RELOADED Disability Studies Quarterly Fall 2007, Volume 27, No.4 <www.dsq-sds.org> Copyright 2007 by the Society for Disability Studies

I. Introduction

This article focuses on witnesses with cognitive and mental disabilities who testify about crimes committed against them. I will examine a newly enacted Israeli law from 2005 — The Investigation and Testimony Procedural Act (Accommodations for People with Cognitive or Mental Disability) of 20051 (hereinafter, The Investigation and Testimony Act or The Act), which mandates provision of accommodations for people with cognitive or mental disabilities throughout the criminal justice process. The law came into effect in December 2006. Although The Investigation and Testimony Act applies to people with disabilities as perpetrators as well as victims of crime, my article will deal with the latter situation.

The Investigation and Testimony Act was preceded by a pilot project launched by an Israeli disability rights organization that lobbied and advocated for its enactment.2 The Act applies to police investigations and court testimony, in instances of serious crimes involving a person with a disability. The law requires providing comprehensive accommodations to people with mental and cognitive disabilities. A central tenet of these accommodations is the involvement of professionals from mental health and other therapeutic disciplines, whose role is to mediate between the disabled person and the law enforcement and justice agencies. These experts assist the justice administration to determine the factual basis of a case, in both stages of investigation and court testimony. In addition, the law allows for the alteration of procedural and evidentiary rules and practices, in order to facilitate provision of information by persons with disabilities during investigations and court testimony.

The Act's far-reaching procedural and evidentiary provisions regarding testimony of persons with disabilities in court lays the ground for a deep alteration of this mode of communication. Instead of an unmediated and direct impression of a witness by a judge, there is external intervention in this interaction. Testimony by a person with a mental or cognitive disability can be supported, directed, and interpreted by experts from therapeutic disciplines, who are vested with extensive authority. These experts can point to the way a witness should be addressed, what questions she may or may not be asked, how to frame the questions, what her responses mean (or do not mean), what her body language insinuates, etc. In general, these experts provide a type of interpretation to the testimony, by casting it against distinctive behavioral patterns of persons with similar disabilities.

It is important to note in this regard that Israel does not have a jury system, and all decisions, factual or legal, are handed down by a judge (or a panel of three judges).3 Appellate courts rarely intervene in factual determinations of lower courts, so the role of the judge in such cases is central. It may be argued that some of the accommodations established in The Investigation and Testimony Act infringe upon the due process rights of the accused; especially those relating to the right to confront one's accuser and to cross-examine prosecutorial witnesses without qualifications. It is possible that in the future, the Israeli Supreme Court may be called upon to rule on the constitutionality of these provisions and to balance the due-process rights of the accused and the right to dignity and equality of the victim with a disability. 4

In this article, I examine the rules established by The Investigation and Testimony Act, focusing on the accommodations relating to the testimony of victims with disabilities in court. I present these rules as yet another illustration of the way persons with disabilities challenge assumptions about what is considered "normal" behavior and speech, and about the meaning of such communicative measures. I do so in the context of what has long been considered an exclusive and core role of the judiciary: determination of truth through the unmediated impression of human behavior and oral communication.

Part II of the article provides a general theoretical framework under which The Investigation and Testimony Act is discussed, namely: the relation between critical disability studies and the law of evidence. Part III summarizes the literature from behavioral and social sciences, which deals with testimony by people with mental disabilities. Research from this end has drawn conclusions (and therefore offers guidance) on alterations that must be applied for the testimony to fulfill its goal, i.e., to provide the most complete and accurate account of events. Part IV describes the social and organizational backdrop to The Testimony and Investigation Act and Part V describes its main directives. Part VI depicts some Israeli court cases in which persons with disabilities testified about crimes committed against them. In these cases — handed down mainly before The Act — the Israeli courts turned to extra-legal experts during the fact-finding stage to assist in this process. I conclude with a modest prospect about the potential of The Act not only to alter practices and work habits in the criminal justice system but some jurisprudential thoughts about its significance. I argue that The Act reveals and underscores the tentative nature of fact-finding in the legal process, and the role people with disabilities play in problematizing assumptions about standard and "normal" means of communications, and our ability to give them true meanings.

