Case Number

LCrimA 4142/04

Date Decided

12-14-2006

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial held that the appellant’s refusal to testify in his trial constituted ‘something extra,’ thus allowing them to convict him. The appellant applied for and was granted leave to appeal to the Supreme Court on the question whether the refusal of a defendant to testify, in accordance with his right to remain silent, could constitute ‘something extra,’ thereby allowing the court to convict him on the basis of his confession.

Held: (Minority opinion — Justice Levy) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for a confession that he made during his interrogation, but where a video recording was made of the interrogation, so that the court is given the possibility of watching the interrogation and the defendant’s confession, the silence of the defendant in his trial may constitute ‘something extra.’

(Majority opinion — Justice Arbel and President Emeritus Barak) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for the confession that he made during his interrogation. There are, however, exceptions to the rule. These should not be limited solely to cases where a video recording of the confession was made. The court has discretion to regard the silence of a defendant in his trial as ‘something extra’ for his confession during his interrogation. This discretion should be exercised sparingly. It should only be used when three conditions are satisfied: first, the confession is logical, consistent, clear and detailed. Second, the court can rule out the possibility that the defendant, because of some internal pressure, confessed to something that he did not do. Third, the court should be satisfied that the defendant’s silence in the trial is not the result of some internal or external pressure, nor is it the result of some innocent motive.

Keywords

Criminal Law -- Criminal Procedure, Criminal Law -- Right to fair trial, Evidence -- Confessions

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