3C3

3. Grand jury

3. Grand jury

See § III.C.2. supra. While the Third Circuit has held that the qualified privilege applies to grand jury proceedings, courts have found that the investigation of possible crimes represents a countervailing constitutional interest that affects the applicable balancing test. See, e.g., In re Grand Jury Subpoena of Williams, 766 F. Supp. 358, 369-72 (W.D. Pa. 1991), aff'd without opinion by equally divided court, 963 F.2d 567 (3d Cir. 1992) (in banc); see also In re Grand Jury Empanelled Feb. 5, 1999, 99 F. Supp.

3. Grand jury

The District's shield law, and the cases decided under it, make no distinction between grand jury subpoenas and other subpoenas.

3. Grand jury

One trial court order referenced in this summary involves a grand jury subpoena where the court upheld the qualified privilege of a television journalist. In re Grand Jury Subpoena, Hinds County Circuit Court, No. 38,664 (Oct. 4, 1989).

3. Grand jury

There is no statutory or case law addressing this issue.

3. Grand jury

There are no cases in the Fourth Circuit in which a privilege is asserted in response to a grand jury subpoena. However, the language in Shain, a criminal case, indicates that at the very best, the Court would consider a reporter's privilege only upon a showing of confidentiality and governmental harassment. See Shain, 978 F.2d at 852. Even if the reporter makes such a showing to initiate a balance of interests under the LaRouche test, a "compelling law enforcement interest" is likely to tip the balance in favor of disclosure. See King, 194 F.R.D.

3. Grand jury

Because grand jury proceedings do not determine the rights of parties, but merely investigate and/or bring charges, they are "nonadjudicative," and a reporter may decline to provide either the source or the content of information without qualification. 10 Del. C. § 4321. Grand jury proceedings are explicitly excluded from the definition of adjudicative proceedings. § 4320 (1). Even the ability to challenge the truthfulness of the reporter's statement is precluded in nonadjudicative proceedings. § 4323 (b).

3. Grand jury

There are no different standards in the law for grand jury subpoenas. Grand juries are seldom used in Montana, where prosecutors can file cases by information.

3. Grand jury

The Tennessee shield law expressly covers grand jury subpoenas. Tenn. Code Ann. § 24-1-208(a); see also State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

3. Grand jury

The Fifth Circuit construes Branzburg v. Hayes, 408 U.S. 665 (1972), narrowly when considering grand jury subpoenas or subpoenas in criminal trials seeking non-confidential information. See In re Grand Jury Subpoenas, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2002) (per curiam) (unpublished). It has declined to recognize a qualified reporter's privilege for non-confidential information in the context of a criminal case. See United States v. Smith, 135 F.3d 963, 971-72 (5th Cir. 1998).

3. Grand jury

The standard for overcoming subpoenas to appear before or provide information to the grand jury is the same as the standard for overcoming subpoenas in the context of criminal and civil proceedings. See Morgan v. State, 337 So. 2d 951 (Fla. 1976).