The United States District Court for the District of Kansas has applied the reporter's privilege to a criminal case. In United States v. Foote, 30 Media L. Rep. 2469, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the defendant was accused of trafficking and attempted trafficking in counterfeit trademark merchandise. The government issued a subpoena to a reporter who had written two articles about the seizing of the alleged counterfeit merchandise, and sales of counterfeit merchandise, in which he quoted or attributed numerous statements to the defendant. Id. at *1. The court stated that "[a]lthough Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence." Id. at *2. Applying the Silkwood balancing test, the Foote Court denied the reporter's motion to quash subpoena. The court found that the reporter "appears to be the only person who can confirm that the statements published were made by Defendant and thus the only source of the information sought[,]" and that the "alleged admissions" made by the Defendant in the published article "are critical to the government's prosecution as they aid in establishing Defendant's knowledge and intent, which are elements that must be proven". Id. at *2-3.
The Eleventh Circuit has “recognize[d] a qualified privilege for journalists,” in criminal proceedings, “allowing them to resist compelled disclosure of their professional news gathering efforts.” United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013) (criminal drug possession trial). Information may only be compelled from a reporter claiming the privilege if the party requesting the information can show: (1) that it is highly relevant, (2) necessary to the proper presentation of the case, and (3) unavailable from other sources. United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (applying privilege in criminal racketeering trial).
The courts in criminal cases employ a fact-sensitive balancing test in evaluating a reporter’s privilege, weighing the effects of disclosure on the reporter’s First Amendment interests against the fair administration of justice, including the criminal defendant’s Fifth and Sixth Amendment rights, and the obligation of all citizens to give relevant testimony with respect to criminal conduct. See In re Request from United Kingdom, 718 F.3d 13, 25 (1st Cir. 2013). Where there is no legitimate expectation of confidentiality as to the information or source, the courts are not inclined to recognize that disclosure can have a chilling effect on First Amendment interests.
Under Federal Rule of Criminal Procedure 17(c), the party moving to obtain the information must demonstrate the need for the evidence, as well as its admissibility. Specifically, the moving party must show that the information sought is: (1) both evidentiary and relevant; (2) not otherwise obtainable reasonably in advance of trial by other means (the moving party must exercise “due diligence” in trying to obtain the information by other means); (3) necessary for the proper preparation for trial, such that failure to obtain the information might unreasonably delay the trial; and (4) required in good faith and not requested as a “general fishing expedition.” United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988) (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)). These requirements have been reduced to the following three hurdles: (1) relevancy, (2) admissibility, and (3) specificity. Id. (quoting Nixon, 418 U.S. at 700).
The same three-part tests that apply in civil cases also apply in criminal cases. See Section III.C.1. Specifically, “in instances where a reporter is not protecting a confidential source or confidential materials, the showing required to overcome the journalist’s privilege is the same in a criminal case as it is in a civil case—namely, the showing required by Gonzales—and that is true whether the party seeking to overcome the privilege is the prosecution or the defense.” U.S. v. Treacy, 639 F.3d 32, 43 (2d Cir. 2011).
In criminal cases where the facts are similar or the same as in Branzburg (i.e., the reporter is a witness to criminal activity), the privilege may not provide protection. United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); In re Ziegler, 550 F. Supp. 530 (W.D.N.Y. 1982) (“one thing is abundantly clear . . . reporters who witness a crime must testify as to what they saw”).
Motions to quash criminal defendants' subpoenas are often granted. United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816 (1983); United States v. Hendron, 820 F. Supp. 715 (E.D.N.Y. 1993); United States v. Aponte-Vega, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992); United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc., 600 F. Supp. 667 (S.D.N.Y. 1985); United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985); United States v. DePalma, 466 F. Supp. 917 (S.D.N.Y. 1979); United States v. Orsini, 424 F. Supp. 229 (E.D.N.Y. 1976), aff'd without opinion, 559 F.2d 1206 (2d Cir.), cert. denied, 434 U.S. 997 (1977).
Courts in the Second Circuit have on several occasions denied motions to quash defendants' subpoenas in criminal cases. See United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); United States v. Sanusi, 813 F. Supp. 149, 160 (E.D.N.Y. 1992) (expressing "reluctan[ce] in  criminal case[s] to substitute its judgment for the defendant's on the question of whether such evidence is 'necessary or critical to a defense'"). At other times, motions to quash may be conscribed. In U.S. v. Treacy, the district court limited direct and cross examination to questions directed toward understanding the context of statements made by a nonconfidential source in a criminal case. See 639 F.3d 32 (2d Cir. 2011). The Second Circuit held that once the requisite showing overcoming the privilege to compel direct testimony has been made, the Sixth Amendment’s confrontation clause precludes the trial court from employing the privilege to restrict cross-examination. U.S. v. Treacy, 639 F.3d 32 (2d Cir. 2011); see also Baker v. Goldman Sachs & Co., 669 F.3d 105, 110 (2d Cir. 2012) (applying this reasoning to the civil context).
While neither the privilege itself nor the reporter's (and thus the public's) First Amendment interests are diminished in criminal cases, the countervailing interests typically are stronger in the criminal context than in the civil. Cuthbertson I, 630 F.2d at 146-48. These countervailing interests include the criminal defendant's rights under the Fifth and Sixth Amendments. Id. at 147; see also Criden, 633 F.2d at 358 (explaining that defendant's rights come from both "the confrontation and compulsory process clauses of the sixth amendment and the due process clause of the fifth amendment"); Parsons, 778 F. Supp. at 218 (courts "may require a stronger showing in civil cases than in criminal cases because the important constitutional rights possessed by criminal defendants present significant countervailing interests weighing against" the newsgatherer).
In United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) the Fourth Circuit directly addressed whether a reporter’s privilege can be asserted in criminal proceedings. In Sterling a former Central Intelligence Agency officer was prosecuted for disclosing classified information, which was published by a journalist in a national newspaper. Id. at 488-490. The government issued a subpoena to compel the journalist’s testimony about his confidential source, the defendant. Id. The district court granted the journalist’s motion to quash the subpoenas based on a reporter’s privilege. Id. In a 2-1 ruling, the Fourth Circuit reversed this decision and determined that reporters are entitled to no special privilege in a criminal proceeding that would allow them to withhold relevant information about criminal conduct without a showing of bad faith or other such improper motive. Id. at 492.
The majority opinion in Sterling is clear and unambiguous:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such nonlegitimate motive, even though the reporter promised confidentiality to his source.
Id. Sterling relies on the Supreme Court’s decision in Branzburg to reject the existence of a reporter’s privilege in a criminal proceeding. Id. at 496. As with the reporters in Branzburg, the journalist in Sterling had direct information concerning the commission of serious crimes. Indeed the journalist had the only first-hand account of the crimes. Id. at 492. However, Sterling appears to leave open a few avenues, as discussed in Branzburg, for reporters to invoke the privilege during a criminal proceeding where the government acts in bad faith. In particular, this could include presenting evidence that (1) the subpoena was issued by the government in bad faith, for purposes of harassment, (2) the subpoena required the journalist to provide information with a “remote” or “tenuous” connection to the investigation and there was reason believe law enforcement had no legitimate need, or (3) the subpoena was an attempt by the authorities to “annex the news media as an investigative arm of the government.” Id. at 498-499.
