Circumstantial Evidence Against Defendants 2, 3
In the summaries of counsel for defendants 2 and 3, circumstantial evidence was presented that could ostensibly link the defendants to the murder incident, and among those evidences were the trip to the territories of defendant 2 with Muhammad, the meeting at Dor Alon Lakiya, the waiting at the meeting point, the drive back to Lod, and the telephone conversations of defendant 3 with Muhammad.
In the judgment in criminal appeal 517/19 Shamach Abu 'Ammar et al. v. State of Israel, paragraph 27 (of July 6, 2020), the Supreme Court reiterated the precedent dealing with circumstantial evidence as follows: "The accepted way to draw conclusions based on circumstantial evidence is by means of a three-stage test. In the first stage, each circumstantial evidence is examined on its own, in order to determine whether a factual finding can be based on it. This stage is essentially identical to the court's examination of direct evidence, in which the strength, reliability and adequacy of the evidence are examined in order to ensure that the evidence is true evidence (see: Criminal Appeal 8422/14 Mughhad v. State of Israel, para. 31 (May 10, 2015) [published in Nevo] (hereinafter: the Mughhad case); Criminal Appeal 6392/13 State of Israel v. Krief, paragraph 97 of the judgment of Judge N. Sohlberg (January 21, 2015) [published in Nevo] (hereinafter: the Krief case)). In the second stage, the entire evidentiary process is examined, in order to determine whether it leads to the prima facie conclusion that the defendant did indeed commit the acts attributed to him, based on life experience and common sense. The incriminating conclusion may also be reached by the addition of a number of circumstantial evidence, each of which in itself is insufficient for the purpose of incrimination, but its cumulative weight when combined together is incriminating (Criminal Appeal 6073/11 Segal v. State of Israel, para. 21 (June 11, 2012) [published in Nevo]; Criminal Appeal 9372/03 von Wiesel v. State of Israel, IsrSC 59(1) 745, 754 (2004)). Finally, in the third stage, alternative explanations for the circumstantial evidence system are examined, which may negate the incriminating conclusion that arose in the second stage. For the most part, the court will examine the prosecution's incriminating thesis against the defendant's alternative factual version and determine whether the totality of the circumstantial evidence negates the defendant's version and explanations, or whether it raises a reasonable doubt of his guilt. An innocent explanation for each circumstantial evidence on its own is not sufficient, since the examination of the incriminating conclusion is done as a whole. Therefore, the defendant is required to propose a complete alternative version that relates to the totality of the evidence against him (Criminal Appeal 2661/13 Yazhiv v. State of Israel, para. 39 (February 18, 2014) [published in Nevo] (hereinafter: the Yahav case)). The alternative explanation must be plausible and based to some extent on the existing evidentiary framework, and a forced, theoretical or such explanation that is inconsistent with common sense and life experience is not sufficient (Criminal Appeal 4456/14 Kellner v. State of Israel, paragraph 14 of the judgment of Justice A. Vogelman (December 29, 2015)). To the extent that there is no plausible alternative explanation, and the incriminating conclusion remains the only logical conclusion, the defendant can be convicted on the basis of the circumstantial evidence against him."