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

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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.

Original languageEnglish
Pages (from-to)1-21
Number of pages21
JournalInternational Commentary on Evidence
Issue number1
StatePublished - 1 Dec 2014

Bibliographical note

Publisher Copyright:
© 2014 by De Gruyter.


  • evidential incentives
  • out-of-court confession
  • silence of the innocents

ASJC Scopus subject areas

  • Law


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