Delaney v. Superior Court

MOSK, J.,

Concurring.—While I concur that Sean Patrick Delaney is entitled to the reporters’ testimony concerning their eyewitness observations of the police search of his jacket, I do not agree with the balancing test proposed by the majority. Since federal constitutional rights are supreme, and since the reporter’s constitutional immunity is absolute on its face in protecting all unpublished information obtained during the course of news gathering, it is not for us to balance competing state and federal interests. Rather, our sole task is to determine how far the state constitutional immunity can be extended before it trespasses on the Fifth and Sixth Amendment rights of criminal defendants. If invocation of the constitutional immunity deprives the defendant of information necessary to exercise those rights, then he is entitled to that information in spite of the reporter’s constitutional immunity. If the information is not necessary to exercise those rights, he is not so entitled.

Instead, the majority propose a complicated four-factor test to be used by courts in weighing the relative merits of reporters’ and defendants’ claims. Two of the factors—(a) and (b)—consider the importance of the information from the reporter’s viewpoint. Factor (c) would consider the information’s importance to the defendant. The fourth factor allows the trial court to consider the ease of obtaining the information from alternative sources. No single factor is to be determinative.

This balancing test harbors a basic conceptual flaw. *

1 If our role is to determine whether the defendant can obtain a fair trial when confronted *818 with the reporter’s claim of immunity, then the significance of the information from the reporter’s viewpoint is irrelevant. All that matters is the importance of the information from the defendant's viewpoint. Instead of delineating the boundary of the defendant’s rights and permitting the reporter’s immunity to apply to all information outside that boundary, as the federal and state Constitutions dictate, the majority substitute their concept of the optimal balancing of reporters’ and defendants’ interests. Thus, the majority favor confidential and “sensitive” information over non-confidential, nonsensitive information, despite their earlier recognition that article I, section 2(b) makes no such distinctions.

For the reasons elaborated below, I would require that a defendant make two threshold showings, both of which relate to the defendant’s demonstration of need for the information. First, as the majority hold, the defendant must show a reasonable possibility exists that the information will assist the truth-seeking process. Second, he must show that alternative sources of substantially similar information are unavailable. Once the defendant carries his burden of making these two showings, he will be entitled to the information. Because I conclude that information obtained by a reporter as a percipient witness of a transitory event is by its very nature unavailable from alternative sources, I concur in the majority’s judgment that the defendant in this case is entitled to the reporters’ testimony.

I. The Scope of Fifth and Sixth Amendment Rights and the Alternative-source Rule

The rights of confrontation and compulsory process under the Sixth Amendment, and the more general right to a fair trial under the Fifth Amendment, are not absolute. Rather, they are exercised in a framework of state law privileges, immunities, and rules of evidence that sometime block access to information needed by the defendant. (See Chambers v. Mississippi (1973) 410 U.S. 284, 302-303 [ 35 L.Ed.2d 297, 309 , 93 S.Ct. 1038 ] [a holding that strikes down an unreasonable hearsay rule on due process grounds does not “signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own *819 criminal trial rules and procedures”]; Washington v. Texas (1967) 388 U.S. 14, 23, fn. 21 [ 18 L.Ed.2d 1019, 1025 , 87 S.Ct. 1920 ] [a ruling that strikes down on compulsory process grounds a state law prohibiting coconspirators from testifying on each other’s behalf does not invalidate traditional testimonial privileges].) While consistency has not been a hallmark in this area, courts have been extremely reluctant to make incursions into state law testimonial privileges—e.g., the attorney/client, priest/penitent, or marital communications privileges—on Sixth Amendment grounds. (See Note, Defendant v. Witness: Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges (1978) 30 Stan.L.Rev. 935 (hereafter Defendant v. Witness).)

Recognizing the peaceful coexistence between the Sixth Amendment and traditional testimonial privileges, courts have tended to employ a functional, pragmatic approach in reconciling fair trial rights with the less traditional state law privileges, such as the reporter’s privilege. 2 Such a functional approach was typified by the New Jersey Supreme Court in State v. Boiardo (1980) 82 N.J. 446 [ 414 A.2d 14 ]. As the court reasoned, the Sixth Amendment rights of confrontation and compulsory process are necessary to ensure that our adversary system results in “ ‘full disclosure of all the facts and a fair trial, within the framework of the rules of evidence.’ ” ( 414 A.2d at p. 19 , quoting United States v. Nixon (1974) 418 U.S. 683, 709 [ 41 L.Ed.2d 1039, 1064 , 94 S.Ct. 3090 ].) When full disclosure can be accomplished without interfering with the reporter’s privilege, the defendant will be able to receive as fair a trial as the state can ensure, without having to resort to a breach of the reporter’s privilege. As Chief Justice Wilentz wrote: “[I]f substantially similar material can be obtained from other sources, both the confidentiality needed by the press and the interests of the defendants are protected.” ( 414 A.2d at p. 21 .)