II. Evidence and Disability Studies

The law of evidence is concerned with fact finding. It regulates the type of information that can be introduced in a legal proceeding, by whom, in what manner, and what weight it should be given. It provides guidance and structure on the way information should be presented, analyzed and interpreted.

Since evidence rules provide the framework for establishing facts and events, they determine what we know and how we know things throughout the legal process. Such determinations lie at the core of judicial rulings, and are considered the "heart" of the legal process. Because rules of evidence relate to knowledge, they are at once the most technical and the least technical of rules. On the one hand, they are highly procedural and dwell in minute detail into the structural aspects of fact finding. At the same time, they leave the broadest human discretion to law's judicial agents (judges or juries) to evaluate materials and testimonies through first-hand and unmediated impression (Twining, 1990).

Both aspects of evidence law — the structural and the impressionist — have drawn critique from critical methodologies of law, mainly feminist and race studies. The core of this critique points to the epistemological aspects of evidence law, i.e., the claim for knowledge about the happening of events. It has been argued that mainstream evidence discourse has been largely positivistic, in the sense that it assumes rational behavior, that evidence rules claim to be objective, and that they aim to discover an existing "truth" that is external to the process itself. Under this mainstream line of thought, testimony follows a linear chain of reasoning, which can be distinguished from emotional accounts of occurrences (Kamir, 1997).

In contrast, feminist (and critical race) critiques to evidence law challenge the assumption that evidence law merely ascertains "what happened." Rather the claim is that rules of evidence take part in the construction of reality (Nicolson, 2000; Scheppele, 1992; Taslitz, 1999). Under this understanding, evidence law both reflects and creates our sense of reality (MacCrimmon, 1991). All types of knowledge are the outcome of a particular style of reasoning and analysis. Thus, rules of evidence that determine what stories may enter a hearing and which are left out as irrelevant (Taslitz, 1998) when testimony is deemed credible (Ornstein, 1997), the categories under which we analyze and understand human behavior — are always value laden and assume a particular rather than a universal standpoint (Armour, 1997).

People with disabilities — in particular cognitive and mental disabilities — pose an additional and unique challenge to evidence law. Some of the central elements upon which rules of evidence are based, such as memory and recollection, credible behavior and reliable conveyance of information, may differ when offered by persons with mental disabilities; hence the need to articulate "special norms" for this situation.

There is a tension between recognizing disability as a distinct category which renders special procedural and evidentiary treatment, and the idea that disability is largely a social construct. Under the understanding of disability as a social construct, disability is primarily the consequence of environmental and external factors and cannot be captured through the impairment alone. Therefore, acknowledging that people with mental and cognitive disabilities belong to a confined category as far as evidence law is concerned, runs counter to this notion.

However, this apparent tension can be overcome. First, disability is, in fact, similar to other groups that have critiqued rules of evidence as non-reflective of their life perspectives, such as gender, race and ethnicity. In the case of these categories, though, it was first necessary to expose the biased and cultured assumptions embedded in seemingly neutral rules of evidence, and then to put forward an alternative view of human experience, and of ways to convey information. With regards to disability, we can "skip" the first part and move directly to the second. Accepting the need to provide accommodations for witnesses with disabilities does not, therefore, contradict the notion that what essentially is at stake here is acknowledging alternative systems of knowledge.

