dissenting.
Application of the Shield Law, L.1979, c. 479, as interpreted by the Court today, emasculates the defendant’s federal constitutional Sixth Amendment rights.1 The defendant here is denied *472even an in camera inspection of evidence by the trial court, unless he meets the impossible burden of excluding all other possible sources of comparable information without knowing with what it is to be compared.
I
Under the Sixth Amendment and our State Constitution, a defendant has the right “to have compulsory process for obtaining witnesses in his favor.” U.S.Const., Amend. VI;2 N.J. Const. (1947), Art. I, par. 10. This right is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967) (applying the clause to the states).
In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court held that a newspaper reporter’s freedom of the press rights under the First Amendment were not abridged when compelled to testify before a grand jury. Therefore, we held in In re Farber, 78 N.J. 259 (1978), cert. den. 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978), that when a defendant in a criminal proceeding sought information in the possession of a newspaper reporter, the *473defendant’s Sixth Amendment rights were at least as compelling and the data had to be disclosed.
In Farber, we also considered the Shield Law then in effect, Evid. R. 27, N.J.S.A. 2A:84A-21 and -21a, and recognized the legislative intent to protect the confidential sources of and information obtained by the press. Though the Shield Law could not withstand the defendant’s Sixth Amendment constitutional challenge, we suggested a procedural mechanism for accomplishing some of the objectives of the Shield Law without impairing Sixth Amendment rights.
We proposed that before the court made an in camera inspection, the defendant should show the likelihood that the information sought was material and relevant, that it could not be secured from any less intrusive source and that defendant had a legitimate need to see and otherwise use it. 78 N.J. at 276-277. We carefully pointed out that this threshold determination would have to be made “within ever-present constitutional limitations,” Id. at 276, and cautioned that
[t]he manner in which the obligation of the defendant is to be discharged in the proceedings leading to this threshold determination will depend largely upon the facts of the particular case. [Id. at 277]
The Legislature subsequent to Farber enacted a new statute attempting in large part to follow the suggested procedural mechanism. L.1979, c. 479. It provided for the threshold hearing, setting up the following condition precedent to the disclosure of the material to the judge for his in camera inspection: a showing that the subpoenaed material was relevant and material and could not be secured from a less intrusive source, that the request was not overbroad, and that the value of the material sought outweighs the privilege against disclosure. L.1979, c. 479, § 3(b).
From both a policy and constitutional perspective, the Shield Law privilege must be cautiously applied. As observed in *474United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974), evidentiary privileges, whatever their origins, are not to be “expansively construed, for they are in derogation of the search for truth.” See, e. g., State v. Briley, 53 N.J. 498, 506 (1969); In re Richardson, 31 N.J. 391, 396-397 (1960). Furthermore, there exists the strong public policy favoring defendant’s discovery in criminal proceedings. See R. 3:13-3. Professor Dworkin in his analysis of Farber commended the trial court’s “sensitivity to the problems of a defendant faced with an investigation whose very secrecy deprives him of the knowledge he needs to show his need to know.” Dworkin, “The Rights of Myron Farber,” New York Review of Books, Oct. 26, 1978, 34, 36.
Legislation must be construed consistent with a defendant’s Sixth Amendment rights. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Court viewed a statutory privilege in light of the defendant’s Sixth Amendment rights and set the privilege aside. There the testimony of a juvenile offender on probation was crucial to the state’s case. Under the state’s juvenile offender statute, the defense was precluded from establishing that the witness was on probation. Thus, it was prevented from showing that the witness may have been unduly pressured into offering favorable testimony. The United States Supreme Court reversed the conviction, holding that
defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which “ ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U.S. 1, 3 [16 L.Ed.2d 314, 86 S.Ct. 1245].” [Id. at 318, 94 S.ct. at 1111, 39 L.Ed.2d at 355]
The Court concluded that the state’s legislated privilege was “outweighed by petitioner’s right to probe into the influence of *475possible bias in the testimony of a crucial identification witness.” Id. at 319, 94 S.Ct. at 1112, 39 L.Ed.2d at 355.3
II
The majority finds and I agree that the letter in Ms. Robin Goldstein’s possession is probably relevant and material to the defense of defendant DeVingo, who is on trial for murder. The letter may materially affect the credibility of its author, Pizuto, a key witness who is asserted to be an eyewitness to the murder allegedly committed by the defendant. Guilt or innocence may turn upon the jury’s assessment of the credibility of the allegedly only eyewitness to the murder and that credibility may in turn depend upon the contents of the letter. It is obvious that no less intrusive source of what is contained in that letter may be ascertained in the absence of comparing the letter with the alternative material, whatever it may be. At least at this point, the defendant is entitled to the minimum constitutional protection of having the court examine the letter in camera.
