Shield Laws

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Statutes affording a privilege to journalists not to disclose in legal proceedings confidential information or sources of information obtained in their professional capacities. They restrict or prohibit the use of certain evidence in sexual offense cases, such as evidence regarding the lack of chastity of the victim.

Journalist Shield Laws

Journalist shield laws, which afford news reporters the privilege to protect their sources, are controversial because the privilege must be balanced against a variety of competing government interests such as the right of the government to apprehend criminals and to prevent the impairment of grand jury investigations. Still, most states have enacted such laws, based on the first amendment guarantee of freedom of the press. There is no federal journalist shield law, however, because the U.S. Supreme Court has refused to interpret the First Amendment as mandating a news reporter's privilege.

There is a long history behind the current state statutes that provide a privilege for journalists to protect the sources of their information. benjamin franklin's older brother James was jailed for refusing to reveal the source of a story he published in his newspaper. The first reported case, however, was not until 1848 when a reporter was jailed for contempt of the Senate for refusing to disclose who had given him a copy of the secret proposed treaty to end the Mexican-American War (Ex Parte Nugent, 18 F. Cas. 471 [Cir. Ct. D.C.]). Similar conflicts between a reporter's desire to keep sources confidential and the demands of the courts or legislatures for disclosure continued throughout the nineteenth century. During the early 1900s, journalists repeatedly were brought to the witness stand to reveal their sources in the growing number of news stories about labor unrest and municipal corruption.

These early conflicts led to the advancement of several legal theories that justified the reporter's refusal to disclose. For example, reporters maintained that they were acting pursuant to a journalistic code of ethics, that their employers would not let them reveal their sources, that they were relying on the privilege against self-incrimination, and that the forced disclosure of sources amounted to the taking of proprietary information. However, the courts did not widely accept any of these theories because the common law did not recognize reporters' privilege.

Legislatures were more receptive to the journalists' plight, and the states began to enact privilege statutes, albeit slowly. In 1898, Maryland became the first state to enact such a privilege, and 33 years later, New Jersey was the second state to do so. By 1973, half of the states had followed suit. Legislatures enacted their statutes under various theories, such as the claim that the public interest in the free flow of information is useless without a journalist's right of access to information, and that journalists must rely on confidential informants to gain access to information. Legislatures also accepted the argument that journalists are entitled to privilege rights in their professions, similar to those of doctors, lawyers, or clergy. Critics point out that the professional privilege of doctors, lawyers, or clergy belongs to the client, not the professional; it is the client's right to assert the privilege and withhold information. Critics also contend that journalists are not in a service business like other professionals who are afforded privileges.

The states that did enact journalist shield laws generally enacted them in a hasty manner, resulting in many different types of laws that often did not provide adequate protection. As a result, journalists began to rely instead on the theory that the First Amendment freedom of the press supports the journalist privilege.

In the late 1960s, with the trial of the chicago eight, a group of antiwar activists, the reporters' privilege entered a new era of heightened public awareness and controversy. A large number of press subpoenas were issued in that case, perhaps as a result of the growing adversarial stance taken by journalists who, during the vietnam war, had become increasingly skeptical of government officials.

In 1972, the U.S. Supreme Court rejected the argument of reporters' privilege. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, the Court held that news reporters do not have a right under the First Amendment to refuse to appear or testify before a grand jury. The Court stated that the burden on newsgathering in not allowing reporters' privilege was not sufficient to override the compelling public interest in law enforcement and effective grand jury proceedings. Lower courts that interpreted this decision did so narrowly. For example, they tended to limit the scope of the privilege to investigations before grand juries.

Following the Supreme Court decision, Congress, in 1975, passed Federal Rule of Evidence 501 concerning privileges. Under this rule, privilege as outlined in state law is to be applied in all civil actions and proceedings. legislative history behind the enactment of Federal Rule of Evidence 501 indicates that Congress intended it to provide qualified reporters' privilege. A number of problems have arisen, however, concerning the scope and application of this privilege.

One such dilemma is determining to whom the privilege applies. Unlike other privileged professionals, journalists are not licensed or certified in any manner. Many state statutes attempt to define a journalist as one who communicates via newspaper, is employed by a newspaper, or whose communication is classified as "news." The question then becomes whether books, magazine articles, or pamphlets are encompassed in the definition of a newspaper. Some of the broader state statutes do cover these media. Most state statutes also protect television and radio broadcasts, although some limit protection to "news" programs. In addition, some courts have held that documentary films should be included in the scope of the privilege protection.