Sterling also recognized that Fourth Circuit precedent, in Shain, directs the Court to make a clear distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Id. at 498. In In re Shain, 978 F.2d 850, 20 Media L. Rep. 1930 (4th Cir. 1992), a South Carolina senator was indicted for accepting a bribe in violation of federal law. To present evidence of intent, the prosecution subpoenaed four reporters to have them confirm in testimony that the senator had made the false statements they reported. The district court denied the reporters’ motions to quash, and after the reporters asserted privilege at trial, they were held in contempt and ordered to be confined for the two days of the trial. Id. at 852.
In Shain the Fourth Circuit affirmed the denial of the motions to quash, finding that absent evidence of confidentiality or governmental harassment, reporters may not assert a First Amendment privilege. Id. at 853. As Sterling recognized, Shain did not extend the LaRouche factors to criminal proceedings and followed Branzburg to hold that “absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution.” Sterling, 724 F.3d at 497. On one point, at least, Sterling’s reliance on Shain may be qualified by Shain’s questionable interpretation of Steelhammer as stating that “only when evidence of harassment is presented do we balance the interests involved.” Id. at 498. (Steelhammer actually stated: “In the balancing of interests the absence of a claim of confidentiality and the lack of evidence of vindictiveness tip the scale to the conclusion that the district court was correct in requiring the reporters to testify.” 539 F.2d at 376.)
The Fifth Circuit's treatment of criminal cases -- both grand jury proceedings and criminal trials -- differs from its treatment of civil cases. According to the Fifth Circuit's reading of Branzburg v. Hayes, 408 U.S. 665 (1972), there is no qualified First Amendment privilege available in criminal cases involving non-confidential sources and materials, except in so much as the press is entitled to remain free from governmental harassment, as when the grand jury does not conduct its investigation in good faith. United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998).
In Smith, the Fifth Circuit opined that the interests raised in the grand jury proceeding at issue in Branzburg were not meaningfully different than those in the criminal trial context in Smith. Id. at 971. Rather, the public's interest in prosecuting criminals was the same in both instances. Id. Thus, except where the government acts to harass the press, no privilege under Branzburg exists against producing the identity of non-confidential sources or non-confidential work product in the criminal context. Id.
The prosecution in Smith subpoenaed an unaired, non-confidential videotape recording of an interview of the defendant by a local television station. Id. at 966. The Smith court distinguished Miller, which had recognized a qualified privilege in civil libel cases, asserting that the public interest in obtaining the information is weaker in civil cases than in the criminal context. Id. at 971-72. Thus, no qualified privilege applied in the criminal context for non-confidential information, and the government did not need to meet any special First Amendment balancing test. Instead, absent the qualified privilege, the government merely needed to identify the information it sought with sufficient specificity and show that it was relevant and admissible -- that is, the general test for the sufficiency of any subpoena. Id. at 972. It is worth noting, however, that the panel in Smith did not specifically consider whether the identity of a confidential source or information obtained from such a source also lacks the protection of a First Amendment qualified privilege.
In addition, although Smith recognized that a defendant may possess a Sixth Amendment right to non-confidential work product, because the defendant in Smith had not joined the government's appeal, the court did not reach that issue. Smith, 135 F.3d at 970 n.3. A district court, however, has limited a criminal defendant's ability to invoke his Sixth Amendment right to compulsory process against reporters. Campbell v. Klevenhagen, 760 F. Supp. 1206, 1214-16 (S.D. Tex. 1991). The defendant sought to compel two reporters to observe the trial and identify any confidential sources they recognized in the courtroom, who then might provide the defendant with impeachment information. Id. The court stated that the defendant's right to compulsory process could only compel testimony in front of the trier of fact (citing Taylor v. Illinois, 108 S. Ct. 646, 652 (1988)). Id. at 1214. The court also upheld the privilege under the test from Miller because the reporters had no material exculpatory evidence to offer, could not identify their sources, and had indicated that the defense had access to other exculpatory testimony. Id. at 1215-16. Note that, while Campbell compelled criminal defendants under Miller to show that the testimony they seek is material and favorable to their defense, id. at 1214, it remains unclear to what extent the Fifth Circuit will apply Miller's balancing test to criminal cases in the wake of Smith.
In civil contexts, federal courts within the Sixth Circuit have applied the First Amendment to bar compelled disclosure of a newspaper's confidential sources. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
In the context of a grand jury investigation of a homicide, the Sixth Circuit refused to overturn a contempt conviction of a television reporter who refused to comply with a grand jury subpoena for video outtakes showing the likenesses of potential suspects who expected anonymity when the journalist taped them. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).
If the First Amendment bars enforcement of subpoenas against the press in the context of criminal litigation or investigations, the federal courts have given no indication as to whether it would apply to information that might lead to the identity of a confidential source, whether it would apply only to the information that actually identifies a confidential source, or whether it would apply at all. In Grand Jury Proceedings, the Sixth Circuit opined that there is no special First Amendment protection from grand jury subpoenas, but that opinion is likely nonbinding dicta. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); see NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).
In the civil context, federal courts have applied the First Amendment to bar compelled disclosure of the actual identities of confidential sources, but have not addressed whether the First Amendment would bar compelled disclosure of information likely to lead to the identity of a confidential source. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996).
The balancing test announced in McKevitt applies in criminal cases. See United States v. Hale, No. 03 CR 11, 2004 WL 1123796 (N.D. Ind. April 14, 2004). See also United States v. Lloyd, 71 F.3d 1256, 1262, 1269 (7th Cir. 1995) (upholding trial court's decision to quash defendant's trial subpoena of a Chicago Tribune reporter); United States v. Bingham, 765 F. Supp. 954, 956 (N.D. Ill. 1991) (upholding NBC's motion to quash subpoena for video outtakes but ordering NBC to produce transcripts of the outtakes); United States v. Lopez, No. 86 CR 513, 1987 WL 26051, at *1 (N.D. Ill. Nov. 30, 1987) (applying qualified reporters' privilege in criminal case and granting NBC's motion to quash).
In Bingham, the defendant sought from NBC outtakes from a videotaped interview of a key government witness. While NBC agreed to produce those portions of the tape that were previously broadcast, it refused to produce the outtakes. In balancing the parties' interests, the court considered the defendant's important Fifth Amendment right to a fair trial and his Sixth Amendment rights to compulsory process and effective confrontation of adverse witnesses. Bingham, 765 F. Supp. at 958. The court adopted a balancing approach used by other circuits in criminal cases. The court said that "[t]he rights of the party seeking disclosure override the reporters' First Amendment interests only upon a clear and specific showing that the information is highly relevant and material, necessary to the maintenance of a claim, and not obtainable from other available sources." The court held that the information was "highly relevant" and even "critical to the maintenance of the defense." Id. at 958-959. One issue not addressed by the court was whether either party had asked the court to make a transcript of the tapes. It appears the court turned the transcripts over to the defense sua sponte in an attempt to reach a middle ground. This should provide a note of caution to reporters producing videotapes for in camera inspection.
Subpoenas are more likely to be enforced in criminal cases. In Farr, after explaining that “[t]he application of the Branzburg holding to non-grand jury cases seems to require that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest,” the court ultimately held that in the criminal case before it, protecting the court’s ability to ensure the defendants’ due process outweighed the First Amendment interest. 522 F.2d at 468-69. In a different case, a district court explained that “[c]ourts have emphasized that the public interest in protecting journalists’ confidential sources is even stronger in civil cases than it is in criminal cases,” but also noted that Congress had recently enacted the Privacy Protection Act of 1980, “protecting journalists’ work product and, to a lesser extent, non-work product documentary materials, against seizure by the government for use in criminal cases.” L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 493 (C.D. Cal. 1981)
There is no statutory or reported case law in Alabama that addresses the issue of whether the reporter's privilege is applied differently in criminal cases than in civil cases, but a federal court sitting in the state has cited the principal that, in criminal cases, the courts are more inclined to rule in favor of disclosure. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987).
