Help! I have been arrested
The first thing I do when I get a new client who has a problem with the police is to tell them to ignore, totally forgot, all that they learnt from “Law & Order”, “CSI”, or any other of the dozens of cops-and-robbers, court-drama programs constantly on television. Life is not like that, not even in the USA, and in any case you are in Israel: the police are not so corrupt, there is no jury, judges are not elected and you are not appearing on prime time TV! This article will try to dispel myths you have picked up from the TV.
Now let us get down to business. What do you do if you, or someone close to you, is either arrested or invited to be questioned by the Israeli Police? Here are some key points to remember.
I want to see a lawyer
Suspects have the right to consult with a lawyer before being interrogated. The police interrogators are impatient to start the interrogation and do not like to wait for a lawyer, but in recent years the police have tried to make sure that the right to counsel is kept. You will usually be allowed to make the famous “one phone call”. Call someone you can rely upon, this could be a criminal lawyer. Tell them where you are and to send you a lawyer to the police station. The thought that a lawyer, or friend, is on the way or outside is comforting, and being able to speak to a lawyer, even for a few minutes before the interrogation, can be a big psychological help. Ideally your legal consultation should be in person with the lawyer but a telephone conversation is the next best option. If you have not been arrested and are summoned to the police; call a lawyer and consult as early as possible so you come prepared.
If you and your police interrogator do not have a common language you must have an interpreter present. Insist on this. Also, get a lawyer who speaks your language. Minors and the physically or mentally handicapped also have special entitlements, such as someone neutral being present. If you are a foreign national ask to see your consular official. In my experience consular officials will not arrive in time for you to see them before the interrogation, the police will not wait and in any case most countries (USA, UK and others) will not send anyone, but it is still it is worth a try.
Police interrogation rooms
While in the Israeli police interrogation room, you have a limited right to remain silent because your silence, your failure to give answers to police questions, can in itself be incriminating. (I know that in the US there is the 5th Amendment but you ain’t in America.) My advice is simple: if you are guilty say nothing, if you are innocent say it out loud and clear. It is best to consult with a lawyer beforehand to know if you are innocent or not (this is very often a complex issue). If there is even a small chance you are implicated in a crime then shut up, say nothing, say you want to consult with a lawyer, say you forgot, say you do not understand, just do not say anything about what you did. Nothing at all. I know this is incriminating (the silence is incriminating), but only to a certain extent, read on. Many convictions in Israel are based on the confession of the arrested suspect with minimal external evidence. Once you confess, it is near impossible to recant. I will say that again, because people do not get it: if you confess it is all over. The police will stop gathering evidence and the case is shut. If your lawyer pleads to the judge later that the confession is no good, you can be quite sure that that plea will not be accepted. Your confession in the police station is final.
But, if you are really, really sure you are innocent – tell all. Where were you at the time of the crime, who was with you, your lack of motive, your lack of criminal record, your fear of knives, your hatred of drugs (pick the true and appropriate arguments). The police interrogation room is the time to say all this. If you say it enough times, and clearly enough, then maybe someone will listen and you get to go home. It is not wise to wait and plead innocence later, do it immediately and loudly, clearly and often. But, if you are not sure of something – eg if you are not sure you are innocent – then be quiet, silent, that is generally safer.
Never, ever, lie in police questioning (or anywhere else) as your lies will get you in trouble. For example avoid statements like “I have never hurt anyone in my life”, “I don’t own a knife” these simple statements are potential lies and could be used against you. To avoid lying just keep silent.
Do not forget something very important. Respect. Police officers are human beings, treat them with respect. Speak to them as you would want them to speak to you: politely, respectfully and please no insults, shouting or anything like that. Your first interrogation is very important. You want to make a good impression (you are not the drug dealer, wife batterer that they think you are). Why antagonise with bad behaviour?
Police lies and tricks
The police are allowed to lie and trick a suspect. Yes, you read it right. So when you are told “it’s just a formality”, “we want to help you”, “cooperate and you will be out in the morning”, “if you confess now, it will be better for you later” you know these are all big, big lies, don’t you?! If someone says “good afternoon”, look out the window as it could be night, and even then maybe they blackened the windows! That friendly guy in your cell is a police snitch and every word you just told him is recorded. Do not confess, or incriminate yourself in any way, because you have been promised something. The promise will not be kept and you will be stuck with that confession. In these circumstances it is very important to wait and see a lawyer. Also remember that the friendly, smiley, helpful police officer is not your friend, he or she wants you to divulge incriminating evidence and send you down for a long time.
The record of the interrogation
What a person says under police interrogation is of primary importance. So it is a disgrace that there is not usually a proper record (video or audio recording) of police interrogations in Israel. A law was passed mandating this for felonies but it is not often implemented because of the high costs. (If the suspect does not know Hebrew or is suspected of a serious felony then the interrogation will be recorded.) There is almost no way to cancel a confession or other incriminating evidence taken by the police whether recorded or not. The police officer will type all that you say and this is problematic, so you have to speak clearly and slowly and be very, very careful what you say. Do not allow anyone to put words in your mouth, only what you say should be written, and make sure anything important you do say is written. At the end you will be asked to sign the interrogation transcript, do not sign unless you read every single word, and understand it all and nothing has been missed out and nothing added that you do not want. If you cannot read Hebrew, or decipher the handwriting then obviously you should not sign. Actually my best advice is not to sign at all, it is just too dangerous.
Will I get out tonight?
A senior officer at the police station will decide, usually once your interrogation has been completed, what should be done with you. The following are the common options:
(1) You could be released straight away on bail and obviously this is the best option. You should then be released on your personal recognizance (self guarantee) or a non-cash, personal, or third-party, bond (guarantee) or more rarely a cash bond (returnable deposit). Sometimes a condition will be added eg to leave town for a few days, or not to contact witnesses.
(2) You could be sent to court to be released on bail. Sometimes the police agree that a suspect should be released but asks the court to set the terms. The big disadvantage is that depending on the time of day, you will have to wait until the court opens (in the morning, or Saturday night) and the terms will be stricter.
(3) The worst is if the police apply to the court that you not be released and this will almost always occur if you are suspected of any serious crime, or you have a police record. The police will usually apply for a few days of arrest and before those days are finished they could apply for you to be held on remand until the case is finished. A judge will decide to arrest you or to release you on bail and in court you will be entitled to full legal representation.
Do not panic at the thought of spending the night in jail. Israel is not Chicago or Istanbul, you will be treated OK. You will breathe lots of cigarette smoke, maybe see drugs and the bed is uncomfortable and the toilet dirty but you will not be mistreated (homosexuality is exceptional in Israeli prisons and you will not be molested). Do not let the police intimidate you with the threat of a night in a cell, there are worse things.
The conviction rate in Israel
Finally, I have to tell you the bad news: more than 99% of all criminal cases brought before Israeli courts end in convictions (ie a “guilty” verdict). That figure is a real statistical calculation and is not a rough estimate or an exaggeration though does not include the many plea bargains where some or most of the charges are deleted from the charge sheet. That statistic means that cases get decided in the police stations and at the district attorney’s offices. If the police think you are guilty then so will the courts. If you have persuaded the police you are innocent, they might not prosecute. So, what happens during your interrogation is crucial.
שאול דיוויס, עו”ד
Saul Davis, MA LLB, Adv.