recognizing the privilege in a criminal case, and emphasizing its importance: “the communications media not only serve as the vehicle that widely disperses information but also constitute an important instrument of democracy. *** Without the protection of the source, the cutting edge of this valuable societal instrument would be severely dulled and public participation in decision-making severely restricted.”
How later courts described this case
- recognizing the privilege in a criminal case, and emphasizing its importance: “the communications media not only serve as the vehicle that widely disperses information but also constitute an important instrument of democracy. *** Without the protection of the source, the cutting edge of this valuable societal instrument would be severely dulled and public participation in decision-making severely restricted.”
- stating that third prong of burden requires showing that information sought is "crucial"; three paragraphs later stating that "[t]he final criterion under Riley, relevance and importance to the particular proceeding, follows from the preceding discussion." (emphasis added)
- applying Riley and Cuthbertson I in criminal case where deféndant sought verification from reporter of conversation with witness who had previously testified that the conversation occurred
- applying Riley and Cuthbertson I in criminal case where defendant sought verification from reporter of conversation with witness who had previously testified that the conversation occurred
Written by the judges who cited it.
The opinion
RAMBO, District Judge,
concurring.
I concur in the result reached by the majority, but for different reasons. The majority attempts to distinguish this court’s recent decision in United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980). I find the facts too similar for distinction, and must disagree with the holding of the earlier case.
At issue in the portion of Cuthbertson which discussed the newsgatherers privilege was a subpoena duces tecum served by the defendants on CBS and subsequently modified by the court. The modified subpoena directed CBS to produce for the court’s incamera inspection statements of certain individuals whom the government was going to use as witnesses in a criminal prosecution. The individuals had been interviewed by CBS personnel in connection with its program 60 Minutes. The defendants wanted access to the unpublished statements made during the CBS interviews because they thought the statements might have some value for impeachment at trial. The individuals who had been interviewed agreed to permit disclosure of their statements. However, CBS argued that it had a qualified journalist’s privilege not to reveal its resource materials, regardless of the willingness of the sources of the materials to have them revealed. This court found that the subpoenaed material was protected by the journalist’s privilege.
The plurality opinion of the Supreme Court in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972), did not recognize a testimonial privilege for newsmen, Id., p. 690, 92 S.Ct. p. 2661. The Court was concerned that:
The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order.. . .
In each instance where a reporter is subpoenaed to testify, the courts would ... be embroiled in preliminary factual and legal determinations with respect to whether the proper predicate had been laid for the reporter’s appearance.... Id., pp. 703-705, 92 S.Ct. pp. 2668-69.
This court recognized a qualified testimonial privilege in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979). In Branzburg the Supreme Court was weighing claims asserted in support of a journalist’s privilege against the needs of the public in criminal law enforcement. Riley was a civil suit. This circuit found that when a reporter is asked to disclose the source of confidential information in a civil action, there must be a threshold showing that the information is crucial to the proceeding and unavailable from another source. Riley , p. 717.
The most cogent argument for the recognition of a newsman’s privilege is that the free flow of information to the media will be encouraged if one desiring to communicate information, but fearing exposure, can be assured that his identity will never come *361 to light unless he permits it. Whatever legitimacy this rationale may have, it disappears once the source willingly identifies himself and consents to disclosure of his communication. For this reason, I believe that Cuthbertson was an unjustified extension of the qualified privilege recognized in Riley .
Had I been sitting with the court when Cuthbertson was decided, I would have dissented. The same issue is before us again. Rather than split hairs over when the question put to a newsman seeks the identity of a confidential source or looks only to the source’s motivation, I would look to the present state of the expectation of confidentiality. If that expectation no longer exists, I would hold that the privilege no longer exists.
In the case before us, Peter Vaira disclosed his contacts with Jan Schaffer and testified as to the substance of his telephone conversations with her. If his communication with her was initially confidential, it was no longer confidential when she took the stand. Because the confidentiality element was gone, I would hold that any privilege which may have existed evaporated. Thus, Schaffer should have answered the questions about her dealings with Peter Vaira related to the ABSCAM investigation.