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Court rules privilege does not apply to jailhouse interview

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  1. Protecting Sources and Materials
A contempt conviction of Miami Herald reporter David Kidwell for refusing to testify was upheld unanimously.

The state Court of Appeal in West Palm Beach unanimously upheld a contempt conviction of Miami Herald reporter David Kidwell in mid-June for refusing to testify about his interview with a murder suspect. Kidwell claimed a reporter’s privilege after being served with a subpoena for a deposition in the proceeding against defendant Walter John Zile, who was convicted of murder.

The majority of the three-judge panel, saying it was following precedent from a recent similar case, refused to recognize a reporter’s privilege. The court said the criminal justice process would fail “if witnesses with relevant and unprivileged knowledge could decide when they shall be required to testify and the subjects about which they can permissibly be examined.” The court emphasized that Kidwell had no agreement with Zile to keep the information confidential.

The court held that a reporter who is an eyewitness to the action at issue must testify when subpoenaed, as other citizens are required to do. It found that in determining whether an individual should have to testify, there is no distinction between an eyewitness to a crime and a witness who has direct evidence of a confession. Kidwell’s interview with Zile took place after Zile had been arrested and was being held in jail.

The third judge said he concurred in the result only because he was bound to follow the precedent of the recent case. Otherwise, he would have found that a balancing test of competing interests was appropriate, he said.

Kidwell was given a 70-day jail sentence and a $500 fine on October 7 when he claimed a reporter’s privilege not to testify about his interview with Zile. On October 21, a federal District Court in Miami ordered that he be released until he could appeal his case in the state courts.

Florida currently has no shield law to provide a reporter’s testimonial privilege. (Kidwell v. Florida; Media Counsel: Sanford Bohrer)

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