On Dec. 10, 2013, the New York Court of Appeals resoundingly reaffirmed the important public policy underlying the New York statutory scheme that allows New York journalists to preserve the anonymity of their confidential sources: “[T]here is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source…. New York journalists should not have to consult the law in the jurisdiction where a source is located or where a story ‘breaks’… in order to determine whether they can issue a binding promise of confidentiality.” In the Matter of James Holmes v. Winter, __ N.E.2d __, 2013 WL 6410422, 2013 N.Y. Slip Op. 08194 at 23, 25 (Dec. 10, 2013). The decision reverses the rulings of a trial court and an intermediate appellate court which had declined to quash a subpoena seeking to compel a New York-based reporter to appear in Colorado to face questions about the identity of her confidential sources. The specific and—as the majority defined it—narrow issue before the Court was whether a lower court’s decision to issue a subpoena directing the reporter to appear at a judicial proceeding in Colorado—a jurisdiction which offers less than absolute protection to a reporter’s confidential sources—to answer questions about her confidential sources violated New York public policy. The unequivocal answer given to that question was yes: “an order from a New York Court directing a reporter to appear in another state where there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy—a common law, statutory and constitutional tradition that has played significant role in this state becoming the media capital of the country if not the world.” Holmes, Slip Op. at 24.
The subpoena had been issued pursuant to the procedure laid out in N.Y. Criminal Procedure Law 640.10(2) (New York’s codification of the reciprocal Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases) and was sought by James Holmes, the criminal defendant accused of opening gun fire in a crowded movie theater in Aurora, Colorado at a midnight screening of Batman. The subpoena sought information for use in an investigation into the violation of a gag order that the Colorado state judge had issued directing the parties not to disclose information about the contents of a journal that Holmes had sent to a university psychologist before the shooting. The violation of the gag order became apparent after Fox News reporter Jana Winter published a story that included details about the journal and cited confidential law enforcement sources. Holmes claimed that the law enforcement leaks had damaged his ability to get a fair trial and sought sanctions.
An investigation ensued and 14 law enforcement officials testified that they had not been the source for Winter’s story. Holmes then asked the Colorado court to issue a subpoena to Winter. The Colorado court issued a certificate finding that Winter was the only witness that could provide the names of the law enforcement agents who had provided the information to her and that she was therefore a material witness to the pending criminal prosecution—the standard for issuing subpoenas under the Uniform Act to Secure Attendance. Holmes presented the certificate to a New York trial court and sought the issuance of a subpoena compelling Winter to testify in Colorado. The trial court issued the subpoena finding that Winter was a material and necessary witness and that the subpoena would not impose undue hardship as all her travel expenses would be paid. The court declined to consider Winter’s claim of privilege, finding such a claim beyond the scope of the CPL...
