"When the application of the 'suppressed testimony' rule to a defendant is requested, the basis of the tense suspicion about the reliability of the suppressed version is the natural fear that the suppression is intended to match the suppressed version to the prosecution's evidence and to thwart the possibility of examining its reliability by interrogating the witnesses who testified before it was exposed. Therefore, even a defendant who suppresses his version must give a reasonable and reliable explanation as to the reason for suppressing the version; And where such a reason is not given, the later version bears the label of suspicion, lest it be false. Such a label requires removal; And as long as it is not removed, it clouds the credibility of the version."
Moreover, as stated in section 152(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982, the failure of a defendant to respond to the indictment may serve as a reinforcement of the prosecution's weight of evidence. Admittedly, the defense attorneys requested that the failure to provide a response not be attributed to the defendants' duty (in the hearing of December 13, 2018 and January 8, 2019), but they did not properly justify their request, and as stated, the argument given that a response would harm the defendants' defense, since they incriminate each other, did not stand the test of the outcome.
It should also be noted in this context that the version that the defendants gave for the first time in their testimonies before us is the easiest and simplest version from their point of view, and the one that benefits them the most. And no explanation was given in their testimonies as to why, if this was indeed the version of the truth, it was not raised at every stage before, and why in their statements to the police they implicated themselves in a much more serious version. As noted, the allegations that the police had fabricated a version for the defendants and encouraged them to incriminate each other in order to be released were rejected, both because they were found to be unreliable and because they fully trusted the testimonies of the policemen. To this, it should be added that even if each of the defendants wished in his interrogations to incriminate the other in acts in order to get himself out, he had no reason to be stringent at the same time in describing his own part in the incident (for example, with regard to the manner in which the deceased was attacked); Had the incident taken place in the manner described by the defendants in court, it is clear that they would have told it in the interrogation, since this version would have had the greatest chance of promoting their desire to be released from detention. As will be detailed below, in their cross-examinations on this matter, the defendants spun in their answers and were unable to provide a clear and convincing explanation for the suppression of the testimony.