I. Introduction: History & Background

New Jersey originally adopted a reporter's privilege in 1933. Today New Jersey's newsperson's privilege is one of the strongest in the nation. Our Supreme Court has found "the legislative intent in adopting this statute ...as seeking to protect the confidential sources of the press as well as the information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey" In Re Myron Farber, 78 N.J. 259 (1978). Indeed, the definition of "reporter" has been given a broad definition and court reading while the exceptions to the privilege are construed narrowly.

The privilege is statutorily based and protects both the source and the information. The privilege may only be pierced by a criminal defendant where the source or information sought is "relevant, material and necessary to the defense" and can not be obtained from any less intrusive source. Once the criminal defendant satisfies this criteria the court then is required to examine the materials in camera to determine the probable admissibility at trial. If the court determines the materials are admissible then an order to produce only those materials which satisfy both aspects of the test will be issued.

Civil defendants and prosecutors can not overcome the shield unless the reporter is an eyewitness to, or participant in any act involving physical violence or property damage. Even this "eyewitness" exception has been construed narrowly so that a reporter can not be compelled to testify if there are other witnesses.

Because of the strong privilege, reporters in New Jersey are rarely subpoenaed and if they are the subpoena is usually withdrawn after a letter from counsel invoking the privilege.

In addition to Farber, supra., three other New Jersey Supreme Court decisions, State v. Boiardo, 82 N.J. 446 (1980)(Boiardo I); State v. Boiardo, 83 N.J. 350 (1980)(Boiardo II); and In re Schuman, 114 N.J. 14 (1989) set forth the history and scope of the privilege.