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, but anecdotal experience in the trial courts to date does not indicate that courts are less willing to quash subpoenas in criminal cases than in civil cases. There is no indication that the courts give special consideration to prosecutor's subpoenas. Nor does it appear that courts are unwilling to quash subpoenas from criminal defendants out of concern for Sixth Amendment rights. In two illustrative cases, trial courts quashed subpoenas issued to news reporters by top criminal defense attorneys in the state. See State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984), aff'd. Pruett v. State, MO&J No 1474 (Alaska App., September 2, 1987)[N.B. Alaska court rules generally do not allow reliance on MO&Js]; State v. Tetlow, Case No. 3AN-S01-3356 Cr. (Alas. Super. Ct., 3d Jud. Dist., 2001); see also, State v. Harry Neil Kelly (Alas. Super. Ct., 3d Jud. Dist., 1978).
Pruett was a felony assault trial of a 49-year-old woman who had befriended and then victimized and beat a 70-year-old woman who had been taken in to live with her family as a housekeeper. The Anchorage Daily News, through the author, moved to quash a defense subpoena to its reporter, Larry Campbell, who had written news articles based on interviews he conducted with the defendant. Defense counsel had successfully argued an important Sixth Amendment Confrontation Clause case before the United States Supreme Court, Davis v. Alaska, 15 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). He argued to the trial court in Pruett that in the context of a criminal prosecution, any reporter's privilege must yield to the constitutional right to cross-examine without restriction based upon the Confrontation Clause. The author, as counsel for the newspaper, argued in response that in Davis v. Alaska the Confrontation Clause was balanced against a statutory prohibition against allowing juveniles to testify, whereas in the Pruett case, the Confrontation Clause was being balanced against a reporter's privilege that also derived from the Constitution—and specifically the First Amendment—not simply from a statute. The trial court agreed and quashed the subpoena. Pruett was convicted, and filed an appeal on numerous points. The Court of Appeals held that the trial court did not err in quashing the subpoenas, and specifically held that the testimony sought would have been collateral, in some instances was an improper attempt to impeach by extrinsic evidence, and was not critical to ("hardly constituted the 'lynch pin' of) the case. See MO&J at 17.
The reporter's shield statute in Arkansas had its genesis in popularly initiated criminal-law reform in the hope that increased protection for reporters' confidential sources would foster a climate of increased investigative reporting into crime and shine a light on public officials or private organizations that might turn a blind eye to these crimes. There are no appellate court cases, however, in which the statute was at issue in the criminal context.
The California Supreme Court has held that the reporter’s privilege must be balanced against a criminal defendant’s right to a fair trial. Delaney v. Superior Court, 50 Cal. 3d 785, 800, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). Before a court may compel disclosure, the criminal defendant must show, as a threshold matter, that there is “a reasonable possibility that the information will materially assist his defense.” Id. at 807-13. This can sometimes be a difficult showing for a criminal defendant to make. See, e.g., People v. Ramos, 34 Cal. 4th 494, 525-26, 101 P.3d 478, 21 Cal. Rptr. 3d 575 (2004) (criminal defendant failed to satisfy threshold showing); People v. Sanchez, 12 Cal. 4th 1, 56-58, 906 P.2d 1129, 47 Cal. Rptr. 2d 843 (1995) (same); People v. Vasco, 131 Cal. App. 4th 137, 153-56, 31 Cal. Rptr. 3d 643 (2005) (same); People v. Von Villas, 10 Cal. App. 4th 201, 232-33, 13 Cal. Rptr. 2d 62 (1992) (same); accord People v. Sapp, 31 Cal. 4th 240, 275, 73 P.3d 433, 2 Cal. Rptr. 3d 554 (2003) (trial court did not commit reversible error in refusing to order disclosure of notes to defendant, although the test the trial court applied was subsequently disapproved by the Supreme Court, because defendant failed to produce evidence of the only possible theory of relevance). If the defendant satisfies this threshold showing, the court then must apply a balancing test, weighing the following factors:
(1) Whether the information sought is confidential or sensitive;
(2) The interests protected by the reporter’s privilege law;
(3) The importance of the information to the defendant; and,
(4) Whether alternative sources for the information exist.
Delaney, 50 Cal. 3d at 809-11; see also People v. Charles, 61 Cal. 4th 308, 325-26, 349 P.3d 990, 188 Cal. Rptr. 3d 282 (2015) (trial court order sustaining reporter’s objection was “clearly attuned to its obligation to weigh the competing interests” because it referenced the Delaney factors in overruling reporter’s earlier objection). The court may compel the reporter to disclose the sought-after information if the balance favors the criminal defendant. However, as one federal court noted, the failure to compel disclosure is reversible error only if it affected the jury’s verdict. See Shine v. Cambra, 1999 WL 252475, *9, 1999 U.S. Dist. LEXIS 5983 (N.D. Cal. 1999).
Conversely, the California Supreme Court has held that the prosecution has no right sufficient to overcome the reporter’s privilege:
Nor may we convert an absolute into a qualified immunity merely because it is in accord with a particular conception of the proper balance between journalists’ rights and prosecutor’s prerogatives. Thus, the absoluteness of the immunity embodied in the shield law only yields to a conflicting federal or, perhaps, state constitutional right. As explained, there is no such conflicting right presented in this case.
Miller v. Superior Court, 21 Cal. 4th 883, 901, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999). As a result, reporters have a virtually absolute immunity from testifying pursuant to a prosecution subpoena.
In addition, even if a criminal defendant subpoenas a reporter to testify only about published information, the defendant might nonetheless be required to satisfy the Delaney test if the prosecution’s cross-examination would elicit unpublished information. See Fost v. Superior Court, 80 Cal. App. 4th 724, 732-33, 95 Cal. Rptr. 2d 620 (2000). The court reasoned that admitting the reporter’s testimony about published information but not about unpublished information could deprive the prosecution of its right to cross-examine the reporter. Id. Consequently, the reporter’s testimony regarding published information will “be barred or stricken” if the defendant cannot meet the Delaney test for disclosing unpublished information that is necessary for full cross-examination. Id.
However, the reporter’s testimony about published material may not always be barred or stricken simply because the Delaney test cannot be overcome. In Vasco, defendant argued that the reporter’s testimony on published information, introduced by the prosecution, should have been stricken because defendant could not meet the Delaney threshold test. 131 Cal. App. 4th at 158. The court distinguished Fost, where the prosecution successfully prevented the defendant from relying on published information, on the ground that the prosecution was not permitted to obtain unpublished information from the reporter even if it was material to the prosecution. Instead, in the underlying case, the court noted that the defendant – who was seeking unpublished information in response to the prosecution’s use of published information – was unable to meet his burden of proof under the Delaney test. Thus, analyzing “how Delaney and Miller affect the respective parties’ rights and interests,” the court rejected defendant’s reliance on Fost, reasoning that “if defendant fails to show a reasonable possibility the undisclosed information will materially assist the defense, it follows that defendant has no right to elicit unpublished information on cross-examination and therefore does not suffer prejudice in the same manner as the prosecution when it is denied cross-examination on issues crucial to its case.” Id. at 158-59. In other words, if the unpublished information was of material assistance, defendant would have been able to overcome the Delaney test. However, because the unpublished information was not of material assistance to the defense, the defendant was not prejudiced by the court’s refusal to permit testimony regarding the unpublished information or to strike the reporter’s testimony regarding the published information. The court noted that other interests, such as defendant’s right to test the credibility of a witness, may justify striking that witness’s testimony. However, because “any conceivable error was harmless beyond a reasonable doubt” the court did not address the issue there.
