Israeli businessman Miki Ganor, former Communications Ministry Director General Shlomo Filber, Prime Minister Benjamin Netanyahu's former bureau chief Ari Harow and possibly former Netanyahu spokesman Nir Hefetz are just some of the witnesses who signed deals with the State Attorney's Office in the investigations currently underway. This ever-growing list demands that we re-examine the authorities' policies as concerns this problematic practice in which one suspect is absolved of committing a crime in order to convict an accomplice in the crime.
The law states that a state's witness is "an individual who is an accomplice to the offense in question and who testifies for the prosecution" usually after having been granted partial or full immunity.
The problem with a state's witness is twofold: Beyond relying on a criminal accomplice to the same crime, the leniency is dependant on the witness' ability to provide "the goods," that is, to provide testimony that will convict another person.
As part of its efforts to contend with this inherent problem, then-Attorney General Meir Shamgar in 1972 published guidelines that began with the following general directive: "An offender must be penalized and therefore a felon cannot turn state's witness barring extraordinary circumstances, meaning, in cases where, for the sake of public interest, prosecuting one primary felon would be made possible only if another felon turns state witness."
But since then, several attorney generals have passed through the halls of the Justice Ministry, and what was once clear to former time Supreme Court President Shamgar, has become blurry and vague. The investigation and prosecution authorities have begun to rely more and more upon state's witnesses – a patent that spared those involved a great deal of their investigative necessary to acquire "solid" evidence. Investigators and prosecutors have never had it easier. Instead of working hard and shuffling around looking for evidence, they can just pressure one of the suspects, make their life miserable and "bribe" them with a deal so that they agree to help convict the person the authorities are convinced is the big fish they need to fry.
And indeed, as the practice of turning suspects into state's witnesses developed, attitudes toward this practice have also changed dramatically, so much so that the initial attorney general guidelines have been changed. They now read as follows: "As a rule, an offender must be penalized, and therefore, a felon can only turn state's witness in cases where, for the good of the public, the prosecution of one offender must be prioritized – an act that the State Attorney's Office will find difficult without use of a state's witness."
Not in "extraordinary circumstances," and not in instances where a conviction would be "impossible." It is enough for things to get a little difficult, or for a conviction not to seem guaranteed, and immediately, the public interest is enlisted for the good of signing a witness agreement with the state.
While the police and State Attorney's Office may have an itchy trigger finger when it comes to state's witnesses, they are not the only ones responsible for this phenomenon. The majority of the criticism should be directed at the heads of the judicial system and the courts, which have allowed the widespread use of this problematic practice and greenlighted the erosion of accepted limitations.
This practice will result in lazy investigative authorities and a lazy State Attorney's Office that avoid acquiring evidence and suffice with pressuring witnesses. Who knows how many offenders have evaded punishment because of this norm and how many innocent people have found themselves behind bars?
The heads of these systems, and the attorney general and the courts in particular, need to turn back the clock and make it clear that justice must be done, and the practice of state's witnesses should be used only in exceptional and extreme instances.
