Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Sunday, March 6, 2005

When the Media Becomes the Story

The recent ruling in People v. Combest further tests state shield laws, currently under review in cases like Miller/Cooper, since it allows the defendant in that case to request videotape from a legal network (Hybrid TV, filming for Court TV) to aid in the preparation of his retrial.

"Defendant contends that the Shield Law is unconstitutional as applied to criminal cases, arguing that a criminal defendant is entitled to obtain nonconfidential material possessed by a news organization even when he or she cannot meet the three-pronged showing required by the statute. He maintains that his due process rights to a fair trial, presentation of a defense, compulsory process and confrontation entitled him to obtain the nonconfidential videotapes of his own statements that were recorded by Hybrid.

As made clear in O'Neill, when faced with a litigant's request for information in the possession of the media, competing interests must be balanced (see 71 NY2d at 529). In a criminal case, defendant's interest in nonconfidential material weighs heavy. Of course, in any case, the interest in refusing to share nonconfidential information is significantly lower than when confidential material is at issue. When confidential material is at issue, the media may have real reason to fear that their ability to find sources willing to provide information will soon evaporate if their guarantees of confidentiality will not be honored. While we do not question the importance of nonconfidential news gathering, whose significance we recognized in O'Neill, defendant argues that this case involves

"no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request" (Branzburg v Hayes, 408 US 665, 681-682 [1972])."

Thus, he contends, a reporter's privilege in nonconfidential materials does not easily overcome a criminal defendant's fair trial rights. Because in this case we conclude that defendant met his burden under the Shield Law, we need not decide what standard is constitutionally required in order to overcome a criminal defendant's substantial right to obtain relevant evidence. "

But Combest also raises some interesting questions about the extent to which news coverage on legal networks like Court TV as well as the more traditional outlets like CBS, NBC, and ABC, are ever more "part of the story", when they create or air "reality" shows, or shows that purport to tell the story behind the story. Even entertainment shows can get into the act, and become unwitting witnesses in the courtroom. Attorney Todd Melnick used outtakes from the HBO series Curb Your Enthusiasm to prove that his client Juan Catalan was actually at a Dodgers baseball game and not committing murder. He had had to subpoena videotapes from the owners of the team, but apparently Larry David, of Curb Your Enthusiasm, was more, well, enthusiastic about assisting and provided his tapes voluntarily. Those tapes, along with other evidence, meant that Catalan is free today. See Jeffrey Toobin's coverage here.  Dr. Park Dietz helped Andrea Yates' lawyers immensely when he asserted that she might have thought up drowning her children based on a Law & Order episode. The highly popular show is one that Yates watched often and the prosecutor pounded that point home to the jury. The problem? As we now know, no such episode exists. Edward Stern comments for the New England Psychologist here. To see what movies and series (but not individual episodes) Dr. Dietz has consulted for, go to, select "more searches" and enter Park Dietz in the Cast and Characters template. A pending case in Kansas suggests that the CBS series CSI may become part of the defense as well. In that case, Kansas State professor Thomas Murray is accused of killing his ex-wife, lawyer Carmin Ross-Murray, in 2003. Police think materials found on his computer and elsewhere indicate a murder plot. He says it's evidence of a script he was researching and writing for the popular show. The trial is expected to last a month; after it concludes we shouldn't be surprised to see it influence a Law & Order script "ripped from the headlines."

Meanwhile, Jay Leno, who is under a gag order not to discuss the Michael Jackson case, invited Brad Garrett (Everybody Loves Raymond's Robert Barone) to tell his MJ jokes while he waits to see if the court will quash the order.

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