Moreover, as the next section illustrates, environmental factors — such as the type of questions presented to a witness, their framing, the setting in which they are asked — affect the capability of a witness with a disability to provide accurate information and thus affect her credibility. In other words, a witness's competence and credibility are not intrinsic to the individual giving testimony, or to her impairment. To a significant extent, they are the consequence of the situation (the environment, the setting, the questioning style) in which the testimony is presented. We see, therefore, that even in the context of a witness with mental/cognitive impairments, one's ability to be a reliable witness depends as much upon external factors as on limitations resulting from the impairment itself. We can therefore feel comfortable talking about the differences disability renders to the rules of evidence without compromising the notion of the constructed phenomenon and experience of disability.

In what ways can disability affect the provision of testimony? To begin with, disability sometimes alters the way a person perceives and understands an event, which law may define as unlawful. A person with mental retardation, for example, might not identify danger, nor understand that a certain act constitutes an unlawful sexual advance [Petersilia, 2001, 675-676]. Differences of this sort can be ameliorated by changing substantive law — for example, imposing criminal liability when the disabled victim acquiesced or did not resist a certain act. However, the difference in an event's perception can carry over and become relevant at the evidentiary stage. An acquiescing person might not take note of incriminating details which may be pertinent to the identification of a perpetrator, or she might dispose of incriminating evidence that would otherwise be kept.

However, the principal challenge to rules of evidence stems from the difference in the ways that persons with cognitive disabilities oftentimes convey information to external recipients (police investigators, judges and juries). Under the dominant view, a judge (or jury) is capable of determining the facts of a case based on a sensitized impression (seeing & hearing) of a witness's testimony. Indeed, the assessment of witness credibility is considered a foundational task of the judiciary, lying at its core (Kedmi, 2003, part III, pp.1592-1607; Wessel, Drevland, Eilersten & Magnussen, 2006). We trust judges to be capable of determining the truth through reliance on direct and unmediated impression of a witness's behavior and speech, through verbal and non-verbal cues, facial expressions, eye contact and other gestures (Miller & Burgoon, 1982).

Indeed, Israeli courts have affirmed time and again that credibility is a matter under the exclusive role of the judge, who applies "judicial discretion, life experience and human reasoning" to evaluate the witness, based on his "reactions, movements, facial expressions and manner of speech" (Demjanjuk v. The State of Israel, 1993; Snir v. The State of Israel, 1984; Bashiri v. The State of Israel, 1980; Abdul Hai v. The State of Israel, 1992).

People with mental and intellectual disabilities problematize these assumptions. Verbal and behavioral "truth signs" — such as accuracy, fluency, rational and logic behavior, consistency (in substance, time and place descriptions), poised body language, lax stature and confident appearance — are all considered indicators of reliability and trustworthiness. However, they might (though obviously not always) have a different meaning when persons with disabilities express them or do not express them (Kebbel & Hatton, 1999).

In addition, persons with cognitive disabilities oftentimes have problems with memory (encoding, storing and retrieving information that had been observed), with providing an accurate and coherent, consistent and complete account of an event, and they might be more prone to confabulation, acquiescence and suggestibility.

In order to cope with these differences, various types of "accommodations" are introduced: a friendlier environment in the courtroom, exemption from confronting the accused, questions framed in a way that assists recollection and the provision of more qualitative information, and expert testimony that explains the meaning of a witness's words and conduct to the judge.

The need to determine "what happened", when the source of information is a person with a cognitive disability, is thus an opportunity to consciously rethink assumptions about the way we learn about happenings. Indeed, similar to other areas of life, disability calls into question presumptions about the way things "are", suggests a relative human experience and allows us to rethink the normative nature of human cognizance and its meanings.

To transform and apply theoretical insights of this sort to the legal process, jurists have turned to the therapeutic and mental health disciplines. Professionals from these areas of knowledge intervene in the judicial process in spheres that lie at its core: the court's setting, manners of questioning and interpretation of communications between the different players in the process. The following section describes these measures.

