C. Testimony vs. affidavits

There is no published case law addressing this issue.  In the unpublished opinion of  Thomas v. City of Wichita, however, a nonparty reporter was required to testify despite providing an affidavit.  No. 13-1040-CM, 2014 U.S. Dist. LEXIS 122476 (D. Kan. Sept. 3, 2014).  In Thomas, the defendants sought the nonparty reporter’s testimony as to the authentication and accuracy of an article containing a statement provided by the plaintiff that supported defendants’ defense.  The plaintiff would not stipulate to the reporter’s affidavit, therefore, the defendants subpoenaed the reporter’s attendance at trial.  The parties ultimately stipulated to limit the questioning to what was in the reporter’s affidavit.  The court, however, proceeded to discuss the merits of the privilege and found that Silkwood supported disclosure because the reporter was the only person who could testify as to the validity of the published statement, and because the statement went to the heart of the plaintiff’s claims and the defendants’ defenses.

There is no reported First Circuit decision specifically addressing whether an affidavit can replace in-court testimony, particularly where the testimony is intended merely to confirm that an article was true and accurate as published. Depending on the nature of the testimony and the purpose for which it is sought to be introduced, the Federal Rules of Evidence addressing authentication, hearsay, and exceptions to the hearsay rule will likely determine whether live testimony subject to cross-examination is required in a particular case. This will likely vary from case to case.

A sworn affidavit, which would accompany a stipulation that an article was true and accurate as published or that a broadcast was aired and is accurate, may be sufficient in lieu of in-court testimony. All parties typically would have to agree to this procedure.

At least one district court in the Third Circuit has held that an affidavit from a reporter concerning a published article is insufficient since, although admissible for purposes of motions for summary judgment, the matter in the affidavit would be hearsay for purposes of trial. Vmark, 1998 WL 42252, at *3; see also Kitzmiller, 379 F. Supp. 2d at 684-90 (conducting a Riley privilege analysis even where subpoenaed parties provided affidavits attesting to the accuracy of relevant newspaper articles).

There appears to be no statute or regulation requiring testimony rather than an affidavit to confirm that an article was true and accurate as published; however, the case law indicates that the general practice of the Fourth Circuit is to require testimony. See In re Shain, 978 F.3d 850, 852, 20 Media L. Rep. 1930 (4th Cir. 1992) (reporters held in contempt for refusal to testify to confirm accuracy of quotations in articles).

No reported decision of the Fifth Circuit addresses whether an affidavit can take the place of in-court testimony, particularly when the testimony is intended merely to confirm that an article was true and accurate as published. Depending on the nature of the testimony and the purpose for which it is sought to be introduced, the Federal Rules of Evidence addressing authentication, hearsay, and exceptions to the hearsay rule will likely determine whether live testimony subject to cross-examination is required in a particular case. This will likely vary, too, from judge to judge.

Where the accuracy of the substance of a publication is at issue, an affidavit attesting to its accuracy is not admissible as evidence. However, as a practical matter, the attorney issuing the subpoena often will accept an affidavit rather than engage in a protracted legal battle over an asserted First Amendment privilege or some other form of litigated resistance.

There is no statutory or case law addressing this issue

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is no statutory or case law addressing this issue.

Although the Alabama Rules of Evidence do not provide as a matter of right for the possibility of substituting an affidavit for live testimony, such substitution is sometimes permitted pursuant to agreement of the parties.

In some instances, by agreement of the parties and counsel for the subpoenaed reporter, a reporter has confirmed through an affidavit that the story as published is accurate. The agreement assumes that the reporter will not be subject to cross-examination going beyond this confirmation, and for this reason it is important that the agreement involve all counsel, not only counsel for the subpoenaing party. It is usually best to have the reporter confirm only accuracy, rather than truth, since the latter is likely to be outside his or her personal knowledge. Such an affidavit is occasionally used for trial, to avoid calling a witness, and more often used during the discovery phases of a case to resolve a potential dispute over reporter's privilege.

See Section VII.B. Parties often stipulate to the authenticity of news reports. If stipulation is not possible, a custodian of records can provide an authenticating declaration or affidavit.

There are no cases stating whether there must be direct witness testimony or whether a sworn affidavit will suffice to confirm that a published article is accurate and true as published.

