Justice M. Cheshin rightly refrained from setting defined criteria for exercising the court's discretion. However, his failure to establish such criteria will not burden the ability of the trial courts to formulate considered decisions regarding the very entitlement to indemnification and compensation of acquitted defendants and their scope. After all, in its judgment it enumerated at length the "pro" and "against" considerations that the court must take into account in formulating its decision on these questions, when the decision in any given case is supposed to be based on a balanced weighing of the considerations relevant to its concrete circumstances. Judge M. Cheshin's determination that in the circumstances of the case before us the appellant should be entitled to partial indemnification and compensation at a rate equal to twenty-five percent of the maximum amounts, gives balanced expression to a range of considerations, including the state's reasons for its decision to withdraw the appellant's accusation, as well as the District Court's assessment of the appellant's chances of conviction on the basis of the evidence presented.
Justice A. Rivlin
- The appellant was indicted on the charge of rape under aggravated circumstances. At the end of the prosecution affair and after the conclusion of the defense affair, the state notified the-The trial that she decided to retract her letter-The indictment she filed against the appellant and sought his acquittal. She did so after re-examining the evidence that had already come to the trial, "and following further inquiries and examinations." Home-The trial acquitted the appellant of the law, but refused to grant his request to obligate the state and the complainant to pay compensation for his arrest and to pay his defense expenses. In his decision, he described a house-The District Court considered its negative impression of the appellant's version, and was required to consider the possibility that he committed the offense, even if on a date other than the day stated in writing-The indictment.
- My friends Judge M. Cheshin Select the circuit breaker-His fundamental rule is not to imprison the consideration of-The Opinion of a House-The trial when it comes to deciding whether to award a defendant who is awarded compensation "in cages of 'absolute' acquittal, 'just' acquittal, 'from doubt' and 'technical' acquittal." The same applies to the actual award of compensation, and the same applies to the amount of compensation. However, compensation will not be awarded, he clarified, unless there was no basis for accusing the defendant or "other circumstances" were discovered that justified awarding compensation. Judge M. Cheshin believes that there was a "basis for the accusation" in this case, and I have no doubt that this is the case. However, he is of the opinion that in this case there were other circumstances that justify awarding the appellant compensation and indemnification – even if only some of the indemnity prescribed in the Regulations. Most of my colleagues in the panel agree with his conclusions.
My colleague Justice Dorner also agrees with the result, but she is of the opinion that it is appropriate to set criteria for exercising the court's authority to award compensation to a defendant who is acquitted. In her opinion, the proper criterion for the payment of legal expenses and compensation to defendants who have been acquitted is the type of acquittal – whether it is doubtful or absolute. In her view, a complete acquittal would entitle the defendant to compensation, whether there was no basis for filing the indictment in the first place, or whether it turned out in retrospect that this was the case. The lack of a basis for the accusation, which means a full acquittal, constitutes, as Justice Dorner notes, grounds for payment of compensation. The acquittal, she clarifies, is a condition for awarding legal expenses and compensation, but in itself it is not enough. The rule she proposes is that compensation will be awarded in the event of a complete acquittal (although there may be exceptions to this). The withdrawal of the indictment, "which means that in retrospect it turns out that there was no reason to file the indictment", is, in her opinion, an absolute acquittal, from which the obligation to pay is required.
- Indeed, retraction of the indictment may establish the defendant's right to compensation. But the exam must be different. About-According to the aforesaid In section 94 of the Criminal Procedure Law [Consolidated Version],
Withdrawal from the charge may be before or after the defendant's response to the charge. If it precedes the defendant's response, the court will cancel the charge. If it follows, the court will acquit the defendant of the same charge, but with the consent of the prosecutor and the defendant, the court may, even at the same stage, cancel the charge. Section 80(a) of the Penal Law deals with two of the possible consequences of a withdrawal from the charge, and in both of them we are dealing with a withdrawal of the charge after the defendant's response has been given: one, a retraction of the charge that led to the acquittal of the accused, and the other, a retraction of the charge that led, with consent, to the dismissal of the charge, even though it came only after the defendant's response had already been given. In addition to these two cases, section 80(a) also deals with the case of acquittal for other reasons, for example, according to the evidence presented at trial.