c. Source is an eyewitness to a crime

There is no case law addressing this issue.

There is no reported First Circuit decision specifically addressing this issue.

The Second Circuit has not specifically held that when a source is an eyewitness or participant to a crime, the information obtained from that source is by definition "unavailable" from any other source.

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

A court in the Fourth Circuit has held that, in the context of a civil case, the fact that the source might have witnessed or participated in a crime does not change the application of the balancing test. In Bischoff, the district court found that plaintiffs had not made an exhaustive search for those who made potentially illegal disclosures to a reporter, rejecting plaintiffs’ contention that a court may dispense with the balancing test when a reporter asserting a privilege is believed to have first-hand evidence about criminal conduct. 25 Media L. Rep. at 1287. However, in criminal proceedings, the Fourth Circuit has determined that reporters are entitled to no special privilege that would allow them to withhold relevant information about criminal conduct without a showing of bad faith or other such improper motive. United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013); see also In Re Shain, 978 F.2d 850, 852, 20 Media L. Rep. 1930 (4th Cir. 1992) (“[A]bsent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution.”).

Given the holding in Smith that no privilege applies to non-confidential sources in grand jury proceedings or criminal cases, a reporter's obligation to disclose the identity of a non-confidential source in a criminal case will be the same whether or not the reporter is an eyewitness to the crime. United States v. Smith, 135 F.3d 963, 970-71 (5th Cir. 1998). Further, despite the availability of the qualified privilege in civil cases, Selcraig suggests that the privilege of a reporter who is called upon to testify as an eyewitness to a crime may be overcome. In re Selcraig, 705 F.2d 789, 799 (5th Cir. 1983). Because the reporter is "a percipient witness to a fact at issue," depending on the circumstances of the case, it may be that the reporter's "qualified privilege must succumb to . . . [the plaintiff's] discovery needs." Id.

The federal courts in the Sixth Circuit have not addressed a situation where a journalist or news organization witnesses the commission of a crime. However, the Sixth Circuit ruled that videotapes outtakes from which police could identify a murderer, whose identity a police informant refused to confirm through court testimony, were clearly relevant to a specific violation of law and not available from other sources. Hence, the court found no First Amendment protection for the television journalist who recorded the outtakes. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).

There is no statutory or case law addressing this issue.

No Eighth Circuit case law addresses this issue.

At least one court has held that the reporter’s privilege does not excuse reporters from testifying about their eyewitness observations. See, e.g., Dillon v. City & Cty. of S.F., 748 F. Supp. 722, 726 (N.D. Cal. 1990) (denying a cameraman’s motion to quash after finding his personal observations were not privileged). The Ninth Circuit has not considered whether a source who was an eyewitness to a crime holds information that is by definition “unavailable” from any other source since it is unique eyewitness testimony.

There is no Alabama statutory or reported case law addressing the application of the privilege when the source was an eyewitness to a crime.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Those trial court that have recognized and applied the qualified constitutional reporter's privilege have not to date specifically decided that information obtained from a source who witnessed or participated in a crime is by definition "unavailable" from any other source, or is unique as eyewitness evidence, and in fact in some cases quashed subpoenas involving eyewitness or participant sources. See, e.g., State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984).

There is no statutory or case law addressing this issue directly. However, Bartlett suggests that direct, material evidence of a crime, if not available elsewhere, can be a unique source of evidence subject to subpoena. In Bartlett, the court ordered production of a television news report that captured images of a car accident scene just moments after the accident had occurred, including footage of the automobile in the middle of the intersection with skid marks, and pictures of the victim being treated by paramedics. The videotape showed measurable skid marks not otherwise recorded or measured at the time of the accident. The trial court found that the videotape "would greatly aid a trier of fact . . . in assessing what the severity of the incident was." 150 Ariz. at 181, 722 P.2d at 349. The Court of Appeals agreed. 150 Ariz. at 184, 722 P.2d at 352.

The Arizona Superior Court has stated that a reporter's direct observation of a crime is not protected under the Arizona Shield Law. In re Hibberd, 262 GJ 75, Feb. 26, 2001.

The Arkansas Supreme Court has not addressed whether the information obtained from a source who was an eyewitness or participant in a crime is by definition "unavailable" from any other source because it is unique eyewitness evidence.

There is no statutory or case law addressing this issue. However, in Delaney v. Superior Court, 50 Cal. 3d 785, 789 P.2d 934, 268 Cal. Rptr. 753 (1990), the court considered it significant that the reporter was an eyewitness to the crime and there were no other disinterested witnesses. Id. at 815-16.

