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The Best-evidence Rule

The Best-evidence rule is a misleading name for the courts' preference for original writings, recordings, and photographs over copies, when the contents are sought to be proved. The purpose of this rule at common law was to avoid the potential for inaccuracies contained in handmade copies. The current rule contained in the Federal Rules of Evidence requires the use of original writings, recordings, and photographs (including X-rays and motion pictures), but the rule defines original to include most photocopies or prints from the same negative. The risk of inaccuracies from these types of duplicates is almost non-existent. When the original evidence is lost, destroyed, unobtainable, or in the possession of the opponent, the court will not require a party to produce the original.


In 1972, information leaked to the Washington Post by a confidential informant, set the stage for the fall of a U.S. president. A source they called "Deep Throat," told journalists Bob Woodward and Carl Bernstein that several improprieties, including a break-in at the Democratic National Committee headquarters in Washington, D.C., had been orchestrated by a committee to reelect President RICHARD M. NIXON. News articles that Woodward and Bernstein wrote based on that information marked the beginning of WATERGATE, a scandal that led to Nixon's resignation in 1974 in the face of IMPEACHMENT. Almost 30 years later, the true identity of Deep Throat remains unknown.

Reliance on anonymous news sources can create problems when lawyers, judges, or juries seek information during a judicial proceeding. It is a basic principle in the U.S. legal system that "the public has a right to every [person's] evidence" (8 J. Wigmore, Evidence § 2192 [McNaughton rev. 1961]). With very few exceptions, individuals who possess knowledge or information that may help a judge or jury, must testify or produce the information in court. Journalistic privilege, where recognized, is the right of journalists to withhold from the court certain sources, notes, or materials used to gather news. It is not among the privileges commonly recognized by courts, such as ATTORNEY-CLIENT PRIVILEGE or marital privilege.

Since the 1850s, journalists have sought a privilege to protect the identity of news sources or to protect the newsgathering process from discovery at trial. As the number of reporters subpoenaed (ordered by a court to testify) increased dramatically in the 1960s and 1970s, so did their efforts. Reporters argue that to effectively gather vital information and disseminate it to the public, they must have the legal right to withhold the identity of a source. Without such a privilege, sources who fear the disclosure of their name will be less likely to talk with reporters. Reporters who fear REPRISAL, or who simply do not wish to testify or hire a lawyer, will be less likely to print or broadcast sensitive information. Journalists argue that this chilling effect on reporters' willingness to print or broadcast sensitive information will ultimately harm the public, which relies on reporters to relay even the most sensitive and secretive news and information.

In resisting subpoenas, journalists usually invoke the FIRST AMENDMENT, which prohibits laws abridging a free press. Unlike the FIFTH AMENDMENT, which explicitly grants individuals the right to refuse to testify against themselves, the First Amendment contains no explicit language protecting journalists from having to testify. Nonetheless, reporters have long argued that the purpose of the First Amendment is to allow the news media to freely gather and report the news, without encumbrances by the government. Forcing reporters to testify, they argue, violates the First Amendment.

A divided U.S. Supreme Court rejected this argument in the landmark decision Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). Branzburg involved the appeals of three reporters who had been ordered in three separate incidents to testify before a GRAND JURY (a jury convened to determine whether to indict a criminal suspect). In all three cases, prosecutors wanted to know what the reporters had observed or to whom they had spoken. One reporter had written an article about the process of converting marijuana into hashish; the other two were covering the militant Black Panther organization, believed to be planning guerrilla warfare to support its cause. In all three cases, the reporters had promised to keep their sources' identities secret or not to divulge their observations. The reporters refused to answer certain questions and provide certain information, arguing that doing so would jeopardize or destroy their working relationships with news sources and, ultimately, their ability to disseminate vital information to the public. The Supreme Court pointed out that the duty to testify has roots as deep as the First Amendment's guarantee of a free press, and refused to find a First Amendment privilege protecting reporters from being forced to testify before a grand jury.

According to the Court in Branzburg, the First Amendment does not override all other public interests, or exempt reporters from the same obligations to testify imposed on other citizens, merely because the news-gathering process may become more difficult if confidential sources are revealed. "It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability," the Court stated. The Court also acknowledged the importance of a free press to the country's welfare, and recognized that to be effective, the First Amendment must protect not only the dissemination of information but the news-gathering process itself. Yet, the Court made the point that a requirement to testify or otherwise disclose information to a judicial body is not a prohibition on the press's ability to employ confidential sources. The Court stated, "[N]o attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request."

