From the Classroom
By Ray Hill
Professor Emeritus, Santa Rosa Junior College
NEWS SHIELD PRIVILEGE AND CRIMINAL INVESTIGATIONS
This is the fifth in a series of articles covering witness privileges in the California Evidence Code and criminal investigations.
In 1787, the protection for newspeople and journalists was envisioned when the U.S. Constitution was drafted. Its first three words – “We The People” – affirm that the government of the United States exists to serve its citizens.
Freedom of the press, among other important American rights, was guaranteed under the First Amendment with these powerful words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The right to publish and disseminate information, thoughts, and opinions without government restraint or censorship is considered a cornerstone of our government by, for, and of the people.
Among the primary reasons why freedom of the press is important are:
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A free press fights for the truth. Freedom of the press matters because a free press uncovers the truth.
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A free press holds power accountable (governmental, legal threats, harassment, and physical violence.)
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A free press informs voters and strengthens democracy.
News Sheild Privilege
Journalists and news organizations are granted legal protections to carry out these responsibilities. In 1935, the California legislature first enacted a news “shield” privilege. This gives news reporters and journalists the testimonial privilege to refuse to disclose their source of their information and any unpublished information gathered in the course of reporting (1070 E.C.).
The privilege includes persons employed by a newspaper, magazine, or other periodical publication, radio and television reporters, and other persons directly connected with print or electronic news reporting. The privilege includes notes, photos, tapes, or other data not disseminated to the public. The “Fourth Estate” also includes those publishing in non-mainstream media outlets. The legal presumption is that a newsperson holds the privilege unless rebutted. Any challenge would be decided by a magistrate at a pre-trial hearing.
Example:
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In a Los Angeles County double murder case, the author of an upcoming book wasn’t within the “class of journalists” covered by privilege because he wasn’t affiliated with a news organization (Ruling by the Los Angeles County Superior Court in Peo. v. Menendez & Menendez, 1994).
Journalists cannot be held in contempt for failure to reveal their source of news information.
Example:
A newsperson cannot be held in contempt for refusing to disclose any unpublished information.
Examples:
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The unpublished notes of an interview with a defendant who was charged with murder (Hallissy v. Superior Court (Sapp) (1988) 200 Cal. App. 3d 1039) were not disclosed.
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A freelance journalist did not have to disclose notes used to prepare newspaper articles about two Los Angeles police officers charged (and subsequently convicted) of attempted murder and robbery (Peo. v. VonVillas, (1992) 36 Cal. App. 4th 1425).
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A Sacramento reporter interviewed a defendant who confessed to sodomizing, torturing, and killing his California Youth Authority cellmate. The entire interview was videotaped but only a portion of the tape was broadcasted on the air. The prosecution sought the entire tape. The news station submitted only the broadcasted portion of the tape. The journalist could not be held in contempt for “refusing to disclose any unpublished information obtained or prepared in gathering, receiving, or processing of information for communication to the public” (Miller v. Superior Court (People) (1999) 21 Cal. 4th 889).
A Journalist’s Perspective
Lori Carter is the Senior Content Editor for Legal Update Publishing Company. Lori worked for The Fresno Bee, The Arizona Daily Star and other newspapers, including 23 years at the Santa Rosa Press Democrat (the largest newspaper north of the Golden Gate Bridge), where she covered crime, public safety, the justice system, and other governmental matters. Here is Lori’s perspective on the news shield privilege:
Recognizing the importance of a free press to our society, 48 states and the District of Columbia have codified either absolute or qualified news shield laws that protect journalists from being compelled to disclose information gathered in the course of news reporting. Only Wyoming and Hawaii do not have laws on the books granting such privilege, but in practice the courts there typically have not held journalists in contempt for withholding confidential information. There is no federal shield law.
In considering whether a journalist should be compelled to reveal information they gathered in the course of news reporting, the courts have raised a justifiably high bar: is the information is relevant, material to the case, and unavailable from other sources?
If a journalist has obtained information, generally, an investigator – who has the full force of law and government resources behind them – generally should be able to acquire that same information with a little legwork. Journalists’ autonomy from governmental interference is one of the most highly guarded rights in the profession – and one most journalists are prepared to go to jail to defend.
Conclusion
If a reporter claims testimonial privilege and won’t disclose the source of news information, the district attorney would have to convince a judge that disclosure takes precedence over California statute and the First Amendment. Not an easy sell.
However, in one case where a scene reporter was a witness to a police arrest and could provide exculpatory evidence for the defense, testimony was required. Being an eyewitness, his observations were not sensitive or confidential (Delaney v. Superior Court (1990) 50 Cal. 3d. 785).
If a news agency has published video footage, that footage would be subject to subpoena. However, any unpublished footage would still be subject to privilege and the news agency could legally refuse to disclose it or release redacted footage.
No doubt, a balancing act when you are trying hard to further your criminal investigation.
Stay safe,
RH
