MILLER v. The People, Real Party in Interest.

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Court of Appeal, Third District, California.

Ellen MILLER, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent, The People, Real Party in Interest.

No. C027176.

Decided: August 26, 1998

Charity Kenyon, Samuel T. McAdam, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, for Petitioner. John E. Carne, David E. Durant, Crosby, Heafey, Roach & May, Oakland, Steven H. Johnanson, Johanson & Robinson, Sacramento, Amici Curiae for Petitioner. No appearance for Respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Edmund D. McMurray and Margaret Venturi, Supervising Deputies Attorney General, Susan J. Orton, Deputy Attorney General, for Real Party in Interest.

In virtually identical language, Evidence Code section 1070 and article I, section 2, subdivision (b) of the State Constitution immunize members of the print and electronic media from an adjudication of contempt for refusing to disclose either the source of information or unpublished information obtained in the course of their news gathering activities.   The question before us is whether this media “shield law” provides immunity where the interests it protects are outweighed by the People's right, protected by due process, to evidence critical to a criminal prosecution.

Petitioner Ellen Miller, the news director and custodian of records for SCI-Sacramento, Inc., a Maryland corporation doing business as KOVR-TV (hereafter “KOVR”), petitions this court for a writ of prohibition to enjoin enforcement of a judgment of contempt rendered following her refusal to comply with a court order to produce unpublished parts of a videotaped interview conducted by KOVR with a defendant charged with murder.   The interview occurred shortly after the murder.   The People seek the unpublished parts of the tape as evidence to prove the defendant's guilt.   We conclude the People have a due process right to the unpublished information sought because the circumstances supporting their right to disclosure outweigh the interests protected by the shield law.   We shall therefore deny the petition.


We take the facts verbatim from our opinion in SCI-Sacramento, Inc. v. Superior Court (1997) 54 Cal.App.4th 654, 62 Cal.Rptr.2d 868:

“KOVR is a television station engaged in the gathering, receiving and processing of information for communication to the public.   After learning that one Anthony Lee DeSoto had confessed to sheriff's investigators that he had killed his cellmate, KOVR news reporter Tom Layson conducted a videotaped interview with DeSoto in the San Joaquin County jail.

“Portions of the interview were broadcast on KOVR news programs on March 19 and March 20, 1996.

“In April 1996, the People issued a subpoena duces tecum for KOVR's custodian of records to ‘Bring Tape Recording of the Entire Interview at the San Joaquin County Jail of Defendant Anthony Lee De[S]oto on 3/19 or 3/20/96, to Include Portions of Broadcast as Well as Portions That Were Not Broadcasted [sic ].’  The subpoena indicated no appearance was required if the materials were turned over to the prosecution.

“KOVR submitted only the broadcast portions of the interview, invoking the [media] shield law (Cal. Const., art.   I, § 2;  Evid.Code, § 1070) as to the ‘outtakes' which were not broadcast.   The prosecutor reiterated her demand for the unpublished materials.

“In June 1996, KOVR moved to quash the subpoena on the grounds of the [media] shield law.   KOVR's motion requested that the subpoena be quashed but asked in the alternative:  ‘If the court should determine that the District Attorney has established and produced evidence of a colorable interest in this matter, KOVR requests that the court review in camera those portions of the videotape claimed to be essential to protecting the interests of the People.   Such in camera review of the unpublished material, with counsel for the media present, would be essential to perform the balancing of the nature described in Delaney [v. Superior Court (1990) 50 Cal.3d 785 (268 Cal.Rptr. 753, 789 P.2d 934) ].  [¶] If the court should determine that ․ the District Attorney has established a right to production of the portions of the videotape that have not been broadcast, then in camera review is requested without prejudice to the right of KOVR's custodian of records to review the court's ruling and to decide whether or not to disclose the unbroadcast portions of the videotape or to suffer a judgment of contempt.’  [Italics original.]

“At the July 8, 1996, hearing on the motion to quash, the trial court stated (in concurrence with the position taken in the People's opposition to the motion to quash) that the case law requires in camera review only when the material sought to be shielded under the [media] shield law is confidential or sensitive -elements not present in the instant case, where KOVR has not contended the unpublished tape is confidential or sensitive.   The court further stated that notwithstanding this point of law, the court would exercise its discretion and review the tape in camera.   The court asked KOVR's counsel if she had the tape (exhibit C) with her.   She did, and she turned it over to the court.   The court conducted the in camera review in the presence of KOVR's counsel, defendant, and defense counsel.   KOVR's counsel stated she had no objection to the presence of the defense ‘[a]s long as it would not constitute a waiver of the Shield Law․’   The trial court agreed.