Justices POTTER STEWART, WILLIAM J. BRENNAN JR., and THURGOOD MARSHALL dissented in Branzburg, emphasizing that the independence of the press becomes threatened when journalists are called upon as "an investigative arm of government." When reporters are forced to testify in courtrooms, the three justices found, their constitutionally protected functions are impaired. Such impairment will, "in the long run, harm rather than help the administration of justice." The Court's dissenters stressed that the Constitution protects journalists not for the benefit of journalists but for the benefit of society. "Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society," stated the dissenting opinion.

The Branzburg decision held that the First Amendment does not protect journalists from grand jury subpoenas seeking evidence in criminal cases, and that there is no testimonial privilege for reporters who witness crimes. The decision did not address whether the Constitution protects reporters' notes, tape recordings, or other news-gathering items; whether there can be a privilege if there is no reason to think the reporter observed illegal activity; and whether reporters are entitled to a privilege in civil actions or other legal proceedings besides grand juries.

Despite the uncertainty, reporters since Branzburg have successfully invoked privileges. In some jurisdictions, they have been helped by SHIELD LAWS, which are statutes allowing journalists to withhold certain information. Even in state jurisdictions without shield laws, many courts have upheld a reporter's claim of privilege using a three-part test championed in the Branzburg dissent: a reporter may be forced to reveal confidences only when the government demonstrates (1) that there is PROBABLE CAUSE to believe that the journalist has information clearly relevant to a specific legal violation, (2) that the same information is not available by alternative means less destructive to the First Amendment, and (3) that there is a compelling and overriding interest in the information. Yet other courts have interpreted Branzburg as prohibiting state courts from creating reporter privileges at all (Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 [1977]; In re Roche, 381 Mass. 624, 411 N.E.2d 466 [1980]).

More than half the states have passed shield laws, making the reporters' privilege statutory. Shield laws range in their coverage: some protect only the identities of confidential sources; others protect everything from sources, notes, videotapes, and film negatives to the reporter's thought processes. At least 14 states and most federal jurisdictions recognize the privilege based on COMMON LAW, state CONSTITUTIONAL LAW, or the First Amendment. These jurisdictions generally apply a version of the three-part test outlined in the Branzburg dissent. Even where the privilege is recognized, it is rarely absolute. Courts may order reporters to disclose information under certain compelling circumstances, and a reporter who refuses to obey the court faces a charge of CONTEMPT and fines or imprisonment.

Journalists react differently to the threat of incarceration. Los Angeles radio station manager Will Lewis, in 1973, initially refused to comply with a federal grand jury subpoena seeking the originals of a letter and a tape recording sent to him by radical groups claiming inside knowledge of the KIDNAPPING of PATTY HEARST. Lewis was held in contempt and sent to Terminal Island Federal Prison, where he spent 16 days in solitary confinement before being released pending his appeal. He lost (In re Lewis, 377 F. Supp. 297 [C.D. Cal. 1974], aff'd 501 F.2d 418 [9th Cir.]). Faced with returning to prison, Lewis turned over the documents.

But William Farr, a reporter for the Los Angeles Herald-Examiner, spent two months in jail rather than name his source. Farr had received a copy of a deposition transcript from a prosecuting attorney in the case of serial murderer Charles Manson. The judge in the case had forbidden officers of the court to publicize the case, which contained particularly gruesome facts. When the judge ordered Farr to name the individual who leaked the information, Farr refused (Farr v. Superior Court of Los Angeles County, 22 Cal. App. 2d 60, 99 Cal. Rptr. 342 [Ct. App. 1971]).

Many reporters and their attorneys view the threat of contempt as an opportunity to educate the public on the issue. In 1990, Tim Roche was a 21-year-old reporter for a Florida newspaper, the Stuart News, when he was subpoenaed to disclose the name of a confidential source who had shown him a sealed (confidential) court order in a CHILD CUSTODY battle. Roche refused to comply, maintaining that he had promised the source confidentiality. He was found in contempt of court and received a 30-day jail sentence.

