The criminal trial system is regarded as standing at the pinnacle of the state's machinery for dealing with crime. But the courts deal with only a small proportion of crimes committed. Their function is more indirect: to express societal disapproval through a public and somewhat theatrical show. This is not to denigrate the role of the courts or dismiss it as futile. The criminal trial does have important functions in the development of norms for criminal responsibility and in fostering respect for the law. But its success in this regard hinges on the extent to which it is perceived as a just and effective method for dealing with those charged with crime. Put crudely, the success of the criminal justice system turns in large measure in the success of the show it puts on. But theatre is good only for as long as it is able to carry the audience with it, which, in the case of the courts, this means as long as the public is prepared to accept their verdicts at face value.

In modern criminal procedure it is generally held that reliability of results and basic fairness in criminal trials require that a defendant have legal counsel. Prevention of miscarriage of justice is tied closely, in the minds of policy makers and judges, with vigorous representation by competent counsel. As against these presuppositions how should one understand a modern system of criminal procedure, such as that in Israel, that does not have a broad right of representation for suspects or defendants in criminal cases?

It is by now axiomatic in England and the United States that nearly all defendants in criminal cases have a right to representation. This right encompasses not just the opportunity to bring one's privately retained counsel to court, but also an irrebuttable claim by indigents to have the counsel's bill paid by the state or other public entity. The right to counsel is a broad right, entailing a principle of equality in which representation by counsel is independent of the defendant's ability to pay. In Israel, in contrast, the right to representation in criminal cases is significantly narrower.

It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate injury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This “jury-centredness” as it has been called was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury. It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence. Certain commentators have noted that in spite of Thayer's claim that the rules are the “child of the jury”, the rules of evidence have proved remarkably resilient in outlasting the demise of the jury. The parent may have ceased to exist in many legal proceedings but the child has lived on.

At first glance, appellate control of judicial fact-finding appears to be a precise and nicely circumscribed topic. This impression is grossly deceiving. To begin with, in a comparative context, it is inevitable to hint at the underlying structural features of the German criminal procedure, since appellate control is not a free-floating self-explanatory element of the criminal justice system, but built upon a particular procedural structure. Secondly, the control of fact-finding by the appeal court forms only a small and perhaps even the least important phase of the fact-finding process. Therefore it needs to be located within the larger perspective of the procedural fact-finding process as a whole. Thirdly, it goes without saying that the control process by way of appellate review is largely shaped by the different legal instruments of control. Knowledge of their operation and legal scope with particular emphasis on the fact-finding process cannot be taken for granted, even given an all-German audience.

Fourthly, the appellate control of judicial fact-finding cannot be understood by way of abstract description only: such a description needs to be underpinned by examples. This puts me in a predicament, since the pertinent standards developed by the appellate control amount to no less than an aggregate of the German law of evidence. Hence I have to restrict myself to a few paradigmatic examples hoping that they will reveal the structural pattern if there is one.