“On July 19, 1996, the trial court issued an order denying KOVR's motion to quash, ordering that the videotape (exhibit C) be unsealed (but staying its order), and directing KOVR to provide a copy of the unedited interview to the prosecution.   There are two versions of the court order - a sealed version which has not been provided to the People, and an unsealed version.   Both versions of the order stated in part:  ‘The court hereby denies KOVR's Motion to Quash and orders that Exhibit C be unsealed, but stays the execution of that order until the next hearing on this matter set for July 23, 1996.   KOVR is further ordered to provide a complete copy of the unedited interview in continuous sequence at the July 23, 1996 hearing.’ ”  (SCI-Sacramento, Inc. v. Superior Court, supra, 54 Cal.App.4th at pp. 657-659, 62 Cal.Rptr.2d 868, fns. omitted.)

The stay was extended when KOVR indicated its intention to petition this court for an extraordinary writ setting aside the superior court's ruling.   That petition was filed in this court on August 14, 1996.   In SCI-Sacramento, Inc. v. Superior Court, supra, 54 Cal.App.4th 654, 62 Cal.Rptr.2d 868, we concluded the petition was premature as there had been no adjudication of contempt.   We therefore did not reach the merits of the dispute.   We issued a peremptory writ of mandate directing the superior court to vacate its order and “to enter a new order giving petitioners the opportunity to choose to be held in contempt or to disclose the disputed material.”  (SCI-Sacramento, Inc. v. Superior Court, supra, at pp. 667-668, 62 Cal.Rptr.2d 868.)   The previously issued stay was dissolved.  (Id., at p. 668, 62 Cal.Rptr.2d 868.)

At the ensuing hearing, the superior court ordered petitioner to turn over to the prosecution the unedited videotape.   Petitioner refused to do so and was adjudged in contempt.   The court ordered petitioner jailed until the tape is produced or the criminal proceedings conclude.   She was also ordered to pay the reasonable attorney fees and costs incurred in connection with the contempt proceedings.   However, the court stayed its order to allow filing of a petition for extraordinary relief in this court.

Petitioner initiated this proceeding and we issued an alternative writ of prohibition and stayed the judgment of contempt pending further order of this court.


In general terms, the media shield law is designed “to protect a newsperson's ability to gather and report the news.”  (Delaney v. Superior Court, supra, 50 Cal.3d at p. 806, fn. 20, 268 Cal.Rptr. 753, 789 P.2d 934.)   Underlying the law is a belief that forced disclosure of sources and unpublished information will ultimately inhibit the free flow of information so beneficial to the public.  (Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 217, 124 Cal.Rptr. 427.)

In Delaney v. Superior Court, supra, 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934 (hereafter Delaney ), the court recounted the history of the media shield law.   Under common law, members of the media had no right to refuse to disclose confidential sources.   In 1935, the Legislature passed the first shield law, which provided that newspaper employees could not be adjudged in contempt for refusing to disclose their sources to courts or legislative or administrative bodies.   This provision was subsequently extended to employees of other media, including television, and in 1967, these statutory provisions were transferred from the Code of Civil Procedure to Evidence Code section 1070 (hereinafter “section 1070”).  (Delaney v. Superior Court, supra, at pp. 794-795, 268 Cal.Rptr. 753, 789 P.2d 934.)

The shield law was later expanded in response to the United States Supreme Court decision in Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646 [33 L.Ed.2d 626].  As explained in Delaney:  “In [the Branzburg decision in] 1972, a plurality of the United States Supreme Court concluded that the First Amendment to the federal Constitution does not provide newspersons with even a qualified privilege against appearing before a grand jury and being compelled to answer questions as to either the identity of news sources or information received from those sources.   The high court made clear, however, that state legislatures are ‘free, within First Amendment limits, to fashion their own standards.’

“In 1974, the California Legislature amended section 1070 to its present form, apparently in response to Branzburg, supra,․  That amendment expanded the scope of the shield law to protect against the compelled disclosure of ‘unpublished information’ as well as sources.

