DSQ > Fall 2007, Volume 27, No.4

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

Witnesses with Mental Disabilities: Accommodations and the Search for Truth — The Israeli Case Senior lecturer & director, The Cegla Clinical Law Programs The Buchmann Faculty of Law Tel Aviv University, Tel Aviv, Israel

Abstract

In 2005 Israel enacted a comprehensive law requiring accommodations for persons with disabilities in the justice system. The Investigation and Testimony Procedural Act (Accommodations for Persons with Mental or Cognitive Disabilities) of 2005 applies to police investigations and court testimony of persons with mental and cognitive disabilities, if they are suspected of committing a severe crime, witness such a crime, or are victims of one. Many of the accommodations required by the law involve input from professionals in therapeutic disciplines such as psychiatrists, psychologists, criminologists and social workers. Thus, therapeutic professionals offer the judiciary alternative measures to understand and construe human behavior. Their intervention in the legal field occurs in what seems to be the most fundamental function of courts, through which they base their legitimacy and their claim to exclusive knowledge and skill — the ability to ascertain the truth.

This paper probes the encounter between the justice system and these disciplines at the evidentiary stage, when persons with mental and cognitive disabilities testify in court about crimes committed against them. Persons with mental disabilities are more likely than others to become victims of crime and assault. Only lately has the justice system begun to address measures that must be undertaken to protect them from abuse; the Israeli Act is a favorable step in this direction.

Author's Note:

I wish to thank Liat Ben-Moshe and Sumi Colligan for providing me with the opportunity to write this article, and to colleagues from Bizchut — The Israel Human Rights Center for people with Disabilities — for allowing us to access the information and cases in the organization. I want to thank Hadar Yuhas for invaluable research assistance and substantive input in this article.

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

A. DISABILITY ADVOCACY IN ISRAEL

Rights advocacy on behalf of persons with disabilities is a relatively recent occurrence in Israel, beginning from the early 1990s. For many decades, the attitude towards persons with disabilities in Israel was governed by a strong medical approach, and was highly paternalistic (Herr, 1992; Ziv, 1998). The prevalent topic of concern for persons with disabilities was disability allowances and other social services, which were provided by the government as part of its welfare policy. As Mor (2006) illustrates in her pioneering research on disability welfare law in Israel, the rules governing disability allowances defined the relationship between the state and persons with disabilities. These laws reinforced the inferiority of people with disabilities within the general population, as well as the social hierarchies within this group (Mor, 2006).

The emergence of a human rights discourse on behalf of persons with disabilities in the 1990s was accompanied by a shift in the agenda of their struggle: from welfare to rights (Rimon Greenspan, 2006).. The major rights organization that set the agenda for this change was Bizchut — The Israel Human Rights Center for People with Disabilities — which was established in 1993 and has since been a major actor in this field. Many of the activities launched by Bizchut — including impact litigation in the area of accessibility, mainstreaming in education, community housing — as well as comprehensive civil rights legislation, were modeled after American legislation, (The ADA) and its underlying anti-discrimination structure (Herr, 2003; Ziv, 2004).

The focus on rights and on the justice system led Bizchut to examine the conditions of one of the most vulnerable groups among the disabled: persons with mental and cognitive disabilities, and their exposure to violent and sexual abuse. This initiative, which began in the mid-1990s led, a decade later, to the enactment of The Investigation and Testimony Procedural Act (Accommodations for People with Cognitive or Mental Disability) of 2005, discussed below.

However, the success embodied in the enactment of The Investigation and Testimony Act was not the result of disability rights advocacy alone. At that time, a broader movement had begun to develop in Israel, which drew attention to the plight of crime victims in general, and of sexual crimes in particular.

B. THE RISE OF CRIME VICTIMS' ADVOCACY

The 1990s saw the emergence of victims' rights advocacy in Israel. As in many other countries, this movement was led by women's organizations (especially rape crisis centers and other groups addressing violence against women), together with children's rights and disability rights organizations. To be sure, the special status of children in the judicial process had been recognized in Israel for decades. Since the 1950s, legislation had required that children under the age of 14 be questioned by a trained "youth investigator" during a criminal investigation, and in some circumstances, this investigator would be permitted to testify in court about the child's state of affairs, or offer the written and oral statement in place of the child's testimony in court.9

The problems faced by adult crime victims were not, however, addressed until the mid-1990s. In 1998 a coalition of several NGOs was formed (which included The Association of Rape Crisis Centers, The Israel Women's Network, The Association of Centers for Victims of Sexual Violence, and Bizchut) and began to lobby the government for a clear response to the problems faced by crime victims during the judicial process. The Ministry of Justice set up an inter-ministerial committee headed by Deputy Attorney General Judith Karp, to look into changes in policy and law relating to victims of crimes.

