State v. Rinaldo

• Citation: 689 P.2d 392,102 Wn.2d 749
• Decision Date: 18 October 1984
• Docket Number: No. 50192-1,50192-1
• Court: United States State Supreme Court of Washington
• Parties: , 10 Media L. Rep. 2448 The STATE of Washington, Plaintiff, v. Theodore RINALDO, Petitioner, The Everett Herald, Respondent.

Page 749

102 Wn.2d 749

689 P.2d 392, 10 Media L. Rep. 2448

The STATE of Washington, Plaintiff, v. Theodore RINALDO, Petitioner, The Everett Herald, Respondent.

No. 50192-1.

Supreme Court of Washington,

En Banc.

Oct. 18, 1984.

Mestel & Muenster, Mark D. Mestel, Everett, for petitioner.

Perkins, Coie, Stone, Olsen & Williams, David J. Burman, Seattle, for respondent.

Davis, Wright, Todd, Riese & Jones, P. Cameron DeVore, Marshall J. Nelson, Francis L. Van Dusen, Jr., Seattle, amicus curiae for respondents--Allied Daily Newspapers and the Society of Professional Journalists.

DOLLIVER, Justice.

Petitioner Theodore Rinaldo seeks reversal of the decision of the Court of Appeals which vacated the trial court's discovery order compelling in camera inspection of the files of The Herald (formerly The Everett Herald) which allegedly contain materials useful for his criminal defense. The type and scope of privilege a newspaper and its reporter may have to withhold confidential information from a criminal defendant is at issue.

During the spring and summer of 1979, Herald reporter Gary Larson wrote six articles concerning alleged cult activities at Eden Farms, a 60- to 80-acre farm operated by Rinaldo. In order to obtain information for the articles, Larson promised to keep his sources confidential. Later that summer, Rinaldo was charged with statutory rape, indecent liberties, assault, coercion, and intimidating a witness. He was tried by a jury and found guilty of some of these offenses. About a year later, several witnesses who testified on behalf of Rinaldo contacted the county sheriff and stated they committed perjury at trial because of Rinaldo's threats. As a result of these recantations, Rinaldo was charged with perjury, intimidating witnesses, tampering with witnesses, and statutory rape.

During the discovery process, counsel for Rinaldo filed a motion for a subpoena duces tecum directing The Herald to disclose all written or recorded materials relating to Rinaldo, Eden Farms, Ellogos (a nonprofit corporation operated by Rinaldo and the part owner of Eden Farms), and 38 past or current members of those two organizations. Alternatively, the motion requested delivery to the Superior Court for an in camera inspection.

In his affidavit in support of this motion, counsel stated his belief that the charges against Rinaldo had stemmed from The Herald's investigation into his "affairs". Counsel also stated the police did not file extensive incident reports of their interviews with witnesses, but that, to the best of counsel's knowledge, a Herald reporter was present when the witnesses were interviewed by law enforcement officials. Counsel concluded the records of The Herald should contain information which could be used to impeach the State's witnesses. Finally, counsel stated he had discussed the matter with a Herald reporter and counsel for The Herald and had been informed the newspaper would not voluntarily release its records.

The Herald moved to quash the subpoena duces tecum on the grounds the information was privileged and not subject to disclosure. The subpoena was subsequently amended to require The Herald to produce any information in its possession potentially favorable to Rinaldo on the issue of guilt or mitigation and all written or recorded statements in its files given by 21 persons who had been named State's witnesses for the upcoming trial.

At the hearing on the motion to quash, defense counsel admitted he had not yet interviewed any witnesses. However, he urged the court to review the material in camera and determine whether it would be helpful to the defense. The trial court, acting prior to our opinion in Senear v Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180 (1982), held the newspaper had a qualified privilege under the First Amendment. This right, however, had to be balanced against Rinaldo's constitutional right to a fair trial and the right of the public, through the courts, to have the truth ascertained. The trial court ordered the material to be produced for in camera review.

On appeal, Chief Judge Andersen, writing for the majority, held Const. art. 1, § 5 ("[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right") provides newspapers and their reporters with an absolute privilege of nondisclosure of confidences and confidential news sources. State v. Rinaldo, 36 Wash.App. 86, 673 P.2d 614 (1983). Judge Durham concurred. She concluded the issue of privilege need not be reached as Rinaldo had failed to meet threshold requirements for in camera review, let alone disclosure. 36 Wash.App. at 102, 673 P.2d 614. Judge Ringold dissented, finding a journalist has a qualified common law privilege in a criminal case and Rinaldo had made a sufficient showing to justify in camera review. 36 Wash.App. at 110, 673 P.2d 614.

