Reporter’s right not to disclose unpublished interviews upheld

Reporter’s right not to disclose unpublished interviews upheld

01/15/96

CALIFORNIA–A reporter’s assertion of the newsperson’s privilege to refrain from testifying about unpublished information did not violate a criminal defendant’s right to a fair trial, the state Supreme Court unanimously held in mid-December.

Michael Trihey, a reporter for the Bakersfield Californian, interviewed defendant Ted Sanchez five times about the multiple murder charges pending against him. The Californian published two articles by Trihey based on the interviews. The second article, appearing in late April 1988, states, “Ted Sanchez says he’s a murderer, a triple murderer.” The article alleged that Sanchez killed his victims for their social security checks and quoted Sanchez saying, “I should go straight to the gas chamber.”

Trihey was subpoenaed by the prosecution to testify in criminal proceedings against Sanchez. Trihey responded to questions concerning the published information, but refused to answer when he was asked whether he had recorded the interviews, asserting the reporter’s privilege under the California shield law.

The California shield law protects reporters from being held in contempt when they refuse to disclose “any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”

Sanchez asked the trial court to either strike Trihey’s testimony or require him to furnish all unpublished information regarding the interviews. The trial judge ruled that Trihey did not have to testify about any unpublished information because Sanchez had not shown that it was necessary to his defense.

The Supreme Court agreed, rejecting Sanchez’s arguments that application of the reporter’s privilege denied him his constitutional right to confront the witnesses against him. In a footnote, the court left open the possibility that unpublished information is not protected by the shield law if the information came from the person seeking the disclosure, noting that Sanchez had not raised that issue.

Sanchez also argued that a reporter could not assert the privilege under the shield law unless he first had been held in contempt of court. The court disagreed, ruling that Trihey’s assertion of the privilege on the witness stand was not premature. “By invoking immunity while on the witness stand, the newsperson is making the choice … between disclosing the information he or she believes falls under the ambit of the shield law, or being held in contempt.” (California v. Sanchez)