Schuman, In re

• Citation: 114 N.J. 14,552 A.2d 602
• Parties: , 16 Media L. Rep. 1092 In re Subpoena Issued to Evan SCHUMAN, Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Gary J. MAYRON, Defendant.
• Decision Date: 23 January 1989
• Court: New Jersey Supreme Court

Page 14

114 N.J. 14

552 A.2d 602, 16 Media L. Rep. 1092

In re Subpoena Issued to Evan SCHUMAN, Appellant STATE of New Jersey, Plaintiff-Respondent, v. Gary J. MAYRON, Defendant.

Supreme Court of New Jersey.

Argued Oct. 11, 1988.

Decided Jan. 23, 1989.

Arnold H. Chait, Morristown, for appellant (Vogel, Chait, Schwartz & Collins, attorneys; Arnold H. Chait and Aron M. Schwartz, on the brief).

Jared L. McDavit, Asst. Prosecutor, for plaintiff-respondent (Richard E. Honig, Sussex County Prosecutor, Hamburg, attorney).

Thomas J. Cafferty, Somerset, for amicus curiae New Jersey Press Ass'n (McGimpsey & Cafferty, attorneys; Thomas J. Cafferty and A.F. McGimpsey, Jr., on the brief).

Edward F. Lamb, Newark, and Jack M. Sabatino submitted a brief on behalf of amicus curiae Newark Morning Ledger Co. (Robinson, Wayne, Riccio & LaSala, attorneys).

Peter J. Laemers, Newton, submitted a brief on behalf of amicus curiae New Jersey Herald (Morris, Downing & Sherred, attorneys; Peter J. Laemers and Pamela A. Reeve, on the brief).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal raises the question of whether a newsperson can be compelled by the State to testify at trial concerning a confession made to him in the pursuit of his professional activities by a criminal defendant after the confession has been published in the newspaper. We find that under the provisions of the New Jersey Shield Act, N.J.S.A. 2A:84A-21 the reporter cannot be compelled to testify.

This matter arises out of the capital case of State of New Jersey v. Gary J. Mayron (Sussex County Indictment No. 86-05-0096-I), in which defendant Mayron is charged with kidnapping ( N.J.S.A. 2C:13-1b) and murder ( N.J.S.A. 2C:11-3) of seventeen year-old Susan Brennan. At trial, ¹ the State sought the testimony of a reporter, Evan Schuman, whose accounts of telephone conversations with defendant were published in the New Jersey Herald on April 8 and 10, 1986, ² five weeks prior to defendant's indictment.

Schuman's front page articles detailed the substance of their conversations. His April 8, 1986, story, under the headline, "Murder Suspect: 'I just lost it,' " stated as follows In an interview with The Herald Monday, Mayron said he had sexual relations with Susan Brennan of Lake Hiawatha late last month and then beat her in a Parsippany motel room before beating her to death and leaving her in Sparta.

Schuman's April 10 article provided further elaboration:

In a follow up phone interview with The Herald on Tuesday, Mayron said he killed Brennan "out of a lot of hate and a lot of anger" for her because she had sex with him so soon after they had met.

* * *

"You just don't do that unless you love somebody", he claimed he told the girl as they drove from a Morris County motel to a wooded area of Sparta where he said he kicked and beat her while she pleaded with him.

" 'Please don't kill me. I'm sorry,' " Mayron quoted the teenager as saying.

* * *

"I didn't mean to kill her. Just to hurt her. She was in the place of my real mother", said Mayron, who was adopted. "And that's what I felt like doing to her" (his mother).

"It was like physically it was me but mentally it wasn't. Anger and hate constantly controlled me for four or five hours."

The State served Schuman with a subpoena to testify on or about March 18, 1987. On April 1, 1987, Schuman moved before the trial court to quash the subpoena. Schuman's affidavit read, in part, as follows:

4. The testimony I am to provide on behalf of the State was obtained solely and exclusively in the course of pursuing my professional activities as a reporter for the New Jersey Herald.

5. I have not been an eyewitness to any alleged act or offense the Defendant is accused of having committed.

6. There is a public perception that newspersons are immune from compulsory process. The belief that newspersons cannot be called upon to testify encourages the free flow of information between sources and reporters regardless of whether the sources request confidentiality. Compelled disclosure would decrease the flow of information available to the public because reporters will be ethically compelled to advise their sources that confidentiality may not be able to be guaranteed, or reporters will refrain from disclosing their sources.

