Shield Law Must Yield

The case against Angelo Diaz was built on who said what, like so many others.  But the answer to the question depended on what a Daily News reporter heard.  And more importantly, from whom.  This gives rise to the dreaded conflict of rights, pitting the freedom of the press, and more particularly the media’s ability to protect confidential sources, against the right of the accused to defend himself from false accusations.

From the First Amendment Center :

In the case, Angelo Diaz is charged with attempted second-degree murder. According to prosecutors, Diaz shouted “shoot the cop” while Angel Rivera and a police officer fought for control of a gun. In its story about the incident, however, the Daily News quoted “authorities” as saying that the person who yelled “shoot the cop” was Rivera’s mother, not Diaz.

There is little question, had it been the prosecution seeking to compel disclosure of the identity of the person who spoke the words reported by the Daily News, that disclosure of a confidential source was precluded by law.  But this was the defendant seeking disclosure, and thus different interests were at stake.  While the prosecution has no authority sufficient to trump the journalist shield law, Diaz had a constitutional right to defend himself, and the right to obtain the evidence needed to do so.

The case was before Supreme Court Justice Mark Dwyer, former chief of appeals in the Manhattan district attorney’s office,  whose decision threaded the needle between the First Amendment interests of protecting confidential sources and the defendant’s need to be able to defend.


A defendant’s Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions. A defendant generally could not, for example, insist on presenting testimony about a co-defendant’s privileged communications with that co-defendant’s attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant’s due process right to a fair trial.

The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant’s claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential.

Justice Dwyer carefully fashioned as limited relief as possible to both ascertain that the defendant was able to obtain disclosure of the identity of the Daily News source while protecting the source from disclosure beyond what was absolutely necessary.


Finally, the court’s relief will be narrow. Counsel for the Daily News need disclose to the court, in camera, only whether the confidential source is one of the two officers present at the crime scene and, if so, which of the two he is. The court will in turn disclose that information only if the source testifies, and denies that he made the statement published in the Daily News. Of course, if the named source denies making the statement, an appropriate witness from the Daily News will be obliged to testify on the defense case.
Notably, Diaz’s defense counsel, Laurie Dick of Brooklyn Legal Aid, did a surgical job in her application for the identity of the source. seeking only the identity of the source if it turns out to be one of the two police officers present at the time the alleged crime occurred.  It appears, from the decision, that by doing so, the critical focus of the application on a witness whose testimony would necessarily contradict the prosecution’s trial witness facilitated the court’s decision to breach the press shield law. 

Before deciding, Justice Dwyer gave the Daily News the opportunity to moot the issue, in light of the limited nature of the defendant’s request, and thus avoid reaching a decision that need not have been reached.


The court offered the Daily News an opportunity to end this litigation by stating that the source of the report was not one of the two officers present at the time of the incident. The Daily News declined to accept the invitation, but in doing so did not indicate anything about who the source might be.

Thus, the scene was set and the clash of rights was unavoidable.

It’s never pleasant when constitutional rights clash, particularly when they are both dear causes and worthy, in themselves, of the utmost protection.  But when it happens, something has to give.  This case presented such a situation, and Justice Dwyer concluded that the defendant’s right to defend himself trumped the media’s right to protect its confidential sources. 

On balance, it was not only the correct decision, but it was a decision handled in precisely the right way, inflicting as little damage on either right as possible in resolving the inherent conflict.

As it turns out, the Daily News apparently agrees, and has decided not to appeal the decision.  From the Reporters Committee For Freedom of the Press :

The Daily News has chosen not to appeal Justice Dwyer’s order because we think the decision was narrowly confined to the unique facts of the case: the accomplice liability charge against the criminal defendant rests solely on the arresting officers’ word that it was Diaz who shouted ‘shoot the cop, shoot the cop,’” Anne B. Carroll, vice president and deputy general council for the Daily News, said via email.

“Rather than risk a New York appellate decision that might sweep more broadly than the facts in Diaz warrant, we complied with Justice Dwyer’s narrow order to reveal to him in camera only whether our source was one of the arresting officers,” she added.

Given the sensitivity with which Justice Dwyer handled the disclosure, there’s little doubt that the Daily News wasn’t going to get a more circumspect decision at the Appellate Division, and may well have fared worse. 

As important as the freedom of the press is, and its ability to protect the identify of confidential sources, in its ability to present truthful and accurate information to the public, the right of an accused to defend himself must be paramount. Justice Mark Dwyer nailed this one.