The Silence of the Innocents: Another Perspective on the Milstein Case

Abstract

In CrimA 4142/04 Milstein v Chief Military Prosecutor the Israeli supreme court held that the defendant’s choice not to testify in court may, under certain circumstances, satisfy the formal evidentiary requirement of “extra something”, which is required under Israeli evidence law, for a court to be able to rely on an out-of-court confession. This paper challenges the empirical assumption underlying this decision, namely that the choice not to testify is an indication of guilt. It argues that the defendant’s decision to remain silent does not necessarily indicate guilt when the defendant had confessed the crime to the police.

Keywords: silence of the innocents, out-of-court confession, evidential incentives