Court-Martial Trial Practice Blog
This issue of journalists and privilege — and considerations of a Shield Law – is not new to military practice.
A proposed privilege is circulating around Congress and other high offices.
Here is a piece by Prof. Colin Miller of Evidence Prof Blog, writing this time for the Yale Law Journal's Pocket Part — A Public Privilege.
If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then according to a recent Pennsylvania Supreme Court opinion, Pennsylvania’s reporter’s privilege is the best of privileges and the worst of privileges. In that opinion, the court failed to carve a crime-fraud exception out of Pennsylvania’s reporter’s privilege—or its “Shield Law”—despite having previously read a similar exception into every other evidentiary privilege.
Ironically, this alleged act of judicial “passivism” transformed the
Shield Law into both a shield and a sword and mischaracterized the
purposes served by all evidentiary privileges.
According to the court, the Shield Law is exceptional, and thus
exceptionless, because it is directed toward protecting the free flow
of information to society for the public good, while the
attorney-client privilege is intended for the private benefit of the
client. In its reasoning, however, the court misunderstood both the
attorney-client and reporter’s privileges. This essay argues that, as
the U.S. Supreme Court recognized in Jaffee v. Redmond,
all evidentiary privileges must serve two masters, private interests
and public ends, and, contrary to the Pennsylvania Supreme Court’s
logic, crime-fraud exceptions do not undercut but bolster those public
ends.
Ironically, this alleged act of judicial “passivism” transformed the
Shield Law into both a shield and a sword and mischaracterized the
purposes served by all evidentiary privileges.
According to the court, the Shield Law is exceptional, and thus
exceptionless, because it is directed toward protecting the free flow
of information to society for the public good, while the
attorney-client privilege is intended for the private benefit of the
client. In its reasoning, however, the court misunderstood both the
attorney-client and reporter’s privileges. This essay argues that, as
the U.S. Supreme Court recognized in Jaffee v. Redmond,
all evidentiary privileges must serve two masters, private interests
and public ends, and, contrary to the Pennsylvania Supreme Court’s
logic, crime-fraud exceptions do not undercut but bolster those public
ends.
Pennsylvania’s Shield Law, states that “[n]o
person . . . employed by any newspaper of general circulation . . .
shall be required to disclose the source of any information procured or
obtained by such person, in any legal proceeding, trial or
investigation before any government unit.”