The Justice Ministry is seeking to sharply limit the ability of criminal defendants to access information that could help their cases. The Ministry is considering proposing a law that would require a “security test” for information gathered by law enforcement or other officials. If the information was not absolutely required for the defendant to prove his innocence, the information would not be given out if security officials determined that providing it could potentially reveal information about the security establishment's methods of gathering evidence, or the identities of investigators or witnesses.
The new policy, it if is enacted, would be a sharp change from the current situation, in which police are required to hand over all evidence that could possibly help a defendant's case – even seemingly peripheral evidence. Failure to do so could constitute a mistrial. Under the new law, the burden of proof regarding the necessity of the transfer of information or evidence would fall on the defendant.
The Ministry said in a statement that the new law was necessary to prevent sensitive information about police tactics or sources from falling into the hands of criminals or terrorists. In an era of advanced computing power, the Ministry said, seemingly “harmless” pieces of information could cumulatively constitute a major leak of security information that could be used by wrongdoers to advance their plans, detouring around police methods for catching them.
In that light, the Ministry recently published a legal opinion differentiating between information that was “absolutely necessary” to defend and offender, and “peripheral” information, which could assist the case of a defendant, but could also harm the security of the state. The latter information would no longer be forwarded to defendants if the Ministry has its way, unless the defendant could prove that it was absolutely necessary to exonerate them. Even in those cases, a court would have to decide between the public welfare and the needs of the defendant.
Attorneys who spoke to Arutz Sheva said that they were “uncomfortable” with the proposal, because “it is impossible to know what evidence will turn a case. That's why the law – that requires supplying the defendant with all the information available – reads the way it does.” The attorneys did not speculate on the reasons behind the Ministry's proposal.