“In June 1980, California voters approved Proposition 5, a state constitutional amendment proposed by the Assembly.   The proposition incorporated language virtually identical to section 1070 into the California Constitution, as article I, section 2, subdivision (b) [ (hereafter “article I, section 2(b)”) ].”  (Delaney, supra, 50 Cal.3d at pp. 795-796, 268 Cal.Rptr. 753, 789 P.2d 934, fns. and citations omitted.)

 Under the current shield law, a media member cannot be adjudged in contempt for refusing to disclose unpublished information, whether confidential or nonconfidential, or the source of information, whether published or unpublished.  (Delaney, supra, 50 Cal.3d at pp. 797-805, 268 Cal.Rptr. 753, 789 P.2d 934;  In re Willon (1996) 47 Cal.App.4th 1080, 1090-1091, 55 Cal.Rptr.2d 245.)   The sweeping and unambiguous language of section 1070 and article I, section 2(b) reflects a clear intent of the Legislature and voters of this state to protect media members from contempt for refusing to disclose any unpublished information.  (See, e.g., Delaney v. Superior Court, supra, 50 Cal.3d at pp. 798-805, 268 Cal.Rptr. 753, 789 P.2d 934;  Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 396-397, 153 Cal.Rptr. 608, disapproved on other grounds in Delaney v. Superior Court, supra, 50 Cal.3d at p. 813, fn. 29, 268 Cal.Rptr. 753, 789 P.2d 934.)   There is a strong public policy “in favor of giving the widest possible effect to the [shield law] consistent with federal and state constitutional imperatives.”  (Hammarley v. Superior Court, supra, 89 Cal.App.3d at p. 399, 153 Cal.Rptr. 608.)

 Although the protection afforded by the shield law is not, strictly speaking, a privilege but rather an immunity from adjudication of contempt (In re Willon, supra, 47 Cal.App.4th at p. 1091, 55 Cal.Rptr.2d 245), in the case of a nonparty media member this is a distinction of no consequence.   “Since contempt is generally the only effective remedy against a nonparty witness, the [shield law] grant[s] such witness[ ] virtually absolute protection against compelled disclosure.”  (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 274, 208 Cal.Rptr. 152, 690 P.2d 625.)

 In spite of its broad scope, the shield law may be subordinated to conflicting rights under appropriate circumstances.   In Delaney, the state high court held the shield law must give way to a criminal defendant's federal due process right to a fair trial.   In that case, newspaper reporters accompanying a police task force observed the search and arrest of the defendant for possession of brass knuckles.   The defendant moved to suppress the evidence, asserting, contrary to the officers' representations, he had not consented to the search.   The defendant sought to compel the reporters to testify at the suppression hearing.   They refused, citing the shield law, and were held in contempt.  (50 Cal.3d at pp. 793-794, 268 Cal.Rptr. 753, 789 P.2d 934.)

 The Supreme Court explained that under the supremacy clauses of the state and federal constitutions, the shield law must yield where nondisclosure would deprive the defendant of his federal constitutional right to a fair trial.  (50 Cal.3d at p. 805-806, 268 Cal.Rptr. 753, 789 P.2d 934;  see also People v. Von Villas (1992) 10 Cal.App.4th 201, 233, 13 Cal.Rptr.2d 62.)   In assessing whether the shield law must yield in a given case, the court adopted a balancing approach.   Once the defendant makes a threshold showing of “a reasonable possibility the information will materially assist his defense” (50 Cal.3d at p. 808, 268 Cal.Rptr. 753, 789 P.2d 934, italics in original), the court must balance the competing interests of the defendant and media member based on the following general factors:  (1) whether the unpublished information is confidential or sensitive, (2) the interests sought to be protected by the shield law, (3) the importance of the information to the criminal defendant, and (4) whether there are alternative sources for the unpublished information.  (50 Cal.3d at pp. 809-813, 268 Cal.Rptr. 753, 789 P.2d 934.)   No one factor or combination of factors is determinative.   (Id. at p. 813, 268 Cal.Rptr. 753, 789 P.2d 934.)

On the circumstances presented, the Delaney court concluded these factors weighed in favor of disclosure.  (50 Cal.3d at pp. 814-816, 268 Cal.Rptr. 753, 789 P.2d 934.)

