"The granting of the right to complete silence to a suspect – the right not to say anything during the interrogation even if it does not incriminate him in the future – is derived...For several main reasons: One of the reasons is rooted in concern for the suspect. During a criminal investigation, the suspect stood alone in front of his interrogators, without any legal assistance. Under these circumstances, there is concern that police investigators will misuse the power at their disposal to extract confessions from suspects. The argument is that the right of a suspect to remain silent while he is in the threatening and hostile situation of a police interrogation should be ensured in order to protect him from improper behavior by his interrogators. Another reason related to the reason mentioned lies in the desire to protect the legal system from false confessions by suspects. The argument is that the situation in which a person is interrogated is so threatening by its very nature and nature that he should be allowed to remain completely silent in order to avoid situations in which he will lie to questions during interrogation due to the confusion, pressure, and distress in which he finds himself. Such false confessions will frustrate the goals of the investigation – to discover the truth and track down criminals. Another reason is the desire to refrain from imposing upon a person what he has done, especially in light of the violation of his privacy and dignity by the investigation. This is also consistent with the adversarial nature of the criminal proceeding, according to which the prosecution must gather the evidence and not the defendant must doubt it.
- These reasons do not justify granting a suspect the right to absolute silence insofar as it relates to the production of documents pursuant to a court order. The desire to avoid giving the police a great deal of power and the concern for the interrogee who stands alone in front of his interrogators are irrelevant, and in any case their relevance is much less when it comes to the requirement to produce documents under a warrant. Prior to the delivery of the documents according to such a demand, the suspect receiving the order has both the option of consulting with a defense attorney and the possibility of taking action to cancel the order. In addition, since this is objective, durable evidence, and not evidence of a testimony nature, the concern that police investigators will take improper measures in order to reach the depths of the suspect's consciousness is also not existed.
- As for the fear of a suspect's false confession during his interrogation, it does not, in and of itself, justify the granting of the right to remain silent as far as the documents are concerned. The suspect is not required to create the evidence himself, but rather to produce documents that were created in the past and that are in his possession. .... It follows that even this concern does not justify the extension of the right to remain silent and its application to documents.
- The desire to refrain from imposing duties on a person is also not fulfilled when it comes to documents. Unlike the testimony, the submission of the documents does not require the interrogee to actively create the evidence requested by his interrogators, but only to produce evidence that was created in the past and that is in his possession..... "
The right to remain silent is given to the defendant and is broader than the right of a person not to incriminate himself. However, a person's right not to incriminate himself by means of testimony and evidence is given to every witness, while the right not to testify is given only to the defendant at his trial. On the right to remain silent and the relationship between it and the right to self-incrimination, see, among many: Eliyahu Harnon, "On the Right to Remain Silent," Mishpatim I, 95 (1968); Benny Steinberg, "What Remains of the Warning on the Right to Remain Silent", Hapraklit No. 163 (2005-6); David Libai, "The Interrogation of a Suspect and the Vaccine from Self-Incrimination," Hapraklit 29, 92, 109 (1974); Guy Rotkopf, "The Obligation to Provide Documents to the Authority – The Need to Redefine the Areas of Confidentiality from Self-Incrimination and the Right to Remain Silent (Following Civil Appeal 8600/03 State of Israel v. Gilad Sharon)", Mishpat 11, 293 (2006), hereinafter: Rotkopf, The Right to Remain Silent); Rinat Kitay-Sanjaro, "Silence as a Confession – On the Misconception of Silence in Court as Something Added to a Confession," Mishpat Ve-Tzav 18 (2005), pp. 31-76.