In the usual situation, the defendant's rights - including the right to remain silent - are consistent with the interest of revealing the truth, and do not contradict him... However, sometimes the rights of the defendant conflict with the interest of revealing the truth. In these cases, a balance between the two is required... In this balance, the consideration regarding the prevention of the danger of convicting the innocent outweighs the danger of acquittal of the guilty...
The defendant's silence is given evidentiary weight as support for the weight of the prosecution's evidence and as assistance where it is required. However, silence cannot take the place of the basic prosecution evidence required for the purpose of incriminating the defendant. The right to remain silent does not detract from the burden placed on the prosecuting authorities to prove the defendant's guilt beyond a reasonable doubt...
Indeed, the evidentiary weight of the defendant's silence may be influenced by a satisfactory explanation given for this silence, which may detract from the strengthening value of the incriminating evidence... A casual explanation for silence is not enough, and it cannot be rooted in a desire to avoid self-incrimination... A lawyer's advice to refrain from giving testimony was not accepted as a reasonable explanation for the silence [...]".
- Therefore, the defendant's pious silence in the interrogations regarding substantive questions presented to him and incriminating evidence, as he is right, serves his duty on two levels: it has turned his testimony in court into suppressed testimony, which carries little weight. In addition, his choice to remain silent in his interrogations in itself strengthens the prosecution's evidence against him.
The defendant's testimony in court
- The defendant presented himself in his testimony in court as follows: Ashbir Tarkin is 26 years old, six brothers, now we are five. And I have good parents". The defendant was asked about the charges against him in the indictment and replied: "I haven't shot anyone like I've said until now, and that's it, I have nothing to say" (p. 549 of Prut). The defendant confirmed that he knew the complainant and that he lived next door to him in their neighborhood, had met him several times, and according to him, they were not friends, but they were not at odds either. The defendant denied any connection between the complainant and his complaint to the police about fraud (pp. 549-550 of Prut). The defendant confirmed in his testimony that he lives at 8 Saharon Street, Apartment 4, with his family, parents and brother (p. 552 of Pruth). The defendant confirmed that he had lost a brother, and stated that because of this, his family is recognized in the Ethiopian community. "Everybody knows us from it" (p. 558 of Pruitt).
The defendant stated that he was arrested under his apartment building near the warehouse, without being informed of the reason for his arrest, and that he was searched and the police searched the warehouse, while he himself was outside the warehouse, and then searched his apartment, during which he was present at the scene, with his mother and sister. In his re-examination, the defendant stated that he had not seen the objects that the police had taken out of the warehouse during the search (p. 621 of the protégé). The defendant stated that at the time of his arrest he asked the police to consult with a lawyer, and was promised that he would be allowed to do so, and he was taken to the police station (p. 551 of the protégé).