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Court finds prosecutor’s right to cross-examine can trump reporter’s privilege

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

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

A contempt order and fine against journalist Dan Fost for refusing to answer prosecution questions during cross-examination in a criminal murder trial in California were vacated by the state Court of Appeal in San Francisco in May. But the court noted that when a reporter testifies as a defense witness and refuses to answer other questions on cross-examination by prosecutors, the reporter can be held in contempt.

Fost’s refusal to answer prosecution questions concerning “unpublished information” resulted in a contempt-of-court ruling and a fine of $1000 a day for each day he refused to provide answers.


Reporter Dan Fost was called to testify for the defense in the murder trial of Ronnie Small, a Marin City high school football star. Fost had interviewed witness Shayla Davis for an article for the Marin Independent Journal, where he was working at the time.

Fost quoted Davis as saying that she had seen three or four men break into the home where Small was murdered, and that she had seen Small reach for a gun. When she testified for the prosecution, Davis denied making the statements attributed to her by Fost and instead testified she had seen only one man break into the apartment and had never seen Small reach for a gun. Defense lawyers subpoenaed Fost to testify in order to undermine Davis’ credibility as the prosecution’s lone witness.

Fost agreed to testify for the defense on the condition that his testimony be confined to the authentication of the news articles in question and to his “general journalistic practices.” Darrell Hunter, the defendant, agreed to this condition, but the prosecution did not.

On direct examination by the defense, Fost gave the limited testimony. The issue of particular concern for the defense was showing that Fost only placed a statement in quotations when he was quoting what “somebody had told me in the course of my reporting,” and that the quotation was “as close to verbatim as possible.”

On cross-examination, the prosecution questioned Fost about the circumstances of his interviews with Davis, such as whether or not there were other people present and whether he told her he wanted to hear what she personally saw or heard. Fost refused to answer 13 of the prosecution’s questions, stating that the information the prosecution was requesting was “unpublished information” and therefore protected under California’s shield law. When Fost was ordered by the court to answer the prosecution’s questions or be held in contempt, he refused to answer. Marin County Superior Court Judge John Sutro announced that Fost would be fined $1,000 a day until he answered the prosecutor’s questions, but the order was stayed pending appeal.

On appeal, Fost argued that the contempt order is specifically prohibited by the state shield law. While the state high court has ruled that a criminal defendant’s federal fair trial rights can overcome the reporter’s privilege, it has also specifically ruled that prosecutors have no similar right.

The state countered that if prosecutors don’t have the right to cross-examine a witness, the witness’ testimony cannot be allowed in the trial, and because that testimony was viewed by the defendant as being essential to his case, his fair trial rights would be violated. Therefore, they argued, the defendant’s fair trial rights justify the order compelling Fost to answer the prosecutor’s questions.

The Court of Appeals overturned the contempt-of-court ruling and companion fine against Fost on May 8, but only because the trial court had not properly balanced his constitutional interests against those of the defendant.

The court added that in a case such as this, where a reporter testifies on behalf of the defendant and refuses to answer questions on cross-examination, the reporter can be held in contempt under certain circumstances, despite the protections of the state shield law.

The court explained that the right of any party to cross-examine witnesses is an essential right. When that right is denied, it is proper to strike that witness’ direct testimony. But if striking the testimony of a reporter would deny a criminal defendant his right to a fair trial, that defendant’s interest can then be balanced against a reporter’s interests under the shield law to avoid testifying.

The court acknowledged that this means that when a reporter testifies for a defendant only about published information, but then a prosecutor seeks confidential or unpublished information on cross-examination, the reporter’s privilege can be overcome when the defendant shows he has a sufficient interest in the published information. The defendant could not reasonably be expected to prove an interest in the unpublished information sought by prosecutors, the court said.

While this standard would then allow a prosecutor to compel a reporter to testify about confidential information, the court noted that in this case, the prosecutor had not sought to strike Fost’s direct testimony for Hunter, the defendant, and even with that testimony allowed, Hunter had been convicted of the crime. Therefore, Fost’s refusal to answer the prosecutor’s questions could not have denied Hunter his right to a fair trial and justified an order of contempt, the court held.