Colorado courts have not directly addressed whether information obtained from an eyewitness to or participant in a crime is "unavailable" from any other source. However, in Henderson, the defendant was charged with cultivating marijuana based in part on the observations of law enforcement officer who was riding in a television news helicopter. Henderson, 879 P.2d at 392. The defendant subpoenaed the helicopter pilot in an effort to support his claim that the observations from the helicopter were an illegal search, violating his 4th Amendment rights. Id. The helicopter pilot, who was an employee of the television station, asserted the privilege under the Shield Law. Id. at 393. The court found that the pilot's assertion of the privilege was appropriate because the information sought in the subpoena was available from other sources, including the law enforcement officer on board. Id. at 394.

There is no Connecticut case law on this topic.

In Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974), the D.C. Circuit affirmed the district court’s order directing journalists to identify sources who were eyewitnesses to events that were being investigated as a possible burglary.

Although this precise issue has not been litigated in Delaware, the Delaware Reporters' Privilege Act excludes the privilege from applying to "any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage." 10 Del. C. § 4320(7).

No statutory or case law addressing this issue exists.

The test for overcoming the journalist’s privilege in Florida is not altered when the source is an eyewitness to a crime. Whether the privilege is overcome will be determined by whether the information is relevant and material and cannot be obtained from alternative sources, and whether a compelling need exists in favor of disclosure. Where the source is known, the argument against overcoming the privilege is strongest because the source himself is an alternative source. Even when the source is unknown, if the subpoenaing party cannot demonstrate by a clear and specific showing that all other possible sources of the information have been exhausted, then the privilege likewise will not be overcome.

Georgia courts have upheld the privilege in the context of a subpoena seeking the identity of a news reporter’s source who is an eyewitness or participant in a crime. See Stripling v. State, 261 Ga. 1, 8-9, 401 S.E. 2d 500, 507 (1991) (affirming trial court's protection of reporter's confidential sources under the privilege in a death penalty case where the reporter refused to disclose the identity of former sheriff's department employees who informed her of a “systematic policy of eavesdropping” on attorney client conversations at a county jail).

There are no reported cases.

There is no specific discussion of the application of the privilege to situations in which the source is an eyewitness to a crime. However, the videotape sought in the Salsbury case was sought because the prosecutor alleged that it would contain footage of the actions of the defendant newspaper reporter that led to his being arrested for obstruction of a police officer.

The Illinois reporter’s privilege has been found to be inapplicable when a reporter personally witnessed an occurrence. See generally Alexander v. Chicago Park District, 548 F. Supp. 277 (N.D. Ill. 1982).

The Indiana shield law protects a reporter from disclosing the identity of any source. See Ind. Code § 34-46-4-2.

No case or statute addresses this issue, but if the requesting party is a criminal defendant, compelled discovery is more likely. Denk, 20 Med. L. Rptr. at 1455 (states that burden to overcome reporter's privilege is lower in criminal cases).

The Kansas shield law does not contain a special rule compelling disclosure of the identity of a source who is allegedly an eyewitness to crime.  It does specify various circumstances that may be viewed as a “compelling interest” sufficient to satisfy the test identified at K.S.A. 60-482(a) as including “the prevention of a certain miscarriage of justice” and “an imminent act that would result in death or great bodily harm.”  K.S.A. 60-482(b)(1) and (2).  There is no controlling case law addressing this issue under the common law privilege.

In Branzburg v. Pound, the reporter himself was an eyewitness to a crime. He was therefore deemed to be the source. Because Kentucky's shield law prevents only disclosure of the source, the information obtained by the reporter (the identity of the men making hashish) was not held to be unavailable. The court reasoned that the men's identities were not the source of the information. Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972).

There is no statutory language or Louisiana case law addressing this issue.

Maine's courts have not addressed this issue.

"Where a newsman, by dint of his own investigative efforts, personally observes conduct constituting the commission of criminal activities by persons at a particular location, the newsman, and not the persons observed, is the 'source' of the news or information . . . [and] appellant can lawfully be directed to disclose [the news or information observed as] these questions do not go to the 'source' of the appellant's publication and they must be answered." Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973). Prince George’s County v. Hartley, supra (same).

There is no case law on this issue.

There have been no appellate cases discussing this precise issue. MCL 767A.6(6), as stated above, only speaks to the situation that occurs when the subpoenaed news gatherer is the subject of the inquiry. In such cases, the news reporter’s privilege does not apply, and the court will subject the news gatherer to inquiry. Id.

There are no specific Minnesota cases or statutory provisions on this point. This point likely would be considered as part of the other elements.