This concerted effort led to a number of legislative accomplishments. In 2001 the Knesset enacted The Crime Victims Rights Act, which established a number of basic rights to victims of felonies (Crime Victims Rights Act, 2001). These include: the right to be protected from the perpetrator (the imposed restrictions on transferring personal details about the complaining victim to the perpetrator, unless necessary for the trial — sec. 7); the right to receive information about social services and support (sec. 11); the right to receive information about the criminal proceedings against the perpetrator; the right to examine the indictment and to be informed about the prison terms and the location of the perpetrator; and the right to be present in the court while the trial takes place (sec. 8-10, 15). According to this law, the victim may file a statement before the court about the harms she had suffered (sec. 18), and she is entitled to officially express her position regarding plea bargains, staying of proceedings, early release and pardon (sec. 16, 17, 19, 20).

Although The Crime Victims Rights Act (2001) does not alter the judicial process in a substantive manner, it constituted the first law to recognize the interests of adult victims during a criminal trial. In addition to this general legislation, the Procedural Amendment (Witness Examination) Act of 1957 was amended in 2003, authorizing the court to hear the testimony of a sexual-crime victim (including human trafficking) in the absence of the accused (however, in the presence of his counsel), if the court believed that his presence might harm the victim, or that it might hinder the testimony (The Procedural Amendment Act (Witness Examination), 1957, 2003). In such circumstances, the testimony could be heard outside the courtroom, in a manner that enabled the accused to observe the witness and to maintain continuous contact with his counsel.10

In sum, the vibrant disability rights advocacy and the emerging awareness to victims' rights laid the groundwork for efforts addressing the unique needs of victims with disabilities.

C. ADVOCACY FOR CRIME VICTIMS WITH DISABILITIES

In 1995 Bizchut issued a comprehensive report entitled: "People with Cognitive and Mental Disabilities as Victims of Violence and Sexual Crimes".11 The report spelled out the shortcomings of the criminal justice system — from the initial stage of filing a complaint, to police investigations and court procedures — to offering accommodations and protecting the rights of victims (as well as perpetrators) with mental and cognitive disabilities. The first report was followed by a second memorandum, which presented a comparative analysis on the ways other countries had addressed this problem, and proposed detailed recommendations for statutory amendments.12

The publication of these documents was part of a broader victim-support project, launched by Bizchut in 2002, and which continues to this day. Through this project, Bizchut has been offering support services to crime victims with cognitive and mental disabilities (and their families) who encounter the criminal justice system. Prior to the enactment of The Investigation and Testimony Act, Bizchut representatives escorted crime victims to the police station, providing them with emotional support. They served as liaisons between the victim (and her family) and the law enforcement agencies and could thus learn first hand about the deficiencies of the system and the need for improvement.

The project has continued following the enactment of The Investigation and Testimony Act, and nowadays includes additional services, such as informing the police about necessary accommodations for victims with disabilities during the police investigation, direct assistance during the investigation (when appropriate), legal representation of the victim (for example, when the file is closed and an appeal might be appropriate). They accompany the victim during a preparatory visit to the court before the trial begins, assist the court to determine necessary accommodations throughout the trial, provide expert testimony to the court on the nature of the disability and its affect on the proceedings, and assist lawyers who represent persons with disabilities.13

This type of involvement (which in Israel is largely performed by a civil society organization, a rather problematic matter that will not be dealt with in this article), is indeed one means by which the criminal justice system can accommodate and better protect persons with disabilities. These measures can extend to the heart of adjudication: mediating the process of judicial fact-finding, usually performed by the unmediated impression of eye-witness testimony. Accommodations of this sort are now mandated following the enactment of The Investigation and Testimony Act, which is described next.

