(dissenting) — I would affirm in accord with the original opinion in State v. Rinaldo filed on March 21, 1983, (Ringold, J., Durham, J., concurring) (unpublished pending motion for reconsideration) which held that Rinaldo made a sufficient showing to justify an in camera review by the trial court.
There is no question that the provisions of our state constitution, article 1, section 5 could be read as more protective of the news media than is the first amendment to the United States Constitution. The members of the State Supreme Court are cognizant of the fact that "state courts *105have the power to interpret their state constitutional provisions as more protective of individual rights than the parallel provisions of the United States Constitution." State v. Simpson, 95 Wn.2d 170, 177, 622 P.2d 1199 (1980). The Supreme Court was aware of this power when it decided Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982) and Clampitt v. Thurston Cy., 98 Wn.2d 638, 658 P.2d 641 (1983).
The Herald did not claim that it had an absolute privilege under the state or federal constitution in its opening brief, reply brief, or at oral argument. It was not until after Judge Andersen filed a dissenting opinion stating that the news media possess an absolute privilege that The Herald filed a motion for reconsideration claiming an absolute privilege under the Washington State Constitution. Judge Andersen's opinion now elaborates upon the conclusion that the news media possess "an absolute privilege of nondisclosure of confidences and confidential news sources". I disagree with Judge Andersen's opinion because it ignores stare decisis and is contrary to all precedential authority. I am not aware of, nor has Judge Andersen cited, any appellate court in the United States which supports his view.
A brief review of Senear v. Daily Journal-American, 27 Wn. App. 454, 459-60, 618 P.2d 536 (1980) is instructive. This court held:
Courts that have considered the issue have unanimously concluded that the First Amendment affords the newsperson no absolute privilege of nondisclosure of confidential news sources — whether it be in the criminal or civil context. . . . The First Amendment does not, of itself, create in newspersons an absolute privilege of nondisclosure of sources.
(Citations omitted.) We then held that a newspaper has a First Amendment qualified privilege in a civil case. The opinion established standards to be met before requiring disclosure, and remanded to the trial court for a redetermination of the propriety of disclosure based on the enumerated criteria.
*106On March 4, 1982, the Supreme Court filed its opinion in Senear holding that a qualified common law privilege exists in civil cases protecting a reporter from compulsory disclosure of news sources. The court declined to reach the First Amendment issue, except to note:
The courts which have considered the issue have unanimously concluded that the First Amendment affords a reporter no absolute privilege of nondisclosure of confidential news sources in either a criminal or civil action. See, e.g., Herbert v. Lando, 441 U.S. 153, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979).
97 Wn.2d at 151-52. The court expressly limited its holding to civil cases and created a doubt as to whether the news media possessed any privilege in a criminal case. The court stated: "We reach the same result as the Court of Appeals although for different reasons. Also, as did the Court of Appeals, we confine the qualified privilege to civil cases. We do not here decide whether it applies in criminal prosecutions." Senear, at 151. The Supreme Court then affirmed this court, mandating similar standards and a balancing test for application of the criteria. If the news media does not possess even a qualified constitutional privilege in a civil case it cannot logically be argued — absent a statute— that the news media possess an absolute constitutional privilege in a criminal case. I agree with Judge Durham that we are not confronted with the necessity of deciding a constitutional issue. I would hold that the Senear common law news media qualified privilege exists in criminal cases as well as civil.
The sole issue presented to this court is well summarized in The Herald's opening brief:
This Court should adhere to its own reasoning in the civil area and join those courts that have rejected attempts by criminal defendants to compel news-gatherers to disclose confidential news sources and files absent a clear showing that no alternative is available and that the information is necessary to a fair trial.
Brief of Appellant, at 8.
The Herald did not contend in the case at bench that a *107reporter should have a blanket unqualified privilege to refuse to disclose confidential sources and files to a defendant in a criminal matter. Rather, the newspaper argued that the defendant's need for information must be balanced against the need for reporters to keep sources and material gathered confidential, and that a strong threshold showing should be required to justify an in camera hearing in order to keep such hearings from becoming a matter of course in criminal trials. The Herald asserted that Rinaldo failed to make a sufficient showing of necessity to justify an in camera hearing. The question before us is whether Rinaldo met the threshold requirements to compel an in camera review.
Counsel's affidavit in support of the motion stated in part:
2. That the defendant is charged by information with the following offenses: statutory rape (2), indecent liberties, perjury (2 counts); intimidating a witness (4 counts); tampering with a witness (4 counts).
3. That the witnesses with whom it is alleged that the defendant intimidated [sic] have admitted to committing perjury in the past.
4. That the witnesses with whom it is alleged that defendant tampered have admitted to committing perjury in the past.
5. That the witnesses who are the complainants in the sex related charges previously in both sworn and unsworn statements have denied having sexual relations with the defendant.
