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Governor signs law expanding subpoena protection

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  1. Protecting Sources and Materials

    NMU         CALIFORNIA         Confidentiality/Privilege         Sep 20, 2000    

Governor signs law expanding subpoena protection

  • A new California law ensures that journalists who testify in court do not waive contempt immunity, requires five-day subpoena notice before testimony, and forces judicial findings of fact before contempt orders against journalists will stand.

A law signed by Gov. Gray Davis earlier this month affords journalists broad protection from the power of a subpoena and strengthens the existing state shield law.

The new law requires that before an attorney can seek a reporter’s testimony, the issuer of the subpoena to provide five-days notice to the journalist. Also, a journalist who testifies does not waive constitutional immunity to protect sources. Finally, should a trial judge hold a journalist in contempt in a criminal case, then the court must issue thorough, written findings detailing why the defendant’s right to a fair trial compels disclosure.

“The new law gives journalists the ability to seek counsel and be better prepared for asserting the shield law,” said Tom Newton, general counsel for the California Newspaper Publishers Association, the sponsor of the bill. On occasion, Newton noted, journalists are not even given 24 hours notice before they are required to testify.

The shield law, a part of the state Constitution, protects journalists from contempt holdings for refusing to disclose a news source or unpublished information gathered for news purposes.

If a trial court holds a journalist in contempt notwithstanding the constitutional immunity provision, the court must set forth findings “stating at a minimum, why the information will be of material assistance to the party seeking the evidence, and alternate sources of information are not sufficient to satisfy the defendant’s right to a fair trial” under the U.S. and state constitutions.

The recent experiences of journalists in the state led to the effort to enact the law.

In one case, Sacramento Valley Mirror editor and publisher Tim Crews spent five days in jail after he refused to reveal his confidential sources in a story involving the sale of an allegedly stolen firearm by a state patrol officer. In the story, Crews reported that other officers told him that Dewey Anderson, the former officer, had stolen a handgun and that he was read portions of a written report concerning Anderson. The trial court decided the need of defense attorneys to know the identity of the Crews’ sources outweighed his protection under California’s shield law. The new legislation would have forced the trial judge to make a more complete record, Newton said. In the Crews case, the prosecutor did not subpoena the likely sources of the information, a relatively small group of law enforcement officials, before seeking the information from Crews, Newton said.

Crews also would have had a better opportunity to prepare for court, said Thomas Burke, a partner at the San Francisco office of Davis Wright Tremaine, who represented Crews on appeal.

“The problem in Crews’ situation was the judge acted too quickly without Crews having counsel. When we started representing Crews we were behind the eight ball,” Burke said. “This is the lesson to be drawn from the case: As a reporter you can’t show up to court without counsel.”

In another case, reporter Dan Fost refused to answer a prosecutor’s questions resulting in a contempt order and $5,000 fine. Fost, who at the time worked for the Marin Independent Journal, testified for the defendant, but only to authenticate articles he wrote involving the case and to confirm general journalistic practices. Fost asserted the reporter’s privilege when he was cross-examined on other matters.

The state attorney general argued in a letter brief that Fost’s willingness to answer even simple questions about how he gathered news on the story was sufficient to demonstrate waiver of the privilege. Although this argument was not accepted by the appellate court, the act prevents such an argument from being used successfully.

The new measure was sponsored by Assembly member Carole Migden (D-San Francisco) and was supported by media organizations, including the Society of Professional Journalists and several California newspapers. The law takes effect Jan. 1, 2001.

(AB 1860) DB

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