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ment exempted confidential information from public disclosure pursuant to a subpoena issued in a civil suit, Garland v. Torre, 259 F. 2d 545 (CA2), cert. denied, 358 U. S. 910 (1958), but the claim was denied, and this argument has been almost uniformly rejected since then, although there are occasional dicta that, in circumstances not presented here, a newsman might be excused. In re Goodfader, 45 Haw. 317, 367 P. 2d 472 (1961); In re Taylor, 412 Pa. 32, 193 A. 2d 181 (1963); State v. Buchanan, 250 Ore. 244, 436 P. 2d 729, cert. denied, 392 U. S. 905 (1968); Murphy v. Colorado (No. 19604, Sup. Ct. Colo.), cert. denied, 365 U. S. 843 (1961) (unreported, discussed in In re Goodfader, supra, at 366, 367 P. 2d, at 498 (Mizuha, J., dissenting)). These courts have applied the presumption against the existence of an asserted testimonial privilege, United States v. Bryan, 339 U. S. 323, 331 (1950), and have concluded that the First Amendment interest asserted by the newsman was outweighed by the general obligation of a citizen to appear before a grand jury or at trial, pursuant to a subpoena, and give what information he possesses. The opinions of the state courts in Branzburg and Pappas are typical of the prevailing view, although a few recent cases, such as Caldwell, have recognized and given effect to some form of constitutional newsman's privilege. See State v. Knops, 49 Wis. 2d 647, 183 N. W. 2d 93 (1971) (dictum); Alioto v. Cowles Communications, Inc., C. A. No. 52150 (ND Cal. 1969); In re Grand Jury Witnesses, 322 F. Supp. 573 (ND Cal. 1970); People v. Dohrn, Crim. No. 69–3808 (Cook County, Ill., Cir. Ct. 1970).

The prevailing constitutional view of the newsman's privilege is very much rooted in the ancient role of the grand jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against un

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founded criminal prosecutions.23 Grand jury proceedings are constitutionally mandated for the institution of federal criminal prosecutions for capital or other serious crimes, and its constitutional prerogatives are rooted in long centuries of Anglo-American history.Hannah v. Larche, 363 U. S. 420, 489–490 (1960) (Frankfurter, J., concurring in result). The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” 24

The adoption of the grand jury "in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice.” Costello v. United States, 350 U. S. 359, 362 (1956). Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelm

23 “Historically, [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused ... to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U. S. 375, 390 (1962) (footnote omitted).

24 It has been held that “infamous” punishments include confinement at hard labor, United States v. Moreland, 258 U. S. 433 (1922); incarceration in a penitentiary, Mackin v. United States, 117 U. S. 348 (1886); and imprisonment for more than a year, Barkman v. Sanford, 162 F. 2d 592 (CA5), cert. denied, 332 U. S. 816 (1947). Fed. Rule Crim. Proc. 7 (a) has codified these holdings: “An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information.”

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ing majority of the States.25 Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U. S. 273, 282 (1919). Hence, the grand jury's authority to subpoena witnesses is not only historic, id., at 279–281, but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that "the public ... has a right to every man's evidence,” except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U. S., at 331; Blackmer v. United States, 284 U. S. 421, 438 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961), is particularly applicable to grand jury proceedings.?


25 Although indictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment, Hurtado v. California, 110 U. S. 516 (1884), a recent study reveals that 32 States require that certain kinds of criminal prosecutions be initiated by indictment. Spain, The Grand Jury, Past and Present: A Survey, 2 Am. Crim. L. Q. 119, 126–142 (1964). In the 18 States in which the prosecutor may proceed by information, the grand jury is retained as an alternative means of invoking the criminal process and as an investigative tool. Ibid.

