Criminal Appeal 7474/19 Ben David v. State of Israel [published in Nevo] (July 12, 2020)
See also Criminal Appeal 8805/14 Cohen v. State of Israel [published in Nevo] (January 7, 2016), where it was held that not every conversation that takes place before the interrogation has 'infectious' potential, and a distinction must be made between a conversation that deals with the content of the expected testimony, and a conversation about the actual existence of the event.
- Moreover, even where the investigation was proven to be "contaminated" – the court is still ordered to examine the credibility of the version, the intensity of the "contamination" and the possibility that it influenced the testimony. It should be remembered in this context that the "contamination" of the interrogation does not necessarily indicate false testimony, and the existence of "contamination" in the interrogation does not cast 'automatic' doubt on the reliability of the witnesses' versions [cf. Criminal Appeal 8805/14 supra; as well as Criminal Appeal 229/19 State of Israel v. Anonymous [published in Nevo] (December 30, 2019)].
Children's Investigations, and Children's Investigators
- As is well known, the legislature has given special attention to the interrogations of children, which finds expression in the Amendment of the Laws of Evidence (Protection of Children) Law, 5715-1955. The arrangement established regarding the interrogation of children differs in a number of aspects from adult interrogations and interrogations of minors who are not children. Thus, for example, a child investigator is authorized to determine whether a child is entitled to testify in court or not (section 2(a) of the law); Thus, with regard to the determination, which deviates from the general rules of evidence, according to which the documentation of the interrogation of a child by a child investigator constitutes admissible evidence, on the basis of which a criminal conviction can be made, to the extent that there is additional evidentiary of the type of assistance [sections 9(a) and 11 of the aforementioned law]. The arrangements in the Law to Amend the Laws of Evidence (Protection of Children) are the result of a balance between a number of conflicting interests. This was discussed by the Supreme Court in Criminal Appeal 9469/12 Mahagna v. State of Israel [published in Nevo] (February 15, 2015):
"This arrangement was born out of the need to protect two important interests – the right of a defendant to a fair trial on the one hand, and the need to protect the mental well-being of minors on the other. It constitutes an exception to the usual prohibition regarding the need for hearing testimony, since in this way indirect testimonies are given to the court from a second hand, without the court's direct impression of the witnesses. Nevertheless, the law makes it possible to decide the fate of a defendant to the tribe or chesed for serious offenses, which carry a long prison sentence."
- In Criminal Appeal 5149/12 Anonymous v. State of Israel [published in Nevo] (January 13, 2014), the Supreme Court noted the complexity and difficulties of the role of the child investigator – an obligation to the minor being interrogated (and to safeguard his well-being); a commitment to the defendant (and his right to a fair trial, knowing that for the most part – the minor being interrogated by the child investigator – will not be cross-examined in court); and towards the public as a whole (and the public interest in law enforcement on the other, and clarify the truth from this). The children's investigator must present the child's testimony to the court in the best possible way, while maintaining objectivity and professionalism. It has been held more than once that the children's investigator not only testifies about the circumstances of the testimony, but also contributes from his experience and professional understanding, and testifies about his impression of the minor's statements [cf. for example, Criminal Appeal 446/02 State of Israel v. Kobi, IsrSC 57 (3) 769; Criminal Appeal 337/13 Anonymous v. State of Israel, [published in Nevo] (September 9, 2013)].
- It should be clarified: the determination of the facts, as well as the reliability of the witnesses, is ultimately up to the court, and this does not "detract" from its duty and authority to determine findings of fact and reliability, even when it comes to the interrogations of children. However, the court may also bring the child's investigator's testimony and professional evaluation as part of its considerations in this matter. In this context, the children's investigator is held as a professional, the court's long hand, and more than once – at least in certain aspects – the status of the children's investigator has been compared to that of an expert witness [see, for example, Criminal Appeal 2177/13 Anonymous v. State of Israel [published in Nevo] (July 9, 2015)].
- Regarding the difficulty of evaluating a child's testimony, it seems that there is no need to elaborate. Developmental and cognitive differences between children and adults require different treatment of children's testimony as well. Thus, for example, it is no secret that children's perception of time at a young age is not sufficiently developed. Accordingly, it was ruled that inaccurate answers regarding the dates of specific events (and all the more so in recurring events) do not indicate that the testimony is unreliable [see Criminal Appeal 1947/07 Anonymous v. State of Israel [published in Nevo] (December 20, 2019); Criminal Appeal 1074/14 Mishayev v. State of Israel [published in Nevo] (February 8, 2015)]. It is too short to detail the variety of topics and unique characteristics in the testimony of a child. It seems that the extensive research and professional literature in the field indicate the complexity of the subject.
- As for the "tool" of the child investigator, the guidelines for conducting child interrogations are compiled in a guide for interrogating children developed by professionals. The guide is based on theoretical knowledge, practical experience, and lengthy professional processes. Its effectiveness has been examined in studies [see, e.g., M. Hamoudot and M. Brightman, "Interrogating Child Victims of Crime: The Role of the Child Investigator," Child Abuse and Neglect in Israel, 910 [edited by Horowitz, Ben-Yehuda and Hovav, 2007)]. Among other things, the children's investigators make use of a diagnostic tool known as B.C.A., the results of which can indicate the likelihood that the description given by the child being interrogated is based on direct experience from an incident, or whether the incident was invented" [For further information - see the judgment of the Honorable Justice Y. Amit, Criminal Appeal 8805/14 Cohen v. State of Israel et al. [published in Nevo] (January 7, 2016).
Parental alienation:
- In the framework of the defense case, an argument was raised that the children's testimonies against the defendant were the result of "parental alienation", and therefore I will briefly address this issue as well.
In this regard, a clear distinction must be made between the phenomenon of "refusal of contact" and the "parental alienation syndrome". Refusal of contact is characterized by the refusal of a child or children, whose parents are in separation/divorce proceedings, to be in contact with one of the parents, for a real and justified reason. Such a refusal stems from a realistic perception. Thus, for example, when a child has undergone a traumatic experience (abuse, neglect, violence) at the hands of one of the parents, a refusal to continue in contact with the abusive parent is a developmentally appropriate position, and has a logical and real explanation.