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Press Gets Limited Protection Against Compelled Testimony

May 4, 1990

SAN FRANCISCO (AP) _ The California Supreme Court has ruled reporters can be required to testify in a criminal case if their testimony would help the defense.

The decision Thursday involved a Los Angeles Times reporter and photographer who had refused to testify in a weapons possession case, citing the state’s ″shield law.″ The law protects reporters from being held in contempt of court or jailed for refusing to disclose news sources or unpublished information.

The court unanimously concluded that the 1980 law protects observations made during news gathering, in addition to undisclosed, confidential notes or tapes.

But the court also ruled the law cannot be used to violate a criminal defendant’s constitutional right to a fair trial, and that testimony can be compelled if there is a ″reasonable possibility the information will materially assist (the) defense.″

Applying those standards, the court said reporter Roxana Kopetman and photographer Roberto Santiago Bertero must testify about whether they saw or heard a man agree to a search of his jacket when he was arrested by Long Beach police in 1987. Officers said they found illegal brass knuckles in the jacket, but the evidence will be excluded if the search was without consent.

Rex Heinke, lawyer for Ms. Kopetman and Bertero, said a U.S. Supreme Court appeal would be considered.

The court did not resolve one important question, whether a prosecutor has a similar ability to compel a reporter’s testimony. But Justice David Eagleson, who wrote the opinion, said the court did not have to decide that issue in this case.

Heinke said the ″logical implications″ of the decision were that the media could not be compelled by the prosecutor in a criminal case, or by either side in a civil suit not directly involving the press.

″If those are the implications, then it’s a substantial victory for the press, although not in this particular case,″ he said.

Albert Menaster, the Los Angeles public defender who sought the testimony, said the ruling was a victory for his client ″but I do not consider it a loss for the press.″ He said the court had set reasonable standards for balancing the rights of reporters and defendants.

Ms. Kopetman and Bertero were riding with Long Beach police in September 1987 when they saw officers question and search Sean Patrick Delaney, 21.

The newspaper’s article four days later mentioned the incident, but did not say whether Delaney consented to the search of his jacket pocket, the crucial issue for a still-pending charge of possessing brass knuckles.

Ms. Kopetman and Bertero refused to testify, citing the shield law. They were held in contempt of court and that decision was upheld by the 2nd District Court of Appeal, which said the law did not apply to observations of public events.

The Supreme Court disagreed with that conclusion, saying ″unpublished information″ protected by the law included non-confidential observations. But the court said the reporters’ shield was overcome in this case by the defendant’s need for the testimony.

″Delaney’s personal liberty is at stake,″ Eagleson wrote. ″The reporteres are not being asked to breach a confidence or to disclose sensitive information that would in any way even remotely restrict their newsgathering ability.

″All that is being required of them is to accept the civic responsibility imposed on all persons who witness alleged criminal conduct.″

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