Friday, December 19, 2014 07:51:16 AM

Reporters Privilege

Must a reporter, editor or photographer comply with subpoenas?

North Carolina trial courts have recognized a qualified reporter’s privilege against compelled testimony. Before a reporter may be required to testify, the party seeking her testimony must prove: (1) the information is relevant to the underlying legal proceeding; (2) the information is crucial to the outcome of a claim or defense; and (3) the information is not available from any other source. However, North Carolina’s long judicial practice was challenged in February 1997 when an assistant district attorney asked Judge Farmer to sentence a television reporter to jail for her refusal to answer certain questions in a pretrial hearing in a capital murder case. The judge initially sentenced the reporter to 30 days in jail and subsequently reduced the sentence to the two hours that the hearing lasted. The North Carolina Court of Appeals ruled that in the circumstances, the reporter did not have a qualified privilege to be free from compelled testimony.

About a year later, a newspaper reporter was held in contempt of court for his refusal to turn over his notes to an assistant district attorney in a capital murder case. After reviewing the notes in chambers, the judge ruled that they were material to the prosecution’s investigation and ordered the reporter to produce the notes.

Both cases have been heard by the N.C. Supreme Court, and rulings have been pending for approximately nine months.

What should I do if I get a call from a prosecutor, defense lawyer, a police officer or other public official wanting more information about a story I’ve written?

A newspaper is the original one-way information super-highway. Reporters must learn to walk the tightrope of getting as much information as they can without giving out any more information than they have to. To do otherwise risks waiving the journalist’s privilege. In the eyes of law enforcement and lawyers, reporters are an excellent source of good, reliable information, and reporters sometimes have highly developed relationships with sources that will garner them a great deal of important information. That makes reporters attractive targets. However, when a reporter gets a call from a lawyer who is “calling to follow up on a story in the paper,” or from a police officer “checking out a lead,” reporters must be able to politely and tactfully deflect questions. North Carolina has an outstanding reporter’s privilege that protects both confidential and non-confidential information, published and unpublished information. But privileges can be waived, and a reporter who voluntarily discloses any information runs the risk that an interested party might later argue that the reporter waived the privilege. When the call comes in, the reporter should listen carefully to the questions, say that he or she needs to talk with the editor before going any further in the conversation, and then consult with the editor or publisher about how much, if any, information to provide. Once the call comes, the reporter should preserve all notes or other materials he or she has collected related to the story. No one wants to be in the position of explaining to a judge why notes were thrown away the day after a call came in from the district attorney. January 2003