Between avowal and confession: techniques of interrogation and the construction of criminal evidence in contemporary Syria
Loyola University Chicago
A comparison of the principles of evidence under different legal traditions can best be made by examining the rights and obligations of the plaintiff and the defendant in civil proceedings and of the prosecutor and accused in criminal proceedings. The position of the judge is also crucial. Historically, two systems developed.
The first, which follows what may be called the inquisitorial principle, had its origins in medieval Roman-canonical proceedings. It is distinguished by the active part played by the judge, who, by virtue of his office, himself searches for the facts, listens to witnesses and experts, examines documents, and orders the taking of evidence. In continental European countries and those other countries that derive their law from them, this system has generally been retained for criminal proceedings. The prosecutor and the accused, of course, give their recital of the facts and indicate their evidence for specific assertions. But, by virtue of his role in the case, the judge must make further investigations if he deems necessary to obtain the truth.
Syria is one of those countries which adopted the inquisitorial method. Under the Ottoman Hanafi system, there were no criminal or civil investigations per se, nor were witnesses subject to any direct- or cross-examinations either by the judges or the actors’ representatives, assuming that participants did not come to court on their own behalf (professional lawyers were nonexistent at the time). To begin, judges relied almost exclusively on what each party had to furnish as evidence, and unless the other party disapproved, such evidence would pass and receive the judge’s approval. Moreover, witnesses played a key role in corroborating evidence, as they were in that intermediary situation of compradors to one of the parties: they thus repeated verbatim their party’s statements, without any genuine cross-examination, and unless such statements were challenged by the other party, they would receive the judge’s benediction. In sum, between the parties and their witnesses, a truth was established based on what was said in court: as statements were taken at face value, what counted in the final analysis were social keywords like status, wealth, and credibility. Even in criminal trials there were no expert investigations as such, and in the absence of a public prosecution office, a police force, and law enforcement agencies in most Ottoman cities, judges relied on the next-of-kin’s desire to pose as plaintiffs. Remarkably, rather than file a complaint against an unknown (majhûl), the next-of-kin would pose themselves as plaintiffs, if they wished to do so, against defendants that they would directly identify to the judge in a courtroom and accuse of murder or wrongdoing. Again, as in civil trials, evidence and counter-evidence were introduced by the participants themselves (plaintiffs, defendants, or representatives on both sides, and their witnesses), while the judge would only approve, or seldom disapprove.
Ottoman Hanafism had therefore at its core a method of “investigation” that would rely almost exclusively on what the participants had to offer—without the existence of an objective institutional framework that would scrutinize allegations through expert or forensic evidence, or by other means. In other words, in the absence of objective expertise the participants’ utterances would receive prime value, as final rulings generally acknowledged their truthfulness.
Between performance and morality: why direct interrogation is all that matters
Since oral proceedings are generally the norm for presenting and obtaining evidence, the interrogation of witnesses plays a key role in the construction of the case as-a-whole. In Syria, witnesses in a criminal case are first interrogated by the police within the shortest delays possible (either the day of the crime or the day after); then followed a few days later by interrogations conducted by an investigative judge, this time in the palace of justice; and finally, the floor would be open, once the case receives its preliminary wrap up by a referral judge, for the courts to pursue their own investigations, right in front the audience of a courtroom. Direct interrogation of witnesses by the deciding court is therefore an aspect of the law of evidence closely connected with oral proceedings. Generally, in continental European countries, witnesses are interrogated by the judges who decide the verdict. Under both the inquisitorial and the accusatorial (Anglo-American) systems, the principle of direct interrogation is of special importance in the free consideration of evidence. In the common-law countries the function performed by the judge in this regard is handled by attorneys for the prosecution or defense, with the judge’s role restricted almost entirely to overseeing the questioning. But the notion of cross-examination per se, however, is what distinguishes the inquisitorial from the accusatorial system. In effect, if we understand by cross-examination the practice of questioning a witness already questioned by the opposing side, then such a practice hardly exists in inquisitorial proceedings. Moreover, and considering that the public prosecution office “represents” the victim (while the victim’s relatives do so on a private basis), the construction of evidence takes more the attitude of a direct examination of facts, on both sides; and in that context, considering the legendary weakness and sloppiness of Syrian forensics, it is indeed upon the examination of the witnesses’ utterances that each case hinges. Hence the importance of both performance and morality: if witnesses’ utterances prove crucial, they’re evaluated both on the actors’ performance and their moral stance. Assuming that it is how actors say something rather than what they say is what determines the performative side of utterances, each statement could equally carry a moral standpoint with it, whose relevance would be assessed in conjunction with the actor’s performance. Moral values are like the rules of law, which do not have an existence for their own sake, and whose value comes into being in the uses that actors make of such normative values and rules. In other words, actors document what happened at a crime scene, and while doing so, they develop a method for narrating and organizing events, while at the same time keeping an eye on the bindings of the rules of law, not to mention their “own” moral stance. Thus, the rules—whether the rules of law of moral rules—receive their meaning from the process of documentation rather than from the rules themselves. Whether our view of the norms is close to a Hans Kelsen—a formal approach to law, where one rule leads to and receives its legitimacy from another rule; the degree of (Weberian) rationality of a system would then be determined by its systemic character—or to a Carl Schmitt, where the normative rules are by definition indeterminate, and need the (arbitrary) power of the sovereign to be enforced—in both cases, however, and from our sociological standpoint, the norms become “something else” once a case is documented, and its contents indexed around specific legal and moral themes.
One major influence that has shaped the law of evidence has been the jury system, and the law of evidence is sometimes thought of as the child of the jury. Oral proceedings, direct interrogation, and the public trial are much less problematic under the Anglo-American system than under the civil-law system to the extent that evidence is heard before the jury. But this system has spawned a large number of regulations for the admissibility of evidence in order to guarantee the due process and fair procedure and to protect the jury from being misled. The initiative of the parties determines the handling of these regulations, for they must raise objections if, in their opinion, any of the numerous exclusionary rules is being violated. The judge rules then on the objection. By the complex working of this arrangement, the Anglo-American system has become more formalistic in many respects than the continental European system.
