Mordechai Kremnitzer

Trial by Polygraph: Reconsidering the Use of the Guilty Knowledge Technique in Court

Polygraph test results are by and large ruled inadmissible evidence in criminal courts in the US, Canada, and Israel. This is well-conceived with regard to the dominant technique of polygraph interrogation, known as the Control Question Technique (CQT), because it indeed does not meet the required standards for admissible scientific evidence. However, a lesser known and rarely practiced technique, known as the Guilty Knowledge Test (GKT), is capable, if carefully administered, of meeting the recently set Daubert criteria. This paper describes the technique, and argues for considering its admissibility as evidence in criminal courts.

The Landau Commission Report – Was the Security Service Subordinated to the Law, or the Law to the “Needs” of the Security Service?

The principal significance of the Landau Commission Report lies in its conclusion that, under the provisions of the necessity defence, the exertion of a moderate measure of physical pressure is both justifiable and permissible in the interrogation of persons suspected of hostile terrorist activity (HTA). This conclusion extends both forward to the future and backward to the past. For the future, it licenses the employment of physical pressure in such investigations; as to the past, it lends significant support to another of the Commissions conclusions, that no proceedings be instituted against persons who were found by the Commission to bear prima facie responsibility for serious criminal offences (i.e., perjury at the very least). In my opinion, the Commissions central conclusion and its implications are unjustified. It is based upon factual findings and evaluative judgments which are, as I shall attempt to demonstrate, problematic. Before embarking, however, I should like to sketch a synoptic view of the Report for the reader, which will then enable me to expand upon the connection between the Commissions factual and evaluative findings and its normative conclusions. Regarding the facts, the Commission determined that: 1) GSS interrogators had systematically employed physical pressure on HTA suspects; and 2) interrogators had lied about this fact to the courts. The Commissions normative conclusions were that it is permissible to employ physical pressure in HTA interrogations, but forbidden to lie to the court.

Human Dignity as a Protected Interest in Criminal Law

Human dignity can be a protected interest in criminal law. This paper starts with some reflections about the meaning of human dignity and then examines offense descriptions in the German Penal Code and the Israeli Penal Code. These codes are used as sources for identifying possibly relevant prohibitions. One can indeed find numerous examples of offense descriptions that can be justified by pointing to human dignity, either as a main protected interest or as a protected interest in addition to other interests. The protected interest can be either the individual victim’s right to human dignity or human dignity as an objective value. Offense descriptions that can be connected to “protection of human dignity” should, for analytical purposes, be divided into three groups: violations of the dignity of individual human beings through acts other than speech; violations of the human dignity of individuals through speech; and media content that does not contain statements about individuals but shows scenes of severe humiliation (e.g., fictional child pornography). Questions that need further discussion primarily concern the second group (what role should free speech play in cases of human dignity violations?) and the third group (does the acknowledgement of human dignity as an objective value mean to endorse a re-moralization of the criminal law?).

Human Dignity and the Principle of Culpability

The paper describes the origins and implications of the principle of culpability in Germany and Israel. The comparison shows that the principle of culpability is more closely related to human dignity in German law and that it carries more weight there than in Israeli law. However, the adoption of the Basic Law: Human Dignity and Liberty and the new General Part of the Israeli Criminal Code in the 1990’s have increased the role and impact of the principle of culpability in Israeli law.

The high court of justice and the shaping of public policy: Equality and gender

The Supreme Court of Israel, sitting as the High Court of Justice, has sole instance jurisdiction to hear petitions questioning whether the activities of governmental authorities are compatible with the rules of proper public administration, as these have been determined by the constitutional Basic Laws, legislation and the decisions of the court itself. How does the court use its jurisdiction to shape public policy? This article examines this issue in the light of the leading judgments of the High Court of Justice in relation to equality of the sexes. We shall try to assess the extent of the creativity displayed by the court in this area and the level of influence exerted by the judgments on norms of governmental behaviour. Initially, the principal judgments will be presented (together with a few observations); this will be followed by a discussion of the global picture emerging from the judgments in relation to the courts influence on public policy as the key to reform of accepted societal norms.

Proposal for a General Part of a New Penal Law - Introduction

This being a presentation of a legislative enactment, not explanatory notes or a commentary on its provisions and certainly not a theoretical, comprehensive analysis of the topics considered therein, it is bound to be most concise and selective. The reader will thus encounter below a brief reference to the main subjects dealt with by the Proposal, with emphasis on the significance of proposed solutions.

Sentencing as Art — A Response: Sentencing as a Just System.

