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Prosecution cannot assert "due process" right to unaired footage

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  1. Protecting Sources and Materials

    NMU         CALIFORNIA         Confidentiality/Privilege         Nov 2, 1999    

Prosecution cannot assert “due process” right to unaired footage

  • The state’s highest court found that the California shield law provides absolute immunity from contempt charges that resulted from refusals to provide a prosecutor with unaired portions of a jailhouse interview.

The California shield law provides absolute protection for journalists and is not “trumped” by criminal prosecutors’ “due process” rights in obtaining evidence, the state Supreme Court in San Francisco held in early November.

The court overturned a late August 1998 ruling of the California Court of Appeal in Sacramento that recognized a prosecutor’s constitutional due process right of access to a television station’s unbroadcast videotape.

The court held that the state shield law provides an absolute privilege that protects a newsperson from contempt for withholding unpublished information obtained through newsgathering. While the intermediate appellate court had balanced the interests of the “people” — or prosecutors — to due process under the California Constitution against evidentiary privileges and immunities of the press, the Supreme Court did not engage in a similar balancing approach.

Rather, the Supreme Court found that there was “no conflict between the shield law and the subsequently enacted people’s right to due process of law.” Therefore, the court did not need to balance such interests.

Furthermore, the court found that the intermediate appellate court’s holding assumed that “the people’s right to due process must be the exact equivalent to a criminal defendant’s right to due process,” which the court held was incorrect because there is no California legislative history or case law supporting that argument. The court noted that it has decided before that a criminal defendant’s due process rights can overcome a reporter’s privilege, but only because the defendant’s rights were guaranteed by the federal constitution, and so took precedence over the state shield law.

The videotaped interview included statements made by a county jail inmate accused of killing his cellmate. KOVR-TV in Sacramento aired portions of the interview in mid-March 1996. The next month, a state prosecutor issued a subpoena requesting videotape of the entire interview, including outtakes. The station produced tapes of the broadcast portions of the interview but refused to provide the unaired videotape, claiming protection under the California shield law.

In July 1996, the trial court in San Joaquin county ordered the station to provide the prosecution with a complete and unedited copy of the interview tape. The station refused to turn over the unedited tape, and a contempt judgment subsequently was issued. The court also ordered that the station’s news director, Karen Miller, be jailed, but then stayed the order pending the station’s appeal.

One month later, the intermediate appellate court upheld the trial court’s ruling that there was “reasonable possibility” that the information from the unaired tape would “materially assist” the prosecution. The appellate court ordered the station to produce an unedited copy of the interview, and held that the news director would not be shielded from contempt for refusing to comply with that order. The California Supreme Court disagreed, and held that a newsperson cannot be held in contempt for refusing to surrender unpublished information.

(Miller v. Superior Court of San Joaquin County; Media Counsel: Charity Kenyon, Sacramento)


© 1999 The Reporters Committee for Freedom of the Press

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