This brief comparison between continental and Anglo-American systems suggests that, despite all dissimilarities, both emphasize an oral examination of witnesses. The written proceedings favored during the Middle Ages have been abolished, although the parties prepare their lawsuits through briefs, and parts of the preliminary proceedings can be handled in writing. The interrogation of witnesses, however, is oral. Most civil-law countries do not permit any exceptions, while other countries, such as Germany, permit written statements by witnesses in special cases and with the consent of the parties. In the common-law countries an exception is made to the principle of oral proceedings for certain types of affidavits, and, particularly in civil cases, the practice has steadily gained in importance. The narrowing of testimony to its oral aspect in the majority of systems suggests that there is a common consensus that a witness is more “truthful” when witnessing “live” in front of a judge, prosecutor, or court or TV audience, than when doing so privately in writing in the form of an affidavit or any written statement. For one thing, the authorship of a document is always at stake, since a document might have been “signed” by a witness, while drafted, either partially or totally, by someone else. Documents could also be forged, and in the same way that their authorship is risky, their time framework is also problematic, as the date at the beginning or end of a document (in conjunction with the signature) is no proof that the statements were made at that specific date. Oral proceedings therefore solve the authorship and time framework problems by simply having the witness directly questioned without intermediaries. Oral proceedings, however, share their own sets of problems, which are by and large quite known, in particular when it comes to police brutality and torture, or corrupt investigative judges, who in their face-to-face encounters with witnesses, would fake some of their statements. Most systems, however, bypass such difficulties through a requirement that whatever a witness may have stated under oath to the police or investigative judge, such statements are null unless restated in front of the court that will furnish the final ruling.
Notwithstanding such difficulties, there are several epistemological or practical problems with oral testimonies which have not been thoroughly addressed by criminology critics (civil trials may also pose a similar set of problems). To begin, since there is always in a criminal trial an accused, and an accusation generally implies a moral standing, what are then the epistemic presuppositions of an accusation? Does the witnessing of an accused attend to different practices than that of a regular witness? In what way is an avowal different from a confession? Does a statement uttered in an interrogation metamorphose into an avowal only through a judge’s interpretation? How do judges read the interrogation logs compiled by their peers? Do interrogations matter on a one-to-one basis or as a totality?
Renaud Dulong and Jean-Marie Marandin have proposed to distinguish between avowal and confession. In their logic, the avowal must always be linked to an offence (délit): something was stolen or a body was found, and an investigation was open; if, at a certain juncture of the investigation, a relationship gets established between the statements of one or more witnesses (or suspects) and the facts of the crime scene (theft or murder), that would be based on a process of constructing evidence, and interpreting statements accordingly. If, therefore, an avowal may not be separated from an accusation, it is, according to Dulong and Marandin, a distinct phenomenon from confession: quite often the police would know the existence of a crime through the culprit’s confession. In Syrian criminology, for instance, honor crimes perpetrated against women, and which are classified by the courts as “killings for honorable purposes (qatl bi-dâfi‘ sharîf),” are as a rule identified as such through the perpetrator’s confession to the police: the “early confession,” prior to the police’s knowledge of the crime, constitutes in itself an indication that the crime was no ordinary one, and that the culprit should therefore be accorded special privileges (e.g. a reduced prison sentence). The avowal, on the other hand, is a different matter: an offence was committed, and an investigation was open; and in the process of verbal exchange between prosecutors, magistrates, suspects and witnesses, a sequence of a colloquy—or a multitude of juxtaposed sequences—are identified as avowals and linked to the crime scene as such. Our two authors sum up their problematics with the following pertinent question: How do we know in a dialogued sequence that someone has avowed something? Which in itself already links avowals to interrogations and dialogues: the avowal is nothing but an “échange dialogique.” As our two cases below will show, judges will compile, for the sake of their final rulings, sequences of dialogues, which in turn will be interpreted, once placed in conjunction with one another in a particular order, as direct accusations against the suspect. The dialogic sequences of interrogations must therefore be tackled at two levels: How do interrogations proceed on a one-to-one basis (case 1 below)? And how are they used when juxtaposed to one another for the sake of preparing an accusation (case 2 below)? Separating the two levels would, in effect, rob us from understanding how accusations are constructed, since, when judges examine witnesses and suspects each one individually, they are thinking less in what the examination in question has to say, and more in terms of the avowals that would be extracted once an examination is placed in conjunction with other similar interrogations by other witnesses: it is as if judges proceed with the notion that a single investigative sequence, conducted with one witness, has nothing to say on its own, and will only mean something once placed with other sequences.
Even though in Arabic confession and avowal have their own words, i‘tirâf and iqrâr respectively, they tend to be used interchangeably, with no subtle distinctions between the two. Thus, iqrâr, avowal, can also be used for confession, acknowledgment, or admission (i‘tirâf or taslîm); it could equally mean a declaration, statement or testimony (bayân or shahâda); or a ratification, confirmation, or endorsement of something (ibrâm, musâdaqa, or muwâfaqa). If, therefore, iqrâr often tends to pass as i‘tirâf, it is presumably because confession in Arab and Islamic cultures does not carry with it the strong religious meaning of something confessed from the deep inside, especially in terms of the disclosure of troubling things, for instance, one’s sins as disclosed to a priest for absolution. Even in the western secular tradition, which in effect borrows a great deal from its religious counterpart, confession often stands for a written or oral statement acknowledging guilt, made by one who has been accused or charged with an offense. By contrast, and within that same tradition, avowal would stand for a frank admission or acknowledgement of something. For our purposes, however, we will understand avowal as what the judge would interpret as a “frank admission” or “acknowledgment” of a witness’ statement, which in the context of Syrian criminology hinges on the two meanings of iqrâr and i‘tirâf, without much of a distinction.
