Investigative Failures
The defendant's warning - During their summaries, counsel for defendants 2 and 3, Adv. Ben Natan and Adv. Jian, argued additional arguments
relating to material investigative failures, relating only to defendant 2, which necessarily harmed the defendants' defense
2 and 3, and that if they had not taken place, it is not impossible that the defendants' version would have been discovered during the investigation stages
The police of the incident and before the indictment was filed.
In the judgment inA.P. 1625/21 and A.C. 1464/21 - Kapustin v. State of Israel (of September 11, 2022), the Honorable
Justice Elron of the Supreme Court, inter alia, as follows:
"Indeed, the police investigation is not intended solely to gather evidence for the conviction of a suspect, but to locate evidence that will lead to the discovery of the factual truth. At the same time, not every failure in the investigation necessarily leads to the acquittal of the accused. When there is a sufficient evidentiary basis to prove the guilt of the accused, the existence of investigative failures in itself does not cause his acquittal."
According to counsel for defendants 2 and 3, the suspicions presented to defendant 2 during his interrogation and the warning given to him, related to suspicions of offenses that are infinitely less minor than the offense of which he was eventually accused, and therefore the
consider this matter and give appropriate weight to the failure that arises from the conduct of the investigative unit.
In the book of Y. Kedmi, "On the Evidence, Part One: The Law in the Light of the Ruling", the author relates to this matter and elaborates on it (p. 83).
"When the defendant is presented with the 'suspicion' of a minor offense, and it is done in good faith, it will not be seen as a temptation
Because in practice, the interrogator does not "offer" relief in the trial in exchange for a confession, but rather presents, in good faith, a suspicion of committing a minor offense. However, the situation will be different if the investigator makes use of the 'accusation' of a suspect of a minor offense, consciously and deliberately, a tax appeal to motivate him to give a statement, a message whose conduct may then amount to a vicious ploy that has the power to invalidate a confession." In HC 22/87 Bitter v. State of Israel, IsrSC 41 (1) 52 (1987) (p. 56) it was noted that, inter alia, as follows: "The answer to the question of what is the line between a legitimate trick and an improper means may be difficult from a theoretical point of view, but not so difficult from a practical point of view, since the sense of justice, common sense, and sense of proportion will usually serve as safe guides in this case."