A declaration from the reporter may be sufficient in some circumstances, because declarations are admissible in support of most motions in California courts. As the California Supreme Court explained, “hearing and determination ‘in the manner provided by law for the hearing of motions’ ([Cal. Code Civ. Proc.] § 1290.2) would ordinarily mean the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.” Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 413-14, 926 P.2d 1061, 58 Cal. Rptr. 2d 875 (1996); see also People v. Superior Court (Zamudio), 23 Cal. 4th 183, 201, 999 P.2d 686, 96 Cal. Rptr. 2d 463 (2000) (“California law affords numerous examples of a trial court’s authority, in ruling upon motions, to resolve evidentiary disputes without resorting to live testimony.”); Cal. Code Civ. Proc. § 2009 (listing situations in which declaration admissible in lieu of live testimony).

However, California cases also are clear that the trial court may require live testimony at some types of hearings. E.g., People v. Hedgecock, 51 Cal. 3d 395, 415, 795 P.2d 1260, 272 Cal. Rptr. 803 (1990) (trial court may require evidentiary hearing on motion for new trial in criminal case; distinguishing motions for new trials in civil cases, which must be based on affidavits alone). Moreover, declarations are not admissible at trial in lieu of live testimony. See Rowan v. City & County of San Francisco, 244 Cal. App. 2d 308, 314 n.3, 53 Cal. Rptr. 88 (1966) (“[a]ffidavits being hearsay may not be used in evidence except where permitted by statute and section 2009 of the Code of Civil Procedure permitting their use on motion has no relevance [in trial]” (citations omitted)). Consequently, the subpoenaing party normally will refuse to accept a declaration in lieu of live testimony, and the courts will require the reporter to testify.

Rule 108 of the Colorado Rules of Civil Procedure state that an affidavit "may be sworn to either within or without this state before any officer authorized by law."

Courts are fond of saying that affidavits cannot be cross-examined. Absent consent of the parties, affidavits cannot be substituted for live testimony.

No statutory or case law suggests that a journalist may submit an affidavit and be excused from the obligations of a subpoena for testimony after a motion to quash has been denied or a motion to compel has been granted.

Although this issue has not been extensively litigated, at least one Delaware Court has found that an affidavit by the reporter is sufficient and indicated that "an affidavit from the reporter will, in most cases, be sufficient." State v. Rogers, 820 A.2d 1171, 1179 (Del. Super. 2003).

No statutory or case law addressing this issue exists.

Florida’s shield law provides for authentication of documents and other materials disclosed by the journalist by affidavit. See § 90.5015(6), Fla. Stat. (2023). Where the reporter’s testimony is sought, however, it is unclear whether an affidavit would be a sufficient substitute for the in-court (and subject to cross examination) testimony of a journalist.

Under Georgia law, parties can agree to accept an affidavit or stipulation in lieu of live testimony.

No reported cases, but in practice most media attorneys in Hawaii will attempt to work out an agreement with the parties to have the article or material in question authenticated by affidavit or declaration, thus obviating the need for live testimony. In most cases this turns out to be sufficient.

If the information sought is needed by the opposing party for motion practice in the particular proceeding, an agreement can sometimes be reached by which the opposing party will agree to use of an affidavit in lieu of testimony. In the ordinary case, that will not be acceptable if the subpoena is for trial or other courtroom testimony.

No Illinois statutory or case law specifically states a procedure for replacing in-court testimony for sworn affidavits, but People v. Pawlaczyk contains some guidance.  There, the reporter filed an affidavit for another proceeding confirming her conversation with the source but refusing to reveal the name of the source pursuant to the Statute. People v. Pawlaczyk, 189 Ill. 2d 177, 180, 724 N.E.2d 901 (2000). In a prior proceeding, the circuit court divested the reporter of her statutory privilege and ordered her to divulge the source’s name. Id. at 182. Instead of testifying at trial, the reporter filed an affidavit confirming the source’s name. Id.; see also Maple Lanes, Inc. v. News Media Corp., 322 Ill. App. 3d 842, 843 (2001) (allowing a reporter to file an affidavit confirming that she wrote the article and accurately quoted her sources).

The Indiana Rules of Evidence do not specify whether a sworn affidavit may take the place of in-court testimony to confirm the authenticity of evidence, but such an affidavit is often used when all parties so concur.

The parties may stipulate as to the authenticity of the item, negating the need for testimony. In practice, affidavits merely to confirm that an article was true and accurate as published are offered by journalists and sometimes are accepted by the parties. Where one party objects on hearsay grounds, the self-authentication argument often can prove successful.

An affidavit can take the place of in-court testimony only if the litigants agree.