Another factor that will preoccupy us has much to do with the “context” of an oral examination, as the one carried by a magistrate or investigative judge. For those coming from the Anglo-American or European continental traditions, the Syrian “method” of investigation will surely not look that appealing: too rudimentary and brief—where in most instances a witness’ examination seems more like a straightforward deposition, not surpassing the single page, and without much give and take. We will assume, following Émile Durkheim and Erving Goffman, that ordinary interactions follow general guidelines known as “rules,” which help actors find meanings in their actions; and that in a legal context, such guidelines act like transcendent rules, where the sacredness of the rule transforms an ordinary interaction—for instance, an interrogation between judge and suspect—into a closely knit ritual. If, therefore, by comparison to other systems, interrogations carried by Syrian judges to their suspects and witnesses seem too soft, and lack the credibility and decisiveness that would be attributed to such encounters, it is simply because both parties would accept the limit of an interrogation by playing the ritual: there are questions not to be asked, matters that are taboo, and above all, an innate “satisfaction” that the witness has just said “enough” and need not be pressed with further questions.
The unspoken in honor killings
In direct investigations, which are either carried in a police station or a judge’s office, and then later in the space of a courtroom, a narrative might unfold, which is framed as much by the answers as by the questions themselves. Not only does each question “direct” the interviewee towards a possible answer, but a question might, in the best of all circumstances, “propose” an answer, if not directly impose it. That’s particularly true when the examiner is an authority figure—policeman, prosecutor, or judge—and the interviewee is a suspect in a murder trial. While the examiner in such cases might have his mind set at the role of the witness-cum-suspect and his or her involvement in a particular crime, the interviewee-suspect is perfectly aware that any statement could be quoted by other authorities, increasing the risks of making him or her an even more serious suspect. More important, however, is the nature of the narrative that unfolds from interview sessions, and how its particular structure offers an alternative to traditional narratives. The interviewee in such situations is no different from a student passing an oral exam, and is therefore fully subjugated to the authority of the examiner. Had the interviewee been given the opportunity to recount the incident on his or her own, a totally different narrative would have come to light. Such opportunities, however, are seldom provided to suspects and defendants, when, for instance, a suspect is incarcerated, and drafts a memo on his or her own behalf, an opportunity that their counsel might seize by including the memo in the petitions to the court. In sum, the voice of all suspects and defendants, not to mention plaintiffs and witnesses, is only heard through direct interrogations (in civil-law systems cross-examinations, in the sense of examining a witness already examined by the opposing side, are practically inexistent). There are three instances where that could happen: during police interrogations, followed by the prosecution’s own examinations, and finally, the public hearings of the courts. But since police depositions omit, however, the direct question-and-answer form, hence representing each cross-examination session as a direct narrative flow, and reconstructing each session into an official Arabic different from the oral Arabic of the direct examination, different techniques ought to be applied for such depositions. The same applies grosso modo to the courts’ hearings: since in each of the 3-4 hour sessions dozens of cases are handled, with close to a 100 witnesses called, the interrogations by the chief judge are broken and fragmented due to the lack of adequate time, on the one, while the transcription of the mini-hearings into a language and structure different from the one in which they were originally uttered leaves at bay the original utterances, on the other.
The closest direct interrogations worthy of that name, which are recorded as interrogations (and not as summaries), are undeniably those of the investigative judge. But even those suffer from major handicaps. Foremost among them is the extreme formalism under which they’re conducted: questions and answers tend to be formal, and rarely do they go beyond what the police reports have already stated; add to this that the style of prosecutors is seldom aggressive, and rarely does it manifest any desire to question the veracity of police reports. Prosecution and court investigations do have something in common though: namely, that the interviewees cannot make the claim that they were tortured or subject to stressful conditions, while the police is routinely accused by the defendants and their counsels for physical and/or emotional abuse. When questioned about the low-key approach of investigative judges towards their witnesses, lawyers and judges tend to insist that it’s neither a question of strategy nor of adequate following of procedures, but rather an outcome of laziness and the lack of resources (not enough judges). What is therefore not questioned is the strategy of avowal: What if the construction of evidence heavily relies on “avowals” which are only perceived as such by judges? In other words, since as we’ve argued earlier, criminal systems implicitly operate within a loosely stated distinction between “avowal” and “confession”—in general, no distinction is made between the two—the “avowal” becomes an indirect “confession” as interpreted by magistrates: put simply, a judge would pick up a witness’ statement, place it side-by-side to other statements by other witnesses, and interpret the “whole” as evidence that, say, the suspect was indeed the wrongdoer. Each statement, selected by the judge out of hundred others, becomes all by itself an avowal: the witness in question admits something (e.g. that he saw the suspect driving his car at a specific moment), and his statement would be interpreted as “valid” by the court—that is, as a factuality. The difference between avowal and confession has therefore two aspects: (i) Avowals are statements uttered by witnesses or suspects, which are then, at a later stage, interpreted by a judge as factually true. Left to themselves, those utterances are mere statements rather than acts of admission (or confession, or acknowledgment): only the judge magically transforms them into avowals. Avowals are therefore in their original form only ordinary and impersonal statements, which the judge interprets as and gives them the status of personalized avowals. (ii) Compared to avowals, confessions go much deeper, as they often imply, besides the revelation of a certain truth directly stated in the “I” form, of an inner feeling of guilt that would be admitted in the presence of a hearer (the interrogator in criminal cases). Confessions are therefore usually limited to suspects, while witnesses only state factual evidence. Judges often draft their rulings as if everyone is confessing, suspects and witnesses included, which gives each statement an even more dramatic weight.
