State v. Rinaldo

Rosellini, J.

(concurring in part, dissenting in part)— This appeal poses significant issues, the resolution of which will endure long after the underlying criminal case has faded from memory. This court is called upon to assess and determine the delicate balance between the constitutional *756rights of a criminal defendant to have a fair trial, encompassing rights of due process and effective assistance of counsel, on the one hand, and the rights of society to be guaranteed the benefits of a free press on the other.

My review of Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972) convinces me that a majority of the justices on the United States Supreme Court recognized that a reporter has a qualified First Amendment privilege to protect confidential sources. Branzburg, at 710 (Powell, J., concurring); Branzburg, at 746 (Stewart, J., dissenting). Most courts that have analyzed Branzburg have reached the same conclusion. See, e.g., State v. Siel, 122 N.H. 254, 259, 444 A.2d 499 (1982); United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); State v. Sandstrom, 224 Kan. 573, 575, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979).

In Branzburg, Justice Powell wrote a separate concurring opinion, stating that the

asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Branzburg, at 710 (Powell, J., concurring). Justice Stewart would hold that when a reporter is asked to appear before a grand jury and reveal confidential information, the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information. Branzburg, at 746 (Stewart, J., dissenting).

The concurring opinion of Justice Powell and the dissenting opinion of Justice Stewart have similar overtones, *757as both find it necessary to balance the reporter's qualified privilege and Sixth Amendment interests.

In deciding whether a reporter must reveal confidential information in a criminal proceeding, the large majority of courts have applied the balancing test enunciated by Justices Powell and Stewart in Branzburg. These include In re McAuley, 63 Ohio App. 2d 5, 21, 408 N.E.2d 697 (1979); Sandstrom, at 575; United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976); United States v. Liddy, 478 F.2d 586, 587 (D.C. Cir. 1972); United States v. Orsini, 424 F. Supp. 229, 232 (E.D.N.Y. 1976), aff'd, 559 F.2d 1206 (2d Cir.), cert. denied, 434 U.S. 997 (1977); Morgan v. State, 337 So. 2d 951, 954 (Fla. 1976); Brown v. Commonwealth, 214 Va. 755, 757, 204 S.E.2d 429, cert. denied, 419 U.S. 966 (1974); State v. Siel, supra at 259-60; Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912 (1976); Farr v. Superior Court, 22 Cal. App. 3d 60, 99 Cal. Rptr. 342 (1971), cert. denied, 409 U.S. 1011 (1972).

This state's common law privilege is not unlike the qualified privilege enunciated in the aforementioned decisions. Although the majority indicates that the question of a state constitutional privilege is left open, it, in fact, must have decided the question. In no case can a common law right overcome the defendant's constitutional right to a fair trial. Only when both concerns arise to the level of constitutional magnitude is a balancing of the conflicting rights warranted.

Additionally, the majority must have determined that our constitution does not grant an absolute right. Otherwise, there would be no requirement for a remand of this case for a determination under the qualified privilege.

I would recognize that this state's common law privilege exists under Const. art. 1, § 5. The four fundamental conditions necessary to establish such a privilege are: (1) the communication must originate in a confidence that it will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the *758relation between the parties; (3) the relation must be one which, in the opinion of the community, ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. Senear v. Daily Journal-American, 97 Wn.2d 148, 153, 641 P.2d 1180 (1982) (quoting State ex rel. Haugland v. Smythe, 25 Wn.2d 161, 168, 169 P.2d 706, 165 A.L.R. 1295 (1946)).

The privilege is applicable to both criminal and civil proceedings. This privilege, however, is more tenuous in a criminal proceeding than a civil case. Siel, at 259; State v. Sandstrom, supra at 576. Of the defendant's Sixth Amendment right, the United States Supreme Court has said: "No right ranks higher than the right of the accused to a fair trial." (Italics mine.) Press-Enterprise Co. v. Superior Court, _U.S__, 78 L. Ed. 2d 629, 104 S. Ct. 819, 823 (1984). In United States v. Nixon, 418 U.S. 683, 713, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), the United States Supreme Court held that the President's executive privilege, which is of constitutional magnitude, "cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." Nixon, at 713. The Court held that a threshold showing as to the relevance, materiality and necessity of the confidential information warranted an in camera examination. Nixon, at 714.

The balance between the constitutional guaranties of a fair trial and the reporter's privilege tips in favor of disclosure where it is shown that the information in the possession of the news reporter is material to prove or disprove an element of the offense, to prove a defense asserted by the defendant, to reduce the classification or gradation of the offense charged, or to mitigate or lessen the sentence imposed. Sandstrom, at 576; Brown, at 757; McAuley, at 21.

Although the majority of this court makes passing reference to these paramount principles, it fails to give the trial judges any guidance in the balancing process required when *759confronted with a potential need for disclosure in a criminal proceeding.

For a reporter to seek to invoke the qualified privilege, there must be an initial showing that the person is one to whom the privilege would extend and that he received the information in confidence.1

Once a person has demonstrated entitlement to the qualified privilege, a defendant must, if the subpoena is challenged, show there is a reasonable possibility that the information sought is relevant and material to the defendant's case. In re Farber, 78 N.J. 259, 276, 394 A.2d 330 (1978); McAuley, at 21; Brown, at 757; State ex rel. Green Bay Newspaper Co. v. Circuit Court, 113 Wis. 2d 411, 421-22, 335 N.W.2d 367 (1983). The defendant must also make a showing to the trial court that he has investigated other sources for the kind of information he seeks and there are no reasonable and adequate less intrusive alternative sources where he can obtain the information.

Once the defendant has made this threshold showing, the proper procedure is an in camera inspection which is used to ascertain the actual relevancy and materiality of the subpoenaed material and to further determine whether, and if so, to what extent, the privilege must yield to the defendant's constitutional rights. Farber, at 277-78; Green Bay Newspaper Co., at 423; McAuley, at 23; Siel, at 260. If, after the in camera inspection by the court of the confidential information, there is a reasonable probability that either the reporter or the information will provide relevant evidence concerning defendant's guilt or innocence, the defendant is entitled to the reporter's confidential information or the name of the reporter's informant.

Application of these principles to the instant case indi*760cates that defendant failed to meet the threshold requirements to compel an in camera inspection. As previously indicated, the privilege applicable to criminal proceedings is not unlike the qualified privilege in civil proceedings, albeit a more tenuous privilege. Defendant, in presenting his case for compelling disclosure, assumed that the threshold criteria of a qualified privilege were applicable and hence was guided by the appropriate standards. Nonetheless, the affidavit in support of the motion to disclose was worded in the broadest possibilities. There was no showing of a reasonable possibility that the Herald files contained information relevant and material to defendant's case. Additionally, defendant made no showing that he had investigated other sources for the kind of information sought and that there were no reasonable and adequate, less intrusive alternate sources where he could obtain the information.

Under these circumstances, I conclude that the showing offered by defendant in support of disclosure was wholly inadequate. On such a record, an in camera inspection was not appropriate. I would, therefore, affirm the Court of Appeals quashing of the subpoena and remand for trial.

Williams, C.J., and Dore, J., concur with Rosellini, J.

It could be argued that, at least as to some of the statements The Everett Herald claims are privileged, the first of the Senear requirements is not met. Senear v. Daily Journal-American, 97 Wn.2d 148, 153, 641 P.2d 1180 (1982). Some of the requested statements were apparently made in the presence of police officers. These were neither communications to the reporter, nor were they made in private.