HOUSE OF REPRESENTATIVES
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO EVIDENCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the United States Supreme Court held in Branzburg v. Hayes, 408 U.S. 665 (1972), that the First Amendment of the United States Constitution does not provide members of the press with the right to withhold from a grand jury the names of confidential sources. Specifically, the First Amendment does not relieve a newspaper reporter of the obligation that all citizens respond to a grand jury subpoena and answer questions relevant to a criminal investigation of a crime. Although the federal appellate circuit courts have applied a qualified privilege for journalists in some cases as a matter of common law, Congress has not established a federal shield law that would supersede the holding of Branzburg.
The legislature finds that Act 210, Session Laws of Hawaii 2008, temporarily established a news media privilege against the compelled disclosure of sources and unpublished information to a legislative, executive, or judicial officer or body, or to any other person who may compel testimony. Subsequently, Act 113, Session Laws of Hawaii 2011, extended the repeal date of Act 210, Session Laws of Hawaii 2008, from June 30, 2011, to June 30, 2013, and required the judiciary, through its standing committee on the rules of evidence, to report to the legislature and recommend whether to:
(1) Codify Act 210, Session Laws of Hawaii 2008, under chapter 621, Hawaii Revised Statutes, relating to evidence and witnesses, generally;
(2) Codify Act 210, Session Laws of Hawaii 2008, under chapter 626, Hawaii Revised Statutes, the Hawaii rules of evidence; or
(3) Allow Act 210, Session Laws of Hawaii 2008, to be repealed.
In December 2011, the supreme court standing committee on the rules of evidence submitted a report to the legislature recommending that the sunset provision under Act 210, Session Laws of Hawaii 2008, be repealed and the news media privilege be codified under chapter 621, Hawaii Revised Statutes, with suggestions for amendments.
The purpose of this Act is to:
(1) Enact the recommendation made by the supreme court standing committee on the rules of evidence by repealing the sunset date of Act 210, Session Laws of Hawaii 2008, as amended by Act 113, Session Laws of Hawaii 2011, which makes permanent the news media privilege; and
(2) Clarify and define the applicability of Act 210, Session Laws of Hawaii 2008, as amended by Act 113, Session Laws of Hawaii 2011.
SECTION 2. Act 210, Session Laws of Hawaii 2008, as amended by Act 113, Session Laws of Hawaii 2011, is amended as follows:
1. By amending section 1 to read:
"SECTION 1. Chapter 621, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§621- Limitation on
compellable testimony from journalists and newscasters; exceptions. (a) A
journalist or newscaster presently or previously employed by or otherwise
professionally associated with any newspaper or magazine or any digital version
thereof operated by the same organization, or any news agency, press
association, wire service, or radio or television transmission station or
network, shall not be required by a legislative, executive, or judicial officer
or body, or any other authority having the power to compel testimony or the
production of evidence, to disclose, by subpoena or otherwise[
: (1) The] The source, or
information that could reasonably be expected to lead to the discovery of the
identity of the source, of any published or unpublished information obtained by
the person while so employed or professionally associated in the course of gathering,
receiving, or processing information for communication to the public; [ or]
provided that the assertion of the privilege based on previous employment as
a journalist or newscaster shall extend only to the information obtained during
the previous period of employment.
(2) Any unpublished information obtained or
prepared by the person while so employed or professionally associated in the
course of gathering, receiving, or processing information for communication to
the public. (b) The limitation on compellable testimony
established by this section may also be claimed by and afforded to any
individual who can demonstrate by clear and convincing evidence that: (1) The individual has regularly and
materially participated in the reporting or publishing of news or information
of substantial public interest for the purpose of dissemination to the general
public by means of tangible or electronic media; (2) The position of the individual is
materially similar or identical to that of a journalist or newscaster, taking
into account the method of dissemination; (3) The interest of the individual in
protecting the sources and unpublished information under subsection (a) is
materially similar to the interest of the individuals referenced under
subsection (a); and (4) The public interest is served by
affording the protections of this section in a specific circumstance under
consideration. (c)] (b) This section shall not
(1) Probable cause exists to believe that the person claiming the privilege has committed, is committing, or is about to commit a crime;
(2) The person claiming the privilege has observed the alleged commission of a crime, but if:
(A) The interest in maintaining the privilege granted by this section outweighs the public interest in disclosure; and
(B) The commission of the crime is the act of communicating or providing the information or documents at issue,
then the privilege granted by this section may be asserted;
(3) There is substantial evidence that the source or
information sought to be disclosed is material to the investigation,
prosecution, or defense of a felony, potential felony, or serious crime
involving unlawful injury to persons or animals, or to a civil action [
defamation], and the source or information sought is:
(A) Unavailable, despite exhaustion of reasonable alternative sources;
(B) Noncumulative; and
(C) Necessary and relevant to the charge, claim, or defense asserted;
(4) The information sought to be disclosed is
critical to prevent serious harm to life or public safety; [
(5) The source consents to the disclosure of
unpublished documents or other tangible materials provided by the source[
(6) The information is sought by a defendant in a criminal case who has a constitutional right to the information sought.
(d)] (c) No fine or
imprisonment shall be imposed against a person validly claiming [ the]
a privilege pursuant to this section [ for refusal to disclose
information privileged pursuant to this section].
(d) For purposes of this section:
"Journalist" means an individual who, for financial gain or livelihood, engages in the gathering, preparing, collecting, writing, editing, filming, taping, or photographing of news intended for a newspaper, magazine, news agency, press association, wire service, or radio or television station or network.
"Magazine" means a publication containing news that is published and distributed not less than four times a year either through print or digital means for at least one year with a paid circulation.
"News agency" means a commercial organization that collects and supplies news to subscribing newspapers, magazines, or radio and television broadcasters.
"Newscaster" means an individual who, for financial gain or livelihood, engages in the gathering, preparing, collecting, writing, editing, filming, taping, or photographing of news intended for a newspaper, magazine, news agency, press association, wire service, or radio or television station or network.
"Newspaper" means a paper with a paid circulation that is printed and distributed not less than once a week for at least one year and contains news, articles of opinion, such as editorials, features, advertising, or other matters of current interest.
"Press association" means an association of newspapers or magazines formed to gather and distribute news to its members.
"Wire service" means a news agency that distributes syndicated news copy by wire to subscribing newspapers, magazines, or radio or television broadcasters.""
2. By amending section 3 to read:
"SECTION 3. This Act shall take effect
upon its approval [
and shall be repealed on June 30, 2013]."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect on June 29, 2013.
Evidence; News Media Privilege; Shield Law
Clarifies that a journalist or newscaster may invoke the privilege based on previous employment only to the extent that the information was obtained during the period of that previous employment; repeals unpublished information from the scope of the privilege; repeals specific conditions that a person may demonstrate by clear and convincing evidence to invoke the privilege; expands the exceptions to claiming the privilege for substantial evidence related to a potential felony or serious crime involving unlawful injury to persons or animals; adds that the privilege does not apply if the information is sought by a defendant in a criminal case who has a constitutional right to the information sought; clarifies that only individuals who validly invoke the privilege will be shielded from fines or imprisonment; and adds definitions. Makes permanent the news media privilege against the compelled disclosure of sources and unpublished sources. Effective 06/29/13. (SD1)
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