The “Musa case,” whose details I’ll omit for the sake of brevity, had in its very early stages one of its major protagonists—the main suspect—subject to the usual examination by an investigative judge. Musa Musa b. ‘Umar (b. 1977) was not yet fully 18 when he presumably shot to death in 1995 a cousin of his in retaliation for the shooting of his own brother a couple of years earlier, both incidents occurred in the province of Idlib (north of Aleppo). Since such honor crimes tend to be earnestly confessed, the prosecution only needs to determine whether the killing was planned beforehand, and whether there were other direct or indirect “participants.” The interrogation was conducted the same day of the killing.
Q1: You’ve been accused of a premeditated killing (qatl ‘amd) against the victim ‘Ali Musa with prior planning. What do you have to say? I advise you to tell the truth.
A1: At 7:00 this Monday morning of 27 February 1995, I woke up and went to the olive garden. I had oiled the water pump and took it with me on my tractor. On my way I saw the victim ‘Ali standing on the al-Dana road, close to the Bakri shop. I parked the tractor on the main road and headed towards ‘Ali, and told him: “Are you still standing there?” As he tried to run away from behind me, I took my 7mm gun and started shooting at him. He fell on the ground, and I kept shooting at him. I can’t remember how many shots. I then drove home with my tractor. My mother was sitting in front of the house. She had strong objections to what I just did: “How do you do such a thing when your brothers are not even present?” I went inside and waited until the police came and arrested me. I gave myself up with the 7mm gun with which I shot the victim ‘Ali.
In his first reply, the accused did several things at once: 1. He first attempted to show that he had nothing premeditated, as all was a matter of pure “coincidence.” He had met his victim “accidentally” on the road without any prior knowledge that he would be there, at this time. He was offended that his victim—considering the history of feuds and killings among cousins of the same clan—did not run away as soon as he saw him in the area. The offense soon turned into anger created by the circumstances of the moment itself. In sum, it was the victim’s fault since all his attitude was one of pure provocation. He therefore deserved his fate. 2. The mother was out of the loop, and so were the brothers. 3. The offender did not run away, and quietly waited at home for the police to come: those who commit honor crimes do not run away like ordinary criminals. They’re not afraid of justice.
Q2: Who instigated you (harrada-ka) for the killing of the victim ‘Ali?
A2: No one pushed me to do it. I only did it to revenge the killing of my brother the victim Ya‘qub.
Q3: Where did you get the gun from?
A3: The gun was that of my deceased father. It then became in the possession of the victim Ya‘qub, my brother. When my brother was killed, I took it.
Even the ownership of the gun receives metonymic proportions: the assailant killed his victim with the same gun that was in the possession of his brother at the moment when he was killed. The gun that was originally owned by the family’s patriarch—the father—and which “betrayed” the victimized brother, was finally used on the right occasion: the victimized brother got the revenge that he deserved with the same gun. In sum, it wasn’t one of those cheapo guns bought for the occasion.
Q4: Did your brothers know that you were carrying that gun?
A4: Yes, my brothers knew that I was carrying the gun.
Q5: Was it in your intention to kill the victim ‘Ali until his death?
A5: Yes, I killed him for a purpose (qasd-an), to avenge the blood of my brother Ya‘qub.
As is common in such crimes, the assailant is now attempting to frame his act as qasd to avoid the death penalty and a prolonged incarceration.
Q6: Did your brothers share your opinion (ra’î) regarding the killing of one of the brothers of the killer Muhammad Husayn Musa?
A6: Yes, my brothers and I shared the same feeling (shu‘ûr) that we should seek revenge (intiqâm), since the killer of my brother, Muhammad Husayn, was not sentenced to death.
Muhammad Husayn Musa had killed a couple of years earlier Ya‘qub Musa, the brother of the present assailant. Since that murder had initiated the cycle of killings, and was not linked to any “honorable” purpose, Ya‘qub’s brothers expected no less than the death penalty. But the courts rarely go, however, for the death penalty in cases where feuds among cousins are involved. Ya‘qub’s brothers therefore opted to apply the death penalty on their own against anyone of Muhammad’s brothers.
Q7: Was there anyone that pushed or instigated you to the killing?
A7: No one did.
Q8: Witnesses claimed that your brother Ibrahim was standing with you at the crossroads the moment of the incident, and that he kept watching you while you were heading towards the victim, and then pointed a gun at him, and killed him.
A8: My brother Ibrahim wasn’t with me, and I was alone.
Q9: Did your brothers participate in the planning for killing the victim?
A9: No one participated. I killed him for the purpose of revenge.
Q10: Did your mother contribute in pushing and instigating you to kill the victim?
A11: She did not. She always wanted peace.
Q12: Where did you get the bullets from?
A12: They were already loaded in the gun for the last three years.
The assailant was obviously attempting to clear all family members from any “participation,” considering that the penal code would severely punish them.
If the interview seems a bit contrived, it’s because it’s a translation from the original handwritten Arabic draft of the investigative judge [in Idlib?], who most probably neither taped the full interview, nor did he in all likelihood fully transcribe it. But while police depositions totally omit the question-and-answer form, those of investigative judges at least distinguish themselves by keeping that form on paper. So, while police investigators transform in the act of writing all question-and-answer interrogations of witnesses and suspects into a fluid narrative of their own construction, investigative judges at least keep something of the original oral interrogation, even though it remains uncertain how much editing they did, considering that the vernacular is transformed into official Arabic. For our purposes here, when we analyze such interrogations, while keeping in mind that the “original” was permanently lost, we have to acknowledge that we’re already in the presence of a construction of the “original” oral interrogation, since, while transcribing the original, the judge had at the same time cut all “redundancies,” repetitions, and utterances that he thought did not deserve to be documented, and wrapped up the whole into an official Arabic. In the final analysis, we’re operating then within a double construction: the questions themselves, in their original oral form, are a construction, since they already shape the narrative of avowal; then, the editing of the judge operates as a second construction. We’ll have to assume that the questions, as they appear in the written deposition, are for all purposes the same as the ones effectively posed by the judge; and that he might have posed other questions, which were not included in his report.