III. Mental Health and the Justice system — Witnesses with Disabilities

The interplay between the mental health disciplines and justice system originated with the question of criminal responsibility. The perpetrator — in particular the one operating in the extreme — was the subject of the epistemological engagement of the two disciplines. Perpetrators were exempt from liability in cases that were diagnosed and defined by psychiatrists, such as dementia, furor or "a monstrous figure" — to use the term coined by Foucault. Over time, mental health professionals ceased to confine themselves to explaining extreme crimes, and offered the courts professional insight about more ordinary conditions of crime, including "the common everyday figure of the degenerate, of the pervert, of the constitutionally unbalanced, of the immature, etc." (Foucault, 1998, p. 447).

The tension regarding the relative subordination between the therapeutic/mental health and judicial disciplines is far from being resolved,5 and the interchange between them is a continuing tension about who has "final authority".6 Nonetheless, therapeutic professionals continue to provide "expert testimony" in a variety of judicial proceedings. Their knowledge is no longer restricted to the (fundamental) question of criminal liability/insanity defense, but has been regularly accepted in a variety of judicial proceedings: tort cases regarding assessment of damages due to mental harm, parental and custody disputes, guardianship cases, civil commitment proceedings, litigation involving the civil liberties of prisoners with disabilities,7 and others (Wexler, 1992). The infiltration of mental health expertise into the court system has led professionals to call for a new "ethics of expertise" — rules and standards that would govern the way therapeutic knowledge is presented in court, in order to ensure quality control over the acclaimed expertise (Golding, 1990).

The situation discussed in this article — expert opinions relating to the testimony of crime victim — is relatively novel. First, the input from therapeutic professionals relates to the victim rather than the perpetrator. Therefore, it does not involve questions of legal responsibility (though it does address competence). Second, it relates to the assessment of the meaning, soundness and credibility of witness testimony, an issue close to the core role of the judiciary and its knowledge system.

In the context of witness competence and reliability, mental health research from the last three decades addressing the interaction between the legal and the therapeutic systems of knowledge is enlightening. The most noteworthy insight, in my opinion, is the strong evidence about the ways external and structural factors shape the quality and credibility of testimony on behalf of witnesses with cognitive and mental disabilities.

To be sure, the starting point of this inquiry is the impairment — cognitive or mental — and its affects on the basic qualities of a witness. These qualities involve a number of vulnerabilities: a.) problems with memory — ability to register (encode) events, store, recall (retrieve) and describe them (Valenti-Hein & Schwartz, 1993); b.) concern for confabulation: replacing gaps in memory with distorted or fabricated material; c.) tendency for suggestibility: providing the answer believed to be required by the questioner (either for reasons of compliance or incorporating suggested information into recollection); and d.) tendency to acquiesce: saying yes to yes/no questions (Kebbell, Hatton, Johnson, & O'Keally, 2001; Gudjonsson, Murphy, & Clare, 2000).

Nevertheless, these shortcomings are not fixed or finite. In fact, research shows clearly that the accuracy and completeness of testimony given by people with cognitive disabilities can be significantly altered and improved if particular court settings are in place, suitable questioning is used, and certain examination strategies are adopted (Kebbell & Hatton, 1999).

For example, persons with cognitive disabilities give more accurate questions when open questions are used (e.g., "What happened?" rather than: "Tell me what you saw that night"; "What did he look like"? rather than "Describe his face"), but answers may be less complete. One supposed reason for this finding is that open questions leave more space for the witness to tell her version, while closed questions carry the risk that the witness will say what she thinks her questioner wants to hear (Perlman, Ericson, Esses & Issaacs, 1994; Stobbs & Kebbell, 2003).

People with cognitive disabilities also "score" less (in terms of accuracy and consistency) with yes/no questions, suggestive questions, complex questions (using double negatives, for example) or repeated questions. In part, these findings are explained by memory problems. Other reasons concern accumulative social experiences: since persons with cognitive disabilities are often under strict and continuous authority and are subjected to programs aimed at enhancing their compliance, they are susceptible to suggestibility and acquiescence towards people whom they perceive as authoritative in a particular moment (Perlman et al.,1994, p.186).