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

A. POLICE INVESTIGATIONS

A main directive of The Act requires that a person with a cognitive disability be investigated by a "special investigator". Special investigators — appointed by the Minister of Welfare — are psychologists, social workers, clinical criminologists, or professionals with a background in special education, who have undergone special training to fulfill this role. These professionals are vested with the powers of police investigators. As part of their task, they must explain to the investigated person in simple and understandable language their duty to tell the truth as well the privilege against self-incrimination. In carrying out their tasks, the special investigators may consult with additional experts. 17

The Act contains additional provisions about the way to conduct the investigation, including the duty to notify a family member about its occurrence, and it spells out the right of persons with cognitive and mental disabilities to be accompanied by a person of their choice during an investigation. The Act mandates in detail the duty to document the investigation:18 the preferred method being visual (video) recording, and if this is not attainable, audio or manual recording is permitted.19

It is hard to underestimate the importance of these novel directives. Flaws and deficiencies during police investigation might lead to closing police files before prosecution; they might impede the efficacy of the judicial process, and thwart the court's ability to ascertain the credibility of a witness with a cognitive disability. Adequate accommodations that facilitate the obtaining of accurate and better information during the initial investigation might prove crucial during adjudication.20

B. TESTIMONY IN COURT

The Act regulates the way persons with mental and cognitive disabilities may testify in court. As a general directive, the court is authorized to exempt a witness with a cognitive or mental disability from being cautioned (the equivalent of giving an oath), before testifying, if persuaded that the witness does not understand the general obligation to tell the truth. It has now been acknowledged that there exists a difference between the ability to understand the abstract concept of telling the truth, and the ability to tell the truth in a particular matter; this section reflects this understanding.21

The other provisions concerning the testimony of witnesses with mental and cognitive disabilities can be divided into four types:

  • Accommodations relating to admissibility of evidence which otherwise might be excluded.
  • Accommodations relating to the setting in which the testimony is given.
  • Accommodations relating to the cross-examination of a witness with a disability.
  • Accommodations affecting the credibility of the testimony, its meaning and significance.
1. Admissibility of evidence

As explained above, police investigations conducted by "special investigators" are an important accommodation required by The Act. It was therefore vital to recognize their validity during trial. Sec. 20 of The Investigation and Testimony Act allows to admit such a statement as evidence (if conducted according to the requirements of The Act and documented on video taped), if the witness is available for testimony and for cross examination — but also in exceptional circumstances when the witness herself does not or cannot testify in person.22

The admissibility of an out-of-court statement without in-person testimony of the disabled witness is allowed if the court believes — based upon expert opinion — that testifying might harm her, or if she cannot testify because of her disability. In these circumstances, the court must be persuaded that the harm to the witness or the default in the testimony cannot be mitigated or overcome by use of alternative measures (such as in camera testimony, testimony behind a screen, or out of court).23 However, the court cannot base a conviction upon an external statement alone without corroborating evidence.24

These evidentiary rules are exceptional and far-reaching.25 They recognize the possibility that a witness might not be able to testify due to her disability and employ two sets of accommodations. The first applies during the police investigation by use of special investigators; the second is an adjustment to the rules of evidence, which generally require presence of a witness as a precondition to the acceptance of an out-of-court statement.

2. Testimony setting and environment

Recognizing the impact the environment might have upon the ability to testify and on the credibility of a witness with a disability, The Investigation and Testimony Act authorizes the court to alter customary court settings.

The Act offers a set of options to accommodate the surroundings in which testimony can be heard: testifying on the witness stand behind a screen/veil, off the witness stand, without the official court dressing/uniform, in the judge's chambers, outside the court building, accompanied by a person known to the witness, or in any other manner, providing the court believes it does not prejudice the accused.26

Accommodations of this sort (similar to the ones available to children) recognize the connection between the ability to testify on the one hand, and the structural environment in which testimony is given. They express the idea that "good quality" and truthful testimony is not so intrinsically and objectively construed, but that it is contingent and dependent on the surroundings in which it is delivered.

3. Cross-examination of a witness with a disability

The court is authorized to order that a witness with a disability not be examined by the accused himself, and is mandated to do so if the trial relates to a sexual offense.27 These provisions echo the previous amendments to the law relating to all sexual crime victims, which authorized the court to restrict the cross-examination of a sexual crime victim in a similar manner.

