"The interrogation with a warning is a formative event. For the suspect, this is the beginning of the criminal proceedings. At the investigator's disposal, this is the point at which her thesis is put to the test against the suspect's version (or silence) and the other people involved. Naturally, and even more so – during an interrogation, there are significant power and knowledge gaps between the investigating body and the interrogee. These discrepancies stem from great emotional pressure, lack of knowledge about the quality of the evidence collected regarding the suspect – if any, fear of arrest, anxiety about the significance of the proceedings in the present and in the future, lack of knowledge of the law, lack of understanding of basic rights, and a tendency to please those in power and authority".
- Even when we are dealing with the situation of an interrogee who is not under arrest, the Supreme Court's ruling held that Article 28 of the Criminal Procedure Law (Enforcement Powers – Arrests) 5756-1996, as the main normative source that anchors the obligation to give a warning before receiving a suspect's notice.
Section 28(a) The law states that: "The officer in charge of a person's detention shall not decide whether to continue his detention or to release him on bail, and shall not determine the type, amount and conditions of bail, without first giving that person an opportunity to speak out, after warning that he is not obligated to say anything that could incriminate him, that anything he says may serve as evidence against him, and that his refusal to answer questions may strengthen the evidence against him".
See in the same context Criminal Appeal 10049/08 Abu Issa v. State of Israel [published in Nevo] (August 23, 2012).
- The Advisory Committee to the Minister of Justice on Criminal Procedure and Evidence (hereinafter – The Naor Committee), which submitted its recommendations to the Minister of Justice in April 2012, addressed, inter alia, the question of the adequacy of the warning and its content, and recommended that two cumulative components be regulated in the law: the obligation to inform every suspect of his rights, i.e., the right to consult and the right to remain silent, together with the obligation to clarify "the main facts regarding the suspicion attributed to him."
- If it turns out that certain defects occurred during the collection of the defendant's statement, the court recognized two possible tracks for examining the admissibility of the notice.
The first track is the one set out in section 12 of the Evidence Ordinance [New Version], 5731-1971 (hereinafter – the Evidence Ordinance), according to which a confession will be admissible only if the circumstances in which the confession was given are proven and the court is convinced that the confession was free and voluntary. According to this section, the court can order the invalidation of a confession if it is proven that a significant and severe violation of the defendant's autonomy of will and freedom of choice was caused in the delivery of his confession during interrogation.