In State v. Knutson, the appellate court ordered in camera review of photographs, even though eyewitnesses might testify to the same general information, because the "photographers . . . used an objective means of recording that information. It is that objective record, not the photographers' eyewitness impressions, that the subpoena seeks." 539 N.W.2d 254, 258 (Minn. App. 1995) (emphasis added). In a prior decision arising from the same criminal prosecution, the court of appeals held that "alternative means" were not present when the other eyewitness testimony was conflicting. State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. App. 1994).

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue.

No distinction is made under Montana's law if the source is an eyewitness to a crime. If the source is a criminal participant, then the law might not apply if the court found that the source had not been engaged in his or her employment of gathering news.

The statute makes no distinction between eyewitnesses and other sources, and no case law addresses this issue.

There is no statutory exception to the privilege for a source that was a witness to a crime. However, the Nevada Supreme Court has stated, in dicta, that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served." Aspen Fin. Servs., Inc. v. Eighth Judicial Dist., 129 Nev. 878, 313 P.3d 875, 879-80 (2013), citing Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It may be the case that if a source witnessed a crime or was a participant in a crime, and a criminal defendant required information about the source in order to defend himself against criminal charges, Nevada courts could find an exception to the news shield law in NRS 49.275. Such an argument should not prevail in cases where the prosecution seeks disclosure as the State has no constitutional rights that would prevail over the statutory privilege. There are no cases directly addressing this issue.

There is no statutory or case law addressing this issue.

The fact that a newsperson’s source is an eyewitness to a crime does not overcome the privilege.

No New Mexico law specifically addresses this situation. See supra pt. III(G).

There is no statutory or case law addressing this issue.

No reported case in North Carolina has specifically addressed the issue of when a source is also an eyewitness or a participant in a crime. Under the shield law, the reporter's privilege does not protect a reporter's eyewitness observation of criminal or tortious conduct, see N.C. Gen. Stat. § 8-53.11(d), but the shield law does not specifically speak to the situation where a source is an eyewitness or participant in a crime. The Court of Appeals has held that the state has a compelling interest in pursuing criminal investigations, see In re Owens, 128 N.C. App. 577, 496 S.E.2d 592 (N.C. App. 1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (N.C. 1999), but this compelling interest is qualified by the requirements of the shield law. Under this law, the moving party must show that the information cannot be obtained from alternate sources. See N.C. Gen. Stat. § 8-53.11(c)(2). Some trial courts have required the moving party to show that all other means of obtaining information from such sources have been exhausted. See, e.g., Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep. 2391, 2392 (N.C. Superior Ct. 1986). Unless the eyewitness is unavailable and there are no other sources for information about the crime, it would be difficult for the prosecution or other requesting party to meet this high burden.

The fact that a source witnessed a crime and how it would affect the shield law has not been litigated in North Dakota. The statutory language does not distinguish between whether the information was gathered from a source that was either an eyewitness or a participant in a crime.

The Oklahoma courts have not addressed whether alternative means of obtaining information are not available under circumstances where the source is an eyewitness to or participant in a crime.

The Court of Appeals has held that a cameraman must testify to his personal observation of events that took place in public, and which did not relate to work product, informants or confidential sources. State v. Pelham, 136 Or. App. 336, 901 P.2d 972 (1995).

Even where a confidential source is (or may be) an eyewitness to a crime, the Shield Law provides absolute protection against disclosure of confidential source information. In Castellani, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law, “protects a newspaper’s source of information from compelled disclosure.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008). It did so even though the source disclosed to the reporter information subject to grand jury secrecy and the communication of that information was alleged to be a crime.

No Pennsylvania court has addressed the protections of the First Amendment privilege in a case in which the source is an eyewitness to a crime.

There is no statutory or case law addressing this issue.

The privilege is most likely to be overcome if the source was either an eyewitness to a crime or a participant in a crime, but the party seeking to overcome the privilege still must make the appropriate showing of exhaustion.

Based on Hopewell court's obiter dicta regarding criminal proceedings, it can be assumed disclosure would be forced in this situation.

The shield law specifically requires that the subpoenaing party prove, by clear and convincing evidence, that there is probable cause to believe that that the subpoenaed journalist has information which is clearly relevant to a specific probable violation of law. Tenn. Code Ann. § 24-1-208(c)(2)(A). In one case, a radio broadcaster was not required to divulge the identity of a caller who stated that he was responsible for killing a person and had not been apprehended and charged with the crime because the plaintiff had not demonstrated by clear and convincing evidence that the information sought could not reasonably be obtained from other sources. State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

An exception to the absolute privilege in the criminal context concerning confidential sources exists when the journalist observes the commission of a felony or a person has admitted the commission of a felony to the journalist. See Tex. Code Crim. Proc. art. 38.11, §4(a).

In those circumstances, the journalist may be compelled to testify if the person seeking the testimony makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain from alternative sources the confidential source of the information, document, or item. Id.

