Prosecutor's due process interest overcomes shield law protection

CALIFORNIA–A prosecutor’s interest in obtaining evidence can overcome a statutory reporter’s privilege to withhold unbroadcast videotape of an interview with an accused killer, the state Court of Appeal in Sacramento ruled in late August.

The ruling recognized, for the first time in the state, a criminal prosecutor’s constitutional due process right of access to a television station’s unbroadcast videotape. The court also enforced a contempt judgment against the station’s news director, who had refused to turn over unaired portions of the interview.

The court allowed the contempt judgment to stand despite state shield law provisions giving journalists an absolute privilege from being held in contempt of court if they refuse to disclose unpublished or confidential information obtained in the course of newsgathering activities. The state Supreme Court has previously found that the privilege is qualified when a criminal defendant’s fair trial rights are at stake, meaning that the competing interests must be balanced.

The appellate court held that the shield law protections were overcome by a due process right under the state constitution belonging to “the people” to obtain evidence in prosecuting criminal cases. This right was added to the constitution as the result of a 1990 voter referendum.

The prosecutor’s interest in disclosure outweighed the media’s interest in confidentiality under the shield law, the court held, even though the shield law has also been part of the state constitution since 1980.

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 March 1996. The next month, the state issued a subpoena requesting videotape of the entire interview, including the unbroadcast portions. The station produced tapes of the broadcast portions of the interview but refused to provide the unaired videotape based on state shield law protections.

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

The appellate court noted that the state’s due process interest in securing evidence for prosecution does not “trump” the shield law outright. However, the appellate court upheld the trial court’s ruling that there was a “reasonable possibility” that the unbroadcast information would “materially assist” the prosecution.

Both courts balanced the competing interests of the prosecution and the media based on factors such as whether the unpublished information is confidential or sensitive, how important the information is to the prosecution, and whether there are alternative sources for the unpublished information. The trial and appellate courts agreed that the balance tilted in favor of disclosure of the unbroadcast videotape.

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 station had not decided whether it would appeal to the state Supreme Court as of mid-September. (Miller v. Superior Court; KOVR-TV’s Counsel: Charity Kenyon, Sacramento)