To require the defendant to exclude all other possible sources of comparable information without knowing with what it is to be compared imposes an impossible burden. Chief Justice Marshall long ago alluded to a similar problem in hearing the request of defendant Aaron Burr for a letter held by President Thomas Jefferson. He significantly noted:
It is objected that the particular passages of the letter which are required are not pointed out. But how can this be done while the letter itself is withheld? Or how can their applicability be shown without requiring the accused prema*476turely to disclose his defence? [United States v. Burr, 25 F.Cas. 187, 191 (C.C.D.Va.1807) (No. 14,694)]
Permitting the trial court to examine the letter in camera on this record would not, as the majority suggests, render the less intrusive source provision meaningless. For example, a reporter in the course of his work may have obtained the identity or location of a witness to a crime. Yet a defendant may discover the identity of the witness or his whereabouts through other readily available means. Cf. In re Kozlov, 79 N.J. 232 (1979). In that case, the defendant, a police chief, after conviction, sought to interrogate, a juror on the ground of bias. Another attorney’s client had overheard a remark that a juror had boasted that he had gotten even with the defendant for the arrest and prosecution of a member of his family. The information had been submitted to the attorney, Kozlov, in confidence. We rejected an attempt to force disclosure of the name of the attorney’s client since defendant’s counsel had discovered municipal court records which identified a person presumably related to the juror who had been the subject of a municipal court proceeding in which the defendant’s son was the arresting officer. We noted that the affidavit of defendant’s counsel and the municipal arrest record were adequate to establish a basis to interrogate the juror, without the need to obtain privileged information. Furthermore, we held that less intrusive means were available to establish bias, namely interrogation of the arrestee and the juror. Accordingly, when applying the less intrusive source provision, a court must consider what is being sought and for what purpose.
The statute as construed by the Court today “imposes a burden on criminal defendants to prove affirmatively” (at 459) the negative of the proposition that there are alternative sources, but denies them the opportunity of comparing such material with what it would replace. Furthermore, defendants must establish a “clear need for the material sought.” (at 459). Moreover, even if it were possible to satisfy that burden, the *477defendant must show in addition “that the letter is more important than the privilege.” (at 457). Once it is established that the defendant has a Sixth Amendment right to the letter, no balancing against a statutory privilege is permissible. These obligations of the Shield Law as construed by the Court today transgress a defendant’s Sixth Amendment rights.
At this juncture in the proceedings, the legislative intent and purpose of the Shield Law, consonant with the defendant’s Sixth Amendment rights, will best be served by delivery of the letter to the trial court to be kept under seal until Pizuto’s examination has been completed. If Pizuto is not called to testify, then the need for the letter would appear to be at an end. If he does testify, then the relevance and materiality of the letter and its comparability with material from other sources can be determined by the trial court’s in camera inspection. As we remarked in Farber, “[t]hat inspection is no more than a procedural tool, a device to be used to ascertain the relevancy and materiality of that material.” 78 N.J. at 275. If need be, the hearing with the parties may then be held. L.1979, c. 479, § 4. In this fashion both the defendant’s Sixth Amendment constitutional rights and the newspersons’s privilege as memorialized in the statute may be preserved.
I would affirm the order of the trial court as modified herein.
For reversal — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, HANDLER and POLLOCK — 6.
For modification and affirmance — Justice SCHREIBER — 1.
The majority states that “no claim has been made here that the new shield law cannot constitutionally be given full force and effect.” (At 457). Defendant DeVingo’s brief filed with this Court has made extensive argument devoted to the Sixth Amendment.
*472DeVingo’s attorney served the subpoena on Goldstein. The other defendants on trial intervened in the proceedings and joined in his request. The only defendant, however, to file a brief before us has been DeVingo.
This amendment has been construed to include the right to production of documents. See, e. g., United States v. Schneiderman, 106 F.Supp. 731, 735 (S.D.Cal.1952); Braham v. State, 571 P.2d 631, 644 (Alaska Sup.Ct.1977), cert. den. 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978).
Defendant implicates his compulsory process right as distinct from his right of confrontation under the Sixth Amendment, since he apparently “seeks impeaching evidence by means other than examining prosecution witnesses . . . Westen, “The Compulsory Process Clause,” 73 Mich. L.Rev. 71, 126 (1974). See, e. g., Braham v. State, 571 P.2d at 645. See generally Westen, “Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases,” 91 Harv.L.Rev. 567 (1978).
See also Hammarley v. Superior Court, 89 Cal.App.3d 388, 398-404, 153 Cal.Rptr. 608, 613-617 (Ct.App.1979) (reporter’s statutory privilege outweighed by “defendants’ right meaningfully to confront and cross-examine their primary accuser with the benefit of all evidence reasonably available to challenge his credibility.” Id. at 401, 153 Cal.Rptr. at 615).