Q1 constitutes a typical beginning: the suspect has already been accused, presumably by the police who interrogated him that same day, of premeditated killing (‘amd), the most serious accusation in the Syrian penal code (art. 535), and subject to the death penalty, or life incarceration. Also typical is the anonymous form of accusation—“you’ve been accused”—thus conspicuously omitting the “subject” behind the accusation. Such an omission gives the accusation more weight, as it avoids tying it to a specific “subject,” making it altogether more anonymous. More importantly, it does not explicitly state how such a conclusion was reached: Did the suspect simply come forward and “confess” to the police? Or did the police reconstruct some of his statements as “avowals”? But assuming that the suspect did “confess,” the “you’ve been accused” transforms the “confession” into an accusation of murder, without, however, going through the act of “confessing.” The “you’ve been accused” therefore avoids two “subjects”-as-agencies: that of the suspect himself, and that of the policeman or prosecutor who interpreted the suspect’s “confession” as enough “evidence” to proceed with an accusation. In the other more common Q1 form of questioning at the Jinâyât, “it has been attributed to you” (yusnad ilayka), the accusation is much more withdrawn, and the line of questioning is more hesitant. But between a direct accusation and another more elusive one lies all the documentary process that in principle should form the ground for such claims—and that’s precisely what the judge’s questions avoid referring to. The whole technique of formulating questions aims at avoiding at all costs any reference to previous interrogations, and the line of reasoning that led to a particular hypothesis: that would have probably provided the defendant-cum-suspect with a material for argument, which is precisely what the judge is avoiding. Let us keep in mind that the modus operandi of reasoning—which, for instance, interprets specific statements as “avowals”—is by definition always veiled in secrecy: prosecutors and judges can move faster, and are more at ease with themselves, accusing suspects of wrongdoing without revealing to them the logic behind their arguments. The veil of secrecy begins to partially divulge only with the preliminary report of the referral judge (qâdî al-ihâla), which attempts to piece the arguments together in a cohesive whole: it is there that the process of turning a statement into an “avowal” reveals itself as an act of pure interpretation by the judge. For his part, the investigative judge’s main task would be to receive avowals from his suspects as openly as possible, so that they would be used as evidence in later documents, beginning with the referral judge’s report. It may therefore be for this particular reason that the questions are included with the answers in the same document, as evidence becomes stronger when the upper-ranked judges see how their peers investigated.
As in A1 the suspect does not deny the accusation, he proceeds with a description of the crime scene and the hours that preceded it. Like a micro-realist novelist, he begins his account with the little details of a banal day which fascinate with their sense of realism and their trivial nature. They gain an even more acute sense of realism as soon as the account hallucinates from the real to the symbolic and imaginary: as soon as the suspect saw his future victim ‘Ali standing by the road, he addressed him in an insulting manner. ‘Ali, who in no way was involved in the killing a couple of years earlier (his brother was), became a symbol to the suspect (and his brothers), since he symbolically replaced the real agent of the previous crime, namely his own brother who was serving a prison sentence at the time. The symbolic chain takes further significance in A3 when the suspect alleges that the gun of the murder was that of his deceased father, and then passed to his victimized brother. If the gun was very much of a symbol for the chain in command in the family, so was the killing itself: the victim in this case, even though had no material connection to the previous murder, was nevertheless held “responsible”—not by the courts, though, but by the victim’s family, simply for being the “next” in command after his brother’s imprisonment. Notice how in A6 the suspect did not even bother to explain why the present victim was specifically targeted: if the culprit was not sentenced to death, why should his brother be executed by a teenager from the opposing group? Nor did the judge bother to ask such a question: the whole process of investigation rests on the silence around the key issues.
A1 for its part plays on that unbridgeable hiatus between the banality of a regular day’s beginning, on the one, and the hallucinations that followed on the other: as the killing unfolds, there seems to lie behind it a blind logic which the suspect’s account leaves at bay. Observe how by the time A1 was over the suspect had already given his interrogator what he needed—a full confession. Notice also how honor and its mechanisms of retaliation were totally averted: honor crimes among men receive the treatment of regular homicidal crimes, and are simply classified as qatl, which leaves the room open to determine their fate—among men. By contrast, honor crimes against women are classified as “honorable killings,” receiving an “honorable” treatment by the courts.
Generally, suspects (and, at times, witnesses) tend to deny in toto what they had stated to the police a day or two earlier, hoping that the investigation would take a new turn. (In most instances, they would not, as the courts tend to stick with what police depositions contained.) But whether a suspect or witness deny previous statements or not, what sustains the colloquy between the authority figure and the interviewee is the amount of shared agreement. In our case here, the suspect (i) confessed for killing his victim; (ii) denied that his crime was premeditated (‘amd); (iii) denied that he received any help from or was instigated by his close relatives (mother and brothers); and (iv) claimed that the gun of the murder belonged to the family, and was originally his father’s. The “denial” in (ii), however, was furnished in statements that focused on the “surprise” appearance of his victim at the crossroad. But that’s an old trick commonly used by suspects for the make-believe of an impromptu killing. But that still leaves out why the present victim was specifically chosen by the suspect (and possibly by the mother and brothers as well), to the point than an “outside” reader gets that awkward feeling of cynical circularity: (a) the murder was not deliberately planned; (b) there was nevertheless a “chosen” targeted victim as an outcome to a previous murder; (c) the targeted victim would not have been targeted had he not shown up hic et nunc unexpectedly; and (d) the targeted victim was targeted and then killed without any prior planning. What typically a colloquy—whether part of ordinary daily routines, or an outcome of an investigation—would not reveal is precisely the circularity of such statements, which for the most part remain assumed, but seldom explicitly stated. The judge could have broken that circle of hidden assumptions by simply asking, “Why was the victim targeted in the first place?”; or “Why were you offended at his presence if he were not targeted beforehand?”; or “How would you kill someone, who was already your target, without having made a premeditated decision in the first place?” Instead, the colloquy was conducted while leaving such questions behind the scenes. In Q6, for instance, the question was asked, and the answer came accordingly, with the implicit assumption that the choice of the victim was in all likelihood premeditated in advance (possibly among brothers), and so was his killing; but instead of tackling that major issue of premeditation, Q6 is more bothered with other possible “suspects,” even those who may only have provided with moral or logistical support, without direct involvement. That was crucial for the prosecution, considering that at the time the main suspect was still a minor, and that for his age group the death penalty or life incarceration are not applicable: the prosecution was therefore looking for other potential suspects who used the minor to finish off their job.