Another question is how the term news should be defined. Statutes seldom define the term, and some commentators are not convinced that an adequate definition can be devised. Presumably poetry or works of fiction are not news, but it is a more difficult question when considering sensationalism or gossip. Some legal scholars advocate avoiding consideration of the supposed worth of the communication and making the privilege available to those who generally acquire information for public dissemination.

Another important issue that arises under state statutes that protect only the journalist's sources is whether a "source" can only be a human informant or whether it can include a book, document, tape recording, or photograph. These and many other issues have led to varying court decisions based on the particular state statute and facts before the court.

Rape Shield Laws

In the context of criminal sex offenses, rape shield laws forbid certain evidence in the trial that is believed to be prejudicial and harassing. These statutes are called rape shield laws because they first originated in the context of rape cases.

Up until the 1970s, under the common law in England and the United States, evidence of a rape victim's past sexual conduct was broadly admissible and accepted in every rape case. It was believed that if a rape victim consented to sex in the past, she was more likely to have consented to the sexual acts that she claimed amounted to rape. This evidence was also admitted under the theory that a woman's past sexual history could be important in assessing her credibility as a witness. The common-law rules discouraged women from bringing rape charges for fear they would be embarrassed and humiliated at trial.

Great strides were made to reform such rules in the 1970s. These efforts were very successful, and within little over a decade every jurisdiction in the United States had reformed its laws to prohibit using a woman's past sexual history in rape cases. Special evidentiary rules were enacted on the state and federal level to protect the privacy of the victim, and to encourage rape victims to report offenses and to participate in the prosecution of offenses.

Typical rape shield laws provide that in a prosecution for rape, attempted rape, or conspiracy to commit rape, reputation or opinion evidence of the alleged victim's prior sexual conduct is not admissible. Evidence of specific instances of the victim's prior sexual conduct is also inadmissible except in the following circumstances: (1) the evidence regards the sexual conduct between the victim and the defendant and is introduced to show consent; (2) the evidence is introduced to prove an alternate source or origin of semen, disease, or pregnancy; (3) the evidence regards the immediate surrounding circumstances of the alleged crime; or (4) the evidence of previously chaste character is necessary to the successful prosecution of the particular criminal charge.

The procedure involved in introducing evidence covered by rape shield laws is also fairly typical. Generally the defendant must make a motion supported by an offer of proof in which the defendant details what evidence he wishes to introduce and why. The court will generally require that a hearing be held out of the presence of the jury to review the motion and hear arguments in support of and against the motion. If the court finds some of the evidence admissible pursuant to one of the exceptions under the applicable laws, an order must be issued stating the scope of the evidence that may be admitted.

Rape shield laws have expanded to include other evidence that legislatures deem prejudicial, such as clothing of the victim that the defendant tries to introduce to show that the victim consented to or asked for the sexual contact. Those state statutes that do restrict the admissibility of clothing, however, make exceptions where it is introduced to show a struggle (or lack thereof) or proof of the presence (or absence) of bodily fluid such as semen or blood. Rape shield laws have also been expanded in most states to protect victims of all different sexual offenses, regardless of the victim's age or sex.

Defendants have challenged the constitutionality of rape shield laws on many occasions, generally arguing that the laws violate their right to due process and their right to confront their accuser. However, the constitutionality of these laws has consistently been upheld. Specifically, courts have held that the state's interest in protecting sexual assault victims from harassment and humiliation at trial, as well as the highly prejudicial effect such evidence may have on a jury, outweighs the rights of the defendant that may be implicated.

further readings

Fargo, Anthony L. 2002. "The Journalists's Privilege for Non-confidential Information in States Without Shield Laws." Communication Law and Policy 7 (summer).

Morosco, B. Anthony. 1996. The Prosecution and Defense of Sex Crimes. New York: Bender.

White, John T. 2001. "Smoke Screen: Are State Shield Laws Really Protecting Speech or Simply Providing Cover for Criminals Like the Serial Arsonist?" Arizona State Law Journal 33 (fall).

Wright, Charles Alan, and Kenneth W. Graham Jr. 1980. Federal Practice and Procedure. Vol. 23. St. Paul, Minn.: West.


Evidence "Journalists' Privilege" (In Focus); Privileged Communication.