4. Accommodations affecting the credibility and the meaning of the testimony

The most unique aspect of accommodations during trial relates to the provision of the testimony itself by a person covered by The Act. These accommodations touch upon the most substantive aspect of the juridical role, by intervening in the means of communication between the witness and the judge. To be sure, the judge holds "the last word" in determining the worthiness, credibility, weight and value of the testimony. However, the way she reaches these conclusions — i.e., the cognitive process under which she comes to believe the testimony is "true" — is generated through input from another professional knowledge systems, which mediate between the judge and the witness, and offer an interpretation to what is seen and heard by the "natural" senses.

The Act spells out in detail accommodations of this sort. It authorizes the court to accept expert testimony on "the possible influence of the disability on the testimony or the witness"28; it authorizes the court to hear the testimony of a person with a disability with "assistance of alternative communication or supportive communication measures, including the assistance of people, computerized devices, communication boards, pictures, symbols, letters or words"; and it permits the assistance of a counselor in examining the witness who will be allowed, among other things, to suggest "alternative phrasing of a question", and to alert the court about possible harm that might be caused to the witness.29

The introduction of therapeutic knowledge of this sort during trial is unique because it can be applied by way of a direct interaction with the witness. In other words, the mental health professional does not only observe and examine the witness, and provide an external assessment of her expression or communication (although this can also be done under The Act). She can suggest how to rephrase a question in order for the response to have more credibility; she can communicate with the witness through pictures, electronic devices or other objects if the witness is non-verbal; she can interpret certain behavior and gestures of the witness and convey to the court an alternative sense of their meaning; and in general act as a mediator between the witness and the court.

I suggest that measures of this kind dive into the essence of judicial knowledge about human cognizance and behavior. Not only do they offer different ways of understanding oral communication and bodily gestures, but they illustrate the contingent and relational nature of human behavior — which does not obtain meaning but in relation to its environs.

In this case, the relationship between the two disciplines — the legal and the therapeutic — cannot be captured through a superiority-inferiority dimension. Rather there exists a complex and intertwined connection between them, as the judicial decision-making incorporates knowledge about the meaning of the human components that make up the witness's communication in testimony. The following cases illustrate this interaction through Israeli case law.

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.

