Privileged Evidence and State Security under the Israeli Law: Are we Doomed to Fail?

• Author: Ami Kobo
• Position: JSD candidate, Tel-Aviv University.
• Pages: 113-125

Introduction

Page 113

Ami Kobo: JSD candidate, Tel-Aviv University. Senior Deputy to the National Public Defender of Israel. Lecturer, The College of Management - Academic Studies Division (Rishon LeZion, Israel). This Article is based on a lecture presented at the Benjamin N. Cardozo School of Law's conference "Secret Evidence and the Courts in the Age of National Security," which took place in December 2005. I am grateful to Professor Russell Pearce from Fordham University for making my participation in the conference possible. I am particularly grateful to Dr. Oren Gazal-Ayal, Ms. Efrat Fink, Dr. Guy Rotkopf, Mr. Moshe Serogovich, Ms. Karin Meridor, and Ms. Tamar Nevo for their helpful remarks.

This Article attempts to examine the Israeli law surrounding the doctrine of privileging evidence for security reasons or other public interests in criminal proceedings. It will also consider the risks of hiding relevant evidence from the court and from the defense under the rules of privileged evidence.

Unfortunately, the Israeli legal system has extensive experience with the subjects of terror, secret evidence, and the exercise of state privilege for security reasons or for the public interest. Due to Israel's security situation, its law has faced unique dilemmas and has developed several different approaches for solving them.

The Israeli law on privileged evidence seems to create the right balance between the country's significant security needs, on the one hand, and the rights of the defendant, and the need to prevent the risk of false conviction, on the other. There appear to be adequate safeguards designed to protect security and other public interests in an era of terror, while minimizing the risk of convicting an innocent defendant. However, a more careful examination of the Israeli experience in these cases raises the possibility that Israel might be doomed to fail in its search for this balance. This Article asks: how likely is it that no relevant evidence will be hidden from the court and from the defense by a breach of its rules? Is it possible to avoid convicting innocent defendants when dealing with privileged evidence and security matters?

This Article will examine the rules of privileging evidence and the balancing tests in Israeli law according to the Israeli Supreme Court's Page 114 interpretation. It will then discuss the implementation of the rules and cases where the system failed to work according to those rules.

I The Law of Privileged Evidence to Protect the State and Public Interest

Before dealing with the rules of privilege, it should be understood that, under Israeli law, the defense is entitled to inspect and copy investigation material.¹ Section 74 of Israel's Criminal Procedure Law states that "[w]here a statement of charge has been filed . . . the accused and his counsel . . . may at any reasonable time, inspect the material of the investigation in the possession of the prosecutor and make copies thereof."² Usually, "material of the investigation" consists of information relevant to the criminal case that has been collected by the police during investigation and transferred to the prosecution. The collected material transfers from the police to the prosecution even if it is relevant to the case only indirectly. After the material goes to the prosecution and a charge is filed, the defense is allowed to inspect and copy the investigation material.³

If the state wants to avoid revealing relevant investigation material, it can do so by using the rules of privilege.⁴ The definition of "privileged evidence" and the procedure for privileging evidence are defined in Israel's Evidence Ordinance ("Evidence Ordinance") sections 44 through 46.⁵ A few basic points regarding these sections bear mentioning. Page 115 First, the phrase "a person is not bound to give, and the Court shall not admit," found in sections 44 and 45, means that if the evidence is privileged, it is also inadmissible, and neither the defense nor the prosecution can use the privileged evidence in court.⁶ The owner of the privilege is not the witness who gave the privileged information, but the state, and only the state may waive the right to privilege the evidence.⁷

Under the Evidence Ordinance, the state may put evidence under privilege if a State Minister signs a "certificate of privilege" expressing Page 116 the opinion that the evidence at issue is likely to impair state security, the state's foreign relations, or an important public interest.⁸ If the evidence is being privileged for security reasons, then the Prime Minister or the Minister of Defense must sign the certificate of privilege.⁹ If the evidence is being privileged because of another public interest, then another minister-usually the Minister of Internal Security-must sign the certificate of privilege.¹⁰