The approach of my good friend Shachar illustrates the saying that uncompromising aspiration to perfection is a hindrance to progress. To me, his approach, whereby “we will only have our personal intuitions to tell us who was judged correctly, but our personal intuitions may be wrong”, is unacceptable, both in itself, and from the point of view of the conclusions to be drawn therefrom under Shachars central thesis. A. Ambiguity in Shachars Thesis But first, the thesis is not entirely clear. On page 648, he writes as follows: “… I believe that intuitive answers to complex moral questions are not necessarily arbitrary. One choice is probably better or worse than the others, yet it often cannot be rationally and conclusively demonstrated to be so”.

Is the Subjective Mental Element Superfluous

Having had the privilege of being George Fletchers student in Jerusalem in the early 1970s, it is my honor and pleasure to participate in this symposium on The Grammar of Criminal Law. (1) As I read this book it became apparent to me that despite the many years since my student days, Fletcher has not changed much in one specific way: his thinking is never conventional. His is not the well-trodden path, for he follows his own route of thought and analysis. This approach is admirable, and its contribution to the development of criminal law has been crucial. However, it demands from those who choose to follow it a heavy burden of proof--to prove or at least to offer sufficient reasons for straying from the traditional road and onto this alternate route, and, while doing so, to overcome the conservative tendency to sanctify existing conventions. The book is the first in Fletchers trilogy and one must assume that the elaboration and deeper analysis that will follow in the coming volumes will develop the theses presented in the present volume. However, the critic sees only what is presented to him, and the critique that follows should be understood as offering suggestions that might be taken up in future volumes. I focus on Fletchers discussion concerning the mental element--which I use to cover both subjective mens rea (2) and negligence--and its place in the structure of criminal responsibility. Although the perspective from which Fletchers discussion will be examined is a conventional one, I hope that the approach I take in this discussion will not appear overly conservative. Fletchers discussion of the mental element is problematic in six ways: (1) Consistency Fletchers treatment of the mental element in different parts of the book does not always cohere. For example, at one point in his study Fletcher affirms numerous positions he supports, including the following: * Every punishable act presupposes blameworthy commission of the elements of the crime * Blameworthy commission requires at least negligent conduct with respect to every element of the offense * Intentional, knowing, and reckless actions are worse than negligent conduct with respect to each element of the offense [95]. Throughout the book, however, Fletcher casts doubt on and raises questions about the above positions. His argument against the separation of body from state-of-mind leads him to the conclusion that there is no reason to search for an offenders state-of-mind [55, 56]. In several places he creates the impression that guilt does not include the mental element (dolus), but that it has only a negating effect as epitomized in exemption from criminal liability [28, 300]. In other places, however, he appears to state the opposite [305]. In contrast to the view that there is no reason to search for a mental element, there are some instances--such as those of self-defense and collateral damage--in which Fletcher not only searches for a mental element but also identifies a specific mental element and sympathetically discusses subtle distinctions in the mental element, such as those between direct intention and oblique or indirect intention (that is, foresight possessing practical certainty or high probability). (3) Fletcher challenges the sixth position quoted above and claims that there is no difference in seriousness between negligence and recklessness, and also that there is no difference between direct intention and recklessness [314-18]. (2) Fletchers Attitude toward the Mental: General Before getting to the heart of the issue, a preliminary comment is necessary concerning Fletchers general attitude to the mental element. As was mentioned above, Fletchers general approach to the mental element is reserved, indeed, extremely skeptical. The reasons that Fletcher adduces in support of his position are not convincing and are related to his tendency to place criminal responsibility on a single Mordechai Kremnitzer is Bruce W. …

Die Strafbarkeit von Unternehmen

Obwohl die Frage einer Strafbarkeit von Unternehmen seit dem 18. Jahrhundert auf der juristischen Tagesordung steht und Gegenstand zahlreicher Untersuchungen gewesen ist, bleibt das Thema in der internationalen Debatte kontrovers ^ Verschiedentlich wird die Meinung vertreten, daß eine Strafbarkeit von Unternehmen den Grundprinzipien des Strafrechts widerspreche und eine bloße Fiktion sei; die strafrechtliche Verantwortung sei daher auf die unmittelbaren Täter und die Führungspersonen des Unternehmens zu begrenzen. Dies war auch der Ausgangspunkt der Debatte zu Beginn des 18. Jahrhunderts: die strafrechtliche Verantwortung sei personal, und jede Person hafte für ihre eigene Straftat, aber nicht für Handlungen anderer. Nach dieser Auffassung ist nicht nur der Vorsatz individuell, sondern auch auf der