Rule 509 does not exempt news source’s eyewitness observations to a crime from the protection of the Rule.  In cases where the leak of information to the source is alleged to be a crime, and thus the source a witness to the crime, a court must balance the need for disclosure of confidential and nonconfidential information against the interest in preserving the “continued free flow of information” to the source (and thus the public). See Utah R. Evid. 509 (c) & (d). This language allows for consideration of the public value of the information reported to the public, a factor not expressly provided by Silkwood or Bottomly, but which is critical in leak cases.

Before the adoption of Rule 509, a single Utah trial court confronted this issue. Although the court's treatment of this topic has no precedential value, it may serve to illustrate one way Utah trial courts might approach this question. On February 10, 2000, the ABC news program “20/20” broadcast a tape of a British woman allegedly undergoing a New Age procedure called trepanation, in which a hole is drilled in the skull in an attempt to relieve pressure and achieve heightened consciousness. The tape showed two men who were later charged by county prosecutors with practicing medicine without a license. The tape also showed that ABC News reporter Chris Cuomo was present and witnessed the trepanation procedure.

ABC, however, had placed a dot on the tape to cover the depiction of the woman's skull at the moment of actual drilling due to the graphic nature of the procedure. Thus, using only the broadcast version of the tape, prosecutors could not demonstrate that the two defendants actually conducted the procedure; the woman later claimed that she drilled the hole herself. In order to bolster their case, prosecutors subpoenaed Cuomo and the unedited ABC News tape. A state trial judge, in declining to quash the subpoena, relied heavily on the fact that Cuomo was present and witnessed the alleged crime: “At this point, Mr. Cuomo is the only eyewitness whose identity is known to the State. At this point, either Mr. Cuomo testifies, or the State will likely be obliged to dismiss their prosecution.” State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). Thus, the trial judge said, the state had “met its burden to demonstrate that it has attempted to gather the evidence from other sources.” Id.

Following adoption of Rule 509, a magistrate judge confronted the issue again in the civil rights case Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011). In Wood, the court considered whether to quash the subpoena of a Salt Lake City newspaper reporter who witnessed and photographed a police standoff that ended in the death of the plaintiff. Id. The reporter was one of four total eye witnesses. Although the court did not apply Rule 509, it did apply the Silkwood factors and considered whether material was unavailable from other eye witness sources. The court concluded that the depositions of the other eye witnesses “weigh[ed] against the existence of the qualified privilege” but ultimately held the other two factors—i.e., that the evidence goes to the heart of the case and is highly relevant—weighed against the existence of the privilege.  Id. at *2.  The magistrate judge went on to explain that he was “not convinced that other sources are more apt to have relevant information” because the reporter was “the sole witness of the standoff who [was] not affiliated with either Plaintiffs or the police involved in the standoff” and “had the best vantage point of the standoff and viewed it through both a camera with a zoom lens and a spotting scope.”  Id. at *3. Thus, the court declined to quash the subpoena.  See id.

The Vermont Shield Law provides absolute protection for the identity of the source of confidential news or information.  12 V.S.A. § 1615(b)(1)(A)(i).  The statute contains no carve out for eyewitnesses to crimes; thus, in the context of confidential information, the privilege would apply.

Prior to the Vermont Shield Law’s enactment, the Vermont Supreme Court found that no privilege exists under the First Amendment that would protect a journalist from “disclos[ing] evidence of a crime, or evidence that is relevant and material to a criminal investigation, when properly subpoenaed.” In re Inquest Subpoena (WCAX), 2005 VT 103, ¶¶ 20-21, 890 A.2d 1240, 1247 (Vt. 2005) (noting that “a reporter’s investigation of criminal activity is exactly the kind of information Branzburg [v. Hayes, 408 U.S. 665, 708 (1972),] does not allow reporters to shield, absent proof that the investigation is motivated by an illegitimate purpose”).

This can be a factor for the court to consider in applying the privilege. Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (jailhouse interview given by a murder suspect); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter and noting that the privilege still applies in a civil case even if the underlying conduct is alleged to be criminal).

Washington’s case law has not yet squarely addressed this issue, but Section 1(a) of the shield statute provides for an absolute privilege regarding confidential source information. See RCW 5.68.010(1)(a).

The Reporters’ Privilege statute, W.Va. Code § 57-3-10, now protects reporters from compelled disclosure of a confidential source (or disclosure of information that could identify a confidential source) in criminal and grand jury proceedings, “unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.”  Interestingly, the exceptions do not expressly include testimony which would identify the perpetrator of a crime, unless such identification is necessary to prevent unjust incarceration.

Not applicable.