The privilege was intended to apply to all criminal judicial proceedings, including criminal investigations, discovery procedures, hearings or trials. C.R.S. § 13-90-119(1)(e). Since its enactment, courts have applied the same balancing of interest test irrespective of whether it is a criminal or civil case. For example, the privilege has been applied in criminal cases to provide immunity from testimony for a newsperson who piloted a helicopter in which police officers observed illegal drug activity. Henderson v. People, 879 P.2d 383 (Colo, 1994). In that case, the helicopter pilot did not have to testify because the criminal defendant failed to show that he "could not obtain the evidence requested from some other reasonable means." Id. at 393.
The proof required to overcome the privilege is equally strict for both civil and criminal cases, but the standard is described differently. In a criminal case, in addition to the other prerequisites to overcoming the privilege, a party seeking to compel disclosure of protected information or source identities must show that "there are reasonable grounds to believe that a crime has occurred" and that "the information or the identity of the source of such information is critical or necessary to the investigation or prosecution of a crime or to a defense thereto." In a civil case, the party seeking disclosure must show that "there are reasonable grounds to sustain a cause of action," and that the information or source identity is "critical or necessary . . . to the maintenance of a party's claim, defense or proof of an issue material thereto."
No state court case discusses any difference based on whether the case is civil or criminal. Seahawk, supra, at 271 implies an easier standard for requiring disclosure in criminal cases.
D.C. Circuit case law recognizes the reporter’s privilege in criminal proceedings outside the grand jury context unless the party seeking the information shows a compelling need for the information. E.g., United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) (affirming district court’s granting of reporters’ motion to quash where subpoena would have required reporters to reveal sources, on the basis that such testimony was irrelevant); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena from criminal defendant to reporter on ground of “newsman’s privilege” where alternate means of obtaining the requested information existed and “the testimony of the reporter would be far less than necessary to a fair resolution of this case”). A more recent opinion, however, calls into question the application of the privilege in the criminal context. United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) (declining to recognize a First Amendment privilege at trial stage of criminal prosecution).
To the extent that the proceeding determines the rights of parties, the privilege applies. § 4320 (1). Case law also demonstrates Delaware's commitment to the strength of the qualified privilege in a criminal setting.
When the State pursues information from a reporter by subpoena in order to prosecute a defendant, the test requires the court to balance four factors:
(1) the importance of the issue on which the information is relevant;
(2) the State's efforts to acquire the information from alternative sources;
(3) the circumstances under which the reporter obtained the information; and
(4) the likely effect that disclosure of the information will have on the future flow of information to the public.
State v. Rogers, 820 A.2d 1171, 1180-82 (Del. Super. 2003). See also Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super.1994). Cases also cite United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) (holding that the Riley test applies both to civil and criminal contexts).
When a defendant in a criminal case pursues information from a reporter by subpoena, a modified version of the test applies. In order to sustain a subpoena and obtain a reporter's materials or testimony, the party seeking the information must clearly and specifically demonstrate that the information sought:
(1) is relevant and material to the defense;
(2) is unavailable from other sources;
(3) has been unsuccessfully sought from other sources; and
(4) that nonproduction would violate a substantial right of the defendant.
State v. McBride, Nos. IK-80-5-0058, IK-80-5-0059 and IK-80-06-0227, Wright, J. (Del. Super. May 6, 1981), affirmed on other grounds, 477 A.2d 174 (Del. 1984) (adopting the Third Circuit's test in United States v. Criden, 633 F.2d 346 (3d Cir. 1980)).
It should be noted that the test presents a lowered standard that accounts for a defendant's Sixth Amendment rights to compel witnesses to his defense. See U.S. Const. amend.VI. The first component, rather than "critical to the claim," is merely "relevant and material" to the claim. The final component more explicitly addresses the Sixth Amendment concerns. Effectively, the test implements the balancing test required under 10 Del. C. § 4323 and shifts the burden of proof to the party opposing the subpoena to demonstrate that retaining the privileged status of the information will not jeopardize the defense. Stated differently, the reporter should demonstrate that withholding the information would not impinge upon the defendant's Sixth Amendment rights.
Notwithstanding the lower standard when a defendant subpoenas the reporter, no cases have successfully challenged a claim of privilege. In McBride, the court quashed a subpoena because, on the record, the defendant could not justifiably believe that letters she had sent to a reporter contained information relevant or material to her defense. State v. McBride, Slip op. at 1. In State v. Hall, the court quashed a subpoena where other witnesses could provide similar information as the subpoenaed reporter. State v. Hall, 16 Med. L. Rptr. 1414 (Del. Super/ March 8, 1989).
District of Columbia
The District’s shield law, and the cases decided under it, make no distinction between civil and criminal cases. In pre-shield law precedent, the District recognized the privilege in criminal cases as well as civil. For example, in Payne v. United States, 516 A.2d 484 (D.C. 1986), a criminal defendant argued that a witness’s identification of him was unreliable and that he needed the impeachment testimony of a Washington Post reporter who covered the police investigation. The D.C. Court of Appeals affirmed the quashing of a subpoena to that reporter on the grounds that his testimony was not necessary and thus was irrelevant to the reliability of the identification.
The qualified reporter's privilege applies equally in civil and criminal proceedings. See State v. Davis, 720 So. 2d 220 (Fla. 1998); Kidwell v. State, 730 So. 2d 670 (Fla. 1998). Both Davis and Kidwell were decided after the statutory privilege was enacted but are based upon the common law privilege.
Although the same three-part test applies for overcoming the reporter's privilege in a criminal case as it does in a civil case, a criminal defendant's constitutional rights to due process and compulsory process must be considered in determining whether a compelling need exists in favor of disclosure. See Davis, 720 So. 2d at 227. Further, to the extent that the privilege does not apply to evidence of crimes, the privilege affords greater protection to journalists who are subpoenaed to testify or provide information in civil cases rather than criminal cases. See id.
The privilege applies in criminal proceedings. See, e.g., O.C.G.A. § 24-5-508 (privilege applies "in any proceeding where the one asserting the privilege is not a party"); In re Paul, 270 Ga. 680, 684 (1999).
Georgia courts have repeatedly enforced the privilege in the face of claims by criminal defendants that the privilege infringed their Sixth Amendment rights. See, e.g., Stripling v. State, 261 Ga. 1, 8-9 (1991) (affirming trial court's refusal to require a newspaper reporter to reveal sources in a death penalty case, noting that alternative sources existed to pursue allegations of illegal conduct by sheriff's department); Nobles v. State, 201 Ga. App. 483, 486-87 (1991) (affirming quashing of subpoena issued to reporter covering murder trial: "it has [not] been shown that the disclosure of the source of this erroneous information was in any way material or relevant or necessary").
Georgia courts have also enforced the privilege where the state sought to compel information. See, e.g., In re Paul, 270 Ga. at 685-86 ("the appeal presents a conflict between the public's right to evidence at a criminal trial and its competing right to the unencumbered flow of information through the news media").
There is no direct indication in the Idaho case law that an effort to compel testimony or other disclosure of information from a reporter will be treated differently in a criminal case than in a civil case. In the Wright case, which stemmed from a criminal prosecution, the Idaho Supreme Court emphasized that the adoption of the Branzburg test “will not adversely affect a criminal or civil trial or even a grand jury process.” Wright, 108 Idaho at 423, 700 P.2d at 45. However, in the most recent decision of the court in Salsbury, the court refused to apply the reporter's privilege in a misdemeanor criminal case, even though the facts indicated that there were obvious alternative sources, other than the television station's videotape, for the information sought by the prosecutor.
