3C3

3. Grand jury

3. Grand jury

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

3. Grand jury

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.

3. Grand jury

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.

3. Grand jury

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.

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

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

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.