6. That the State has excused the perjurious statements of various of its witnesses by granting them immunity from prosecution.
7. That affiant believes that the charges against the defendant stem in part from a lengthy investigation into the affairs of defendant, Ellogos, and Eden Farms by the Everett Herald.
8. (a) That specifically the Everett Herald on July 14, 1979, published a story in which it stated "Fourteen people, including the Oregon couple, signed statements for this newspaper outlining their experiences with Rinaldo and about life at Eden Farms."
(b) On July 17, 1979, it published "This newspaper had completed a four month investigation into Rinaldo *108and Eden Farms and had prepared a series of articles about them when Rinaldo was charged and arrested last week."
(c) On July 19, 1979, it published "The newspaper obtained sworn statements from 14 people about their knowledge of Rinaldo and Eden Farms, and talked to at least 11 other former or current associates of the Snohomish businessman."
9. That to the best of affiant's knowledge and belief representatives of the Everett Herald were present when various witnesses were interviewed by law enforcement officials.
10. That according to Deputy Prosecuting Attorneys assigned to this case, the police did not file extensive incident reports of their investigation or interviews of witnesses.
11. That affiant believes that the Everett Herald may contain [sic] information which would impeach the testimony of the State's witnesses as to why they committed perjury and would tend to substantiate the bias of said witnesses against the defendant.
12. That affiant has discussed with Jim Haley, reporter for the Everett Herald and David Utevsky, associate in Foster, Pepper and Riviera, counsel for the Everett Herald, the possibility of obtaining the requested material without a court order and was informed that the Everett Herald would not voluntarily surrender any documents.
13. That to the best of affiant's knowledge and belief there is no less obtrusive manner in which to obtain the requested information.
Counsel for Rinaldo asserted that without knowledge of the contents of the reporter's file it would be virtually impossible to make a showing that the material was otherwise unavailable and favorable to the defense. He urged the trial court to review the material in camera, without defense counsel present, to decide whether the burden requiring production had been met.
The court in Senear held that to require disclosure a party must show that: (a) the claim is meritorious; (b) the information sought is necessary or critical to the cause of action; and (c) reasonable efforts were made to acquire the desired information by other means. Senear, at 155. In *109Clampitt, 98 Wn.2d at 642, the court emphasized an additional Senear requirement: " 'the interest of the reporter in nondisclosure [must be] supported by a need to preserve confidentiality.'"
Whether disclosure will be required in a criminal case will depend on the results of a balancing test similar to that set forth in Senear, but which takes into account the defendant's right to a fair trial. This right is rooted in our state and federal constitutions and presents a more compelling interest in favor of disclosure than the needs of a civil litigant. A news reporter's privilege of nondisclosure is "more tenuous in a criminal proceeding than in a civil case," since it "depends upon a balancing of the need of a defendant for a fair trial against the reporter's need for confidentiality." State v. Sandstrom, 224 Kan. 573, 575, 576, 581 P.2d 812, 815 (1978). The showing required for release of a reporter's files to a criminal defendant for purposes of discovery will therefore be different from that required by Senear in civil cases.
Whether a particular defendant's need for the confidential information or the identity of its source outweighs the reporter's qualified privilege will depend on the facts of each case. State v. Sandstrom, supra. The showing required to compel disclosure is well stated in State v. Siel, 122 N.H. 254, 259, 444 A.2d 499, 503 (1982):
a defendant may overcome a press privilege . . . only when he shows: (1) that he has attempted unsuccessfully to obtain the information by all reasonable alternatives; (2) that the information would not be irrelevant to his defense; and (3) that, by a balance of the probabilities, there is a reasonable possibility that the information sought as evidence would affect the verdict in his case.
These factors must be balanced by the trial court against the news media interest in nondisclosure.
The order before us on appeal contemplates an in camera review of the files so that the trial court may intelligently exercise its discretion and balance the factors. The threshold showing necessary to justify an in camera review is of *110necessity less than that required to justify disclosure to the defendant, and has been met in this case. The affidavit establishes the likelihood that statements made by witnesses at the upcoming trial are part of The Herald's files. The subpoena as amended encompasses only potentially favorable or impeaching information. Not until the trial court has examined the information can the judge properly balance the competing interests. The actual release of the information to Rinaldo during discovery will, of course, be within the trial court's discretion, Seattle v. Apodaca, 18 Wn. App. 802, 572 P.2d 732 (1977), exercised with regard for the factors set out above.
The trial court erred only insofar as it held that the news media privilege is based on the first amendment to the United States Constitution. I would hold that there is a common law privilege applicable to criminal cases and that Rinaldo has made a sufficient showing to justify an in camera review.
Review granted by Supreme Court February 3, 1984.