Conviction based on circumstantial evidence
In the absence of direct evidence to substantiate the claim that the defendant took part in the commission of the murder, the thesis detailed in the indictment, regarding his presence in Mitsubishi at the relevant hours on August 26, 2022, is based on a complex set of circumstantial evidence, which I have described in detail in the previous chapters. As is well known, there is no impediment to basing a criminal conviction on circumstantial evidence, provided that the incriminating conclusion is the only reasonable conclusion in light of the overall picture of the evidence. The case law outlined a three-stage path for reaching the incriminating conclusion. This is how these words found expression in the Supreme Court's ruling in criminal appeal 502/24 Odeh v. M.I . (November 4, 2024):
"As is well known, the power of circumstantial evidence is no less powerful than direct evidence, and these two types of evidence constitute valid means for establishing a criminal conviction. In order to deal with the possibility that there will be an error in the logical inference from the circumstantial evidence, for a fact that needs to be proven, a three-stage methodology for drawing an incriminating conclusion from evidence was established.
In the first stage, each circumstantial evidence is examined on its own, including its strength, reliability and reasonableness, in order to establish a factual finding. This stage is also shared with the examination of direct evidence. In the second stage, the entire evidentiary premise is examined, in order to determine whether it allegedly involves the defendant in the commission attributed to him (Criminal Appeal 9372/03 von Wiesel v. State of Israel, IsrSC 59(1) 745, 754 (2004)). Of course, it is not necessary that any circumstantial evidence, in and of itself, be sufficient for the purpose of establishing the incriminating conclusion. The conclusion may be drawn from the addition of a number of pieces of evidence (Criminal Appeal 4656/03 Miropolsky v. State of Israel, para. 7 (December 1, 2004)). This stage, and the one that follows, are unique to the examination of circumstantial evidence, and they emphasize the fact that the strength of this evidence derives not only from its quality, but also from its quantity, combination, and density. In the third stage, the tactical burden shifts to the defendant's shoulders to propose an alternative thesis to the conclusion that arises from the accumulation of circumstantial evidence presented in the prosecution's case, which is not forced or theoretical (Criminal Appeal 9201/18 Gorban v. State of Israel, para. 79 (June 8, 2022); for further information, see: Criminal Appeal 2050/21 Al-Hawashla v. State of Israel, paragraphs 54-59 of my opinion (May 16, 2023)). As stated, the burden transferred to the defendant's shoulders is a tactical burden only. The burden of proving the guilt of a defendant will always be on the accuser's shoulders, and she must be persuaded that the combination of all the circumstantial evidence leads to the only possible conclusion - that which incriminates the defendant (Criminal Appeal 3914/05 Elharar v. State of Israel, para. 16 (November 10, 2008)). Accordingly, even if a defendant did not provide an explanation for the fabric of circumstantial evidence, or if the explanation he provided for it was not 'reasonable', insofar as there are other reasonable scenarios that are anchored in the evidence, which do not incriminate him in the charges against him, he should be acquitted of all charges. Therefore, the court must also examine the possibility of the existence of such scenarios, even if they were not claimed by the defendant, and are not consistent with the antithesis that he presented (Criminal Appeal 2661/13 Yehod v. State of Israel, para. 39 (February 18, 2014))."