State's 'due process' right doesn't trump shield law

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From the Winter 2000 issue of The News Media & The Law, page 15.

The California shield law provides absolute protection for journalists and is not trumped by a criminal prosecutor's "due process" right to pursue evidence under the state constitution, the state Supreme Court in San Francisco held in early November. The court overturned the August 1998 ruling of an intermediate appellate court in Sacramento that recognized a prosecutor's due process right of access to a television station's unbroadcast videotape.

The videotaped interview included statements made by a county jail inmate accused of killing his cellmate. KOVR-TV in Sacramento aired portions of the interview in March 1996 and released the broadcast portions of the interview to prosecutors. It refused to provide the unaired videotape, claiming protection under the California shield law.


Tom Layson, a television news reporter at KOVR-TV in Sacramento, learned that a county jail inmate had confessed to sheriff's investigators that he had killed his cellmate. Layson visited the county jail and taped an interview with the inmate. In March 1996, portions of the interview were broadcast on KOVR news programs.

A month after the interview appeared on the air, prosecutors issued a subpoena requesting that KOVR produce a videotape of Layson's entire interview with the inmate, Anthony Lee DeSoto, who was being prosecuted for murder in San Joaquin County.

In July 1996, the trial court in San Joaquin county ordered the station to provide the prosecution with a complete and unedited copy of the interview tape. The station refused to turn over the unedited tape, and a contempt judgment was issued. The court ordered that the station's news director, Ellen Miller, be jailed, but then stayed the order pending the station's appeal.

In August 1998, an intermediate appellate court in Sacramento upheld the trial court's ruling that there was a "reasonable possibility" that the information from the unaired tape would "materially assist" the prosecution. The appellate court ordered the station to produce an unedited copy of the interview, and held that the news director would not be shielded from contempt for refusing to comply with that order. (See NM&L, Fall 1998)

On appeal to the California Supreme Court in San Francisco, KOVR argued that the lower court's decision would undo the shield law's protection against liability for contempt when journalists refuse subpoenas for newsgathering materials. More broadly, it argued, the decision "would undo the California Constitution and Declaration of Rights as a limit on government power, creating a sweeping new due process jurisprudence that would balance the 'right' of the government against the reserved rights of its citizens."

Arguing that compelled production of unpublished outtakes of the interview cannot be reconciled with the plain language of the California shield law, KOVR asserted, "This court has recognized that the shield law's protection of nonparty witness reporters from compelled disclosure of unpublished information is by its terms absolute."

Additionally, the lower court's construction of California's shield law was "inconsistent with the shield's legislative history," according to KOVR. Because of the shield law's provision for absolute immunity from contempt, no governmental due process right should be balanced against the "express constitutional and statutory shield law."

Finally, KOVR noted the chilling effect on the press if such compelled disclosure were required. "Reporters who gather news of wrongdoing will be and are threatened by constant exposure to the expense and time lost in becoming witnesses," it argued, and "the decision threatens press autonomy because of the press's unique role in society."

The state attorney general countered that the California shield law does not provide absolute protection from compelled disclosure. According to the attorney general, a finding of absolute protection under the shield law "would repudiate the analytical framework which media representatives themselves have historically proposed as the most sensible means of reconciling conflicts between their need to shield themselves from compelled disclosure and the needs of others, under certain limited circumstances, to learn the same information."

Furthermore, the attorney general argued, the compelled disclosure in this case "with its unique facts concerning a broadcast jail interview with a confessed killer, will not significantly impact robust newsgathering. . . . The specter of a 'chilled press' bears very little resemblance to what has happened in this case."

In November 1999, the state Supreme Court held that the shield law does provide an absolute privilege that protects a journalist from contempt for withholding unpublished information obtained through newsgathering.

While the intermediate appellate court had balanced the interests of the "people" -- represented by state prosecutors -- to due process under the state constitution against the privileges and immunities of the press under the same constitution, the Supreme Court did not engage in a similar balancing approach.

Rather, the Supreme Court found that there was "no conflict between the shield law and the subsequently enacted people's right to due process of law" that required balancing. The court explained that the people's due process right does not grant a right of access to evidence protected by existing evidentiary privileges and immunities, including the shield law.

Furthermore, the court found that the intermediate appellate court's holding assumed that "the people's right to due process must be the exact equivalent to a criminal defendant's right to due process," which the court held was incorrect because there is no California legislative history or case law supporting that argument.

The court noted that criminal defendants may be able to obtain outtakes, but prosecutors do not have the same right. The court noted that unlike a prosecutor's claimed due process right, a criminal defendant's due process right is guaranteed by the federal constitution, and takes precedence over the shield law provisions in the California Constitution. (Miller v. Superior Court of San Joaquin County)