"Although the defendant has the right to remain silent as part of the immunity against self-incrimination, the rule is that in the absence of a reasonable explanation, a defendant's silence during his police interrogations may serve as a support for the prosecution's evidence (Criminal Appeal 2996/09 Dabour v. State of Israel, para. 11 (May 11, 2011); See also: Section 28(a) of the Criminal Procedure Law (Enforcement Powers - Arrests), 5756-1996 and the judgment of my colleague Justice E. Stein in Criminal Appeal 6359/21 State of Israel v. Al-Amrani, paragraph 60 (September 8, 2022)); At the same time, it was determined that no argument would be heard by a defendant that his silence stemmed from advice he received from his lawyer (see judgment in Serious Crimes Case (Hai District) 42731-07-12 State of Israel v. Zahida (September 9, 2014)). The reason for this is known and clear - when the defendant chooses to remain silent where he is asked for an explanation, his silence is inconsistent with his expectation that he will be believed when he first presents his version during the defense case. The logic of the matter becomes clearer when a defendant is confronted by police investigators with investigative materials indicating his involvement in the commission of the offense, but he does not provide any explanation (Criminal Appeal 8328/17 Jaber v. State of Israel, para. 21 (July 28, 2019); Yaakov Kedmi on the Evidence, Part One, 30, 305-309 (2009) (hereinafter: Kedmi))."
On the precedent according to which a defendant would not be heard claiming that he remained silent on the advice of his lawyer, the Supreme Court reversed a criminal appeal 8606/22 Vardinian v. State of Israel, paragraph 48 of the opinion of the Honorable Justice Y. Elron, joined by the Honorable Justice E. Stein (September 8, 2024),
See also: Criminal Appeal 2132/04 Salim Qays v. State of Israel (May 28, 2007), paragraphs 35-40 of Justice Procaccia's opinion:
"The defendant's right to remain silent is, indeed, a fundamental human right. However, like any substantive right, including a constitutional right, it is not absolute, but only relative. Alongside the defendant's right to remain silent is a valuable public interest in exposing the truth, which is at the foundation of the purposes of the criminal proceeding...