Recently I mentioned that the conviction rate in Israel is very high, over 99%. A few days later a friend emailed me, and this was the conversation we had.
JS: I have been sharing your crazy acquittals statistic for Israeli court cases with friends and nobody believes the number. Do you have any articles or other evidence of the number?
SD: There is new research that you can read here http://weblaw.haifa.ac.il/he/Faculty/GazalAyal/Publications/Oren_Gazal-Ayal-Acq.pdf. This new research has statistics of 0.4% or 0.7% acquittals – for accused or accusations respectively.
JS: How does this compare to other countries, especially those with juries?
SD: Generally juries are more likely to acquit. In Israel there are only professional judges, no juries.
JS: What percentage of acquittals emerges from appeals?
SD: Successful appeals against conviction are very rare. Even rarer than in courts-of-first-instance.
JS: If a completely innocent person faces odds such as these, it would a huge gamble to plead not-guilty and go to court. Which means that loads and loads of utterly innocent people are pleading guilty. This is massively unjust.
SD: Entirely true. Sadly it is much safer to plead guilty – preferably with a plea bargain – even if innocent, and get a lighter sentence. Defendants will perjure themselves by pleading guilty for their own benefit.
JS: It seems extremely unlikely that the police and prosecution services in any country are free from prejudice, error and corruption. I would therefore expect a significant number of cases to reach court where a defendant is determined to prove they are innocent (because they are innocent!) and to allow due process to establish this in court. The minuscule numbers of full acquittals suggest, at least at first sight, suggest that there is something wrong with the system.
SD: Yes the police and DA are not infallible and of course there are complainants that lie. In defence of the system I must add that there are filters other than the judge: the police who arrive at the scene, the police investigators, a senior police officer who reviews the file, DA or police prosecutor who take the case to court. All or any of these could recommend that the charges be dropped, even after it gets to court. This has even become institutionalised and a potential accused has the right to a hearing before a prosecutor before he is indicted (= charged). Only cases that the police and DA think are a clear certainty for conviction come to court. A good defence lawyer should think of the prosecutor as a judge to plead before and the judge as a bad option to continue to if this fails.
But, an interesting feature of the Israeli criminal justice system – other than the enormous conviction rate – is the lenient sentencing. From what I know of the UK and USA, judges in Israel are very light handed when sentencing. Lots of suspended sentences, community service and first (even second and third) time offenders rarely go to prison. This might counter balance the enormous conviction rate.
JS: Not all cases are clear-cut. In fact, last night, I witnessed a pub brawl. The police came and everyone had their story. The whole point of a court is that two conflicting parties bring their case and a judge or jury weigh up the evidence and then decide on who was responsible for what. Sometimes, this simply cannot be sorted out any other way than in court. In which case, you would expect a reasonable number of acquittals.
SD: Everybody has their own narrative, their own point of view. I think that the most powerful person in the Israeli criminal justice system is the policeman who first arrives on the scene. He sees the woman crying and the husband looking worried. The woman says “he hit me and threatened to kill me”, the police do not listen to the man, just arrest him. The woman could be a total liar, but the husband is charged for domestic violence and separated from his family. (That man is also a suicide danger, see ccfisrael.org/paper .) The chances for acquittal are next to zero. The judge will usually not even examine the evidence because the husband, acting rationally, in his own interest, pleads guilty to avoid prison. You might say that most men in this situation are probably guilty, but the statistic of over 99% guilty cannot be correct. Can it be that less than 1% of complainants are liars or in less than 1% of cases there is “reasonable doubt” (see en.wikipedia.org/wiki/Reasonable_doubt)?
JS: One would expect from a court case that evidence, or the way it is put, or missing evidence, or case-law, or other factors to mitigate in such a way as to lead to acquittal – less than 1% sounds remarkably small (regardless as to the severity of the charge)
SD: In a way it is even worse than it sounds. Rarely a judge acquits. More often it is the prosecutor – police or DA – who realising that there is a “danger” of acquittal – offer a deal which is difficult to refuse (plead indecent assault and get no prison time and we will drop the rape charges). Criminal defence lawyers are often asked “how can you defend someone you know is innocent?”. This can happen but is much rarer than the opposite, I mean that the real question should be “how can you suggest to someone to plead guilty whom you know is innocent?” I take the latter question very seriously.
Also there are many cases with more than one charge and where the accused was acquitted of some but not all of them ie there was a conviction of at least one charge. If a defendant is accused of 12 charges and then acquitted of 11 he would get into the conviction statistic and not the acquittals. This will happen often as a result of a plea bargain: a client pleads guilty to eg attempted assault and the charges of attempted murder and possession of a weapon are dropped.
So the 0.4 or 0.7% statistics are only for full acquittals after a judge heard evidence and summations. The statistics do not include the partial acquittals or dropped charges (from a plea bargain – very common, or for technical reasons – quite rare). If the offences are more serious judges tend to acquit more. But, in all cases, if the prosecution witness is an adult female relative (domestic violence) or a police officer (eg drugs) then the chances of a judicial acquittal are almost zero. Add this to the large amount of accused held on remand (at least compared to the USA), the pressure to make a deal (plea bargain) is enormous.
JS: Final question: what do you think about these statistics bearing in mind your own experience if criminality and innocence in cases you’ve been exposed to and what does the legal community in Israel (lawyers, professors etc) think about the meaning behind the numbers?
SD: There is a lot discussion among criminal defense lawyers and in the Public Defender’s Office. A lawyer friend of mine thinks the ease of admissibility of the police statements of hostile witnesses is largely to blame. I agree. If a prosecution witness in court contradicts his previous police statement then the judge can receive that police statement and decide which version of events to accept: the oral evidence in court or the written evidence from the police station. I can tell you, that I have never heard of a case where an Israeli judge did not accept the incriminating police statement of a hostile witness! Again let us look at the domestic violence scenario. A woman maliciously lies to the police (do not tell me this never happens). Later she comes to court and shouts and cries to the judge that she lied and that the defendant is innocent. For sure this leads to a conviction. I would expect this to mean there is some reasonable doubt and therefore a potential for an acquittal. But no, such cases always lead to conviction.
JS: Sounds like the Israeli legal system has its work cut out to become fair and more in line with the famous statement of Maimonides: “it is better and more desirable that a thousand sinners are found innocent than one day a single innocent person be executed” (Sefer Hamitsvoth 290, and see wikipedia/Blackstone’s formulation).