Unlike the majority’s approach, the court in Boiardo did not attempt to balance the respective importance of the information for the reporter and the defendant. Rather, the New Jersey Supreme Court sought to determine, at the threshold, whether defendant would be deprived of a fair trial if information necessary to his defense was withheld. In that case the defendant sought a copy of a letter that a reporter possessed and the defendant believed would assist him in impeaching a key prosecution witness. The *820 court concluded that the defendant had not carried his burden of showing that the information was unavailable from an alternative source, and therefore upheld the reporter’s privilege.

The requirement of a threshold showing that no alternative source of information is available (hereinafter called the alternative-source rule) can, therefore, reconcile reporter’s immunity and defendant’s rights so as to give effect to both. Unlike the majority’s multifactored approach, the alternative-source rule remains focused on the single decisive question: does the defendant need the information to obtain a fair trial? The alternative-source rule also incorporates a functional approach to the defendant’s fair trial rights, based on the recognition that these rights exist within a framework of state law privileges and immunities. What one commentator stated of the communications privilege applies at least equally to the reporter’s immunity: “A communications privilege would be of little value if a [criminal] defendant could override it whenever its invocation concealed evidence of some probative value. Courts must respect the legislative judgment that in some situations the social policy underlying a privilege should require that litigants be denied access to otherwise admissible evidence. The legislative establishment of a privilege should make the privilege-holder a disfavored source of information.” (Defendant v. Witness, supra, 30 Stan.L.Rev. at p. 966, italics added.)

It is no surprise that a number of courts, state and federal, have employed an alternative source rule at the threshold when weighing criminal defendants’ rights against reporters’ statutory or qualified First Amendment privileges. (See United States v. Burke (2d Cir. 1983) 700 F.2d 70, 77, fn. 8 ; United States v. Cuthbertson (3d Cir. 1981) 651 F.2d 189, 195-196 ; United States v. Hubbard (D.D.C. 1979) 493 F.Supp. 202, 205 ; State v. Rinaldo (1984) 102 Wn.2d 749 [ 689 P.2d 392, 395-396 ]; State v. St. Peter (1974) 132 Vt. 266 [ 315 A.2d 254, 256 ]; Brown v. Commonwealth (1974) 214 Va. 755 [ 204 S.E.2d 429, 431 ], cert. den. 419 U.S. 966 [ 42 L.Ed.2d 182 , 95 S.Ct. 229 ]; Matter of Farber (1978) 78 NJ. 259 [ 394 A.2d 330, 338 , 99 A.L.R.3d 1 ] [interpreting earlier, less comprehensive shield law]; State v. Boiardo, supra, 414 A.2d 14, 21 [interpreting recent, more comprehensive shield law]; Hallissy v. Superior Court (1988) 200 Cal.App.3d 1038, 1046 [ 248 Cal.Rptr. 635 ]; Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 399 [ 153 Cal.Rptr. 608 ].)

II. Policy Considerations: Ensuring Press Autonomy

The enforcement of an alternative-source rule is desirable for policy as well as doctrinal reasons. A comprehensive reporter’s immunity provision, in addition to protecting confidential or sensitive sources, has the effect of *821 safeguarding “[t]he autonomy of the press.” (O’Neill v. Oakgrove Constr. (1988) 71 N.Y.2d 521, 526 [ 528 N.Y.S.2d 1, 3 [ 523 N.E.2d 277, 279 ] [construing a similar state constitutional provision].) As the New York Court of Appeals recognized, press autonomy “would be jeopardized if resort to its resource materials by litigants seeking to utilize the news gathering efforts of journalists for their private purposes were routinely permitted [citations] .... The practical burden on time and resources as well as the consequent diversion of journalistic effort and disruption of news gathering activity, would be particularly inimical to the vigor of a free press.” ( 528 N.Y.S.2d at p. 3 .)