 Delaney involved a claim by a defendant under the federal constitution.   The Delaney court declined to decide whether defendant could premise a similar claim on the state constitutional right to a fair trial.  (50 Cal.3d at p. 806, fn. 19, 268 Cal.Rptr. 753, 789 P.2d 934.)   The court also declined to decide “whether the prosecution in a criminal proceeding can have a constitutional interest sufficient to require the disclosure of information otherwise protected by the shield law.”  (Id., at p. 816, fn. 34, 268 Cal.Rptr. 753, 789 P.2d 934, italics added.)   That is the precise question presented here.

In Delaney, the court adverted to three cases which suggest the People may have a federal due process right sufficient to overcome a claim of immunity under the state shield law.  (50 Cal.3d at p. 816, fn. 34, 268 Cal.Rptr. 753, 789 P.2d 934.)   In Branzburg v. Hayes, supra, 408 U.S. 665, 92 S.Ct. 2646 [33 L.Ed.2d 626], a plurality of the federal high court held the First Amendment accords media members no privilege against appearing before a grand jury and answering questions regarding the sources of information or the substance of information obtained in confidence.   The court indicated the state's interest in this regard is both “ ‘paramount’ ” and “ ‘compelling’ ”.  (408 U.S. at p. 700, 92 S.Ct. at p. 2666 [33 L.Ed.2d at p. 650].)  The court explained:  “[T]he investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testimony in the manner and for the reasons that other citizens are called ‘bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.’ [citation].”  (408 U.S. at p. 700, 92 S.Ct. at p. 2666 [33 L.Ed.2d at pp. 650-651].)

The Delaney court also cited Mitchell v. Superior Court, supra, 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625, in which the court issued a writ of prohibition restraining the trial court from enforcing a discovery order in a civil libel action.   The court concluded the interests of the litigants under the circumstances shown were not sufficient to overcome a reporter's free press right to withhold the identity of sources.   However, the court recognized the interests in disclosure are greater in a criminal proceeding, both as to the defendant and the People:  “In criminal proceedings, both the interest of the state in law enforcement, recognized as a compelling interest in Branzburg (see 408 U.S. at p. 700 [92 S.Ct. at p. 2666, 33 L.Ed.2d 626, 650] ), and the interest of the defendant in discovering exonerating evidence outweigh any interest asserted in ordinary civil litigation.”  (37 Cal.3d at p. 278, 208 Cal.Rptr. 152, 690 P.2d 625.)

In the third case cited in Delaney, United States v. Nixon (1974) 418 U.S. 683, 94 S.Ct. 3090 [41 L.Ed.2d 1039], the federal high court rejected a claim of executive privilege asserted by the President to block disclosure to a special prosecutor of tape recordings and documents relating to conversations between the President and his aides.   The court concluded the presidential interest in preserving confidentiality, an interest which is “weighty indeed and entitled to great respect,” must be balanced against the fundamental need for fair adjudication of criminal proceedings.  (418 U.S. at pp. 711-713, 94 S.Ct. at pp. 3109-3110 [41 L.Ed.2d at p. 1066].)  According to the court, “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive.   The ends of criminal justice would be defeated if judgment were to be founded on a partial or speculative presentation of the facts.   The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.   To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”  (418 U.S. at p. 709, 94 S.Ct. at p. 3108 [41 L.Ed.2d at p. 1064].)

 Quite apart from any federal right to due process which may reside in the People, a comparable state right is created by article I, section 29 of the State Constitution (hereafter “article I, section 29”):  “In a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.”

Petitioner contends this right is qualified by article I, section 28, subdivision (d) of the State Constitution (hereafter “article I, section 28(d)”), which reads:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding․   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”  (Italics original.)   According to petitioner, the recognition of a press exception in this “truth-in-evidence” provision implicitly restricts the People's right to due process accorded by article I, section 29.

In support of her contention, petitioner relies upon Menendez v. Superior Court (1992) 3 Cal.4th 435, 11 Cal.Rptr.2d 92, 834 P.2d 786.   There, the People sought to obtain for use at trial three audio tapes of conversations between the defendants and their psychotherapist following the defendants' alleged murder of their parents.   The court held the tapes were protected by the psychotherapist-patient privilege (Evid.Code, § 1014).   As to two of the three tapes, the court concluded the exception to the privilege for threats made during psychotherapy sessions (see People v. Clark (1990) 50 Cal.3d 583, 619, 268 Cal.Rptr. 399, 789 P.2d 127) was inapplicable.   In a footnote, the court addressed several other contentions raised by the People, including one based on article I, section 29:

“[T]he People claim that the psychotherapist-patient privilege must yield to their interest in successful criminal prosecutions and their state constitutional right to due process of law.   We are not persuaded.

