidence Obtained by Unfair Means” (1966) 23 HaPraklit 27Google Scholar; See also Maguire, J. et al. , Cases and Materials on Evidence (5th ed., 1965) 775et seq.Google Scholar
90 As to the rationale of the rule excluding opinion evidence, see Hollington v. Hewthorn & Co. Ltd. [1943] 2 All E.R. 35. As to the rationale of the rule excluding hearsay evidence see A.G. v. The Preliminary Investigation Judge (1959) 13 P.D. 5, 16 which follows Wigmore, Vol. 5, p. 3, et seq.
91 See e.g. Willes J. in Hollingham v. Head (1858) 27 L.J.C.P. 241, 242.
92 Cf. Hart's, sarcastic criticism of the law of probability in From Evidence to Proof (1956) 132–34Google Scholar; Tribe, L., “Trial by Mathematics: Precision and Ritual in the Legal Process” (1970–1971) 84 Harv. L.R. 1329CrossRefGoogle Scholar; M. Finkelstein & W. Fairley, “The Continuing Debate Over Mathematics in the Law of Evidence” ibid., at p. 1801; Tribe, “A Further Critique of Mathematical Proof” ibid., at p. 1810.
93 See Illinois Civil Practice Act (1933) §43(4); James, op. cit supra n. 14 at pp. 701 (n. 28) and 705. And an example taken from a different area of excluding a plea on the ground of unfair surprise may be found in Halvering v. Wood, 309 U.S. 344 (1940) (a petition for certiorari).
94 See Stowe, p. 63.
95 See dictum of Jackson J. in Michelson v. U.S. 335 U.S. 469, 69 Sup. Ct. 213 (1948): “We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other”.
96 At p. 752, per Sussmann J. Cf. Azulay's case, at p. 46, per Silberg J.; see also Criminal Procedure Law (1965) 19 L.S.I. 158, also, in The American Series of Foreign Penal Codes (No. 13) (1967) secs. 76–77; Mizrachi v. A.G. (1955) 5 P.D. 1507.
97 A.G. v. Mizrachi (1957) 11 P.D. 653, per Olshan P.; see also A.G. v. Ashkenazy & Ebanoie (1954) 16 P.E. 267 and annotation there.
98 State v. Panikouy (1971) (II) 25 P.D. 576, 578.
99 Unreported: see a note by D. Libai and Y. Kedmi in (1972) 1 Criminology, Criminal Law and Police Science 189 (in Hebrew).
100 See supra n. 97.
101 See supra n. 99.
102 On the effect of this factor in another area of exclusionary evidence, see Harnon, op. cit. supra n. 89, at p. 49.
103 See e.g., Kohavi v. Becker (1957) 27 P.E. 258, especially per Cheshin J. See also Shimron, in International Lawyer's Convention in Israel, 1958, (Jerusalem, 1959) 44.Google Scholar
104 Thus for the purpose of various enactments, Article 46 of the Palestine Order-in-Council has been declared inapplicable (See Yadin, , “Reflection on a New Law of Succession” (1966) 1 Is. L.R. 141Google Scholar; Weisman, , “The Land Law: A Critical Analysis” (1970) 3 Is. L.R. 380Google Scholar; etc.). In 1972 the Law and Administration Ordinance, (the first enactment of the State of Israel) was amended by the insertion of a clause revoking the binding authority of “Every provision in a statute by which the said statute or any term therein is to be interpreted by reference to the law of England or the principles of legal interpretation followed in England” ((1972) Sefer HaHukim no. 651, p. 51).
105 Howe ver, a new Bill on evidence will be presented shortly by the Ministry of Justice. If a comprehensive law of evidence is enacted, there will no longer be room for the application of Common law rules.
106 Though this is obvious in Continental law it should be explicit in Israel, as against the exclusionary tradition of English law. To this effect sec. 4 of the Israeli Evidence Bill seems substantially opportune, without the official comments that accompany it. The relevancy test should not be waived (which sec. 4 does not appear to do). The comments ignore the relevancy (or, to use the correct term, the materiality) of circumstantial evidence. Nevertheless the view that the relevancy test should be released from the technical limitations developed in the case-by-case process in England should be favoured.
107 R. 311 of the Model Code seems too narrow, since it excludes only evidence “that a person committed a crime or civil wrong on a specified occasion”.
108 This will only exclude evidence which bears generally upon the accused's character or disposition upon the logic of “once a thief—always a thief”. The reservation will enable the admission of evidence of mental elements (e.g., knowledge), the performance of an act in a way which renders it an offence or a civil wrong or identity (i.e., system evidence). The provision is most likely to be affected by new findings as to the probative value of similar facts evidence. It is believed that the reservation renders the provision flexible enough to include such findings.
109 By doing so we accept the principle of R. 45 of the Uniform Rules of expressing the subjects of discretion, and not conferring unlimited discretion upon the court, but the scope of that discretion is enlarged. Cf. Model Code, §303; Israeli Evidence Bill, sec. 7, p. III. Contrary to what seems to be McCormick's opinion at p. 332–333, we would not limit the court's discretion under provisions (b) and (c) to the recognized admissibility classes. It is submitted that admissibility classes need not be specified. It is, however, obvious that a piece of evidence which fits into one of the classes will more easily pass the bar in provision (b). When offering evidence which fits none of the classes, one should show good reasons why it should be admitted. If the evidence fits into a class, it will be enough to point out the class—e.g., “the evidence was admitted because it shows the accused's criminal knowledge”—without need for specifying the reason for admitting such a class of evidence. When admitting evidence which fits into no recognized class, the court will have to state its reasons for admitting it.
