State-Law Journalist’s Privileges vs. Defendant’s Sixth Amendment Rights

People v. Diaz (N.Y. Sup. Ct. Jan. 11, 2011), has an interesting discussion of this issue (some paragraph breaks added):

Defendant Angelo Diaz stands charged with a number of felonies, including Attempted Murder in the Second Degree, on the theory that he was an accomplice in an attempt to shoot a police officer. The People intend to prove at trial that defendant shouted, in so many words, “shoot the cop” as his co-defendant, Angel Rivera, struggled with an officer for control of a pistol. However, the Daily News published an article just after the crime stating that, “according to authorities,” the co-defendant’s mother had shouted “shoot the cop.”

Defendant has served a subpoena on the Daily News in an effort to determine whether the source of the story’s report about the co-defendant’s mother was one of the two officers present at the time of the crime. Those officers are expected to testify about the “shoot the cop” statement. If they attribute the statement to defendant, and if one of the officers was the source for the Daily News article, defendant would seek to impeach the witness with his prior statement. If necessary, defendant would call a Daily News witness to attest that the officer had attributed the “shoot the cop” statement to someone other than defendant. [Footnote moved: The court offered the Daily News an opportunity to end this litigation by stating that the source of the report was not one of the two officers present at the time of the incident. The Daily News declined to accept the invitation, but in doing so did not indicate anything about who the source might be. -EV] …

[U]nder [New York’s Press Shield Law (Civil Rights Law Section 79-h)], the identity of a confidential source is absolutely protected from disclosure…. If the subpoena at issue were a prosecution subpoena, that would end the analysis. But the subpoena is a defense subpoena. Defendant insists that his rights under the Confrontation Clause of the Sixth Amendment and under the Due Process Clause of the 14th Amendment trump the statutory and constitutional privileges of the Daily News. Under the facts of this case, this court agrees.

A defendant’s Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions. A defendant generally could not, for example, insist on presenting testimony about a co-defendant’s privileged communications with that co-defendant’s attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant’s due process right to a fair trial. The lead case is Chambers v. Mississippi, 410 U.S. 284 (1973). There the Supreme Court ordered a new trial because a confluence of state evidence rules had wrongly prevented the defendant from eliciting reliable proof that someone else committed the crime with which the defendant was charged.

Applying the Chambers rationale, any number of state and federal decisions have concluded that the interests of the press protected by constitutional and statutory privileges may have to give way when weighed against a criminal defendant’s claim that protected information is vital to his defense. See, e.g., United States v. Criden, 633 F.2d 346 (3rd Cir1980); People v. Le Grand, 67 A.D.2d 446 (2d Dep’t 1979) (Titone, J.); People v. Nasser, 15 Misc.3d 499 (Sup Ct Westchester Co 2007) (prior inconsistent statements); Matter of Sullivan v. Hurley, 167 Misc.2d 534 (Sup Ct Queens Co 1995); People v. Troiano, 127 Misc.2d 738, 741-42 (Co Ct Suffolk Co 1985). In a typical case, the balancing process will yield a result upholding the press privilege. See, e.g., Matter of Perito v. Finklestein, 51 AD3d 674 (2d Dep’t 2008); People v. Hendrix, 12 Misc.3d 447 (Sup Ct Kings Co 2006); People v. Troiano; People v. Iannaccone, 112 Misc.2d 1057 (Sup Ct N.Y. Co 1982); People v. Marahan, 81 Misc.2d 637 (Sup Ct Kings Co 1975). But on occasion, the facts result in a conclusion that the interests of the defendant outweigh those of the press. See, e.g., People v. Nasser; Matter of Sullivan v. Hurley.

The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant’s claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential….

The facts here present a textbook example of circumstances requiring that the press privilege be overridden. The identity of the individual (or individuals) who said “shoot the cop” is highly material to whether defendant was an accomplice in the attack on the police officer. Defendant’s claim that someone else made the statement is critical to his defense. And there is no available source for crucial information other than the Daily News. Defendant seeks to impeach expected police testimony that he uttered the words at issue. If one of the officers who was at the scene of the crime attributed the statement to Rivera’s mother in an interview, and thus is subject to impeachment with a prior inconsistent statement, only a representative of the Daily News can so indicate.

Other factors plainly show that a proper balancing of interests tilts toward defendant’s position. Most important is that, as noted, the People’s claim that defendant was an accomplice in serious crimes is almost completely dependent on the statement at issue. Next, any required disclosure will be narrow: only the source of a statement is at issue, not substantive information.

Relatedly, if there will be disclosure of a confidential source, that disclosure will be only of someone who will otherwise be testifying, and who will have no legitimate interest in hiding prior inconsistent statements. This is certainly not a case in which disclosure will put an otherwise anonymous individual at risk or in which a whistle-blower has made a disclosure in the public interest. There is not even a reason to think that the source would face police discipline for his disclosure. The court presumes that stones will be cast at the informant only by any supervisors who might themselves be without sin.

Finally, the court’s relief will be narrow. Counsel for the Daily News need disclose to the court, in camera, only whether the confidential source is one of the two officers present at the crime scene and, if so, which of the two he is. The court will in turn disclose that information only if the source testifies, and denies that he made the statement published in the Daily News. Of course, if the named source denies making the statement, an appropriate witness from the Daily News will be obliged to testify on the defense case….