EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 12, 2007

Power of the Press: Utah Puts Out Proposed Reporter Privilege For Public Comment

After a lengthy process of development by the Advisory Committee on Rules of Evidence, Utah has put forth Proposed Rule of Evidence 509, which protects news reporters and their sources.  There are 3 privileges covered under the umbrella of Proposed Rule 509:

     -"A news reporter of confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential soirce information, unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death;"

     -"A news reporter has the privilege to refuse to disclose confidential unpublished news information, unless the person seeking such information demonstrates a need for the information which substantially outweighs the interest of a continued free flow of information to news reporters;" and

     -"A news reporter has a privilege to refuse to disclose other unpublished news information if the person claiming the privilege demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure."

The Advisory Committee Note to the Proposed Rule indicates that since the Supreme Court's 1972 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), "there has been an increasing but somewhat inconsistent development of the law concerning this privilege."  The inconsistently is reflected in the fact that the extent of a federally-recognized privilege remains unclear and the fact that while many states have addressed the privilege there is substantial variation in how the privilege may operate in different jurisdictions.

The Note then indicates that while the privilege limits the disclosure of certain facts in developing an evidentiary record, the law has long recognized that some societal needs, such as assuring a continued free flow of information to those who gather an publish news, can outweigh the value in disclosure.  At least at this point in time, however, the people leaving public comments disagree with the Advisory Committee.  Of the 13 comments left so far, 8 oppose the Proposed Rule, and only 5 support it.

Here are a couple of thoughts on some of the comments opposing the Proposed Rule:

     -Several commenters have argued that the Proposed Rule shouldn't become law because there is no such privilege under the Federal Rules of Evidence.  This is literally true, but that is only because there are no privileges officially recognized under the Federal Rules of Evidence; several such Rules were proposed, but never enacted because there was no agreement about the exact wording of these Rules.  Nonetheless, most federal courts do in fact apply some version of a reporter's privilege, and   "[t]hirty-six states have some form of qualified journalist privilege." Geoffrey R. Stone, Why We Need a Federal Reporter's Privilege, 34 Hofstra L. Rev. 39, 51 (2005);

     -A few commenters have claimed that a reporter privilege is unnecessary because there are so few cases where it would apply.  According to a law review article, however, some of the recent examples where the privilege would have been relevant in Utah include the Elizabeth Smart kidnapping, the judicial probe of Leslie Lewis, the the Kingston polygamy clan case, the Tom Green bigamy case, and newspapers reports opposing subpoenas seeking their testimony about murder confessions and subpoenas. Edward L. Carter, Reporter's Privilege in Utah, 18 BYU J. Pub. L. 163, 163-64 (2003).  Now, we can also throw the Warren Jeffs case into the mix.




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