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No, not a confession at any cost

Interrogators who push suspects to confess in order to end their investigations risk the real criminals going free
Illustrative. Elisha Chaibatov seen in a court before his release from jail on August 2, 2018. (Screen capture: Channel 10 news)
Illustrative. Elisha Chaibatov seen in a court before his release from jail on August 2, 2018. (Screen capture: Channel 10 news)

The year that just ended, 2018, was not a great year for Israel’s criminal justice system’s “easy” but problematic use of “a confession by any means.” Unfortunately, in Israel, confessions are treated as the best proof of a crime. Because that is so, the police, sometimes with the assistance of the Shin Bet internal security service, will always aim to get a confession — thus obviating the need for methodical and tedious police work which may (or may not) produce real evidence. This past year, the courts invalidated three “creative” methods that were used to extract confessions.

The Supreme Court said no to drugs as a means to encourage a confession. In 2002, Shai Edri was murdered in Sderot, during a botched robbery. A heinous crime that all good citizens want solved. Elisha Chaibatov was suspected of the crime and held in a cell with an undercover investigator for five weeks. For 11 days, he had no contact with anyone but his incognito interrogator. On top of this psychological pressure, the undercover cop used heroin and introduced Chaibatov to drug use. After three weeks in the cell with his private drug pusher, Chaibatov gave a partial confession, and based on that, in 2011 the Beersheba District Court convicted him of murder. After a lengthy appeal process, on August 2, 2018, the Supreme Court vacated the conviction by invalidating the confession, and ordered Chaibatov’s immediate release. It took nine years for the system to convict an innocent man, who then rotted in jail for seven years until the high court finally told the police that using heroin and unreasonable psychological pressure is not how to solve a murder. Unfortunately, the murderers are still at large.

Torture is also not an acceptable means to extract a confession. In the summer of 2015, three members of the Dawabsha family were burned to death in their home in Duma. Despite the ongoing clan feuds and firebombings in the Arab village, the police decided from day one that the perpetrators were Jewish and never pursued any other avenue of investigation. In late 2015, the Shin Bet decided who the guilty boys were and tortured them until they confessed. In June 2018 (justice is slow as these young men rotted in Solitary), a court threw out all of the confessions that were given under torture by “E,” one of the two suspects. This left the prosecution with nothing linking this minor to Duma.

Scaring the confession out of a kid is also not acceptable. As part of the “Duma” roundup, “Tzadi” was interrogated. The Shabak could not link him to Duma so they decided to connect him to a graffiti incident at Dormition Abbey on Mt Zion in Jerusalem. As part of an elaborate scheme, a fake prison was constructed in Akko, and “Tzadi” was locked in a cell with undercover policemen disguised as convicted murderers and rapists. His new roommates planted fake drugs under his mattress, threatened him with all manner of unspeakable acts, and prevented him from eating or sleeping as part of an effort to extract a confession, which he eventually produced. At the very end of 2018, the central district court threw out every word of his confession, maintaining that the method invalidated the confession.

Despite these setbacks for the police and Shin Bet, they do not seem to have modified their egregious tactics, and 2019 opened to find five Jewish youth incommunicado in Shabak dungeons, where they are reportedly being pressured to confess in a case that seems to have no evidence linking them to it. The exercise will likely result in confessions – research shows that at a certain point most people, in particular minors, will give a (potentially false) confession to end the ordeal. Will the confessions extracted this time be real or fake? — I have no way to know. But certainly the system by which these cases are investigated could use a serious revamping. It is worth noting that most of Western Europe has abandoned confrontational interrogations that are designed to elicit confessions. In Jewish law (halacha) confessions of guilt to criminal offenses are inadmissible. Israel must move away from reliance on confessions and that would also solve the issue of inappropriate investigative techniques.

About the Author
Ari Zivotofsky is a professor of neuroscience at Bar Ilan University. Also trained as a rabbi and shochet, he has a masters degree in Jewish history. He has written extensively on topics of Jewish history, culture, and traditions, in particular in his regular column (now running 20 years) in the OU magazine Jewish Action and in Mishpacha magazine.
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