Based on findings of this sort, mental health experts have assumed a new role in the justice system. They are being called to assist the courts, as well as other law enforcement agencies, on ways of conducting fact-finding missions (for example, how to phrase questions during police investigations or cross-examination), as well as the meaning of testimony (for example, the extent to which inconsistency in time and place reporting indicates untrustworthiness).

The Office for Victims Crimes in the Department of Justice in the U.S., for example, directs officers to question persons with mental disabilities as follows:

speak directly and slowly to victims, keeping your sentences short and words simple. Separate complex information into smaller parts and use gestures and other visual props to get your message across …. recognize that victims may be eager to please or be easily influenced by you… use open-ended questions or questions that cannot be answered by "yes" or "no"….(U.S. Department of Justice, 2002).

Similarly, the Judicial Studies Board in the UK has published a comprehensive "bench book" with detailed instructions on the ways to ensure equal access to the judicial system to a number of groups including persons with disabilities. In the section referring to witnesses with cognitive disabilities, the instructions are as follows:

Taking evidence from a witness with a mental disability:

• Speak more slowly, use simple words and sentences, and do not go on too long without a break.
• Avoid 'yes/no' answers and questions suggesting the answer or containing a choice of answers which may not include the correct one.
• Do not keep repeating questions as this may suggest that the answers are not believed and by itself encourage a change, but the same question may be asked at a later stage to check that consistent answers are being given.
• Do not move to new topics without explanation (e.g. 'can we now talk about') or ask abstract questions (e.g. ask 'was it after breakfast' rather than 'was it after 9.00 am').
• Allow a witness to tell their own story and do not ignore information which does not fit in with assumptions as there may be a valid explanation for any apparent confusion (e.g. the witness may be telling the correct story but using one or more words in a different context at a different level of understanding). (Judicial Studies Board Bench book, 2005).

These two examples illustrate a broader trend that has been taking place in the last two decades in several countries that have altered the process of data collection and evidence submission from persons with mental and cognitive disabilities.8 These alterations and accommodations have relied upon accumulated research from mental health professionals on the cognitive and communicative processes undergone by persons with such disabilities in perceiving, recollecting and conveying information.

In 2005, Israel enacted one of the most comprehensive pieces of legislation requiring accommodations for persons with cognitive and mental disabilities during police investigations and court testimony. As illustrated below, many provisions in this law follow the rationale described above. The assumption underlying the law is that when witnesses (or perpetrators) with mental disabilities are required to provide information about a certain event, alterations may be necessary in order to obtain the most accurate and complete, information, as required by general principles of the rule of law. The law, however, reaches beyond addressing the possible affect of the impairment itself on presenting the necessary facts. Rather, it requires the use of varied measures — some technical, some substantive — assuming that their interaction with the cognizance of the witness may affect her reliability.

The Investigation and Testimony Procedural Act (Accommodations for People with Cognitive or Mental Disability) of 2005 was the result of a ten year effort launched by disability advocacy groups. Since the mid-1990s, these groups had pointed to shortcomings in the judicial process that fail to protect victims with disabilities, and to the insurmountable barriers they face throughout their encounter with the justice system. The next section outlines this project and depicts the main achievements of The Act.

IV. Background to the enactment of The Investigation and Testimony Procedural Act (Accommodations for People with Cognitive or Mental Disability) of 2005

V. The Investigation and Testimony Procedural Act (Accommodations for People with Cognitive or Mental Disability) of 2005

The Act applies to persons with cognitive and mental disabilities whose impairment affects their capacity to be investigated or to offer testimony.14 It pertains to a number of severe offenses, whether the person is a perpetrator, a victim or a witness to a crime.15 Due to the extensive resources needed to fully apply The Act, there is gradual implementation of its requirements, lasting between one and five years.16

VI. Accommodations and Court Testimony

The Israeli courts have been grappling with the need to accommodate witnesses with cognitive and mental disabilities and to employ special measures to enable and improve their participation in the judicial process (Kedmi, 2003 ,part_III). However, the steps taken by the courts did not develop in a coherent manner, and do not reflect a wide-ranging and comprehensive approach to the underlying problems encountered by persons with cognitive and mental disabilities in the criminal justice system. The passing of The Investigation and Testimony Act, together with the groundwork done by Bizchut, signals a change in this area.

