Academics Warn Israeli Justice Minister Over Proposed Amendment to Evidence Law

Senior criminologists and jurists warn Ayelet Shaked that change would make it easier to convict suspects based on their own confession.

Justice Minister Ayelet Shaked.
Noam Moscowitz

Senior criminologists and jurists are among the academics who have warned Justice Minister Ayelet Shaked that an amendment she is advancing to the laws on evidence could lead to the conviction of innocent people.

Shaked wants to enshrine in law an existing rule that a suspect may be convicted based on their own confession if there is evidence – even if it is not substantial – that corroborates it. Such evidence can include, for example, a detail only the perpetrator would know, or a reconstruction of the crime by the accused.

The 42 academics wrote Shaked that such details should not assist in convictions because suspects are frequently made aware of them by investigators during questioning or the reconstruction of crimes they did not commit.

The experts informed Shaked that objective evidence independent of the confession, such as DNA or fingerprints, should be required.

They also said the Justice Ministry’s proposed bill, which was approved recently by the Ministerial Committee for Legislation, “is in keeping with research knowledge a half century ago and does not sufficiently guard against convictions of the innocent based on a confession.”

Scientific advances in the 1990s that have enabled old convictions to be revisited based on new DNA evidence show that a considerable number of innocent people were convicted on the basis of a false confession.

According to the letter, the requirement for more substantial and objective corroborating evidence will reduce this risk and motivate investigators to seek evidence at the crime scene instead of focusing on obtaining a confession from the suspect.

Among the signatories to the letter are law professors Boaz Sangero, Amnon Rubinstein, Uriel Procaccia and Yoav Dotan, as well as Nobel Prize in Economics laureate Robert J. Aumann and Rabbi Yuval Cherlow of the liberal Orthodox movement Tzohar.

The letter cites the 2003 murder of Israel Defense Forces soldier Cpl. Oleg Shaichat, in which the false confession of a suspect – and the suspect’s reconstruction of the crime for police – led to an indictment. The Shin Bet security service warned the prosecution that the suspect, Tarek Nujeidat, appeared to have given a false confession, but Nujeidat’s indictment, together with two other suspects, proceeded.

After the trial had started, members of an Arab terror cell were captured and Shaichat’s weapon was found in their possession. The criminal investigation was consequently reopened. “If not for this development, [the initial suspects] would probably have been convicted,” the letter noted.

The Justice Ministry’s bill states that corroborating evidence would only be required in cases where the accused is a minor, mentally ill or mentally impaired, or was interrogated using improper methods. In light of this, and the fact that the current law requires assurance that a suspect’s confession is given freely, the Justice Ministry regards the bill as benefiting suspects’ rights.

However, the legal experts wrote Shaked: “Research shows that not only individuals with impairments may give false confessions, but also a completely ‘normal’ person.”

They added that “even without beating or torture, an ordinary person can be made to confess.”

A bill requiring more significant evidence in addition to a confession was recently discussed in the Knesset, promoted by MKs Karin Elharrar (Yesh Atid) and Dov Khenin (Joint Arab List). It was rejected by a small majority.

“We regard an objective evidentiary basis as a prime public interest, a matter of protecting the public,” the academics wrote, adding, “False convictions are serious not only because of the great injustice done to innocent people convicted – there is no greater injustice the state does to an individual – but also because inherent in them is damage to all of society, in that the real perpetrators remain free.”

Shaked’s office responded: “According to the bill, corroborating evidence would be required not only in the specific cases delineated, but in any case in which the court believes it is necessary to remove doubt about the veracity of the confession.”