# In Re Proceedings to Compel McAuley

> Ohio Court of Appeals · April 12, 1979 · 63 Ohio App. 2d 5

URL: https://www.frixlaw.com/law-library/cases/3747355

## Case

- **Full name:** In the Matter of Proceedings to Compel Robert J. McAuley as a Witness in a Criminal Proceeding in California.
- **Court:** Ohio Court of Appeals
- **Decided:** April 12, 1979
- **Citations:** 63 Ohio App. 2d 5; 17 Ohio Op. 3d 222; 408 N.E.2d 497; 1979 Ohio App. LEXIS 8404
- **Precedential status:** Published
- **Opinion:** Concurrence by Day
- **Judges:** Krenzler, Day, Krupansky
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3747355

## How later opinions describe it (automated extraction)

- applying balancing test to determine whether a reporter may be compelled to reveal confidential information or the identity of a confidential source

## Opinion text

Day, J.,
concurring. I have explained in another place
2
why the unchilled exercise of free expression is essential to the functioning of the Constitution. For this reason the reporters’ privilege should be placed squarely on the First Amendment rather than dependent on the vagaries of legislation.
Breaches of the privilege are justified only in rare instances. One of these arises when the life or liberty of an accused can be shown to depend upon access to the reporter’s information or sources. Whether the privilege or the access prevails is a matter of proof. The “Certificate of Materiality and Necessity For Out-of-State Witness”
3
filed in this case, though prima facie evidence of its content, contains virtually no facts. It does contain conclusions of law. These are not proof. The certificate incorporates a declaration in support by Counsel Richard Fannan. The declaration is unsworn. Whether it could be the basis for a perjury proceeding in California and, therefore, the equivalent of an affidavit does not appear. In any event, the declaration was not subjected to cross-examination, includes much that is hearsay, and suffers from many of the “conclusory” characteristics which fault the certificate.
The need for access is not supported by the record. Accordingly, I concur in the judgment.
2
See Chapter Nine, Social Research in Conflict With Law and Ethics, Bollinger Publishing Company, Cambridge, Massachusetts, 1976.
3
The certificate was made by a judge of the Los Angeles Municipal Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3747355. Public record. Not legal advice.