I don't quite see why they can't use the same method they use in espionage cases in this situation - if there's classified evidence, the defence lawyers need to get security clearances and are under the same obligation not to further disclose the information as anyone else (even to their own client).
It isn't a national security issue so there is no justification for those measures. In criminal cases there is a strong constitutional and natural justice basis for the accused being able to examine and attempt to rebut the evidence.
As I understand it those issues are covered by the accused's lawyers being able to examine the evidence on behalf of the accused, which would extend to having it examined by an expert witness who can attempt to impeach it.
It reads straight out of Kafka you can't be present at your own trial, because the evidence against you is secret.
I might be willing to grant that legitimate cases of national security warrant this, but routine criminal proceedings? Fuck no. That kind of exclusion of the accused is terrifying and delegitimizes the proceedings in my eyes. The state can't try you in secret just because they don't want to talk about the evidence, and we know the state routinely abuses secrecy laws to cover malfeasance.
Right. How is the accused supposed to provide an honest account to their lawyer if they can't even know what evidence exists against them? They'll have nothing to refute, and their lawyer can't ask them pertinent questions about their own defense.
I don't really see how that applies to the situation at issue here - the facts that the state wants to protect seem to be around the technical details of the way in which the evidence was acquired (the article talks about source code). The lawyers for the accused don't need to disclose the source code to their client to be able to say "The state's expert witness is going to testify that at such-and-such date and time an IP address which the ISP says was assigned to your account at the time logged into the site under such-and-such account name and access such-and-such content", which is the part the accused can refute. Their testimony on the source code itself wouldn't be accepted anyway.