Attorneys for Roche appealed, but both the Florida Supreme Court and the U.S. Supreme Court declined to hear the case. Roche then sought clemency (an act to lower or moderate the sentence) from Governor Lawton M. Chiles, of Florida. Chiles refused the plea for clemency, but offered Roche three hundred hours of community service as an alternative to jail. Roche declined the offer, stating that he would not compromise his principles, as he had done nothing wrong. The governor retorted that he also would not compromise his principles, and that no one is above the law. On March 16, 1993, Roche entered the Martin County Jail, where he served 19 days. National publicity surrounding Roche's plight led to the introduction and passage of a Florida bill designed to protect reporters and their confidential sources. Chiles, however, vetoed the Tim Roche Bill on May 14, 1993.

Vanessa Leggett holds the dubious distinction of being the journalist incarcerated for the longest period of time in United States history over such an issue. In 2001 and 2002, Leggett spent 168 days in federal detention in Texas, a state without a shield law, for refusing to comply with a sweeping subpoena for confidential source materials. Leggett had been working on a nonfiction book about the killing of Houston socialite Doris Angleton, who was found shot to death in April 1997. Mrs. Angleton's millionaire husband, Robert, was accused of paying his brother, Roger, to kill his wife. Both brothers were charged with capital murder. In the course of her research, Leggett conducted a series of prison interviews with Roger Angleton, who subsequently committed suicide.

Leggett initially turned over tapes of her interviews with Roger to a grand jury. However, after Robert Angleton was acquitted in state court, a federal investigation into his activities was launched. In November 2000, the FEDERAL BUREAU OF INVESTIGATION (FBI) contacted Leggett about becoming an informant. She declined, citing a possible loss of her integrity and objectivity as a reporter, and expressed a concern over the loss of confidentiality with her sources. Leggett was then subpoenaed to testify in front of the grand jury. She agreed to do so after the FBI assured her she would not have to reveal the sources of her information. However, the federal grand jury subpoenaed all of Leggett's tape-recorded conversations with anyone she had interviewed about the Angleton case. She claimed reporter's privilege protected her from being forced to disclose confidential sources. On July 6, 2001, U.S. District Judge Melinda Harmon ruled that the Fifth Circuit does not recognize such a privilege as protecting a journalist from divulging confidential or nonconfidential information in a criminal case. Leggett was ruled in contempt, and on July 20, 2001, was ordered imprisoned without bail for 18 months or until termination of the grand jury.

In August 2001, while avoiding the question of whether Leggett is a journalist entitled to a reporter's privilege (the government had argued she was not), the Court of Appeals for the Fifth Circuit upheld the ruling that no reporter's privilege exists against a grand jury subpoena. In November 2001, the same court declined to reconsider the case or release Leggett on bond until she had exhausted her appeals. On January 2, 2002, Leggett's attorney filed an appeal on her behalf to the U.S. Supreme Court. Two days later, Leggett was released after the federal grand jury completed its term, in compliance with her original sentence.

Leggett's ordeal raised several important legal issues, including the definition of who is and who is not a journalist for purposes of claiming the privilege, the extent to which journalists are able to protect confidential sources in stories relating to criminal proceedings, the differences among state shield laws, and the lack of shield protection under federal law. Leggett also proved that journalists will risk jail sentences to protect their reputation as well as their sources: a reporter who is known to have identified a source after promising confidentiality may have a difficult time obtaining information from other sources in the future.

Opponents of the reporters' privilege, however, argue that journalists who ignore requests for evidentiary information breach other important societal interests. For example, the SIXTH AMENDMENT guarantees a criminal defendant the right to a fair trial. This right is lost when a reporter who possesses information that may help prove the defendant's innocence refuses to testify. The same argument applies to society's interest in prosecuting criminals, who may go free when incriminating evidence is withheld by a journalist.


Fargo, Anthony. 2003. "Evidence Mixed on Erosion of Journalists' Privilege." Newspaper Research Journal 24 (spring).

Kopel, David B., and Paul H. Blackman. 2002. "Abuse of Power: Jailing Journalists." National Review (January 22).

"Summer Mystery: Why Jail Vanessa Leggett?" 2002. Center for Informational Freedom. Available online at <www.cfif.org/htdocs/freedomline/current/america/free_line_summer.htm> (accessed September 2, 2003).


Freedom of the Press.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Estate for years to Ex proprio motu (ex mero motu)Evidence - Witnesses, Expert Witnesses, Hearsay, Objections, Nonevidentiary Objections, Authentication And Identification, Polygraph Tests