Journalist's Privilege in Criminal Proceedings: An Analysis of United States Courts of Appeals' Decisions from 1973 to 1999

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I. INTRODUCTION

United States Courts of Appeals rarely are presented with the issue of journalist's privilege emanating from a criminal proceeding. In August 2001, however, the Fifth Circuit decided one of the most publicized journalist's privilege cases in an unpublished, per curiam opinion. (1) The case concerned Vanessa Leggett, an aspiring freelance writer and English teacher, who was investigating a murder case with the hopes of publishing a book about the incident. (2) After Leggett failed to comply with a federal grand jury subpoena, the court cited her for civil contempt pursuant to 28 U.S.C. [section] 1826(a) (3) and ordered her jailed until she furnished the sought-after materials, which consisted of tape recordings, notes of interviews, and photographs. (4) The statute allows a court to jail persons held in contempt for a maximum of eighteen months until the requested materials are relinquished. (5) On appeal, the Fifth Circuit concluded that "the journalist's privilege is ineffectual against a grand jury subpoena absent evidence of governmental harassment or oppression." (6) Finding no governmental harassment or oppression, the Fifth Circuit held that the district court did not abuse its discretion in ordering Leggett incarcerated. (7)

Leggett finally was released from jail after 168 days of incarceration. (8) But for her lengthy incarceration, Leggett's story is not unique. The incidence of subpoenas served on journalists increased in the late 1960s and early 1970s as a result of the Nixon Administration's attempt to investigate and punish radical activity generated by the civil rights movement and the Vietnam War. (9) Journalists, in response, increasingly claimed a First-Amendment-based privilege (10) to avoid forced disclosure of sources. (11) In the 1972 decision in Branzburg v. Hayes, (12) the United States Supreme Court refused to recognize a First-Amendment-based journalist's privilege for confidential sources. The Court's decision in Branzburg notably pertained only to situations in which journalists who allegedly were eyewitnesses to criminal activity were subpoenaed to provide information to grand juries. (13) Since Branzburg, both federal and state courts have recognized a First-Amendment-based journalist's privilege in circumstances different from the facts in Branzburg. (14) In addition, thirty-one states and the District of Columbia have recognized a journalist's privilege by passing statutes known as "shield laws," specifying the conditions under which journalists may refuse to disclose information in legal proceedings. (15)

Despite widespread judicial and legislative recognition of a journalist's privilege, subpoenas continue to be served on journalists at what some consider an alarming rate. (16) According to available evidence from studies conducted by The Reporters Committee for Freedom of the Press ("Reporters Committee"), journalists are "drowning in a sea of subpoenas." (17) Those studies indicate that the majority of subpoenas issued to journalists originate from criminal defendants, not from prosecutors or civil litigants. (18) But prosecutors also issue a substantial numbers of subpoenas and the Reporters Committee has concluded that courts have created a prosecutorial due process right to obtain evidence, a right similar to a criminal defendant's Sixth Amendment right to compulsory process to obtain evidence that may prove her or his innocence. (19)

Given the significance the American system of criminal justice traditionally has placed on the need to protect the innocent from erroneous conviction, (20) it is unmistakable that one of the primary goals of a criminal trial is to ensure an accurate determination of the facts in a criminal case. (21) However, when criminal defendants and the government seek to introduce evidence to ascertain the facts of a case, their respective interests necessarily collide in the American adversarial adjudicatory system. …