2. Criminal

The United States District Court for the District of Kansas has applied the reporter's privilege to a criminal case. In United States v. Foote, 30 Media L. Rep. 2469, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the defendant was accused of trafficking and attempted trafficking in counterfeit trademark merchandise. The government issued a subpoena to a reporter who had written two articles about the seizing of the alleged counterfeit merchandise, and sales of counterfeit merchandise, in which he quoted or attributed numerous statements to the defendant. Id. at *1. The court stated that "[a]lthough Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence." Id. at *2. Applying the Silkwood balancing test, the Foote Court denied the reporter's motion to quash subpoena. The court found that the reporter "appears to be the only person who can confirm that the statements published were made by Defendant and thus the only source of the information sought[,]" and that the "alleged admissions" made by the Defendant in the published article "are critical to the government's prosecution as they aid in establishing Defendant's knowledge and intent, which are elements that must be proven". Id. at *2-3.