Both judge and suspect therefore proceeded with an amount of shared agreement. They both knew, for instance, that one honor killing triggers another, and that the logic of retaliation should not be questioned, leaving the victimized family with the right for its own retaliation, while the system of justice acts in tandem, and proceeds with its own investigation. If in such settings transcripts of investigations look at times bizarre it’s because we are faced with two systems with a different logic: an old system of honor, on the one, and a modern system of justice on the other. If actors document the crime scene with the knowledge of the rules of law, prosecutors for their part investigate with knowledge of the group’s honor strategies. As these two systems have to run side-by-side, without one running over the other, the shared agreement consists precisely in what each has to accept of the other without overtly naming it as such: that’s how incompatibilities are temporarily placed at rest.
But what is a hidden “shared agreement” under such a situation? Harold Garfinkel famously stated that a shared agreement is seldom explicitly stated as such: “the notion that we are dealing with an amount of shared agreement remains essentially incorrect.” Besides noting that “what was left unspoken” is a key element in a conversation, Garfinkel is interested in the “temporality” of utterances: “Many matters were understood through a process of attending to the temporal series of utterances as documentary evidences of a developing conversation rather than as a string of terms.” The “actual linguistic event” was thus treated as “the document of,” or as “pointing to” a set of presupposed matters that we were assumed but left unspoken. Thus, besides “the hands of the clock,” there’s also the time constitutive of “the matter talked about” as a product “from within this development [the exchanges of the colloquy] by both parties, each for himself as well as on behalf of the other.” In sum, people will talk to one another with the anticipation that the other will understand, without explicitly stating what this understanding consists of. In our colloquy, while the interrogation was unfolding, “the matter talked about” was not what an “outside” auditor would think it is, since the premeditated decision to kill the victim, presumably made a couple of years earlier between the suspect and his brothers (and possibly mother), was only alluded to and left without any documentary evidence. Judge and suspect therefore proceeded with the interrogation while assuming that background knowledge that never surfaced to the forefront. When for the purposes of a final ruling a judge will pick up strings of terms of the investigation as evidence of an “avowal” by the suspect, he would also assume the hidden “shared agreement” between the investigative judge and suspect without, however, directly referring to it. What therefore comes as an “avowal” or “confession” by an actor is in effect nothing but a judge’s interpretation to strings of statements, which stand as documentary evidence attended by the actors, and which were uttered while the “shared agreement” was only “pointed to.” The second case below will show how various strings of statements, uttered by different actors under different circumstances, are compiled by the judge for the purpose of posing them as evidences of individualized avowals.
Burning your wife to death or the pitfalls of a rocky marriage
What happens to all those investigations accumulated by the investigative judge? As each investigation of a suspect or witness is filed separately, the lot becomes part of the folder that carries the case together, which is then passed to the referral judge. The latter will now draft a preliminary report, bringing the case together in a first attempt for a synopsis, and which will serve as a template for the final ruling. When the referral judge drafts his report, he does so on the basis of evidence furnished by suspects and witnesses to the police and investigative judge. Sadly, however, even if from that point on the case drags on for years to come, the tendency is that little new evidence would accumulate from the court hearings, or other sources. For their part, the investigative judge’s handwritten depositions, where each witness is filed separately, and where age, gender, profession, ethnicity, and degree of kin “closeness” (darajat al-qarâba) are all identified, are the closest thing to an “investigation.” In effect, while the police reports avoid the interrogation form altogether, the court hearings are too fractured to make any sense. The investigative judge’s depositions are not, however, without their own problems. Chief among them is their extreme brevity: as most depositions are composed of a single question and do not exceed a page, the excerpt in case 1 above is unique in that it is twice the length of an average interrogation. Some lawyers incessantly complain that judges tend to be lazy and not aggressive enough in their interrogations. But as I’ve argued for the above case, the “limits” that the judge would set for himself are more an outcome of that implicit “shared agreement” between him and the suspect than a question of laziness or ineptitude. In the first case I’ve discussed how the amount of the implicit shared agreement determines the unfolding of a face-to-face investigation between judge and suspect. But there’s a second aspect to those investigations, prior to being interpreted as “avowals” (or confessions) by the referral judge: namely, their collage and montage with other strings of statements from other investigations. It’s in effect through the juxtaposition of strings of statements together that the judge would feel confident enough to determine what would stand as an avowal and what should be left aside. As forensic evidence tends to be sloppy and inaccurate, the criminal courts rely mainly on strings of statements emanating from various witnesses, which taken together constitute in their totality the documentary evidence of the participants.
Our second case is about a husband who allegedly burned his wife to death. A typical case, with allegations of spousal abuse, battering, and divorce (twice). But untypical for the husband being accused of “arson” to get rid of his wife, whom he had already divorced and remarried twice.
The alleged crime, according to the official synopsis furnished by the criminal court, occurred in Aleppo on 17 October 1993. The victim presumably woke up her husband that morning so that he would buy her some bread. The distressed husband, who did not like being disturbed in his sleep, addressed his wife with insulting remarks, which soon translated into a major fight, until he summoned her to completely drop her dowry rights, to no avail. She then stopped arguing with him and went on to clean the dooryard (finâ’). Her husband allegedly followed her, still enraged, and soon began insulting her parents. He then allegedly sprayed her with kerosene, lighting a fire in her dress. As her body started burning she repeatedly urged him to help her control the fire. But he turned away while she kept begging him, and when he left the house, she followed him, and he still rejected her plea, until two passersby helped her extinguish the fire that was damaging her body. Her brother then took her to the hospital where she died few days later on October 22.