110 This duty will serve as a safeguard against making rash decisions, since the decisions will be subject to appeal (see provision (e) infra) and to criticism out of court. Also, the mere need for reasoning prevents deciding the question off-hand.
111 Though this is the general law even today (see r. 423 of the Israeli Civil Procedure Rules, 1963) the appellate court often hesitates to interfere with questions of admissibility; and since the suggested provisions confer broad discretion upon the lower court, it is desirable to emphasize the scope of appellate authority. Since the appellate court may interfere only “when there has been a miscarriage of justice”, it will generally not interfere when evidence has been admitted notwithstanding a possible waste of time, since the time has been already wasted; cf. James, supra n. 14 at p. 704. How should the suggested changes take place? It may be true that “the Supreme Court [of Israel] often considers itself free to apply the American version of the common law where this appears to the court to be more conducive to the furtherance of justice, reason or convenience”. (Apelbom, , “Common Law A L'Américaine” (1966) I Is.L.R. 562, 575Google Scholar; see also Cardozo, M. in International Lawyers Conventions, supra n. 103 at p. 73Google Scholar). Nevertheless the salvation cannot come from the judiciary; the legislature must intervene since (a) the existing English Common law solution is already rooted in Israeli precedents, (b) provisions of the law of evidence have been reformed by the legislature, e.g., Evidence Ordinance (Amendment) Law (1955) 5 L.S.I. 10, (c) the judges can, at their best, apply “the American version of the common law”, while the solution of the Model Code does not reflect the common law in this area, and (d) even American courts would be unable to introduce such a reform without legislation.
112 McCormick, p. 326.
113 James, and Dickinson, , “Accident Proneness and Accident Law” (1950) 63 Harv. L.R. 769.CrossRefGoogle Scholar (McCormick erroneously refers to the Yale L.J.).
114 Ibid., at pp. 772–775. The same relates to intelligence. Cf. U.S. Bureau of Public Roads, Highway Accidents (1938).Google Scholar
115 Yedioth Aharonot, December 11, 1970 at p. 8 of the weekly magazine.
116 Bristol, , “Medical Aspects of Accident Control” (1936) 107 A.M.A.J. 653, 654.CrossRefGoogle Scholar For other studies see references made by James and Dickinson, op. cit. supra n. 113, and by Trautman, pp. 399–401. A practical application of this theory is said to be made by Egged, the largest Israeli public transport company, in proposing to arrange tests to eliminate accident proneness among candidate drivers. Davar, Aug. 6, 1969 at p. 7. Cf. Ghisseli, , Brown, & Minium, , The Use of Test Scores For the Prediction of Accidents of Streetcar Motormen (Department of Psychology, U. of Cal., Berkeley, 1946).Google Scholar
117 James and Dickinson supra n. 113 at p. 793.
118 See McCormick, p. 32. Proof should be by “results of specific tests of the individual in question… if introduced through the testimony of a qualified expert”, including “an expert opinion whether the individual was accident prone … based on, or contributed by, a clinical interview and observation or a past accident record”. James and Dickinson, p. 793. But, cf. Trautman, pp. 400–1, who bases the answer on “judicial policy”.
119 Bracey v. U.S. 142 F 2d. 85, 88 (D.C. Cir. 1944).
120 Cf. Commonwealth v. Kline 361 P. 434, 65 A. 2d 348 (1949); see generally, Annots. 167 A.L.R. 565 (1947); 77 A.L.R. 2d 841 (1961); Note (1950) 3 Vand. L.R. 779; Comment, (1949) 23 Temp. L.Q. 133.
121 State v. Finley 85 Ariz. 327, 334, 338 P. 2d 790, 795 (1959).
122 See Note (1951) 39 Cal. L.R. 584; Trautman, p. 406 & references in n. 83 there.
123 See Annots. 24 A.L.R. 2d 350; 25 A.L.R. 2d 354 (1952); K. Bowman, “Review of Sex Legislation and the Control of Sex Offenders in the United States of America” 1953) 4 Int. Rev. of Crim. Policy, a revised version was published in the Final Report on Cal. Sexual Deviation Research ((1954) Vol. 20 n. 1); Ludwig, , “Control of the Sex Criminals” (1951) 25 St. John's L.R. 203, 212 et seq.Google Scholar
124 See Tappon, P., “Some Myths About the Sex Offender” (1958) 22 Fed. Prob.Google Scholar; Best, H., Crime and the Criminal Law in the United States (1930) 238Google Scholar; see also Gregg, J., “Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offences” (1965/1966) 6 Ariz. L.R. 212, 231 et seq.Google Scholar
125 See Leppman, F., “Essential Differences Between Sex Offenders (1941) 32 J. Crim. L.C. & P.S. 366, 374Google Scholar; Best, op. cit. supra n. 124 at n. 232, p. 380 et seq.
126 See a bibliographical list in Gebhard, , Gagnon, , Pomeroy, & Christenson, , the Indiana University Institute for Sex Research, Sex Offenders (1965) 877–82.Google Scholar
127 The fact that in many of the cases the evidence was necessary for the sake of mere “technical” corroboration, may have affected the courts' decisions.
128 See generally Dession, G., “Psychiatry and the Conditioning of Criminal Justice” (1937–1938) 47 Yale L.J. 319.CrossRefGoogle Scholar
129 Commonwealth v. Thrasher 11 Mass. 450, 452 (1858).
130 (1968) 87 Icarei Yisrael (Israeli Farmers).