Yosef Zohar
The Institute for Safety in the Criminal Justice System

“The Truth Is Also an Option”

Honoré Daumier, Public domain, via Wikimedia Commons

The Self-Incrimination Phenomenon and Its impact on Criminal Justice

Here is a real quote from an exchange between counsels in a criminal setting in the corridor of a Court:

After the parties agreed that A would admit stealing from his employer, the prosecutor insisted that the plea agreement include a sum of money higher than what the defendant admitted. When the defense attorney protested the prosecutor asked: “Why does it matter? And what other option do you have?”

“The truth is also an option” – replied the defense attorney.  

 What is the role of judges in an era of confessions, self-incrimination, and guilty pleas?

Our observations of preliminary hearings in criminal cases in the Tel Aviv Magistrates Court demonstrate that:

  1. Following criticism on the pressure methods exerted by the judges, they switched to “softer” and more “polite” methods of encouraging plea agreements, mainly by postponing hearings and extending the duration of the trial.
  2. Instead of verifying the factual basis of plea agreements, judges avoided asking defendants questions that could jeopardize the agreements and only verified if they understood the meaning of their guilty plea.
  3. The preliminary hearings in criminal cases, originally designed to effectively replace the traditional trial, are now mostly managerial in nature and have become longer burdensome administrative procedures.

Comparative, historical and contemporary research we made on the development of Trial Waiver systems, suggests that:

  1. Confessions were suspected as unreliable in most modern legal systems until the guilty plea in court became the common practice to dispose criminal cases
  2. The term “guilty plea” is a modern way to distinguish an out-of-court confession from a “Bargained Plea”, a confession achieved as a result of a promise of leniency by an official, that otherwise would be invalid.
  3. The prominent role given to confession in contemporary criminal proceedings reflects a reversal in its probative weight. Admitting the facts has become self-incrimination and conclusive evidence.
  4. This shift has enabled the development of the multi-door criminal justice arena and the vanishing trial phenomenon.

What other options do we have?

Constitutional courts in Europe and some rulings in common law legal systems have emphasized the need to preserve the search for truth and the classic goals of the criminal justice system, and calls have been made not to rely merely on guilty pleas.

To ensure truth-finding and due process, we propose to regulate new roles for judges in preliminary hearings, a structured Safety process (Boaz Sangero, Safety from Plea-Bargains’ Hazards, 38 Pace L. Rev. 301, 2018), that was designed to assure a minimal fact-finding by the judge;

  1. Judges must receive for review all of the prosecution’s evidentiary materials.
  2. Judges must hear a detailed explanation from the defendants as to why they have confessed.
  3. Judges will be required to ensure the existence of independent strong corroborative evidence for any sort of confession or guilty plea.

This proposal will help to preserve core principles of criminal justice within an era of transition and Vanishing Trials.

The truth is also an option

About the Author
Researcher and Lecturer, Department of Criminology at Western Galilee College. Managing director, The Institute for Safety in the Criminal Justice System. Research Fellow, Judicial Conflict Resolution (JCR) project at the Faculty of Law, Bar Ilan University.
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