Why is there therefore a need to schedule a hearing? It is reasonable to assume that the defense attorney will object to the issuance of the search warrant and will not contribute additional information that will assist the state, and this should not be expected of him. Another possibility is that following the hearing, and in an attempt to influence the outcome, the defense attorney will provide information or clarify points that will actually strengthen the request for a search warrant, even though it is not his role to substantiate the investigative authority's request. If the court is in doubt, it must decide in accordance with the information presented or request supplementation, rather than holding a hearing and hearing the interrogee's position, in the hope that this may lead to "clearing up doubts, " rather than placing the burden solely on the investigative authority. And from another angle, there is concern that the very possibility of holding a hearing, even if it is an exception, will sometimes "direct" the court to schedule a hearing "for the sake of caution" or in order to reach a more well-founded decision. As stated, this is inconsistent with the laws of the investigation and its purposes. Of course, and as I have noted, it is important that the court reject the request for a search warrant if it does not meet the standards of the law, in accordance with the discretion given to it by law.
- And a note before concluding. In my opinion in the Shimon case, I referred to the approach of Jewish law toward criminal proceedings. As I noted, there is a tension between two founding principles. On the one hand, there is a strict approach to the need to prevent the conviction of innocent people and to search for doubt: "And you shall not kill a clean and righteous man" (Shemot 23:7). On the other hand, there is recognition of the necessity of protecting society from crime: "And to remove evil from among you" (Devarim 17:7). One of the results of the encounter between the two rules is Jewish law's approach to the stage of investigation: "You shall give you judges and officers at all your gates" (Deuteronomy 16:18). The policeman and the judge - an entity according to his role - implement the principles of Jewish law in relation to criminal law in its broad sense: investigation and trial. The responsibility for the first time rests mainly with the policeman, and the second is the job of the judge. I would add that at the interrogation stage, the police must create something out of nothing. It is required to turn, at the end of the legal process, a mere question mark into a clear exclamation point. Such an act is not simple and is of creation. Therefore, even though the police officer should not be allowed to act as he wishes, and there is a demand for a fair trial, at the interrogation stage, the pendulum is tilted in favor of allowing the police to investigate, work efficiently, and reach a decision whether to close the case or move forward. Therefore, the reasonable doubt - the importance of which is unquestionable - is more powerful at the trial and decision stage. At the investigation stage, the need to "eradicate evil" and to provide the police with a work tool is stronger.
In my decision in the judgment, I referred to the basic human need to conduct investigations, and for this purpose I turned to the first story in the Bible - the sin of Adam, his interrogation, and his punishment. Other stories in the book of Genesis also illustrate the challenges of human inquiry, and the need to provide tools for the investigator. In the early biblical stories, the investigation is God's work, for example in relation to the sin of Adam or the sin of Cain (see Bereishit 4:3-10). When a person makes an attempt to investigate, he does not "know everything, " does not necessarily succeed, and sometimes fails miserably. For example, Yaakov tries to investigate who stole the teraphim - the idols of the idol - to which his father-in-law, Laban the Aramaic, worshipped. Rachel, his wife, who stole the teraphim, deceives him, and Yaakov fails to find the thief. As a result, Lavan the Aramaic is even falsely accused of making false accusations against him and his family... (Bereishit 31:19-35). Another example relates to Yaakov, who fails to expose the lie that his sons told him that an evil beast had devoured his son Yosef, while displaying Yosef's clothes stained with the blood of a goat's goat (Bereishit 37:23-35). In another parasha, Yaakov's sons fail to investigate the truth when Yosef "incriminates" one of them by stealing his goblet (Bereishit 44:1-34). It seems that the first clear example of a successful investigation carried out by means of human reason is the famous story of King Solomon and the two women, each of whom claimed that "my son is alive and your son is dead" (1 Kings 3:16-28). See my introduction to Chaim Wismonsky's book Criminal Investigation in Cyberspace 16 (2015). See also Daniel Friedman, Murder and Inheritance - Law, Morality and Society in Biblical Stories 21-47 (2000). But the wisest of men is equipped with a "toolbox" that is not in the public domain.