(c) A defendant who chooses to testify at his trial as a defense witness shall not be subject to this section with respect to the offense of which he is charged in that trial."
The right to remain silent is granted in section 47 of the Evidence Ordinance to the defendant only, however, the court extended this right to the suspect during the interrogation, who is entitled to remain silent and say nothing (see, for example, Civil Appeal Authority 5381/91 Hogla Marketing (1982) in Tax Appeal v. Moshe Ariel, 46(3) 378 (1992)).
Section 52 of the Evidence Ordinance significantly expands the application of the privilege to any process of collecting evidence, including police interrogation proceedings, since:
"The provisions of this chapter shall apply both to the submission of evidence before a court and tribunal, and to its delivery before an authority, body or person authorized by law to collect evidence; and where this chapter is a 'court' – also a court, a body or a person as aforesaid..."
The right to remain silent in trial, i.e., the possibility of a defendant not to testify at his trial is enshrined in section 161 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: the Chessedap), which states:
")a) The defendant may act in one of the following:
(1) to testify as a defense witness, and then a cross-examination may be examined;
(2) to refrain from testifying.
(b) The court shall explain to the defendant that he is entitled to act as stated in subsection (a) and the consequences of his refusal to testify as stated in section 162.
(c) A defendant who has chosen to testify shall testify at the beginning of the defense's evidence; However, the court may, at his request, permit him to testify at another stage of the defense case."
This right is also qualified, since the section imposes a duty on the court to explain to the defendant that this refusal may serve to strengthen the weight of the prosecution's evidence and serve as an aid to the prosecution's evidence where assistance is required. Section 162 of the Code of Criminal Procedure goes on to determine the evidentiary weight of the defendant's silence. In other words, when the defendant chooses to remain silent, it is liable to act against him and assist or strengthen the prosecution's evidence. The conceptual basis for the exception is that "innocence cries out to be heard," as Bentham famously said: "Innocence claims the right of speaking, as guilt invokes the privilege of silence" (Jeremy Bentham, A Treatise on Judicial Evidence, 261 (1825)). (See in this regard, Criminal Appeals Authority 4142/04 Sergeant (res.) Itay Milstein v. The Ordinance (2006) and: Doron Menashe, "The Silence of the Innocents – A Reconsideration of the Milstein Rule", Harat Din 5(2) 66, 71 (5769, hereinafter: Menashe, The Silence of the Innocents).