In corruption investigations, witness testimony is often crucial. After all, corrupt acts usually take place in secret, and the parties involved rarely leave behind records documenting their illegal deeds. It should therefore come as no surprise that an essential part of the corruption investigations into Israeli Prime Minister Benjamin Netanyahu has been the law enforcement authorities’ attempt to obtain incriminating testimony from those with (allegedly) first-hand knowledge of the corrupt actions, and to turn some of them into “state’s witnesses” (defined by Israeli law as “an accomplice who testifies on behalf of the prosecution after a benefit has been given or promised [to] him [or her],” usually in the form of immunity from prosecution or other alleviations). These efforts have met with some success (see here, here, and here).
However, according to Israeli news outlets whose reporters have gotten access to leaked police transcripts, the Netanyahu investigators may have gone too far. These transcripts suggest that police investigators tried to convince two key witnesses, who themselves were suspected of involvement in the corrupt schemes, to replace their defense attorneys – apparently because these defense attorneys had been advising their clients not to sign a state’s witness agreement (see here and here). (In Israel, defense attorneys are not present in the interrogation room, as suspects do not have a right to have their lawyers present during an interrogation.) One of the witnesses did indeed hire a new attorney and signed a state’s witness agreement, though we can’t be sure if the police investigators’ “suggestion” that he do so was the reason. If the police did pressure these suspects to fire their lawyers, it would be illegal, as Israel’s Supreme Court has held that police may not attempt to interfere with a suspect’s relationship with, or trust in, her attorney. In addition, the transcripts suggest that the police may have illegitimately pressured one of the witnesses during his arrest, threatening that lack of cooperation might result in negative consequences to him and others, and employing highly controversial interrogation tactics (see here, here, and here). At this stage, we do not yet know for sure what actually transpired, and Israel’s Attorney General has ordered that the claims of police misconduct be investigated.
The leaked transcripts and the allegations of severe police misconduct have generally been greeted with wide public criticism that transcended political boundaries. Prime Minister Netanyahu’s supporters and party members, including the Minister of Justice, have (unsurprisingly) been most critical, arguing that the police’s actions offer more proof of Netanyahu’s “persecution” by law enforcement authorities, a claim that has been promoted by Netanyahu almost since the beginning of his investigations (see here and here). Putting that harsh (and unproven) last claim to one side, it’s definitely the case that police investigators have been zealous in their pursuit of Netanyahu and his alleged co-conspirators, and the police may have been, at the very least, pushing the boundaries of what the law allows. This, in my view, is a mistake. To be clear, I do not mean to argue simply that the police should not break the law. That is true, but not many people would claim that the police should disregard the law when fighting corruption. But there’s another view out there, espoused by a considerable number of “tough on corruption” proponents, that law enforcement authorities should “push the envelope” as much as possible, doing everything they can even if their actions are sometimes to be deemed illegal by courts. According to this view, there is no place for softness in the interrogation room, and the police sometimes need to be willing to operate right at the edge of what the law will permit. It is this attitude that I want to argue against.
And this is not only because we should care about the rights of suspects and the fairness of criminal investigations. Indeed, “tough on corruption” proponents ought to worry the most about forms of police aggressiveness that come close to, and may cross, the line into police misconduct. In the Netanyahu case, to stick with that example, the police investigators’ alleged overreach may also prove to be counterproductive to anticorruption efforts, not only putting the investigation in jeopardy but producing long-term adverse consequences for effective anticorruption law enforcement. From the perspective of anticorruption policy, there are a few practical reasons why the police, while investigating allegations of corruption, should fully respect the rights of witnesses, and err on the side of caution:
- First, if the police put excessive pressure on interrogatees to cooperate and provide incriminating testimony against the main suspect, this may compromise the credibility of the testimony. When it comes to state’s witnesses, police misconduct may be particularly harmful. State’s witnesses’ credibility will be in doubt right from the start, since a state’s witness might agree to testify simply to save her own skin. (For this reason, Israeli law forbids courts from convicting an accused based solely on the testimony of a state’s witness; rather, that evidence must be corroborated.) If a court finds that the state’s witness’s agreement was coerced or unfairly reached, it is very possible that the court will conclude that the testimony is unreliable and cannot be a basis for a conviction. It is also possible that the case will not even reach trial, as the prosecutors handling the case might decide that questions about the testimony’s credibility make dismissing the case the best option.
- Second, witnesses’ illegally obtained incriminating statements to the police may be suppressed by the court even if the judge believes the statements are credible. While Israeli law allows, under certain circumstances, admission of out-of-court statements made by witnesses (such as those uttered during police interrogation), courts have the discretion to suppress those statements if they were obtained in a way that violated the law (see here and here). A witness’s incriminating statement to the police that is also a confession of her own guilt must be suppressed if deemed by the court to have been given involuntarily (see here and here). In addition, courts have the power to dismiss the charges against a defendant if the court finds that “the conduct of [the] criminal proceedings [against the defendant was] in material contradiction to the principles of justice and fair trial,” though admittedly this power is only rarely exercised.
- Third, and perhaps most important, when the police violate (or are perceived as violating) individual rights in the criminal process, this may put the reputation of the entire criminal justice system at risk. As I suggested in an earlier post, corruption investigations against elected officials – perhaps more than any other type of investigations – are frequently prone to accusations, by the defendants and their allies, of political bias and unfairness. In order to preserve public trust in the criminal justice system, on which the ability of the system to investigate and punish corruption crimes depends, all of the actors in the system – including the police, the prosecution, and the courts – must ensure that investigations are conducted in accordance with the law and principles of fairness, and that individual rights are fully respected. While this is true with regard to police investigation of all types of crimes, the special sensitivity of corruption investigations and the publicity that is regularly associated with them (especially when the main suspect is an acting head of state) make every instance of police misconduct, real or perceived, extremely harmful to public trust. A recent survey showing a considerable decline in public trust in the Israeli legal system demonstrates that this fear is far from purely hypothetical.
In sum, because police misconduct may derail an investigation and undermine the legitimacy of anticorruption investigations, police should err on the side of caution, rather than pushing the envelope. The more aggressive approach might seem more consistent with a “tough on corruption” attitude, but the risks outweigh the benefits.
Great post Guy, this situation is really interesting to learn about! I wonder what changes you might suggest to mitigate this sort of aggressive policing. For instance, so you think it would help to change the Israeli system so that lawyers are allowed to stay with their clients during interrogations? I also wonder how you think about the political dynamics in this case–to what extent does the perception of overly aggressive policing, and possibly unfair treatment by the legal system play into the persecution narrative of candidates that are running for office? Not being familiar with the Israeli context, I’m not sure how often this argument is used and how effective it is, but I’d be interested in your take.
Perhaps anticorruption investigators should be more cautious in countries where corruption is under control, like Israel and the United States. In those places, the criminal procedure system tends to work well even when law enforcement agents take sluggish attitudes. On the other hand, in countries with high levels of corruption, like Brazil, a risk-averse approach in the anticorruption law enforcement field leads to meaningless results. In a context of systemic corruption, in which government structures (including executive, legislative and judiciary branches) are entrenched by corrupt-related issues, it is hard to build a case without bold measures, especially in sensitive situations where the law is not clear about its limits and possibilities.
Thanks Guy for this very convincingly argued post. Using a current example draws home the point that while there might be reason to cheer the police for intention, it sets bad precedent for law. I would be interested to know more about these two individuals who decided to become state witnesses and changed their lawyers, particularly since they were accused themselves. Perhaps they would have had other incentives to do this, apart from the alleged police pressure.
Thank you for your great post that discusses this particular challenge when attempting to prosecute corruption. I agree with Inayat that your arguments were quite convincing but I had a few follow-up questions regarding the specific Israeli context and public opinion. While I agree with you that aggressive and potentially illegal state witness treatment can prove counterproductive for anticorruption cases, I wonder about the specifics of this case. The police investigators threatened asset seizure in the articles you referenced. Perhaps the way they framed this threat was excessive but does Israeli law actually allow for asset seizure in cases of this nature? Was that a valid possibility? I also had a more general question about the public’s perception of police conduct in Israel. Do people generally trust police and think they act in accordance with the law? You also mentioned a current survey that showed a decline in the public’s trust of the Israeli legal system. Is this because of this type of police misconduct or other reasons and if it extends beyond shady investigative tactics why do members of society increasingly mistrust the legal system?