Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, May 8, 2007

Court Rules Journalist Waived Shield Law Privilege

A New York state court has ruled that a journalist has waived his privilege under the state's shield law to refuse to testify about statements in a newspaper article regarding an automobile crash that left a passenger dead. "...counsel for non-party journalist Brian Howard has moved for an order quashing a subpoena to appear and give testimony at the trial of the defendant upon the ground that it would violate the privilege accorded him by the First Amendment of the United States Constitution and [the] New York Civil Rights Law....It is undisputed that Brian Howard, as a staff writer for The Journal News, is a professional journalist within the meaning of CRL §79-h(a)(6) and, as such, is entitled to claim the qualified privilege. Notwithstanding his right to claim such privilege, defendant contends in his affirmation in opposition that since the information was published in the Journal News, the qualified privilege contained in CRL §79-h(c) is inapplicable. In the alternative, defendant argues that he has made the requisite clear and specific showing to satisfy the tripartite test contained in CRL §79-h....In the newspaper article authored by Mr. Howard, it was reported that Mr. Borras had spoken with the driver of the Civic, who had stated `he had been racing another vehicle and had sped up and was in third gear at the time of the crash, trying to keep the other driver from passing him.' According to the testimony elicited during the bench trial, the driver of the Civic was the co-defendant, Eladio Gonzalez. Upon cross-examination by defense counsel, Mr. Borras denied he had ever spoken to the driver of the Civic, and when asked to explain the discrepancy between his trial testimony and the statement contained in the newspaper article, Mr. Borras testified that the reporter was mistaken.

"The theory of defendant's culpability for the death of the passenger in the co-defendant's vehicle is predicated upon conduct of operating his vehicle at an extremely high rate of speed along with the co-defendant and his reckless disregard that such conduct could cause the death of another human being. This being the only statement attributable to defendant in which he admits to participating in such conduct, it is highly relevant and material to this case. The general rule of evidence in New York concerning the impeachment of witnesses prohibits the use of extrinsic evidence to impeach a witness on a matter that is merely collateral.... However, the rule has no application where, as here, the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the trier of fact, that being the Court, must decide.... The proper foundation having been laid by defense counsel during cross-examination, defendant may show that Mr. Borras has, on another occasion, made oral statements which are inconsistent with some material part of his trial testimony...."

During trial, "... defense counsel clearly stated that testimony regarding the contents of the statement as contained in the newspaper article is the only testimony which he intends to elicit from Mr. Howard. Defense counsel further clarified for the record that, although the subpoena seeks the production of Mr. Howard's notes and other documents, he has no intention of seeking any testimony regarding the circumstances under which the statement was made. It is the finding of this Court that insofar as defendant only seeks to elicit testimony regarding the contents of the statements made by Mr. Borras to Mr. Howard that were published in the April 3, 2006 edition of The Journal News, Mr. Howard has waived his statutory privilege with respect to those statements...."

Concluded the Court, "...Mr. Borras's testimony attributes a statement to the defendant which is highly material and relevant, and which will weigh heavily in the Court's ultimate determination as to whether the People have met their burden of proving beyond a reasonable doubt that defendant is guilty of the charges contained in the indictment. Consequently, the credibility of Mr. Borras's testimony with respect to this alleged statement by the defendant is critical and necessary to the defense."

The case is People v. Nasser, 830 N.Y.S. 2d 892; 35 Media L. Rptr. 1518 (2007).

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