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3. Grand jury

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 See In re Grand Jury Subpoenas, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2002) (per curiam) (unpublished).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).

3. Grand jury

North Carolina's shield law specifically applies to "any grand jury proceeding or grand jury investigation," and no distinction is made between grand jury investigations, criminal trials, and civil actions. N.C. Gen. Stat. § 8-53.11(a)(2).

3. Grand jury

The criminal shield law also addresses grand jury subpoenas for confidential source information under certain circumstances. In particular, if the information or document was disclosed in violation of an oath given to a juror or a witness, a journalist can only be compelled to testify when the person seeking the testimony, production or disclosure makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain the confidential source information from alternate sources. See Tex. Code Crim. Proc., art. 38.11, §4(c).

3. Grand jury

Where the press is subpoenaed in the context of a grand Jury investigation, there is no doubt as to whether the Sixth Circuit recognizes any special prerogative of the press to resist the subpoena.

3. Grand jury

The privilege applies to grand jury subpoenas. See, e.g., O.C.G.A. § 24-9-30 (privilege applies "in any proceeding where the one asserting the privilege is not a party"); In re Paul, 270 Ga. 680, 684 (Ga. 1999).