26 Jeremy Bentham vividly illustrated this maxim: “Are men of the first rank and consideration-are men high in officemen whose time is not less valuable to the public than to themselves—are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty

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A number of States have provided newsmen a statutory privilege of varying breadth,27 but the majority have not done so, and none has been provided by federal statute.28

Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Con

cause? Yes, as far as it is necessary, they and everybody. . Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrowwoman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly.” 4 The Works of Jeremy Bentham 320–321 (J. Bowring ed. 1843). In United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807), Chief Justice Marshall, sitting on Circuit, opined that in proper circumstances a subpoena could be issued to the President of the United States.

27 Thus far, 17 States have provided some type of statutory protection to a newsman's confidential sources:

Ala. Code, Tit. 7, § 370 (1960); Alaska Stat. $ 09.25.150 (Supp. 1971); Ariz. Rev. Stat. Ann. § 12–2237 (Supp. 1971–1972); Ark. Stat. Ann. § 43–917 (1964); Cal. Evid. Code $ 1070 (Supp. 1972); Ind. Ann. Stat. § 2–1733 (1968); Ky. Rev. Stat. § 421.100 (1962); La. Rev. Stat. Ann. $$ 45:1451–45:1454 (Supp. 1972); Md. Ann. Code, Art. 35, § 2 (1971); Mich. Comp. Laws $ 767.5a (Supp. 1956), Mich. Stat. Ann. § 28.945 (1) (1954); Mont. Rev. Codes Ann. § 93–601–2 (1964); Nev. Rev. Stat. § 49.275 (1971); N. J. Rev. Stat. 88 2A:84A-21, 2A:84A-29 (Supp. 1972–1973); N. M. Stat. Ann. $ 20–1-12.1 (1970); N. Y. Civ. Rights Law $ 79-h (Supp. 1971-1972); Ohio Rev. Code Ann. $ 2739.12 (1954); Pa. Stat. Ann., Tit. 28, § 330 (Supp. 1972–1973).

28 Such legislation has been introduced, however. See, e. g., S. 1311, 92d Cong., 1st Sess. (1971); S. 3552, 91st Cong., 2d Sess. (1970); H. R. 16328, H. R. 16704, 91st Cong., 2d Sess. (1970); S. 1851, 88th Cong., 1st Sess. (1963); H. R. 8519, H. R. 7787, 88th Cong., 1st Sess. (1963); S. 965, 86th Cong., 1st Sess. (1959); H. R. 355, 86th Cong., 1st Sess. (1959). For a general analysis of proposed congressional legislation, see Staff of Senate Committee on the Judiciary, 89th Cong., 2d Sess., The Newsman's Privilege (Comm. Print 1966).

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stitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.29 Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant

29 The creation of new testimonial privileges has been met with disfavor by commentators since such privileges obstruct the search for truth. Wigmore condemns such privileges as "so many derogations from a positive general rule [that everyone is obligated to testify when properly summoned]” and as "obstacle[s] to the administration of justice.” 8 J. Wigmore, Evidence $ 2192 (McNaughton rev. 1961). His criticism that "all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced,” id., at $ 2192, p. 73 (emphasis in original) has been frequently echoed. Morgan, Foreword, Model Code of Evidence 22–30 (1942); 2 Z. Chafee, Government and Mass Communications 496–497 (1947); Report of ABA Committee on Improvements in the Law of Evidence, 63 A. B. A. Reports 595 (1938); C. McCormick, Evidence 159 (2d ed. 1972); Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale L. J. 607 (1943); Ladd, Privileges, 1969 Law & the Social Order 555, 556; 58 Am. Jur., Witnesses $ 546 (1948); 97 C. J. S., Witnesses § 259 (1957); McMann v. Securities and Exchange Commission, 87 F. 2d 377, 378 (CA2 1937) (L. Hand, J.). Neither the ALI's Model Code of Evidence (1942), the Uniform Rules of Evidence of the National Conference of Commissioners on Uniform State Laws (1953), nor the Proposed Rules of Evidence for the United States Courts and Magistrates (rev. ed. 1971) has included a newsman's privilege.

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