7. The information sought by the subpoena is subject to the newsperson's privilege as set forth in N.J.S.A. 2A:84A-21 et seq., Evid.R. 27, which privilege I do hereby invoke and which information I thus respectfully refuse to disclose as a witness.

At the hearing on the matter, the State explained that it sought to introduce only the specific statements made by Mayron that were reported by Schuman in the published articles. The State represents that it "has independent evidence to prove how the telephone conversations came about and to prove that the person to whom Mr. Schuman spoke was indeed Gary Mayron." Thus, it sought neither the reporter's notes nor any other information relating to the interview. Its sole purpose was to obtain a sworn, in-court statement establishing that Mayron had uttered the words quoted in the Herald article. Once such a statement was obtained, it would introduce those words into evidence against Mayron under Evid.R. 63(7) and Evid.R. 63(10) as admissions and declarations against penal interest.

Schuman contends that Evid.R. 27(b), of the New Jersey Shield Law, N.J.S.A. 2A:84A-21(b), which gives a newsperson "a privilege to refuse to disclose ... any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated," guarantees that a reporter cannot be said to have waived any part of the privilege by virtue of publishing information in a newspaper. Hence, he maintains that dissemination of the information in his articles on Mayron does not constitute a waiver of his Evid.R. 27 privilege. The State, on the other hand, contends that because the newsperson's privilege is expressly "[s]ubject to Rule 37," governing waivers of privileges generally, that privilege is susceptible to waiver with respect to the specific information disseminated. ³ Accordingly, the State argues that since it is seeking Schuman's testimony regarding only information disclosed in his articles, he has waived his privilege under Evid.R. 37.

The trial court held in favor of Schuman and quashed the subpoena. The court cited this Court's statement in Maressa v. New Jersey Monthly, 89 N.J. 176, 187, 445 A.2d 376, cert. den., 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed.2d 169 (1982), that "[a]bsent any countervailing constitutional right, the newsperson's statutory privilege not to disclose confidential information is absolute." The trial court considered whether the information involved in this case, having been published, was in fact "confidential"; it concluded, "I honestly don't know." Although its "inclination" was that the information was not confidential, it decided that it would "rather err on the side of caution, in protecting the rights of the newspaper, rather than go the other way."

The State moved for leave to appeal nunc pro tunc. The Appellate Division reversed. 222 N.J.Super. 387, 537 A.2d 297 (1987). In its opinion, the Appellate Division conceded that "[t]he 1977 amendments to the Shield Law, literally read, provide a privilege from the disclosure of information notwithstanding dissemination of it in the media." Id. at 393, 537 A.2d 297; see N.J.S.A. 2A:84A-21(b); Evid.R. 27(b). The court nonetheless concluded that any such interpretation is contradicted by another segment of the New Jersey Shield Law, N.J.S.A. 2A:84A-21.3(b), which states that "[p]ublication shall constitute a waiver only as to the specific materials published". Although the latter section involves procedures whereby criminal defendants may subpoena newspersons, the court inferred from its terms that waiver of the privilege can still arise from dissemination even where it is the State that seeks the information. 222 N.J.Super. at 394, 537 A.2d 297. Consequently, the Appellate Division held that "the State may subpoena a newsperson and ask him about information which he has disseminated and where, as here, the source has been identified, the newsperson may be questioned about the source and the circumstances under which the information was obtained." Ibid.

We granted Schuman's motion for leave to appeal. 110 N.J. 520, 541 A.2d 1377 (1988). ⁴

I

This appeal concerns a conflict between two competing principles: the public's right to everyone's evidence ⁵ and the public's right to the unencumbered free flow of information. We recognize the importance, validity, and vitality of both of these policies. Nevertheless, the New Jersey Shield Law is designed "to protect the confidential sources of the press as well as information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution[s]" of the United States and New Jersey. In re Farber, 78 N.J. 259, 270, 394 A.2d 330 (1978), cert. den. sub nom, New York Times Co. v. New Jersey, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978). The continuous efforts of the New Jersey Legislature "to establish the strongest possible protection for the newsman and news media" leads us to conclude that Mr. Schuman cannot be compelled to testify against Mayron. Id. at 302-03, 394 A.2d 330 (Handler, J., dissenting). This conclusion is supported by the statutes' language, the statutory scheme, and, most importantly, by the fundamental public policies underlying the Shield Law. The statutory privilege along with these policy considerations favor protecting the press from being compelled by the State to testify even where the substance of the testimony sought has been disseminated in an article.

At common law, a newsperson did not have the privilege "to conceal from judicial inquiry, either the source of ... information or the information itself." Beecroft v. Point Pleasant...