Illinois federal and state courts appear to treat criminal cases the same as civil cases. See United States v. Lopez, 14 Media L. Rep. 2204, 1987 WL 26051 (N.D. Ill. 1987) (‘rejecting argument that a reporter’s qualified privilege does not apply in criminal cases) (citing United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (“the important social interests in the free flow of information that are protected by the reporter’s qualified privilege are particularly compelling in criminal cases, since reporters are to be encouraged to investigate and expose evidence of criminal wrongdoing”)); see also People v. Childers, 94 Ill. App. 3d 104, 41 N.E.2d 959 (1981) (affirming trial court’s denial of criminal defendant’s application for the news reporter’s disclosure); Illinois v. Johnson, 11 Media L. Rep. 1101 (Ill. Cir. Ct. 1984) (quashing a criminal defendant’s subpoena for materials and information relating to a WBBM broadcast).
In criminal cases, like civil cases, the court is charged with balancing the social interest in the disclosure of the information against the public interest in the freedom of the press. In weighing these competing interests, one Illinois court considered the defendant’s rights under the Fifth and Sixth Amendments as elements that counterbalance the reporter’s First Amendment interest. United States v. Bingham, 765 F. Supp. 954 (N.D. Ill. 1991) (granting a broadcast company’s motion to quash but ordering the company to turn over to defendant the transcripts of the outtakes in order to protect defendant’s rights under the Fifth and Sixth Amendments). Some Illinois courts have looked to other jurisdictions that have quashed a subpoena based on the defendant’s Sixth Amendment trial rights to ensure that they interpret the privilege correctly. See, e.g., People v. Pawlaczyk, 189 Ill. 2d 177, 195, 724 N.E.2d 901, 912 (2000) (citing Brown v. Commonwealth, 214 Va. 755, 758, 204 S.E.2d 429, 431 (1974)).
Indiana’s shield law applies in “any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. It is important to note, however, that the shield law applies only to state matters. Nonetheless, in a conflict of law, the shield law may still apply where state law governs the merits of the case. See Fed. R. Evid. 501(“state law governs privilege regarding a claim or defense for which state law provides the rules of decision”). See also Executive Management Servs. Inc. v. Fifth Third Bank, 309 F.R.D. 455 (S.D. Ind. 2015).
There is no other source of privilege in a criminal case. The Indiana Supreme Court has rejected the notion that a qualified privilege exists under either the U.S. or state constitution in criminal cases. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).
Thus, under current case law, it is likely that only the identity of a reporter’s confidential source is protected in a criminal case involving state matters.
The reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and has exhausted other means of attaining said information. Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute); Lamberto, 326 N.W.2d at 308 (setting forth the test for rebuttal of the reporter's privilege presumption). However, in criminal cases, the requesting party's need for the information does not have to be as compelling to overcome the reporter's privilege presumption. Denk, 20 Med. L. Rptr. at 1455 (three justice panel held the burden to overcome reporter's privilege may be lower in criminal cases than civil cases but failed to analyze the reason behind such a distinction). In criminal cases, just as in civil suits, the court must make specific written findings "(1) that the reporter has presumptive status, (2) that the party seeking access to the evidence has established the necessity for it, and (3) that the evidence is not available from other sources." Id. Once the court “finds a threshold showing of compelling need for subordination of the privilege, the court must conduct an in-camera inspection to determine if the evidence and would probably be admissible at trial. Id.
In Smith, the Fifth Circuit held that the reporter's privilege, at least with regards to non-confidential information, is inapplicable in criminal cases. Id. at 972. The court distinguished Miller because of the public's greater interest in criminal proceedings and the non-confidential nature of the subpoenaed interview. Id. at 972.
Applying federal and state constitutional law, the Louisiana Supreme Court created an exemption from the reporter's privilege if the reporter witnesses criminal activity or has physical evidence of a crime. Ridenhour, 520 So.2d at 376.
The protection of the privilege is not dependent on whether the reporter has been subpoenaed in a civil or criminal case. Either way, application of the privilege depends on a balancing of the interests. For criminal cases in which the privilege has been discussed, see, e.g., Commonwealth v. Bui, 645 N.E.2d 689 (Mass. 1995); Commonwealth v. Corsetti, 438 N.E.2d 805 (Mass. 1982); Massachusetts v. McDonald, 6 Med. L. Rep. 2230 (Mass. Super. Ct. Nov. 12, 1980).
In the criminal setting Court's are very sensitive to the Defendant's rights under the Sixth Amendment to a fair trial. On the other hand most judges require a high degree of materiality before burdening the press.
In addition, the Michigan Courts have held that in People v. Pastor (In re March 1999 Riots) (2000) 463 Mich 378, 617 NW2d 310, that the Michigan Court Rule on subpoenas, MCR 2.506, is not applicable in criminal cases. Criminal discovery is governed by a different Court rule, 6.201 that does not provide for subpoenas on reporters and prohibits discovery of information protected by privilege. The Court rebuffed attempts of the County Prosecutor to obtain unpublished photographs taken by photographers from the Lansing State Journal during the riots following a college championship basketball game. The Prosecutor first tried to subpoena the unpublished photographs under the general court rule in its prosecution of Mr. Pastor. The Supreme Court held that the general rule on subpoenas was only applicable to civil cases and criminal trials and was not applicable to discovery in criminal cases.
The prosecutor then sought an investigatory subpoena under MCL 767A.1. But that statute has a specific exclusion for the media as discussed above. The Prosecutor nonetheless sought to avoid the privilege. The Supreme Court held that where the media representatives had obtained the photographs in the gathering of news, had not distributed this particular material to the public and the reporters were not the subject of the inquiry, the statute prohibited the prosecutor from obtaining an investigatory subpoena. The language of the statute clearly created an absolute privilege against subpoenas on reporters so long as the material was unpublished and the reporter was not the subject of the inquiry.
That said, when a subpoena is received for materials or testimony to be presented at a criminal trial, as opposed to investigation or discovery, the analysis returns to the Branzburg principles.
The trial court orders from criminal matters apply the same qualified privilege analysis used in civil cases. State v. Byron de la Beckwith, Hinds County Circuit Court, No. 90-3-495CR H (July 28, 1993); State v. Hand, Tallahatchie County Circuit Court, No. CR89-49-C (T-2) (July 31, 1990); State v. Young, Hinds County Circuit Court Crim. No. 825 (Mar. 16, 1988).
On its face, the law does not treat subpoenas differently depending on whether they are for civil or criminal cases. In practice, many criminal case subpoenas are likely to be issues under § 46-4-301, MCA, which gives authority to prosecutors to request investigative subpoenas. Such a subpoena must be quashed under § 46-4-303, MCA.
It does not appear that any written opinions have been published in criminal cases concerning application of the press shield law. As noted above, in Diaz v. Eighth Judicial District Court, the Nevada Supreme Court stated there may be certain situations where “the news shield statute may have to yield so that justice may be served,” such as where a defendant’s countervailing constitutional rights may be at issue. 116 Nev. 88, 101, 893 P.2d 50, 59 (2000). A subpoena issued by the prosecution, however, would still be protected by the news shield statute and should be quashed because the State does not have any constitutional rights which would defeat application of the statute.
The qualified privilege applies in criminal cases, however, "because the individual citizen's civil rights must be also protected, 'a news reporter's privilege is more tenuous in a criminal proceeding than in a civil case.'" State v. Siel, 122 N.H. 254, 259 (1982).