In criminal cases, the prosecution must inform the defense if the state has issued a certificate of privilege to prevent access to sensitive evidence. The prosecution also has the attendant obligation to inform the defense of the essence of the privileged evidence, in general terms.11 This gives the defense adequate information to serve as a basis for a petition to disclose the evidence. Following this general disclosure, the defense may file a petition to the court and request to disclose the evidence.¹²

The Evidence Ordinance offers a vague standard to determine whether a court should approve a petitioner's request to disclose privileged evidence: it requires that the court weigh "the need to disclose the evidence for doing justice" against "the interest not to disclose it."13 The ordinance suggests a balancing test that compares the possible harm to the defendant, if the evidence were not disclosed, with the harm to the public interest, if the evidence were disclosed.

Lastly, the statute grants great discretion to the prosecutor. If a defendant's petition pursuant to sections 44 through 46 is successful and the court decides the evidence should be disclosed, then the prosecution may either continue the criminal process and disclose the evidence, or protect the secret evidence by withdrawing the accusations. By deciding to continue with the case, the prosecutor knows that confidential information will be exposed, and that this exposure may undermine state security or the public interest. In this manner, she must "pay the price" for conviction of the defendant. In other words, the state- via the prosecutor-whether or not to reveal the secret information.¹⁴

Page 117

II The Livny Case: The Interpretation of the Law

In Livny v. Israel, the Israeli Supreme Court explained the interests that should be balanced when interpreting the Israeli privileged evidence statutes.¹⁵ In Livny, several defendants were charged with murder and of being members of a terrorist organization, among other offenses. The Minister of Defense signed a certificate of privilege that prevented the defense from accessing certain evidence on the grounds that it might undermine state security. The privileged information included evidence that revealed the methods of work of the General Security Service ("GSS"), prior evidence about the defendants, and the names and details of GSS workers. The defendants applied to the Supreme Court to challenge this certificate of privilege.¹⁶

In his opinion for the Supreme Court, Justice Barak first noted the interest in revealing the truth in order to determine guilt or innocence.17 He asserted that, in an adversarial system, truth will be revealed only if the defense has access to all investigation material.¹⁸ The defendant will only then be able to prove his innocence, based on the investigation information, by presenting his version of the facts or by casting doubt on the prosecution's version. Justice Barak suggested that the relative importance of investigative material to a given defendant's case should be determined by the defense, not the prosecution.¹⁹ In light of this fact, he concluded that the only way to ensure a fair trial was to reveal all investigation material to the defense. Otherwise, the defense counsel would never be certain that the prosecution had revealed all helpful evidence.²⁰

On the other hand, Justice Barak also acknowledged that public interest requires, at times, that the prosecution not disclose the investigation material, due to the security interest of the state. He noted that Page 118 this interest was relevant to all nations, but was especially important to Israel, which has struggled with security dangers since its founding.²¹

After reviewing these interests-fair trial versus state security-Justice Barak fashioned a rule: if the evidence is essential to the defense, then justice demands its disclosure, notwithstanding its importance to the public or the security interests.²² Justice Barak decided that no security consideration can justify the damage of convicting an innocent person in a criminal prosecution.²³ He found that it would be preferable to acquit a defendant whose guilt could not be proven, due to the need to disclose evidence, than to convict him for his inability to access exculpatory but privileged evidence.²⁴

However, Justice Barak added that, in some cases, the evidence at issue is not clearly essential, but may still have some weight. It might be relevant to a determination of the reliability of the defendant or the witnesses. It could help support other evidence or be used for cross- examination.²⁵ In these cases, the rule as stated in Livny is that the court has to consider the relative importance of the evidence, in comparison to security or other public interests. That is, if the evidence contributes to the...