That’s the first official account provided by the referral (ihâla) judge in his report signed on 27 July 1994. The judge listed a total of sixteen items of evidence upon which his conclusions were founded, establishing the husband’s guilt.
1. Initial police report on 17 October 1993 from the station of Sâkhûr/ Ahmadiyya.
2. Police memo of the station of Muslimîn on 22 October 1993 which reported the victim’s death.
3. Autopsy of the victim’s body on 22 October 1993 confirming that the death occurred as a result of the burned body.
4. The investigation of the juge de paix (sulh al-jazâ’) in the region of Jabal Sam‘ân.
5. Statements of the accused husband on 7 December 1993 to the examining magistrate (qâdî al-tahqîq): “I did not burn my wife, and the day of the incident I woke up from my sleep at the hearing of screams, and saw that there was a fire in the house. I tried to extinguish the fire but did not succeed, which caused few burns in my body. I rushed out of the house and informed her brother, while in the meantime some persons helped me and my wife to extinguish the fires over our bodies.”
6. Statements of the witness Ahmad al-Hasan (victim’s brother) to the investigative judge on 23 November 1993 in which he stated that his little daughter came to him and said that she saw her aunt burning (the two houses were close to one another). “When I rushed to my sister’s home they had her in a car, while her husband was in the street. She told me that her husband had burned her, so I went and informed the police. She then died as the result of that, and I’m aware of conflicts between my sister and her husband on family matters.”
7. Statements of the witness Zakariyyâ to the same judge on 29 November 1993: “I saw a fire inside one of the homes, and with the help of another person we managed to extinguish the fire. I there saw a woman who had escaped to the street, and helped her to the hospital. I don’t know whether the fire was caused by fate alone or the [deliberate] action of someone, considering that she was screaming: ‘burn me!’”
8. Statements of the witness Muhammad to the same judge on 7 December 1993 regarding a visit he had made to the victim at the hospital, when her brother, mother, and aunt were present, and in which she informed him that “my husband burned me from behind.”
9. Statements of the witness Muhammad Salîm to the same judge on 7 December 1993, who also had visited the victim at the Kindî hospital, that he heard her say to a person that came to receive her approval to appoint a lawyer for her lawsuit, that her husband was the one that was responsible for burning her and damaging her body.
10. Statements by the witness Sarah to the same judge on 12 December 1993 that she saw the victim and her husband rushing from their home towards the street and both of them with flames over their bodies. She had learned that the victim had attempted to burn herself before.
11. Statements of the witness Fâtima on 9 December 1993: “I knew the victim and she was a nervous person, as she attempted fourteen years ago to burn herself, and I’ve also heard that she had attempted to commit suicide in Lebanon, and that in the last incident she attempted to kill herself.”
12. Statements of the victim’s mother on 16 January 1994 in which she confirmed that her daughter had informed her of conflicts with her husband, who had requested that she drops her rights on both the advance dowry (muqaddam) and late dues (mu’akhkhar). While cleaning up the doorway her daughter had felt that flames were burning her clothing from behind, and that her daughter’s husband received some burns while his wife was attempting to get hold of him.
13. Statements of the witness Yûsuf on 3 February 1994 also confirming the conflict between husband and wife, the nervousness of the victim, who once attempted to burn herself with kerosene. The witness did not witness that event personally but was reported to him by his wife.
14. Another witness, the mayor of the neighborhood, confirmed the conflicting nature of the relationship, the divorce and remarriage. When the victim’s father and brother came to his office for a decease certificate, he asked them whether they were of the opinion that it was the husband who did it. “They heard prior to her death that it was the husband who burned her, but for their part they did not believe that such was the case.”
15. The person who visited the victim at the hospital in order to work out an official representation (wakâla) for her confirmed to the judge on 6 February 1994 that she had told him that it was her husband who burned her.
16. Finally, the witness Warda, who was the victim’s neighbor, stated on 16 April 1994 that, contrary to what the defense had claimed, he never talked to the victim when he visited her at the hospital, and that she did not inform him that she had attempted to burn herself.
After listing all depositions and statements from various witnesses, the judge recommended (27 July 1994) to the higher criminal court to condemn the defendant Mustafa Ahmad (b. 1959, from Arshâf, and ‘Izâz originally, then living in Aleppo) for intently killing his wife (qasd) based on article 533 of the penal code, with a maximum of fifteen years of incarceration.
How did the judge proceed with his opinion? Since the autopsy only revealed the obvious, that the death occurred as an outcome of bodily burns, it remained inconclusive as to whether the victim self-inflicted her death with no outside help, or whether it was pure and simple murder. Since Syrian forensics tend to be sloppy and inconclusive, and happed by a low technical material and inadequate training, the investigation shifts to suspects and witnesses, as their statements de facto become the only source of evidence. But, as noted earlier, oral investigations are far from thorough, and much rests on “what is not mentioned,” and on “avowals” that are perceived as such only by the judge, as an external observer may have a hard time contextualizing the bulk of statements in such a way that would reveal decisive evidence. The question becomes as to whether, in this labyrinth of oral statements, there is, indeed, a bottom line of truth in all this, somewhere where the criminal court would stand firm on its feet and declare a verdict with evidence beyond doubt. As in the previous case, however, the oral investigations, pursued for the most part in the office of an examining magistrate, leave much to be desired, as they’re too soft with witnesses. Thus, even with the husband, who at the time was the main suspect, and who subsequently was found guilty by the criminal court, the investigating magistrate did not push him hard enough to check for inconsistencies in statements, or improbable claims. Sad as it may seem, the above quotes from various witnesses constitute in toto what the examining magistrate had to offer to the referral judge.