“As a general matter at least, the privilege appears paramount to prosecution.   Certainly, the Legislature is of that view.   It has created a so-called ‘criminal proceeding’ exception for the physician-patient privilege.  (Evid.Code, § 998 [‘There is no [physician-patient] privilege ․ in a criminal proceeding.’].) It has not done the same for the psychotherapist-patient privilege.   Without doubt, we conclude that the privilege is paramount in this case.

“Similarly, as a general matter at least, the privilege does not appear to be ‘trumped’ by the People's state constitutional right to due process.   By its very terms, the People's ‘right to truth-in-evidence’ under article I, section 28, subdivision (d) of the California Constitution does not ‘affect any existing statutory rule of evidence relating to privilege․’   Implicit therein is a constitutional determination that the privilege does not undermine the integrity or reliability of the truth-finding function of legal proceedings.   From that determination it appears to follow that the privilege does not deny due process.   Surely, we cannot conclude that the privilege is ‘trumped’ in this case.”  (3 Cal.4th at p. 457, fn. 18, 11 Cal.Rptr.2d 92, 834 P.2d 786.)

By parity of reasoning, it may be argued that implicit in article I, section 28(d) is a determination the shield law does not undermine the truth-finding function of criminal proceedings and, hence, does not deny due process.   However, we are not persuaded the State high court intended to announce such a sweeping principle by its off-hand rejection of article I, section 29 as one basis for overcoming the psychotherapist-patient privilege asserted in Menendez.

The media exception in article I, section 28(d) is expressly confined to “this section,” i.e., section 28.  Section 28(d) addresses the right to present evidence at trial.   To interpret article I, section 28(d) as qualifying the People's right to due process is inconsistent with the reasoning of the court in Delaney.  Article I, section 28(d) applies to both the prosecution and the defense.   Hence, if it limits the prosecution's due process rights, it necessarily limits the defendant's rights as well.   Although the holding in Delaney was based on a federal due process claim, which article I, section 28(d) cannot limit, the reasoning of the court was not based on the supremacy of federal over state law but on a balance of competing rights.  Delaney did not hold the state constitutional shield law must yield to the defendant's federal constitutional due process right as a matter of federal supremacy.   It had to yield because in the balance of competing interests, the defendant's federal due process rights outweighed the rights protected by the shield law.   In other words, the application of the shield law in that case would “undermine the integrity or reliability of the truth-finding function.”  (Menendez, supra, 3 Cal.4th at p. 457, fn. 18, 11 Cal.Rptr.2d 92, 834 P.2d 786.)

The Menendez court concluded article I, section 29 does not “trump” the psychotherapist-patient privilege.   We agree.   But that insight does not end our inquiry.   The question here, as in Delaney, is somewhat more nuanced, viz, whether article I, section 29 defines an interest which is entitled to be weighed in the balance under the Delaney balancing test.   In our view, it does.1

 The People have a state due process interest in the disclosure of evidence relevant to a criminal prosecution.   This interest, while not “trumping” the shield law, is sufficiently compelling to invoke the Delaney balancing test.


 Relying on In re Willon, supra, 47 Cal.App.4th 1080, 55 Cal.Rptr.2d 245, petitioner contends the Delaney test does not apply under the circumstances presented here.   In Willon, the trial court entered orders of contempt against a news reporter and news director for refusal to disclose the source of leaks of information about a capital murder prosecution in violation of a gag order.   The Court of Appeal issued a writ of certiorari annulling the judgment of contempt, concluding the balance of interests favored protection of the source.

In reaching this conclusion, the court declined to follow Delaney, explaining:  “Unlike Delaney, we are not confronted with a request by a defendant for information that would directly assist in his or her defense;  here it is the trial court that seeks disclosure in order to preserve its ability to control the judicial process and maintain an unbiased jury pool.   Furthermore, petitioners have not been ordered to testify as observers of a public event, as were the reporters in Delaney, but as holders of confidential information respecting the identity of their news source.”  (47 Cal.App.4th at p. 1093, 55 Cal.Rptr.2d 245, fn. omitted.)