References

Endnotes

  1. S.H. 2038 (2005), p. 42.
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  2. The organization was Bizchut — The Israel Human Rights Organization for people with Disabilities; see http://www.bizchut.org.il. The author was a founder and chair of Bizchut until 1996.
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  3. With a few exceptions, Magistrate Courts have jurisdiction over offenses with a penalty up to seven years, and District Courts with all other offenses. The Courts Act (Consolidated version), 1984 sections 40(1) & 51(a)(1)(a), District Court hear appeals from Magistrate Courts; The Supreme Court hears appeals from District Courts.
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  4. The Israeli Supreme Court has assumed jurisdiction to review Knesset (Parliament) Law following the enactment of The Basic Law: Human Dignity and Liberty in 1994. Although the basic law does not spell out due-process rights similar to the Sixth Amendment, the Israeli Supreme Court has ruled that due-process rights are included in the basic rights to liberty and dignity. See H.C. 6055/95 Sagui Tsemach v. The Minister of Defense PD 53 (5) 241.
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  5. For two competing views see King, M. (1991), arguing that the legal discourse has subordinated the therapeutic discourse. In contrast see. James, A. L,(1992), claiming that the legal discourse is subordinate to the therapeutic one.
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  6. See, for example, a recent exchange between Zemishlany & Melamed (2006) (MDs) on the one and Wolfman (2006) (PhD)--on the other, discussing the newly established right to counsel afforded to persons involuntarily committed under Israel's mental health legislation.
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  7. Perlin, M. (1987), examines the crisis of mental health law in the context of due-process rights and the civil liberties of persons with mental illness. Perlin, M. (1987) State Constitutions and Statutes as Sources of Rights for the Mentally Disabled: The Last Frontier? 20 Loyola-L.A. L. Rev. 1249.
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  8. See also the arrangement that has been adopted in Queensland, Australia: The Supreme Court of Queensland, Equal Treatment Bench book, p. 148.
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  9. The Evidence Amendment Act (Children Protection), 1955, S.H. 185, p. 96.
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  10. Sec. 2B (b). In 2002 and 2006 this law was amended to enable the alteration of a minor's testimony in additional offenses beyond sexual and trafficking, authorizing the court to hear the testimony in the absence of the accused, and in alternative settings, such as off the witness stand, without official dressing codes, in camera and accompanied by a person of the minor's choice, as long as the accused is guaranteed visual contact with the witness and his lawyer.
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  11. The report was published on April 30, 1995. It was followed by a comparative research report documenting arrangements in a number of countries in this area of law and making recommendations for statutory amendments.
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  12. Bizchut, People with Cognitive and Mental Disabilities as Victims of Violent and Sexual Crimes: Police Investigations and Testimony in Court (Hebrew, undated, on file with author)
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  13. On this project see: http://www.bizchut.org.il/eng/upload/activities/people.html
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  14. A person with a cognitive disability is defined as a person with mental retardation or another cognitive impairment, a person with pervasive development disorder (including autism), if the impairment inhibits his ability to be investigated or to offer testimony. A person with a mental disability is defined as a person with a mental impairment due to which his ability to be investigated or to offer testimony is inhibited. (sec 1).
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  15. The offenses include sexual offenses, aggravated assault, trafficking, manslaughter and murder. However, if a person with a disability is involved in an investigation as a suspect, the accommodations offered in the law apply regardless of the severity of the offense.
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  16. Sec. 31.
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  17. Sec. 6. An investigation that was not conducted in accordance to the provisions is not — per se — illegal (sec 14(1)). However, if a confession was obtained by a person with a disability following an investigation which was not conducted by a special investigator, the prosecution must prove that it was given freely and with consent, even if uncontested by the accused (sec. 15).
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  18. Sec. 5, 8 & 16.
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  19. Sec. 11, 17.
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  20. See J.R. Petersilia (2001), p. 684, quoting a prosecutor from California who said their office hardly ever brings charges against perpetrators who had committed sex crimes against persons with disabilities because it is impossible to convict the accused in these cases.
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  21. Sec. 18(a).
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  22. Sec 20 requires, as a general rule, that the witness be present for testimony and cross-examination in order for the police statement to be accepted, but recognizes broad exceptions to this requirement. Compare, for example, sec. 93 of The Evidence Act (Qld) of Queensland, Australia, which has published a detailed guidance book on groups with special needs in the criminal justice system. Sec. 93 allows to admit written evidence of a person with an "intellectual disability" if the person can be called as a witness and is available for examination. See Equal Treatment Bench, supra note ___, p. 155.
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  23. Sec. 20(b).
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  24. Sec. 20 (d).
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  25. There are limited circumstances in which an out-of-court statement given before an investigative authority can be admitted as evidence despite the absence of the witness. Sec. 10A(b) of The Evidence Ordinance [Revised version] allows the court to admit such a statement if the witness refuses to testify, is absent or has died, and the court is persuaded that illicit measures were used to prevent the testimony.
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  26. Sec. 22 (a)(1)-(6),8, 10.
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  27. Sec. 19 (a) (1). The law directs the court to take into account the relationship between the accused and the witness, the behavior of the accused, the witness's request and the harm that might be caused if the accused cross-examines her (sec. 19(a)(2)). The accused must be represented by a lawyer for this decision to take place. (19(a)(3)); Sec. 19(b)(1).
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  28. Sec. 21(a)(3).
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  29. Sec. 22(a)(7) & 22(a)(9).
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  30. To be sure, not in all cases there is need for significant accommodations. In the case of Alexander Lev (1996), for example, the judges believed the witness--a young woman with mild mental retardation who testified about sexual abuse, based on their unmediated impression and also based on evidence presented by her social worker about the woman's tendency for truthfulness and about her credibility in general.
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  31. A similar problem occurred in Ploni III (2004). This was another case in which a woman with Williams Syndrome complained about sexual abuse. Though the District Court convicted the accused, this decision was overturned by the Supreme Court, since the judges were not persuaded that the woman's testimony passed the credibility tests in order to convict the accused. Psychiatric testimony introduced in the hearing explained that the woman was unlikely to make up the events and to manipulate lies, but that she might alter the account about her feeling regarding the events in order to please the person questioning her. Here again the police investigation was not conducted in a manner sufficiently accommodating to the specific nature of the impairment, and this deficiency carried over to the trial.
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  32. See: http://www.bizchut.org.il/eng/upload/activities/AccessToJusticeCaseStudies.doc
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