There are those who criticize this argument by saying that one who is innocent and does not lie does not stand before the trilemma, and therefore in practice protection is given only to those who are obligated to conceal the truth and have no place in such protection (see: Akhil Reed Amar & Renee B. Lettow, "Fifth Amendment First Principles: The Self-Incrimination Clause", 93 Mich. L. Rev. 857, 890 (1995).. For a discussion of this question, see: Daniel J. Seidmann & Alex Stein, "The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege", 114 Harv. L. Rev. 430, 452 (2000), quoting Jeremy Bentham, A Treatise on Judicial Evidence 241 (M. Dumont ed., Fred B. Rothman & Co. 1981) (1825).
Immunity from self-incrimination is considered one of the minimum guarantees of a fair trial and equality before the law and is therefore protected by Article 14(3)(9) of the 1966 International Covenant on Civil and Political Rights (Int'l Covenant on Civil and Political Rights, 1966, Art. 14(3)(9)—as well as in constitutions in certain states, such as the Fifth Amendment to the U.S. Constitution, which states: "No person shall be... compelled in any criminal case to be a witness against himself...". In the United States, the right to self-incrimination is set forth in the Fifth Amendment to the Constitution (I will expand below in the chapter on the right to self-incrimination).
4.2.1.b. The right to remain silent and the right to refrain from self-incrimination in Israel
Israeli law recognizes the defendant's right not to incriminate himself, and in this context his right to remain silent, both during interrogation and trial. There are a number of provisions of the law that enshrine these rights, some of which relate to the investigation, some of which relate to the trial.
Section 2(2) of the Criminal Procedure (Testimony) Ordinance authorizes police officers to conduct investigations into the commission of offenses. Section 2(2) of the Ordinance relates to the rights in question and states as follows: