Bill would curtail defendant's right to see intelligence relating to his case
Currently, if prosecutors don't want to reveal intelligence material, they have to get public security minister to declare it classified, which necessitates an exacting scrutiny of the material in question.
A defendant's right to receive intelligence information related to his case would be significantly restricted under a bill being promoted by Attorney General Yehuda Weinstein.
From a memorandum on the bill published yesterday on the Justice Ministry website, it appears that Weinstein, with the support of Justice Minister Yaakov Neeman, wants to make it legal to withhold almost any intelligence information related to his case from the defendant.
The bill does include an exception for evidence that is vital to the accused's defense, or which would raise reasonable doubt about his guilt. Such information would have to be revealed by the prosecution under all circumstances.
In addition, a district attorney or the head of the police's prosecution department would be authorized to allow other intelligence material be given to defense attorneys under certain circumstances and criteria to be legislated.
But if prosecutors believe the evidence might help the defense, but is not absolutely crucial to it, they will be required to weigh the benefit the defendant would gain from its revelation against the public interest in not revealing it - for example, the public interest in not exposing intelligence sources or the methods and resources used to obtain such information. Objections to their decision could then be raised in court.
This is a radical change from the current situation, whereby if prosecutors don't want to reveal intelligence material, they have to get the public security minister to declare it classified, which necessitates an exacting scrutiny of the material in question.
The Justice Ministry said that police and prosecutors have been lobbying for years for a law to keep intelligence information privileged, as they feel the transfer of sensitive information to criminal defendants has been negatively affecting their ability to fight crime.
But the Courts Administration opposes the bill, fearing it would spur a wave of motions by defense attorneys seeking to have the ban waived in their cases.
The Public Defender's Office also objects, claiming it gives the police and prosecution too much power to decide which information will remain privileged while putting the onus of proving that the information is crucial to his defense on the defendant himself.
Dan Yakir, legal adviser to the Association for Civil Rights in Israel, warned yesterday that the proposal does away with another layer of control over the classification of such material by eliminating the public security minister from the process. He said the memorandum also significantly limited the leeway prosecutors and the courts would have to use their own judgment about revealing intelligence information.
"The defense of the accused is liable to be compromised," Yakir said.
The Justice Ministry responded that while the law might make more work for the courts initially, its assessment is that over time, as attorneys grow accustomed to it, hearings challenging the classification of intelligence will become rarer.
"The wording of the law made an effort to ensure that the rights of the accused are not compromised," the ministry added.
The current bill comes on the heels of another draft bill that Weinstein publicized two weeks ago, which would forbid the media from publishing evidence or testimony collected during an investigation.
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