3C3

The privilege is explicitly applicable to grand jury subpoenas. R.I. Gen. Laws § 9-19.1-2. Accordingly, a grand jury subpoena would presumably be treated no differently than any other subpoena.

In Branzberg v. Hayes, the Supreme Court held that "newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation." 408 U.S. 665, 685 (1972). The Court reasoned that the necessity of providing grand juries with all available information to facilitate the proper administration of justice outweighs the First Amendment interest asserted by reporters. Id. at 686-87.

While there has been no case law in Colorado testing the Shield Law in the context of a grand jury proceeding, the statute is written broadly enough to be applicable to such proceedings. The statute clearly states that the privilege attaches in any "criminal investigation, discovery procedure, hearing, trial or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado." C.R.S.(1)(e).

A grand jury could compel disclosure of confidential or unpublished information under the statute if the conditions for compelling disclosure could be met.

There does not seem to have been a grand jury subpoena for a reporter since the adoption of the shield law. There is language in Matter of Decker, 471 S.E.2d 462 (1995), that could limit the protection of the shield law if the court should conclude that it is the grand jury seeking to compel testimony or production rather than the prosecutor. In Decker the Supreme Court held that the privilege was effective only against a "party" to the proceeding and did not limit the ability of the court to seek information from a reporter.

In New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) the Second Circuit explicitly refused to decide whether there was a common law privilege under Rule 501 of the Federal Rules of Evidence for reporters to withhold sources from a grand jury. If a privilege existed, it was overcome by the government's compelling interest in investigating the unauthorized disclosure of imminent law enforcement actions. Id. at 171.

Neither the statute nor the case law discusses the privilege in the context of grand juries.

The Court in CBS, at 33, indicates that it believes the secrecy of grand jury proceedings in the State of Missouri would render disclosure in that setting less harmful than if disclosure were in conjunction with an ordinary civil or criminal trial. This case (following the Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), analysis) held that there was no qualified privilege in such proceedings when there was no claim that the information was confidential or that the grand jury investigation was a sham undertaken to obtain the subpoenaed information.

There is no statutory or case law addressing this issue.

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.