In State v. Gibson, 170 N.H. 316 (2017), the Court declined to apply the privilege where the State, not the defendant, sought to the reporter’s testimony at trial. All the information the State sought had been published by the reporter. The Court stated there is no newsgathering privilege where the reporter “refuse[s] to testify in a criminal trial about non-confidential, published information obtained from identified sources.” 170 N. H. at 322.
In criminal proceedings the privilege is not absolute, it may be pierced by a criminal defendant upon a showing that "by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source." Even after the defendant makes such a showing the court is required to review the materials or potential testimony in camera to determine the admissibility. Only if the court also finds the materials and/or testimony will be admissible will it order the materials produced or the reporter to testify. In re Myron Farber, 78 N.J. 259 (1978); State v. Bolardo, 82 N.J. 446 (1980).
A prosecutor may not pierce the privilege, unless the reporter was an "eyewitness to, or participant in, any act involving physical violence or property damage" or the reporter concealed from the source the fact that he or she was a reporter. N.J.S.A. 2A:84A–21a(h). The New Jersey Supreme Court has held that a reporter who arrives at the scene of a fire while the fire is ongoing is not an eyewitness to property damage. Matter of Woodhaven Lumber and Millwork, 123 NJ 481 (1991).
The New York Shield Law, on its face, applies to criminal cases. Civil Rights Law § 79-h(b), (c). See Beach v. Shanley, 62 N.Y.2d at 245 ("as the statute is framed, the protection is afforded notwithstanding that the information concerns criminal activity"). In a case where the information is confidential, a criminal defendant or prosecutor cannot breach the absolute privilege of the Shield Law. See, e.g., Id. at 252 ("no matter how heinous the crime under investigation, the courts are not free to ignore the mandate of the Legislature and substitute a policy of their own" (internal citations omitted)); People v Royster, No. 5225/96, 26 Media L. Rep. 1893 (Sup. Ct. N.Y. County, Dec. 8, 1997) (unpublished) (applying absolute privilege to quash subpoena by defendant seeking all notes on interviews with police and District Attorneys' offices; defendant failed to show overriding constitutional interest); People v. Royster, 43 A.D.3d 758, 760, 842 N.Y.S.2d 12, 14 (2007) (“Defendant was not prejudiced by the court's order, made pursuant to the news media Shield Law (Civil Rights Law § 79–h), which quashed a subpoena.”)
Where the qualified privilege for nonconfidential information is at issue, a criminal defendant or prosecutor must satisfy the same three-pronged test applied to civil litigants. For example, in In re Ayala, 162 Misc. 2d 108, 616 N.Y.S.2d 575 (Sup. Ct. Queens County 1994), the court granted the motion to quash a subpoena for outtakes of interview with arresting officer on grounds that defendant did not demonstrate that the outtakes were "critical" or "necessary" to the defense. The court further rejected the defendant's demand for disclosure on Sixth Amendment grounds as a "self-motivated, but understandable, grasp for favorable evidence." Id. at 116. In Application of CBS, 232 A.D.2d 291, 648 N.Y.S.2d 443 (1st Dep't 1996), the court rejected plaintiff's argument that it was entitled to nonconfidential outtakes of CBS's undercover investigation of a pharmacist because of the quasi-criminal nature of the investigation, and held that the Shield Law applies to both civil and criminal proceedings. See, e.g., NBC v. People, 238 A.D.2d 618, 657 N.Y.S.2d 970 (2d Dep't 1997) (ordering in camera inspection of outtakes of interview with murder defendant after three-part test satisfied); People v. Griffin, 1992 WL 474518, 21 Med. L. Rptr. 1030 (Sup. Ct. N.Y. County 1992); People v. Cheche 151 Misc.2d 15, 571 N.Y.S.2d 992 (1991) (compelling testimony from reporters concerning nonconfidential interviews with criminal defendant only after three-pronged test was satisfied).
Later decisions, however, indicate that courts hearing criminal actions may be more willing to find that the qualified privilege has been overcome where it is a criminal defendant seeking the information and the privilege is in conflict with the defendant's Sixth Amendment right to a fair trial. For example, in People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005), the Court of Appeals held that a criminal defendant satisfied the 3-part test necessary to compel the production of video recordings of his police interrogation and confession that had been recorded by a documentary film company. Indicted for murder and related charges, defendant alleged that his confession was the product of police coercion and sought from the film production company, by way of subpoena, the video footage of his confession, which he intended to introduce at trial. The court, reasoning that § 79-h does not trump a criminal defendant's fair trial rights, found that the unbroadcast footage was "critical or necessary" to defendant's case and was not obtainable from another source. The Court also noted that it was concerned with the "troubling practice of the police partnering with the media" -- suggesting that § 79-h may lose some of its protective force when the media becomes closely involved in law enforcement activities, such as pre-custodial interrogations. Similarly, in Matter of Sullivan, 167 Misc. 2d 534, 540, 635 N.Y.S.2d 437, 441 (Sup. Ct. Queens County 1995), the court denied a motion to quash a subpoena, finding that the defendant had made the clear and specific showing required by Civil Rights Law § 79-h (c). The court noted that the defendant's Sixth Amendment right to confront witnesses against him was at issue, and the reporter had chosen to be a participant in, rather than an observer of, the story (in this case by recording an interrogation). The reporter's participation, itself an "abuse of the criminal justice system [which] may encroach on the defendant's right to a fair trial,"served to lessen the protection that might otherwise preclude disclosing the subpoenaed information. Id. Likewise, in US v. Sanusi, 813 F. Supp. 149 (E.D.N.Y. 1992), a federal court, discussing the state Shield Law but applying federal law, found that newsgathering privilege was qualified by the defendant's constitutional right to fair trial and was weakened by the fact that the network trespassed on the defendant's property to film a lawful search and engaged in conduct contrary to Fourth Amendment principles. See In re Grand Jury Subpoenas to NBC, 178 Misc. 2d 1052, 683 N.Y.S.2d 708 (1998); People v. Craver, 150 Misc.2d 631, 633, 569 N.Y.S.2d 859, 860 (County Ct. Albany County 1990) (holding that testimony was unavailable elsewhere, even though the defendant had made similar statements to police and in a letter to victims' families and stating that the "value of the testimony sought outweighs the constitutionally-based privilege against disclosure.").
In People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (Sup. Ct. 2006), the trial court granted motions to quash subpoenas by a television network and documentary production company under the shield law. The court held that the criminal defendants did not have a right under the Sixth Amendment's Compulsory Process Clause to compel the network to produce outtakes from a television program about the charged offenses or to compel the documentary production company to produce materials pertaining to an interview conducted with the complainant, to use as possible impeachment evidence. The court explained that to establish a compulsory process violation, the defendant must show that the government prevented him from producing relevant, material, and vital evidence.
However, in In re Daily News, L.P., 31 Misc. 3d 319, 920 N.Y.S.2d 865 (Sup. Ct. 2011), the trial court held that even though the identity of a confidential source was absolutely protected from disclosure by New York’s Press Shield Law, the defendant’s rights to confront witnesses and present a defense under the Sixth Amendment Confrontation Clause and Fourteenth Amendment Due Process Clause trumped the statutory and constitutional privileges afforded the newspaper. The court explained:
The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant's claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential. Notably, that test is consistent with the rule announced in O'Neill defining press protections under the New York constitution. And of course the test is the one applicable under the Press Shield Law when any party in any case, civil or criminal, seeks non-confidential press information. Constitutional requirements dictate that this standard be applied as well when a defendant in a criminal case seeks confidential information, even though in that circumstance the Press Shield Law would absolutely bar a subpoena.