The court adopted instead the following “substantial probability” test:  “[W]here a violation of a protective or ‘gag’ order has already occurred, a court should determine the necessity of disclosure of the newsperson's source by addressing two principal considerations in light of all the relevant circumstances:  (1) If the newsperson does not disclose the identity of the source, is there a substantial probability of future violations, or ‘leaks,’ that will impair the defendant's ability to obtain a fair trial? and (2) Are there reasonable alternatives to disclosure that will protect the interests asserted by both the newsperson and the defendant?

“The first inquiry suggests two secondary questions:  (a) is there any indication that further leaks are likely to occur;  and (b) will those leaks, if published, make it impossible to obtain an impartial jury in the chosen venue?   Factors relevant to these determinations include the nature and extent of the publicity, the amount of information already in the public domain, the existence of prejudicial information not yet released to the public, the size of the county from which prospective jurors will be drawn, and the potential of voir dire or other measures to eliminate any prejudice caused by the publicity.

“The second inquiry entails consideration of the feasibility of alternative methods of obtaining the information and the confidentiality or sensitivity of the information.   Disclosure of confidential or sensitive information is more likely to have a significant effect on the newsperson's future ability to gather news, the protection of which is the primary purpose of the shield law.  (Delaney v. Superior Court, supra, 50 Cal.3d at p. 810, 268 Cal.Rptr. 753, 789 P.2d 934.)   By the same token, the importance of finding alternatives to disclosure is diminished where the identity of the source is not confidential, since ‘[t]he obvious purpose of the alternative-source requirement is to protect against unnecessary disclosure of a newsperson's confidential or sensitive information.’  ( [50 Cal.3d] at pp. 811-812 [268 Cal.Rptr. 753, 789 P.2d 934].)”  (47 Cal.App.4th at pp. 1099-1100, 55 Cal.Rptr.2d 245.)

Whatever the validity of the “substantial probability” test adopted in In re Willon, it has no application here.   This case does not concern a prediction of whether future violations of a gag order will occur, necessarily a speculative matter, but whether and to what extent given information, available for the trial court's inspection, will advance the truth-seeking function of the underlying criminal prosecution.   The present matter is distinguishable from Delaney only in that it is the People rather than the defendant who seek disclosure.   Hence, the Delaney test, with appropriate modification, is controlling.


Applying the Delaney test, the trial court concluded the balance of interests favors disclosure of the unpublished information.   The parties do not address the proper standard for our review.   In Delaney, the news reporters claimed the court was required to exercise independent judgment as to the correctness of the trial court's conclusion.   The Supreme Court noted article I, section 2(b) makes no provision for independent review and the reporters cited no authority supporting it.   However, the court declined to decide the issue because, even under an independent standard of review, the decision of the trial court was supported by the record.  (Delaney, supra, 50 Cal.3d at p. 816, 268 Cal.Rptr. 753, 789 P.2d 934.)   Here, the decision of the trial court is supported by its findings which, in the main, are supported by the record, and to the extent they are not, petitioner has not provided a record by which they might be impeached.

 Petitioner does not contest the trial court's threshold finding that there is a “reasonable possibility” the unpublished information from the interview with defendant will “materially assist” the prosecution's case.   Petitioner does, however, dispute the court's findings as to some of the factors in the Delaney test.

As to the first factor-confidentiality or sensitivity of the unpublished information-the trial court found neither and petitioner does not challenge this finding.

The second factor-the interest to be protected by the shield law-is closely related to the first.   As previously explained, the basic purpose of the shield law is to safeguard the news gathering function of the media.   Obviously, the less confidential or sensitive the information the less the need for such protection.   In this case, because the interview was given with no promises, express or implied, of confidentiality, the trial court found speculative any concern that in the future, criminal defendants will be deterred from talking to the press out of fear their statements will be made public.   Here, no trust will have been violated by disclosure.   Moreover, when no pledge of confidentiality has been given, the selection of what information to publish and not to publish is solely within the discretion and judgment of the media, informed by imperatives unique to the media, such as time constraints and commercial value, none of which are relevant to the truth-seeking function of a criminal trial.   The trial court also rejected as speculative the contention forced disclosure of unpublished information would cause the media to appear as an arm of the State.   Ordering the media to turn over published information, an order the media can resist only at peril of contempt, would give rise equally to the same perception.