The general evidentiary rule in Israel is that all people are considered competent to give evidence (Bashari v.The State of Israel, 1963). In the case of Jabari (1995), the Israeli Supreme Court held that a cognitive or mental disability, in and of itself, does not disqualify a person from testifying, if he understands the duty to tell the truth, and if the disability in fact did not inhibit his ability to testify, i.e., to encode and register happenings and to convey them in a reliable way (see also Shweiki, 1996, para. 19).

The courts have thus held (Ploni, 1999), that testimony of witnesses with mental and cognitive disabilities will be determined through questions of weight and credibility rather than of competence (Kedmi, 2003, part I, p. 386). These rulings follow similar developments in the United States (McCormick, 1992) and England (Phipson, 1990).

The leading rule relating to the credibility of witnesses with cognitive disabilities was handed down in the Barda (1986) case. In Barda a "triple test" was established: for the court to accept testimony of a witness with a mental or cognitive disability, the testimony must pass all following criteria: a.) the unmediated general impression of the court which hears the witness about her condition and ability to testify in a credible manner, taking into account expert testimony about the disability; b.) the internal logic of the testimony, i.e., "truth signs" that originate from the testimony itself; and c.) supplementary support to the testimony through external evidence.

The aggregate application of this case law led to an unsatisfactory outcome.30 To begin with, as explained above, the requirement that a witness will "understand the meaning of truth telling" might exclude witnesses who can indeed tell the truth in a particular case, but do not always understand the abstract duty to tell the truth. Second, the condition set in Jabari (1995) for accepting testimony, under which the disability did not, in fact, hinder the witness's capability to testify may mean very little if not accommodated properly — for example, by use of substitute communication devices, or by changing the setting in which the testimony is heard. Third, the first and second criteria established in Barda stand in contrast to the notion that the quality and credibility of the testimony is contingent upon the manner in which it is produced.

The "unmediated impression" from the witness is, of course, prone to biases and prejudices about persons with disabilities. Impressions might be flawed due to ignorance about the meaning of certain behavior as it pertains to persons with disabilities. In fact, as explained above, it is the mediated impression — such as assistance of therapeutic professionals — that can better project if the witness ought to be considered credible or not. The second requirement of the Barda test, observing the internal logic of the testimony and its "truth signs" is no less problematic. "Internal logic", for example — coherent accounts of events, reasonable sequences and chronological descriptions — assumes that the testimony can stand alone, speak for itself and can be judged according to such internal qualities.

As discussed above, this approach has been challenged by an understanding that the quality and credibility of testimony depends, to a large extent, on the conditions in which it is given, on its questioning style and on the phrasing of this communicative exchange. Truth signs, too, are suspect, since they assume some standard and normative behavior, which may not be relevant (or less relevant) to persons with cognitive and mental disabilities. Although the courts have been aware of the need to adjust these tests to persons with disabilities, in some cases the lack of accommodations led to doubts about the witness's credibility and consequently to the acquittal of the accused.

In the Julani (1999) case, for example, the victim of sexual abuse, a man with mental retardation. identified the accused in court as his abusers. However, despite the judges' belief in his sincerity about the attack taking place, the identification raised sufficient doubts, and the accusers were acquitted. In this case, the police investigation was conducted improperly, the testimony of the victim's social worker was mixed up with the victim's, and the court had no professional assistance in determining the validity of the witness's account.