In construing the First Amendment, the federal courts have not discovered an absolute privilege for reporters. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court held reporters had no First Amendment testimonial privilege to conceal information from a grand jury. See, e.g., Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (plaintiff suing member of press for defamation not barred from inquiring into editorial processes where inquiry will produce evidence material to proof of a critical element of plaintiff's case). Rather, the courts have used a "balancing test" approach, which pits the news reporter's need for confidentiality against the defendant's right to compulsory process and a fair trial. United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983); United States v. Cuthbertson, 651 F.2d 189, 195-96 (3d Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 604, 70 L.Ed.2d 594 (1981); United States v. Pretzinger 542 F.2d 517, 520-21 (9th Cir.1976); United States v. Blanton, 534 F.Supp. 295, 296-97 (S.D.Fla.1982); United States v. Orsini, 424 F.Supp. 229, 232 (E.D.N.Y.1976), aff'd, 559 F.2d 1206 (2d Cir.), cert. denied, 434 U.S. 997, 98 S.Ct. 636, 54 L.Ed.2d 491 (1977).

A number of state courts which have considered the privilege in connection with criminal proceedings have interpreted their state constitutions to grant a qualified privilege. See Annot., Privilege of Newsgatherer Against Disclosure of Confidential Sources or Information, 99 A.L.R.3d 37 (1980); State ex rel. Green Bay Newspaper Co. v. Circuit Court, 113 Wis.2d 411, 335 N.W.2d 367 (1983); State v. Siel, 122 N.H. 254, 444 A.2d 499 (1982). Cf. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 697 (1979); In re Farber, 78 N.J. 259, 394 A.2d 330, 99 A.L.R.3d 1, cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978); State v. Sandstrom, 224 Kan. 573, 581 P.2d 812 (1978).

As a general rule, disclosure has been required in criminal cases where it is shown the news reporter's confidential information

is material to prove an element of the offense, to prove a defense asserted by the defendant, to reduce the classification or gradation of the offense charged, or to mitigate or lessen a sentence imposed.

McAuley, 63 Ohio App.2d at 21, 408 N.E.2d 697; Sandstrom, 224 Kan. at 576, 581 P.2d 812. Information sought solely to show prior inconsistent statements by a witness has not been disclosed. Siel, 122 N.H. at 260, 444 A.2d 499.

While Judge Andersen supports absolute privilege with an analysis of state constitutional history, public policy, and a Socratic dialogue (36 Wash.App. at 100-01 n. 18, 673 P.2d 614), his position is inapposite to all case law. While admittedly Const. art. 1, § 5 is worded differently than the First Amendment, which prohibits Congress from making any law "abridging the freedom of speech, or of the press", it does not support an absolute privilege for journalists. Cf. State ex rel. Green Bay Newspaper Co. v. Circuit Court, supra.

This court has ruled in the civil context that news reporters have a qualified, common law privilege. Clampitt v. Thurston Cy., 98 Wash.2d 638, 642, 658 P.2d 641 (1983); Senear v. Daily Journal-American, 97 Wash.2d 148, 155, 641 P.2d 1180 (1982). The four fundamental conditions necessary to establish such a common law privilege are:

(1) The communication must originate in a confidence that it will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.

Senear, 97 Wash.2d at 153, 641 P.2d 1180 (quoting State ex rel. Haugland v. Smythe, 25 Wash.2d 161, 168, 169 P.2d 706, 165 A.L.R. 1295 (1946)). Only if all four of these conditions are met and the privilege found to exist, are the interests of the particular litigant weighed against the news reporter's interest to determine whether disclosure should be ordered. Senear, 97 Wash.2d at 155, 641 P.2d 1180.

The first three factors are the same in both a civil context and a criminal context. The fourth factor, which requires this court to weigh the interest of allowing the press unfettered access to their sources against the interest in allowing courts and litigants unfettered access to testimony and relevant information, presents more difficulties in criminal prosecutions than in civil actions, Senear, 97 Wash.2d at 154, 641 P.2d 1180. We recognize the defendant's right to a fair trial presents a more compelling interest in favor of disclosure than a civil litigant. Rinaldo, 36 Wash.App. at 109, 673 P.2d 614 (Ringold, J., dissenting). Although journalists who are parties have little or no privilege, a news reporter, as here, who is not a party to the...