A few days later, on June 10, 2015, a hearing was held to read the indictment, during which the prosecution's request regarding the certificate of privilege was also discussed. Prior to the hearing, Fischer submitted an update notice (on June 7, 2015), in which he reiterated his claim that the request for confidentiality was illegal as it was intended to serve an illegal agreement made in advance between the prosecution and Malka, according to which Malka's interrogation would continue after the indictment was filed, while conditioning the prosecution's right to use the statements he would provide on the fact that the negotiations between them would lead to an agreement regarding the sentence he would sentence. The prosecutor's response at the hearing was that all the materials collected up to the filing of the indictment were transferred to the defense (p. 5). In the next hearing, which took place on July 6, 2015, in which the prosecution's request to allow it to interrogate Fisher and Defendants 6 and 7 as part of the completion of an investigation, the Prosecutor reiterated that "The agreements that were made were made after the indictment was filed" (p. 13). Another statement in this vein was made by her in a hearing on January 12, 2016:Regarding the negotiations with the state's witnesses, I have stated in the past, all the material we had was transferred" (p. 52).
On July 14, 2016, a hearing was held on the defendants' preliminary arguments. Ahead of the hearing, Fischer submitted a summary of his preliminary arguments. One of his arguments there was that Malka's incriminating statements were given (as of May 4, 2015) against Fischer only, as part of negotiations that took place between Malka and the Department for the Investigation of Police, during which Malka was assured that after the indictment was filed, his interrogation would continue in relation to the information in his possession against people other than Fischer, and without the prosecution being entitled to make use of this information and transfer it to the other defendants as long as it did not sign a state-witness agreement with Malka, the main purpose of which was to provide financial benefits to Malka. Fischer claimed that this was an illegal summary in three respects: conducting an investigation after the filing of an indictment in violation of the State Attorney's instructions; concealment of investigative material from a defendant on grounds that are not recognized by law; and the violation of the prosecution's obligation enshrined in the Attorney General's directives to document all stages of negotiations in the process of recruiting a state witness. Fischer mentioned the prosecutor's statement a month and a half earlier (at a hearing on June 1, 2015) that until the indictment was filed, no negotiations had been conducted with Malka, and listed a number of indications that contradict the truth of the statement. In the hearing on July 14, 2016, the plaintiff reiterated the previous version presented by the Department for the Investigation of Police, saying: "There was no agreement with Eran Malka before the indictment was filed, no agreement and no agreement. There were contacts with the lawyers on his behalf and they expressed their willingness to develop the dialogue with the lawyers. We were allowed to enter the negotiations by the State Attorney after the indictment was filed." (p. 129). She further clarified that the reason for the delay in the transfer of the messages that Malka gave after the indictment was submitted to the defense was the desire to prevent the thwarting of the new investigation that was opened following the new statements, and that there was no agreement with Malka according to which his new statements would not be forwarded to the other defendants. At the same time, since Malka began to provide his new statements on May 19, 2015 (four days after the indictment was filed), and at that time negotiations had already begun between his attorney and the Department for the Investigation of Police, it was not possible to use the messages until the agreement was signed. Regarding the lack of documentation of the negotiations with Malka's attorney, the plaintiff argued that the practice in the Department for the Investigation of Police is to document negotiations only when they are conducted directly with the candidate to be a state witness himself, and not when the negotiations are conducted with his attorney.
- Unfortunately, as the trial progressed and the evidence was heard, it emerged that the statements of the Department for the Investigation of Police could not be relied upon, and it became clear that the correct facts regarding the dates of the negotiations and the agreements with Malka were not those that the Department for the Investigation of Police put in writing in the state's witness agreement with him and in which it declared several times before the court, but rather those facts that were supported by the objective data at the time of the filing of the indictment and that an improper attempt was made to conceal them.
- One of the indications that the defense used in its claim of the existence of a hidden agreement between the Department for the Investigation of Police and Malka on the date preceding the state's witness agreement of June 4, 2015, without that agreement being documented and forwarded to the defense for review, were things that Malka noted at the beginning of his statement of May 19, 2015 (P/413(b)): First, the addendum that Malka wrote in his handwriting after the wording of the warning: "And all in accordance with the agreement between plaintiffs by virtue of various laws and my counsel"; Second, Malka's words at the beginning of the announcement that "This testimony is being given today as part of negotiations that are taking place between me and the plaintiffs under various laws under the agreement that the things I say will not be used against me and will not be used by the plaintiffs under various laws in any investigative or intelligence proceeding without the explicit consent of me or my attorneys, which will of course come within the framework of an agreement to be signed". Similar statements were made by Malka in his subsequent statements of May 20, 2015, May 21, 2015, and May 28, 2015. Since the Department for the Investigation of Police has repeatedly stated that it has provided the defense with all the material in its possession regarding the negotiations with the state's witnesses, it can only assume in its favor that the negotiations and the agreement to which Malka referred in his aforementioned statements were conducted orally (in a manner that is ostensibly consistent with the Department for the Investigation of Police's claim that it does not usually document negotiations with the attorney of a candidate to be a state witness; although already at the beginning of his statement of May 20, 2015, Malka explicitly stated that "An agreement signed between plaintiffs under various laws and lawyers").
This assumption was proven already on the second day of Malka's cross-examination in February 2018. On this occasion, Malka said that even before the signing of the agreement with him on June 4, 2015 "There were a lot of steps along the way that things were recorded" by his lawyer in connection with the information he requested to provide to the Department for the Investigation of Police, but "I didn't start talking until I saw Moshe Saada's signature, I didn't start talking because I didn't believe it" (p. 2373). According to Malka, he saw the document with his own eyes, which bears the signatures of Sa'ada and his lawyers (ibid.). It's a matter of "The memorandum of understanding in which I tell the points... What information do I have, what can I tell, and their commitment not to make any use of it, not investigative, not intelligence... I was very insistent that it be written that I was telling something, that if you don't want it, you don't have to, but you must never use it, not intelligence, nothing" (p. 2374). As for the form of the document, Malka knew how to say that the document held one page, and was written by hand on a yellow sheet of paper (pp. 2374, 2379). He added that when his interrogation began at the Department for the Investigation of Police on the evening of May 19, 2015 – after he had been able to meet his lawyer (while he was under arrest!) at a café in Latrun – he asked interrogator Alon Spitzer (hereinafter: Spitzer) "See this document before I open my mouth. He says I don't have about me... I told him to go and fetch it, that's it, he went and brought" (p. 2379).