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State high court won't review "back door" around shield law

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  1. Protecting Sources and Materials

    NMU         CALIFORNIA         Confidentiality/Privilege         Aug 18, 2000    

State high court won’t review “back door” around shield law

  • An appellate court overturned a contempt finding against a reporter, but also held that prosecutors can circumvent the reporter’s shield law when cross-examining witnesses in criminal cases.

An appellate court decision giving prosecutors greater leverage in obtaining testimony from reporters will stand after the state Supreme Court denied review on August 16.

The appellate decision held that a reporter cannot give limited testimony when subpoenaed by a criminal defendant and then refuse to answer other questions during a prosecutor’s cross-examination by invoking the protections of the shield law.

The California Supreme Court has previously held that criminal defendants can overcome the protections of the reporter’s shield law because their federal constitutional rights to a fair trial trump the state constitution’s protections for the news media. But the court has also held that prosecutors do not have a similar right, because the “people’s due process” right is a state constitutional right, and was not meant to invalidate the media’s protection.

In following those cases, the appellate court said that if a reporter refuses to answer questions, prosecutors would be denied the right to meaningfully question a witness. As a result, the reporter’s entire testimony would have to be excluded from the trial. But if this exclusion would jeopardize the defendant’s fair trial rights, then the defendant, in order to have the evidence admitted, can ask the court to compel the reporter to answer the prosecutor’s questions.

The appellate court’s decision, involving a contempt citation against journalist Dan Fost, has been described as giving prosecutor’s a “back door” to overcome the reporter’s privilege, but only in cases where the defendant has subpoenaed the reporter.

Fost had interviewed a murder witness who allegedly changed her story by the time she testified at trial. Fost was subpoenaed to recount his interview with her, and verified that statements he had reported were accurate. Prosecutors tried to get additional information about the interview on cross-examination, and Fost invoked the protections of the shield law. He was held in contempt when he refused to answer, and was told he would be fined $1,000 a day until he agreed to answer the prosecution’s questions.

(Fost v. Superior Court; Media Counsel: James Brelsford, Menlo Park)

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