The threat to press autonomy is particularly clear in light of the press’s unique role in society. As the institution that gathers and disseminates information, journalists often serve as the eyes and ears of the public. (See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 572-573 [ 65 L.Ed.2d 973, 986-987 , 100 S.Ct. 2814 ]; Houchins v. KQED, Inc. (1978) 438 U.S. 1, 17-18 [ 57 L.Ed.2d 553, 566-567 , 98 S.Ct. 2588 ] (Stewart, J., conc.).) Because journalists not only gather a great deal of information, but publicly identify themselves as possessing it, they are especially prone to be called upon by litigants seeking to minimize the costs of obtaining needed information. Carte blanche access to the journalist’s files would give litigants a free ride on news organizations’ information-gathering efforts.

To require a threshold showing of no alternative source would discourage this misuse of the press. Our constitutional system does not ensure the exercise of a criminal defendant’s rights in the least costly manner. The alternative-source rule would compel litigants to expend a reasonable amount of effort to obtain the information from nonpress sources. Only when a defendant is unable to obtain the information through these means, or when the cost of obtaining the information is prohibitive, would he be able to pierce the shield of journalistic immunity. Such a rule would maximally preserve press autonomy, as the reporter’s constitutional immunity is designed to do, while still recognizing that press autonomy must ultimately give way to the criminal defendant’s fair trial rights.

III. Alternative-source Rule and the Percipient Witness

I concur, nonetheless, in the court’s judgment because I find that the alternative-source rule is inapplicable when the information sought is the reporter’s own observations as a percipient witness of a transitory event. The alternative-source rule arose in cases, such as those cited ante, in which the information in question had been gathered from documents, interviews, public meetings, and the like. In such cases the content of the information existed in some objective and stable form, capable of independent verification—the documents could be independently inspected, the inter *822 viewees could be contacted, etc. What the defendants in those cases were primarily interested in was not the reporters’ perceptions but the content of these independent information sources.

In the case of eyewitnessed transitory events, however, no such independent, stable information source exists. Equally significant is the well-established fact that there are often major discrepancies between different eyewitness accounts of the same event, owing to distortions and biases in both perception and memory. (See People v. McDonald (1984) 37 Cal.3d 351, 363-365 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ], and authorities cited; Note, Did Your Eyes Deceive You: Expert Psychological Testimony on the Unreliability of Eyewitness Identification (1977) 29 Stan.L.Rev. 969, 971-989.) Thus, two percipient witnesses of the same event are not in any sense fungible. And unlike the document or the interview, the transitory unrecorded event is not subject to subsequent independent verification.

Accordingly, the reporter as a percipient witness is not an “exception” to the alternative-source rule. Rather, in such situations the rule simply does not apply: in a real sense, two eyewitnesses to the same event are not alternative sources of the same information, but sources of different information.

In the present case, defendant was able to show a reasonable possibility that the information would assist in ascertaining the truth. Because the information he seeks from the reporters is their contemporaneous observations of a transitory event, he has met the second threshold by showing that no real alternative source of the information exists. He is therefore entitled to the reporters’ testimony.

Part of the problem with a balancing test may stem from the fact that a similar balancing approach is used in the First Amendment qualified-privilege cases, the progeny of Branzburg v. Hayes (1972) 408 U.S. 665 [ 33 L.Ed.2d 626 , 92 S.Ct. 2646 ], In those cases, courts, following Justice Powell’s concurrence in Branzburg , have inquired into the impact a disclosure of *818 information will have on the reporter’s news-gathering ability. Courts had to determine at the threshold whether revelation of the information would burden reporters sufficiently to raise a First Amendment claim. (See, e.g., U.S. v. LaRouche Campaign (1st Cir. 1988) 841 F.2d 1176 .)

In this case, the claim is not based on the First Amendment but on a specific state constitutional provision (Cal. Const., art. I, § 2, subd. (b) (hereafter article I, section 2(b)) that covers all unpublished information gathered by journalists in the course of their duties. Inquiry into the importance of the information to the reporter and the burden it would impose on him or her is not needed to determine whether the information falls within the scope of article I, section 2(b). Nor, indeed, does that provision permit such an inquiry.

.The majority’s holding in this opinion, of course, does not apply to the traditional testimonial privileges. It may be that those privileges should be accorded more protection than the reporter’s immunity, because they are consistent with a fair trial as that concept was understood in 1791, when the Fifth and Sixth Amendments were adopted. It may also be that violation of certain privileges implicate federal constitutional rights of their own, such as the right to counsel or the right to free exercise of religion. A more comprehensive treatment of the conflict between testimonial privileges and fair trial rights awaits further development when these matters are properly before us.