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Journalist's contempt order thrown out

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  1. Protecting Sources and Materials

    NMU         CALIFORNIA         Confidentiality/Privilege         May 12, 2000    

Journalist’s contempt order thrown out

  • A journalist will not be compelled to testify at the behest of prosecutors, but an appellate court left open a method for the prosecutor to circumvent the journalist’s privilege.

A California appeals court on May 8 threw out a contempt-of-court order against a reporter who refused to testify about unpublished material in a murder case.

Dan Fost had been ordered to pay $1,000 a day for each day that he refused to answer certain questions about a murder case he wrote about while a reporter for the Marin Independent Journal. Fost is now a media columnist for the San Francisco Chronicle.

Fost was subpoenaed last year by Darrell Hunter to testify for the defense at Hunter’s criminal trial after Fost wrote stories quoting Shayla Davis, a witness in the case. Statements Davis made at trial were inconsistent with statements she made to Fost.

Fost agreed to testify as a defense witness on the condition his testimony would be limited to authentication of the articles and descriptions of his general journalistic practices. On cross examination, Fost refused to answer 13 questions regarding the circumstances of his interview with Davis, citing the California shield law’s protection of unpublished information. The Marin County Superior Court found Fost in contempt in January. The daily fine was stayed pending an appeal to the 1st District Court of Appeal.

Using the analysis from a recent California Supreme Court case, Miller v. Superior Court, the appeals court recognized that a reporter has an absolute privilege in California from being compelled by the prosecution to testify about unpublished information. The defense, however, may be allowed to call a reporter to the stand if threshold showings are made about the defendant’s fair trial rights.

But in its ruling, which appears to give prosecutors a back-door exception to Miller, the appeals court said a defendant jeopardizes his or her right to use the reporter’s direct testimony if a reporter asserts shield law protections under cross-examination. If that happens, the state may move that the direct testimony be stricken unless the defendant can show that the refusal to admit the evidence would deprive the defendant of his constitutional right to a fair trial. “If the defendant makes such showings, the testimony of the witness on direct may be received by the trier of fact and the newsperson may be held in contempt,” the appeals court said.

The appeals court lifted the contempt order because the trial court did not perform the two-step inquiry outlined in the opinion when it imposed the sanction against Fost. The court also said the contempt penalty is supposed to be applied when a reporter’s refusal to answer questions jeopardizes a defendant’s right to due process. But in this case, the court said, the defendant received the testimony he wanted. He was eventually convicted.

(Fost v. Superior Court; Media Counsel: James Brelsford, Menlo Park)

© 2000 The Reporters Committee for Freedom of the Press

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