It happened again this summer: the Shin Bet (Israel Security Agency) extracts a confession that then, to their surprise, turns out to be false. This time the “confessors” were two Israeli Arabs. On May 13, 2021, in the heat of the deadly Arab rioting, an IDF soldier was severely beaten in Jaffa. In June, six suspects were arrested and in the course of the interrogation two of them confessed, but shortly thereafter retracted their confession and their lawyers argued that the confessions were false. To their great luck, after much work by their lawyers, videos were found that confirmed that the confessions were false, thus exonerating them, and in early November they were released. It is hard to know if the courts would have eventually convicted them based on those (false) confessions, but it is not out of the realm of possibility.
The very existence of false confessions seems counter-intuitive and inexplicable. It makes no sense to the average person – or to the typical judge – that an innocent person would confess to a crime they did not commit. Yet it is not an uncommon occurrence and is a recognized problem worldwide in the criminal justice system, especially in one like the Israeli system which gives inordinate weight to confessions.
The most famous such case in Israel occurred 18 years ago when the current President of the Supreme Court, Justice Esther Hayut, was a relatively new member of the High Court and accepted a false confession. In that well-known case, Cpl. Oleg Shaichat was kidnapped and murdered in July 2003. That August, three Israeli Arabs, YS, SE, and TN, were arrested. The day after his arrest, TN confessed to the police, and did so four more times, providing a highly detailed description of the kidnapping and murder, as well as a reenactment. He provided a motive, described how the three subjects drove to the scene, who drove, how the kidnapping unfolded, who fired the shot, what they stole from the body, how they buried him, etc.
Following three sleepless days that included 64 hours of interrogation, SE also gave a partial confession. Seventeen days after his arrest, TN retracted his confession, claiming that it had been given under duress, was false, and that all of the details were based on media reports and descriptions from fellow villagers. There were also holes in his story, which led the Shin Bet to no longer be convinced. Nonetheless, the police accepted the confession and asked the court to accept it and to hold the defendants until the conclusion of the trial, and the district court acquiesced. The defendants appealed to the Supreme Court and pointed out all of the problems.
The court, in the person of Hayut, was so enamored by both the detailed nature of the confession as well as the specifics that, according to her, it could have been known only to the perpetrator(s), that on February 11, 2004, it upheld the decision of district court Judge Nava Appel-Danon to continue holding the accused. The proclivity of courts to accept confessions, even problematic ones, left this Supreme Court justice with an egg on her face. On April 18, 2004 there was a shooting attack and it turned out that the weapon used was the personal weapon of Cpl. Shaichat. That discovery led to the apprehension of the true murderers and the release of YS, SE, and TN, whose confessions had thus been shown to be false.
This issue is of critical concern today because there is a case currently in front of the high court that involves a confession with similar characteristics, but unlike the Jaffa and Shaichat cases, it seems highly unlikely that a video will be found or that the real perpetrator will be caught. Similar to the aforementioned cases, in the Duma trial of Amiram Ben-Uliel, the court has been shown no evidence other than the confession. In this case, there are also details in the confession that the lower court felt could only be known to the perpetrator and yet, just as in the Shaichat murder case, there are contradictions and holes. Courts can be bamboozled by the preponderance of details in a confession, particularly details that seem “too good to be true,” and thereby be led to accept a false confession as true.
Former Supreme Court justice Dalia Dorner once explained: “The confession of an accused person is suspicious evidence, and that is even if it was made without external pressure having been exerted on the accused… In many cases a confession is an irrational act, and taking the irrational step itself of making a confession, raises a suspicion regarding the veracity of the confession. This suspicion is not merely theoretical, but rather it has been proven more than once by human experience.”
In the case of Ben-Uliel, currently before the court, the confession was extracted after a very prolonged and problematic interrogation, a known risk factor for false confessions. At the time of the interrogation, The Jerusalem Post noted in an editorial that regarding confessions gained after enhanced interrogation techniques (December 20, 2015): “the interrogations often produced false information, ensnaring innocent people, sometimes with tragic results.”
It can only be hoped that current Supreme Court President Esther Hayut learned from the mistake of then young justice Hayut, and that her court will not be so quick to accept a problematic confession. Irrespective of the national desire to see the murderer(s) in the Duma firebombing be brought to justice, when the court hears the appeal of Amiram Ben-Uliel it must be super-aware of the phenomenon of false confessions and the judges must override their natural skepticism and recognize that false confessions are a very real phenomenon. And based on all of the flaws in this confession and the risk factors involved, there is a high probability they are looking at one. There is today a wealth of scientific literature analyzing the risk factors, characteristics, and prevalence of false confessions. It is a shame that the High Court, in the persons of the three-judge panel of Justices Neal Hendel, David Mintz and Yosef Elron, has chosen to not even read the scientific report on this topic that was submitted to them. Their two sentence rejection did not even address its content.
In 2004 and in 2021 a “stroke of luck” saved the accused from a much longer period of incarceration. Not everyone is so lucky and there are worldwide numerous tragic cases of false confessions being accepted. The cases need to be judged based on evidence and not solely on a confession that is at high risk of being false.
The writer is a professor of neuroscience at Bar-Ilan University.