The case of The State of Israel v. Ploni I (1998) illustrates the need to closely tailor the investigation to the victim's particular impairment, and its direct affect on subsequent court testimony. In this case, the victim was a young woman with Williams Syndrome, a disability characterized by mild mental retardation, a strong propensity to please and a weak tendency for lying and manipulation. After the victim initially complained about sexual abuse, she was questioned by a social worker and a police investigator about what had happened. They asked several leading questions — a tactic more acceptable during investigation of children — which caused the court to regard her answers as less reliable. The court explained that since the complainant was a woman with mental retardation, there was justification to accommodate the standards investigation and to allow some leading questions; however, since her specific impairment entailed a strong tendency for acquiescence and pleasing, the leading questions might lead to an opposite affect and weaken the testimony in this case. (Ploni I, 1998, para. 14). In other words, the same approach that may credit testimony in one situation might discredit it in another.31

As for truth signs, court cases do demonstrate that input from therapeutic experts may prove essential. In the case of Ploni II (1999), a woman with mental retardation complained of sexual abuse by her nephew. Although she submitted official statements during the police investigation, the court refused to accept these out of court statements at trial, and the woman was required to testify. Her first two appearances in court ended with silence: the woman would not recall and convey her story. Only on the third attempt (in the judge's chambers) did she tell what had occurred. Her testimony was, however, confused and she gave conflicting accounts of people who could attest to her abuse, as well as inaccurate accounts of its time and frequency. The District Court found her an un-credible witness — despite expert testimony explaining the woman's disability and the affect it might have on her testimony — and the accused was acquitted. The Supreme Court reversed this decision and remanded the trial to the District Court, an uncommon ruling as courts of appeals do not habitually intervene on questions of credibility. In so doing, the Supreme Court applied the Barda tests, but in a manner that clearly took into account differences in the meaning of certain behavior and speech, and by accommodating the impressionistic aspects of these tests to suit these differences. For example, a witness responding to a question only after repeated queries may often be regarded as untruthful; however, for a person with mental retardation the same behavior might express difficulty in memory and recollection. Accuracy and conflicting accounts are usually an indication of untruthfulness, but inaccurate accounts of time, space and events from a witness with a cognitive disability may have nothing to do with lying.

Prior to the enactment of The Investigation and Testimony Act the courts' treatment of victims with disabilities was to a large extent random and incoherent. Although there were some cases in which judges used "accommodating interpretations" to evaluate witnesses' behavior and to determine their credibility, in others they applied evidentiary standards which did not fully take into account differences originating from the disability. The coming in force of The Act may, indeed, create an overarching mind-set for such accommodations.

Conclusion

Reports from Bizchut indicate that since the victim-support project was launched in 2002, and as The Act comes into force, the criminal justice system has started to internalize the need for accommodations. Police have begun to incorporate changes in the way criminal investigations are conducted and courts are open to new ways to hear testimony. The organization has documented cases in which a police investigation of a woman with severe cognitive disabilities was conducted through pictures and role play; a man testified in court despite his extremely limited verbal capacity; a number of victims with disabilities testified in the absence of the accused, and presently, the court is hearing a case in which the victim — a severely disabled woman — is testifying through the use of pictures and board images.32

The Act, thus, carries the potential to significantly alter working patterns within the criminal justice system. These changes, however, reach beyond fact finding to an imperative mission of the legal process. In this article, I have tried to show that they problematize common assumptions about normative behavior and communication, and challenge the belief in our ability to identify a person's credibility through the use of intuition, reasoning and life experience.

Indeed, critical disability theory claims that human experience is a relative phenomenon and thus the concept of disability cannot be understood but through a tentative interaction between the person and her environment — be it physical or personal. When cognitive or mental disabilities are at stake, this challenge touches upon the deepest aspects of humanity. It reminds us that there is no one way or right way to interact with others, to convey what we feel and what is important to us; in fact — there is not one way to live this life.