Id. at 324 (emphasis in original).
This apparent trend in allowing disclosure in cases where a criminal defendant's right to a fair trial is at stake can also be seen in New York federal court decisions. Previously, the Second Circuit Court of Appeals had held that there was "no legally-principled reason for drawing a distinction between civil and criminal cases" with respect to the reporters privilege, and the three-part test for the qualified privilege applied regardless of whether the underlying case was civil or criminal in nature. United States v. Burke, 700 F.2d at 77. However, in United States v. Cutler, 6 F3d 67 (2d Cir. 1993), the court ordered the disclosure of nonconfidential materials where the subpoenaed reporter was witness to the crime (the interview itself violated a court order that the defendant not speak with the press), the material was important to the defendant in making his case, and they were unavailable elsewhere. Id. at 73-74. In Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999), the Second Circuit explained its decision in Cutler and "clarified" the current standard for overcoming privilege in criminal cases where federal law is applied: "We understand Cutler to limit Burke only as to how much of a showing was needed to overcome the privilege when the materials at issue were sought by a criminal defendant. The limitation was meant to lower the bar of the showing required of such a defendant to obtain disclosure of reporters’ materials; it resulted from our view in Cutler that Burke undervalued the needs of criminal defendants in putting on a defense." Id. at 34 & n.3. (emphasis in original).
The North Carolina shield law statute draws no distinction between civil and criminal cases, specifying that the privilege applies in all legal and quasi-judicial proceedings in the state. N.C. Gen. Stat. § 8-53.11(a)(2). In In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999), the Court of Appeals refused to recognize a reporter's privilege in the case of non-confidential information obtained from non-confidential sources in a criminal case, and that ruling was affirmed by the state supreme court. This ruling, however, was explicitly overruled by the enactment of the shield law.
The North Dakota Supreme Court has not yet ruled on whether subpoenas should be treated differently in criminal versus civil cases, although it has stated that the nature of the action is something that the trial court may consider in determining whether disclosure is appropriate. In Moore v. State, 2006 ND 8, the North Dakota Supreme Court affirmed a trial court’s decision in a post-conviction relief case to quash a criminal defendant’s subpoena of a television reporter that was present during the defendant's sentencing hearing. The defendant subpoenaed the reporter in support of his assertion that the trial court had falsified the transcript of his sentencing hearing. The trial court quashed the subpoena, finding that the information sought was procured or obtained while the reporter was employed by and acting for an organization engaged in broadcasting news, and the failure to disclose such evidence would not cause a miscarriage of justice.
A criminal defendant subpoenaed a newspaper reporter for production of notes and tapes from interviews. The court granted the reporter's motion to quash the subpoena, stating that the defendant could directly contact those persons interviewed by the reporter. The defendant failed to show that the evidence was relevant, that it was not reasonably available from alternative sources, that he could not prepare for trial adequately without the information, and that he was seeking it in good faith. State v. Hamilton, Montgomery C.P. No. 85-CR-2418, 12 Med.L.Rptr. 2135 (May 6, 1986).
In a murder prosecution, the defendant moved to compel a reporter to disclose the identity of an unnamed third person allegedly involved in a crime. The trial court denied the motion after in camera review of a taped conversation between the reporter and co-defendant, wherein the co-defendant named a third party involved. The court of appeals affirmed, finding the privilege existed under the shield law and the First Amendment. The court of appeals held that the defendant could only overcome the privilege by showing that the information was relevant, could not be obtained from alternative sources, and furthered a compelling need. State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990).
After reporters published articles describing police corruption, they attended sessions of a special grand jury that subsequently indicted various police officers. The officers moved to quash the indictments and subpoenaed the reporters to produce notes from their observance of the grand jury proceedings. The reporters moved to quash the subpoenas, claiming that confidential sources testified during the proceeding. The trial court found the reporters in contempt for refusing to testify and ordered them to submit their notes for in camera review. The court of appeals found that there was no need for a contempt order and reversed it because the indictments were already determined to be invalid because the grand jury was improperly selected. The trial court should have looked to all other grounds before determining whether the reporters' testimony was necessary. The court stated that the shield law requires a defendant to show necessity before testimony by a reporter may be ordered. See In re Rutti, 5th Dist. Richland Nos. CA-1771, CA-1782, 1979 WL 209649, 5 Med.L.Rptr. 1513 (July 13, 1979).
In a murder prosecution, a newspaper reporter moved to quash the prosecution's subpoena for production of all notes from an interview with defendant for an article on the case. The court granted the motion to quash, offering protection beyond the shield law's protection of only confidential sources. The court found that a party seeking information failed to overcome a qualified privilege under the First Amendment by adequately showing entitlement to information through evidence of relevance, compelling need and lack of alternative sources. See State v. Anaga, Montgomery C.P. No. 90-CR-2578, 1991 WL 17185,18 Med.L.Rptr. 1527 (Jan. 3, 1991).
1. Shield Law
Pennsylvania’s Shield Law is applicable to criminal cases. See, e.g., Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003).
2. First Amendment privilege
Pennsylvania courts are likely to follow Third Circuit decisions holding that the privilege is weaker in criminal cases than in civil cases. As the Pennsylvania Supreme Court noted in the Bowden decision: “The Third Circuit has stated that the privilege assumes a greater importance in civil than in criminal cases, as in criminal cases the public need to vindicate crime, or the defendant’s constitutional right to a fair trial, can take precedence over a reporter’s need to maintain confidentiality.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003) (ruling privilege was overcome in case involving jailhouse interviews with defendant facing homicide charges).
Rhode Island General Laws § 9-19.1-1 et seq., known as the Newsman's Privilege Act or the Rhode Island Shield Law, does not differentiate between subpoenas issued in civil or criminal cases. Rather, the privilege mandates that "no person" shall be required by "any court, grand jury, agency, department, or commission of the state" to disclose confidential information or to reveal confidential sources under most circumstances. R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.
The court in Hopewell noted that "in criminal proceedings, the interest of the public in law enforcement and the defendant in discovering exculpatory evidence may outweigh the journalists' need for confidentiality. Our decision relates to civil litigation only." [Emphasis added.]
The Tennessee shield law applies in all criminal cases. See State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987); Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983) (rejecting contention that Tenn. Code Ann. § 24-1-208 is limited to civil cases); State v. Franklin, No. 01C01-9510-CR-00348, 1997 WL 83772, 1997 Tenn. Crim. App. LEXIS 199 (Tenn. Crim. App. 1997); State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990); see also State v. Lane, 1991 WL 34649 (Tenn. Cir. Ct., Dyer Cnty, Jan 10, 1991).
The criminal section of the shield law is separated into three parts with different tests applying to different matters. See Tex. Code Crim. Proc. art. 38.11. The first part deals with confidential sources, the next with unpublished work product and non-confidential sources, and the third with published information. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §4(a)(1)-(3). In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted reasonable efforts to get the information elsewhere. Id. Further, a journalist can be compelled to give up his confidential source without the requirement of a showing of exhaustion of efforts if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4).
With regard to unpublished materials (i.e., work product) and non-confidential sources in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; and (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information or the information sought is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).
Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8.
Some unique aspects of the criminal statute include: (1) the elected district attorney (or a suitable substitute under the statute) is required to sign all criminal subpoenas issued to journalists, and (2) the subpoenaing party is required to pay the journalist a reasonable fee for the journalists’ time and costs incurred in responding to the subpoena (the calculation of cost is based on the cost provision in the Texas Public Information Act). See Tex. Code Crim. Proc. art. 38.11, §§5 and 9. Additionally, as with civil subpoenas, with regard to criminal subpoenas, the shield law makes all broadcasts self-authenticating, so a reporter will not have to testify solely for the purpose of authenticating a broadcast tape. Tex. Code Crim. Proc. art. 38.111.
