It would seem that there can be no dispute about the importance of the right to consult a lawyer, which has been recognized in case law as a basic right of a constitutional nature, and has even been enshrined in section 34 of the Detentions Law. The right to counsel ensures that the suspect is aware of all of his rights, including the right to immunity from self-incrimination and the right to remain silent, ensures the fairness and propriety of the interrogation proceedings, and prevents abuse of the built-in power disparities between the detainee and his interrogators (see Sanker's case). At the same time, as stated in the Issacharov ruling, the very infringement of the right to counsel will not necessarily lead to the invalidation of the confession, and the totality of the circumstances and tests that were established must be examined, and the effect of the infringement on the interrogee's freedom of will and on the weight of his confession (see also Criminal Appeal 1094/07 Dadoun v. State of Israel [published in Nevo] (3 July 2008)).
An examination of the totality of the circumstances in our case shows that even though at the time of the interrogation by the commander of the Central Intelligence Unit and Investigator Malichi, the rights of defendant 2 were violated (at least from the moment he connected himself to the incident), since it was not made clear to him that he was suspected of murder and that anything he said could be used against him, and he was not asserted his right to remain silent and his right to consult with a lawyer; there is no reason to disqualify this statement. In view of the tests set out in the Issacharov ruling.
It should be remembered that prior to his interrogation, Defendant 2 spent several hours at the police station, and a few minutes earlier his interrogation ended with a warning on suspicion of committing drug offenses related to the deceased; He himself knows very well that he is responsible for the death of the deceased, and that the investigation team has additional evidence that can link him to this matter (this is how he could understand from the questions he was asked about his leaving the house with Defendant 1 and about the attempt to purchase a flashlight at the Paz gas station, from Investigator Benita's reference to the injuries on his body and his words that he did not tell the whole truth, as well as from the statements of Investigator Malichi that they have data linking him to the murder). As stated, Defendant 2 even understood that Defendant 1 had provided the investigators with more information than they had agreed in advance (regarding the drug deal with the deceased), and it appears that he initiated the conversation with Investigator Malichi and later with the commander of the Intelligence Unit, with an indisputable claim that it was false, according to which he himself had nothing to do with the murder, he knew who murdered the deceased, but feared for his life and asked for protection; This was after thinking and considering how to extricate himself from the suspicion that was being established by the investigative unit regarding his involvement in the murder. Defendant 2's rather manipulative attempt to extricate himself from the suspicions that had accumulated against him, and to receive promises and concessions from the commander of the Central Intelligence Unit in exchange for his version of events, is clearly illustrated by listening to the interrogation disc.