Petitioner argues it is precisely because any anticipated harm to the media's news gathering function is speculative that the electorate created the shield law.   In other words, the media is not required to justify its need for protection;  such need is embodied in article I, section 2.   This argument proves too much.   It is the existence of the shield law which creates the need for balancing competing interests.   Without such law, the People would have unfettered right to disclosure of the unpublished information.   However, the Delaney court recognized that in the event of a competing interest, the specific concerns of the media in a given case must be considered.   This requires more than just a consideration of the general principles underlying the shield law.

Regarding the third Delaney factor-the importance of disclosure to the People-the trial court considered the content of the unpublished information in light of the matters likely to arise in the criminal prosecution.   The court indicated unpublished statements made by the defendant in the interview “may be viewed as confessions, admissions, or evidence of consciousness of guilt.”   The court further indicated the statements may have a bearing on any psychiatric defense raised by the defendant and, “[g]iven the evidence produced at the preliminary hearing and Defendant's published statements, a psychiatric defense may be a very real possibility in this case.”   The defendant had made statements to investigators that he was seeing a psychiatrist and that while strangling the victim defendant blurted out “ ‘Kill him Satan.   Kill him.’ ”   The court further suggested the unpublished statements may be relevant on the issue of voluntariness of the defendant's statements in a videotaped interview with Sheriff's investigators.

Petitioner does not contend these findings are unsupported.   She merely disputes that she conceded any of these points in the trial court.   Petitioner argues only that the importance of the information to the People was minimal in light of the availability of the published information and the Sheriff's videotaped interview, a copy of which petitioner has not included in the materials presented to this court.   This argument more appropriately addresses the fourth Delaney factor-alternative sources.   The trial court concluded lack of alternative sources need not be shown under the circumstances presented.   Nevertheless, the court found there were no “true” alternatives to the unpublished information.   According to the trial court, the unpublished information contains statements which refute other statements contained in the available materials and provides information to assist the People in further investigation of this matter.   The trial court further noted there were no eyewitnesses to the crime and there is no direct evidence as to the mens rea of the crime other than the defendant's statements in the KOVR interview.   There is nothing in the record that contradicts or casts doubt on these findings of the trial court.   As petitioner acknowledges, there is also no evidence of others who may have overheard defendant's statements to the interviewer.   Obviously, the People cannot compel defendant to testify as to what he said.

Petitioner contends the adequacy of the available information as alternative sources cannot be determined before trial.   However, petitioner does not explain why this is so.   Where the unpublished information can be made available to the trial court, there is no reason why it cannot be compared to other available information to determine whether additional, relevant evidence is contained therein.   Although the court cannot foresee with absolute clarity what issues will arise at trial, an educated judgment in this regard is possible based on available information.

 Although petitioner makes a gesture towards challenging the findings of the trial court on the various Delaney factors, her real concern appears to be that application of the Delaney test in circumstances involving information which is neither confidential nor sensitive is inappropriate because the balance will invariably lead to disclosure.   Where the press can show no compelling interest in withholding highly relevant, non-confidential, non-sensitive, otherwise unavailable information that would outweigh the need of a party to a criminal prosecution to the information, the balance should be struck in favor of disclosure.   However, this is not inconsistent with the purposes underlying the shield law.   Under ordinary circumstances, it cannot reasonably be argued the disclosure of statements given freely to the press with no strings attached would somehow have an adverse impact on future news gathering efforts.

The trial court concluded application of the Delaney factors under the circumstances shown tilts the balance in favor of disclosure of the unpublished information.   Based on our review of the record, including the sealed portions, we concur in the trial court's assessment.   Under the circumstances, petitioner must comply with the court's order to disclose the requested information and she is not shielded from contempt for her refusal to do so.

The alternative writ of prohibition is discharged and the stay order vacated.   The petition for peremptory writ of prohibition is denied.


1.   Petitioner's reliance on dictum suggesting the defendant's due process rights are qualitatively superior to those of the People is misplaced.  (See Press Enterprise v. Superior Court (1984) 464 U.S. 501, 508, 104 S.Ct. 819, 823 [78 L.Ed.2d 629, 637].)  The question here is not the relative strength of the People's due process rights vis-à-vis those of defendant, but whether the People's due process right is sufficiently compelling to warrant consideration in the Delaney balancing test.

PUGLIA, Presiding Justice.

NICHOLSON and RAYE, JJ., concur.