When done pursuant to an agreement between the parties, a sworn affidavit can take the place of in-court testimony, particularly for purposes of authentication. See Ky. R. Evid. 901 (b)(1).

A sworn affidavit can take the place of in-court testimony to confirm that an article was published, see La. R.S. 45:1455, but not to confirm that the article was true and accurate as published.

No Maine court has specifically addressed this issue. In general, an affidavit may not replace in-court testimony. See 16 M.R.S.A. § 153. But see § 355 (affidavit of plaintiff as prima facie evidence in actions brought on itemized account annexed to the complaint).

Reporter's affidavit does not take place of testimony. Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003).

Generally, evidence must be authenticated by in-court testimony or by circumstantial evidence of authenticity.

Michigan Rule of Evidence 902(6) provides that newspaper articles are self-authenticating.

The parties could stipulate to the authenticity of published or broadcast materials as produced by the news organization, or they could agree to accept an affidavit in place of testimony, particularly to confirm that the material is a true and accurate copy of what was published or broadcast. They also could stipulate to calling the reporter as a witness only if the identified source disputes the accuracy of published material, and to limiting the testimony of the reporter to confirming what has been published. See, e.g., United States v. Carlson, 41 Med. L. Rptr. 2767 (D. Minn. Sept. 16, 2013); Stipulation and Order Limiting Testimony of Reporter Paul McEnroe, State v. Buie, No. XX-94-335, Ramsey Cty., Minn., Dist. Ct., dated June 6, 1994.

Miss. R. Civ. P. 43(e) states that "[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence."

See answers to the above items.

An affidavit can take the place of in-court testimony only upon the agreement of all the parties.

Affidavits are generally hearsay and would not be admissible to prove foundation for article/broadcast material absent agreement of the parties.

A declaration or affidavit from a reporter may be sufficient in some circumstances where a record was made in the course of regularly conducted activity.  NRS 52.260; NRS 53.045 (permitting unsworn declaration under penalty of perjury in lieu of affidavit).  Further, declarations and affidavits are generally admissible in support of most motions, including dispositive motions, in Nevada courts.  NRS 52.260.

Although there is no statutory or case law addressing this issue, it would be rare for a sworn affidavit to replace in-court testimony in the absence of a stipulation between the parties.

If the court has ordered testimony, an affidavit may only be substituted with the court's permission.

Generally speaking, affidavits do not constitute admissible evidence at trial. But litigants frequently stipulate to the authenticity of exhibits in lieu of presenting the testimony of records custodians. And newspapers and other periodicals are self-authenticating. See Rule 11-902(6) NMRA.

Although as an evidentiary matter, a party on whom a subpoena is served may authenticate a newspaper or broadcast material by means of an affidavit, see e.g., Gonzales v. NBC, 194 F.3d 29, 30 (2d Cir. 1999) (affirming decision  requiring NBC to produce outtakes of video footage and an affidavit authenticating them); Gavenda v. Orleans Cty., 1997 WL 65870, *2 n.5 (W.D.N.Y. 1997), it is less clear whether in response to a subpoena a sworn affidavit can be used as a substitute for court testimony. In light of the wording of CPLR § 2305, which at least on its face calls for live testimony (see “What constitutes compliance?” above) and the general principle that live testimony must be given at trial (see David D. Siegel, N.Y. Practice § 396, 2002 Suppl.), the rule seems to be that affidavits will generally not suffice. See, e.g., People v. Slochowsky, 116 Misc.2d 1069, 1075, 456 N.Y.S.2d 1018, 1022 (N.Y. Sup Ct. Kings Cty. 1982) (where testimony of prosecutor was inconsistent with other testimony, court noted that "the use of affidavits in substitute of live testimony is inappropriate under the conditions of this particular case").

Even a recent decision which one commentator has described as "what appears to be the first New York opinion approving [an] affidavit procedure," Faust F. Rossi, 1998-99 Survey of New York Law: Evidence, 50 Syracuse Law Review 649, 684-85 & n.351 (2000), allowed only direct testimony to be introduced by affidavit in lieu of live testimony subject to various limitations, including the qualifications that each witness still had to take the witness stand to swear to the accuracy of the affidavit and had to be available for live cross-examination. See Campaign for Fiscal Equity v. New York, 182 Misc.2d 676, 699 N.Y.S.2d 663 (N.Y. Sup. Ct. N.Y. Cty. 1999) (presented with as many as 140 witnesses whose testimony a public interest group sought to introduce, court held that the group would be permitted to introduce direct non-expert witness testimony in affidavit form in lieu of live testimony in court, subject to various qualifications). Accordingly, it is unlikely, absent consent of both sides, that an affidavit could be regarded as a sufficient substitute for live testimony in response to a subpoena.

