The testimonies in the trial are a central tool for reaching the truth, and therefore, as a rule, it was determined that exceptions to this rule should be minimized, and caution should be exercised when interpreting the exceptions that the legislature set for this rule inthe Evidence Ordinance, as the Honorable Justice T. Strasberg Cohen said in the Hachami case (paragraph 11 of her judgment at p. 763): "The starting point is the competence of everyone to testify, and the deviation from this rule is justified in exceptional circumstances and for weighty considerations."
The right to remain silent and the right to self-incrimination are cases in which the court is denied evidence in favor of other interests, such as the right to a fair trial, and the prevention of pressure on witnesses to confess. Therefore, as a rule, when discussing the interpretation of these rights, it should be remembered that this is an exception, when the rule is that the court will investigate the truth based on all the evidence that can be brought before it. I refer to both rights in a united way, since in many legal systems they appear as a single right, or as a single right – the right to remain silent, the ideological basis of which is the right not to incriminate oneself. However, there are those who believe that a distinction should be made between these rights (e.g., John Jackson, "Re-Conceptualizing the Right of Silence as an Effective Fair Trial Standard", 58 Int'l & Comparative L, Qu., 835 (2009)), as has also been done in Israeli legislation.
The right to self-incrimination and the right to remain silent have evolved in American law from the right to legal representation. Until the right to legal representation was granted, the defendants did not have the right to testify at their trial, and as such, the question of the right to remain silent did not arise. When the right to legal representation was determined, the defendant's right to speak at his trial was recognized, along with the right to remain silent. Some claim that the right to remain silent was initially recognized only when it was a matter of oath testimony and a religious matter. Later, towards the end of the 18th century, the presumption of innocence was established and the rule that a criminal conviction would be determined only if the guilt of the offender was proven beyond a reasonable doubt. Alongside it, the right to remain silent was established, which obligates the prosecution to find independent evidence, and allows the defendant not to assist the prosecution in incriminating himself. This right was also derived from the adversarial system, according to which the prosecution must prove its arguments and reluctance to inquisitorial legal systems, as in the dark days of the Inquisition, when "confessions" were based on severe torture (on the history of these rights, see: John H. Langbein, "The Historical Origins of the Privilege Against Self-Incrimination at Common Law", 92 Mich. L. Rev. 1047 (1994) See also: Albert W. Alschuler, "A Peculiar Privilege in Historical Perspective: The Right to Remain Silent", 94 Mich. L. Rev. 2625 (1996), (hereinafter: Alschuler, The Right to Remain Silent. For more on the historical overview and the conceptual basis for the right to remain silent, see Wagner, Corporate Right to Remain Silent, at 515).