A preliminary analysis of the sixteen items above reveals that the first four—police reports, investigations, and autopsy—remain inconclusive, and are neither in favor of the prosecution nor the defendant. The fifth item is that of the defendant himself, in which he denied all allegations of murder. The remaining items (6-16), which are statements by various witnesses, either confirm that the wife was burned to death by her husband, or else deny such a wrongdoing and focus instead on the victim’s instability, her previously (unconfirmed) suicidal attempts, or on accounts of hers in which she had allegedly contemplated a final suicidal attempt that eventually placed her at the Kindî hospital the few days before she died. The problem, however, is that all information was not based on prime witnessing of the crime scene, but only on statements either from the victim herself or her close family. The victim seems to have declared to some that her husband threw kerosene at her, while other alleged statements place the responsibility squarely upon her. The lack of any prime evidence places an even harder bargain on the chief judge. He needs to question those witnesses very thoroughly simply to go beyond their declarations to make sure that their accounts are not imagined or based on hearsay. Thus item 6 goes in favor of the prosecution as the witness Ahmad stated that the victim had herself told him, while on her way to the hospital suffering from her burns, that it was indeed her husband who had attempted to burn her. Items 8, 9, 12, 15 and 16 all lead to similar conclusions. On the other hand, items 5, 7, 10, 11, 13 and 14 do not provide with certainty that the husband did it, as they point to previous suicidal attempts, and to statements allegedly uttered by the victim herself on her deathbed confessing a self-inflicted damage. Even if such statements were not fully in favor of the prosecution, they should at least throw some confusion at the prospect that only the husband must have done it in solo. In sum, a preliminary assessment would reveal that there is nothing conclusive, and that the two parties and their witnesses should have ended with a match nul, or six items each. Why was the referral judge then so sure of his recommendations?
What is enough evidence?
Is evidence what a judge interprets as an “avowal” in a witness’ statement? And what kind of statements do witnesses utter in an oral investigation? Assuming that each colloquy is constructed on what remains “vague” and “unmentioned,” and on a common stock of “assumed knowledge,” and on presuppositions that speaker and hearer assume that the other “knows” and point to in their documentary evidences, then what is the evidential value of what is explicitly stated in an interrogation? One thing remains certain: statements are seldom seriously considered by magistrates on a one-to-one basis, but rather in their totality. As the 16 items above show, it is the string of statements in their totality, rather than each one taken individually, that boasts a judge’s confidence. For one thing, when thorough examinations of individual witnesses are crucially lacking, and when forensic evidence is inconclusive (if not inexistent), the judge is left with the only option of piling up strings of statements, emanating from various witnesses, and counting votes. In other words, the judge would look for a certain amount of congruence among statements emanating from different witnesses: the more they come together, the better. “Coming together” here implies that various witnesses had, for instance, heard the victim state, in a quasi-identical string of sentences, that “my husband burned me” (6, 8, 9, 15). In Syrian interrogations, statements are often “edited” in such a way to look as if witnesses were quoting one another.
If reiteration proves a handful tool for the judge, what is only alluded to in a colloquy, but without its explicit manifestation, provides the judge with additional leverage. In our first case, the patriarchal family structure, the subservience of women, the role of violence in settling disputes among men and in controlling women, and the role of the mother as the family “hub” that regulates violence among her sons, their cousins, and relatives, all combined formed the cultural and economic background that was always alluded to, but left, however, without the proper documentary evidence. For instance, Q10 questions the role of the mother, but her role would be understood only from the developing conversation and the things that were alluded to but left unmentioned. In the second case, the patriarchal family structure, and the wife that may have gone “insane” and possibly committed suicide, form the dark background of the case, but which was left specifically vague and often alluded to in the statements by witnesses (7, 10, 11, 13, 14, 16). But “insanity” and “suicidal desires” being hard to document, they were only introduced by witnesses as “what was known” about the victim. Had she survived, she might have had to go through the ordeal of medical psychiatric committees for assessment, pushing documentary evidence into new directions.
 Renaud Dulong and Jean-Marie Marandin, “Analyse des dimensions constitutives de l’aveu en réponse à une accusation,” in L’aveu. Histoire, sociologie, philosophie, edited by Renaud Dulong (Paris: Presses Universitaires de France, 2001), 135-179.
 Dulong and Marandin, “Analyse,” 157: “La sacralité de la règle y est objectivée dans la volonté divine, et l’exigence de réparation revêt la forme d’un rituel, par exemple d’un sacrifice, dont l’accomplissement engage autant le groupe social que le coupable ou son clan.”
 Minors are often used by their kin for the special reduced sentences of the courts.
 All punctuation added in the English translation.
 Village in the Idlib province.
 It is indeed unusual to have both police and the investigative judge’s interrogations located the same day, as they’re usually separated by at least 24 to 48 hours.
 An alternative common form is “it has been attributed to you” (yusnad ilayka), which conceals the direct accusation behind a more skeptical question.
 Cf. Jacques Lacan, Des noms-du-père (Paris: Le Seuil, 2005), 26: “C’est bien ainsi qu’il faut entendre le symbolique dont il s’agit dans l’échange analytique. Qu’il s’agisse de symptomes réels, actes manqués, et quoi que ce soit qui s’inscrive dans ce que nous y trouvons et retrouvons sans cesse, et que Freud a manifesté comme étant sa réalité essentielle, il s’agit encore et toujours de symboles, et de symboles organisés dans le langage, donc fonctionnant à partir de l’articulation du signifiant et du signifié, qui est l’équivalent de la structure même du langage.”
 Harold Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, NJ: Prentice-Hall, 1967), 38-44, 75.
 Those usually consist of two parts, an advance known as the muqaddam, and a late balance, mu’akhkhar, paid in case of a divorce or the spouse’s death.