Nonetheless, as a practical matter, both sides may agree that an affidavit is sufficient. Accordingly, an offer of an affidavit by the reporter confirming, for example, that the quotes were accurate, should be made to the subpoenaing party. The non-subpoenaing party's agreement either not to insist on cross-examination or upon some mutually satisfactory language in the affidavit may be negotiated.

As discussed above, it is not necessary for journalists to authenticate articles or broadcast materials in North Carolina. However, there is no explicit mechanism under Rule 45 of the North Carolina Rules of Civil Procedure for a journalist to submit an affidavit in lieu of testimony. See Rule 45(c)(2) (only permitting custodians of "public records" and hospital medical records to submit an affidavit in lieu of personal appearance). One federal district court allowed a newspaper reporter to comply with an order requiring release of the identity of his confidential source by submitting an affidavit to the court, which affidavit was subject to a protective order issued by the court. See Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987).

The North Dakota Rules of Evidence do not address the issue of whether a sworn affidavit can take the place of in-court testimony to confirm that an article was true and accurate as published.

It is not clear under Oklahoma law whether an affidavit could suffice as a substitute for testimony.  We have no experience to suggest that it would not, at least absent some compelling reason to question the veracity of the affidavit, but its sufficiency would likely depend on the particular facts and circumstances.

No further statutory or case law addressing this issue.

There is no statutory or case law in Pennsylvania specifically addressing this issue. In Pennsylvania, however, an affidavit is generally inadmissible at trial.

While a sworn affidavit may take the place of in-court testimony, particularly to merely confirm that an article was true and accurate as published, a subpoena which requires in court testimony should be complied with unless there is prior written confirmation from the attorney that an affidavit would be sufficient.

If the issue is whether a particular item was broadcast, very often the parties will agree to accept an affidavit from the station. If the question is whether a particular story was true, the parties are not likely to accept an affidavit.

There is no pertinent case law on this issue.

There is no statutory or case law on this issue. By agreement of the parties to the matter in which the subpoena is issued, and with court approval, however, an affidavit from a journalist may avoid the need for the journalist to testify.

No testimony – either by affidavit or live testimony – is required to authenticate a newspaper article or broadcast. If, despite the statute and rules of evidence, a party insists on an affidavit and the media entity wants to avoid a costly dispute, a business records affidavit (or a deposition on written questions) from the organization’s custodian of records will suffice to authenticate the records. Texas Rule of Evidence 902(10) provides the form business records affidavit under Texas law. A deposition on written questions should not be addressed directly to the journalist. Note that business records affidavits must be filed with the court at least 14 days prior to trial, so such measures should be taken in a timely manner to avoid having to file a last-minute motion to quash or having the reporter testify. Id.

Although there is no statutory or case law on this issue, state trial courts have allowed journalists to submit affidavits to verify statements made by news sources as reported in newspaper articles and thus avoid testifying in person. See In re: Inquiry of the State Ballot Law Commission of the State of Massachusetts, No. 020905264 (Utah 3d Dist. Ct. June 25, 2002); State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999).

Not addressed.

Some courts have accepted affidavits authenticating a published item, but testimony is preferable. A court will typically accept the parties’ stipulation as to the authenticity of a published item. A subpoena will not be quashed simply because the parties to the case refuse to stipulate that a reporter would testify that an article accurately recited the relevant parts of an interview.  Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011).

Washington's case law has not yet squarely addressed this issue.

Although the rules in West Virginia do not specify whether a sworn affidavit may take the place of in-court testimony, litigants have been known to accept such affidavits in return for dropping the personal appearance requirement of the subpoena, especially when the subpoena was issued simply to confirm that an article was true and accurate as published. Thus, it usually is helpful to inquire of the subpoenaing party's counsel whether they will accept an affidavit verifying a news article in lieu of a personal appearance, as oftentimes such an offer will be accepted.

There is no authority specifically related to the reporter's privilege addressing whether sworn affidavits can take the place of in-court testimony to confirm that an article was true and accurate as published. Generally, however, Wisconsin courts consider such testimony inadmissible hearsay.

Affidavits have been accepted in the place of in-court testimony in cases where the parties have so stipulated.