The factors weighed by Utah trial courts in determining the scope of protection afforded by the reporter's privilege in criminal cases do not differ from the factors applied in civil cases: “(1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful, (2) whether the information goes to the heart of the matter, (3) whether the information is of certain relevance, [and] (4) the type of controversy.” Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).
Although the fourth factor weighs in favor of requiring a reporter to testify in a serious criminal case, prior to the enactment of Rule 509, one Utah trial court quashed a subpoena after the reporter who conducted a jailhouse interview with a murder defendant offered to submit testimony by affidavit. State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999). Another trial judge quashed a subpoena after an in camera review revealed that the video outtake sought by prosecutors contained the identical information as a publicly available written statement made by a criminal defendant. State v. Michaels, No. 011902114 (Utah 3d Dist. Ct. July 9, 2001).
In a capital homicide prosecution, however, a trial judge declined to quash a subpoena seeking the testimony of a reporter who received a confession letter and then conducted a jailhouse interview with the accused murderer. State v. Martinez, No. 011501042 (Utah 5th Dist. Ct. April 29, 2002). Despite the fact that the information sought from the reporter arguably was available from other sources, the judge reasoned that the public interest in prosecuting the homicide outweighed the reporter's privilege. However, the judge was careful to point out that his decision was based on the particular facts of the case before him, and that the case involved an especially brutal and senseless murder in a small community. See id. It is also unclear whether the court’s holding would have been the same had Rule 509 been enacted at the time.
Utah trial courts have not had occasion to distinguish between subpoenas from government prosecutors and private defendants.
The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information. It does not distinguish between criminal and civil matters. See 12 V.S.A. § 1615(b) (applying to all “court[s] or legislative, administrative, or other bod[ies] with the power to issue a subpoena”).
Prior to the Vermont Shield Law’s enactment, the Vermont Supreme Court recognized a qualified reporter’s privilege under the First Amendment to refuse to give testimony in a criminal case absent a showing by the party seeking disclosure that there is no other adequately available source for the information and that the information sought is relevant and material on the issue of guilt or innocence. See State v. St. Peter, 132 Vt. 266, 271, 315 A.2d 254 (Vt. 1974); see also In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14 (Vt. 2005) (holding that a qualified reporter’s privilege exists in all “cases in which a news reporter is ‘legitimately entitled to First Amendment protection.’”) (citation omitted).
The qualified privilege has been applied in criminal cases by both state and federal courts in Virginia. See Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974); Commonwealth v. Townley, 46 Med. L. Rptr. 1294 (Va. Cir. Ct. 2018) (quashing subpoena for unaired material relating to statements made by the alleged victim in a criminal case); Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview of a man charged with murder); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (holding that the privilege had been overcome with respect to materials relating to an interview with a murder suspect); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer); In re Shain, 978 F.2d 850 (4th Cir. 1992) (refusing to apply privilege to quash subpoenas to reporters who had interviewed a South Carolina state senator charged with bribery, where there was no issue of confidentiality or government harassment). Recent federal decisions, however, have cast doubt on the applicability of the privilege in criminal matters. See United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013) (“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”).
In the only published Washington case that applies a common law journalist's privilege in a criminal context, the court adopted a qualified privilege identical to the test applied in civil litigation. In doing so, however, the court noted that a judicial balancing test may present "more difficulties in criminal prosecutions than in civil actions," because "the defendant's right to a fair trial presents a more compelling interest in favor of disclosure than a civil litigant." Rinaldo, 102 Wn.2d at 754.
Given the language in Rinaldo, it is likely that a Washington court would place greater weight on the interests of a criminal defendant than those of a prosecutor.
Also, Section 1 of the shield statute, by its terms, applies to criminal matters. See RCW 5.68.010(1).
In criminal cases (including grand jury proceedings), the Reporters’ Privilege statute, W.Va. Code § 57-3-10, applies. Under this law, no reporter may be compelled to testify concerning the confidential source of any published or unpublished information obtained by the reporter in the course of news gathering activities, or to produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.
The only West Virginia criminal case discussing a reporter's privilege, State ex rel. Charleston Mail Ass'n v. Ranson, 200 W.Va. 5, 488 S.E.2d 5 (1997), was decided before passage of the Reporter’s Privilege law, W.Va. Code § 57-3-10. That court held that a subpoena to a reporter in a criminal case is treated differently than a subpoena to a reporter in a civil case, at least when the subpoena issues from a criminal defendant. The court agreed that a qualified privilege still exists for reporters in criminal cases, but slightly lowered the standard for breaching the privilege because of a criminal defendant’s Sixth Amendment rights. The court stated: "On the one hand, the First Amendment to the United States Constitution and Section 7 of Article III of the West Virginia Constitution guarantee freedom of speech and press. On the other hand, the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution ensure that a criminal defendant will have a fair trial." State ex rel. Charleston Mail Ass'n v. Ranson, 488 S.E.2d at 10.
In the Ranson case, a criminal defendant accused of murder and arson served subpoenas duces tecum requesting unpublished photographs of the crime scene taken by two newspapers' photographers. The newspapers both moved to quash the subpoenas, and their motions were denied. The state Supreme Court of Appeals reversed and created a specific standard applicable only to criminal cases where "[u]npublished, nonconfidential information" is sought from a reporter. Specifically, the court recognized the reporter's qualified privilege and explained that the privilege could be breached only as follows:
"When a criminal defendant seeks from a news source unpublished, nonconfidential information, he/she must show with particularity that: (1) the requested information is highly material and relevant to the defendant's articulated theory or theories of his/her defense; (2) the requested information is necessary or critical to the defendant's assertion of his/her articulated theory or theories of defense; and (3) the requested information is not obtainable from other available sources. The 'particularity' with which the defendant must satisfy this balancing test contemplates some explanation by the defendant as to what information he/she expects the media material to contain. A mere bald assertion, standing alone, that the allegedly privileged information satisfies the requisite criteria will not suffice."
The court did not explain the rather vague standard of particularity, requiring only "some explanation by the defendant as to what information he/she expects the media material to contain." One Justice on the Court dissented and stated that he would hold that the reporter's information to be absolutely privileged: "I strongly believe the First Amendment of the United States Constitution and Article III, Section 7 of the West Virginia Constitution absolutely bar this type of intrusion by the government into the files of a private company." State ex rel. Charleston Mail Ass'n v. Ranson, 488 S.E.2d at 13 (Maynard, J., dissenting).
The majority of the court went on to explain that "[o]nce a criminal defendant has shown with particularity that the unpublished, nonconfidential information requested from a news source satisfies the three-part threshold balancing test, the circuit court shall conduct an in camera review of the requested material and release to the defendant only that information which the court deems to be relevant to the defendant's articulated theory or theories of defense." The court specifically rejected the idea that a criminal defendant could embark on a "fishing expedition" to obtain information from a reporter but appears to have left to the trial judge the task of determining whether the reporter's information is "relevant to the defendant's articulated theory or theories of defense." The court did not articulate a standard for determining whether the reporter's information is "relevant" to the defense theories.
Thus, although it appears the standard in West Virginia for breaching a reporter's qualified privilege in a criminal case is slightly lower than in a civil case, the burden in both instances is on the subpoenaing party to prove the facts and circumstances for breaching the privilege, rather than on the reporter to prove the privilege applies.