On appeal from the Superior Court, Appellate Division, whose opinion is reported at 222 N.J. Super. 387 (1988).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J.
This appeal raises the question of whether a newsperson can be compelled by the State to testify at trial concerning a confession made to him in the pursuit of his professional activities by a criminal defendant after the confession has been published in the newspaper. We find that under the provisions of the New Jersey Shield Act, N.J.S.A. 2A:84A-21 the reporter cannot be compelled to testify.
This matter arises out of the capital case of State of New Jersey v. Gary J. Mayron (Sussex County Indictment No. 86-05-0096-I), in which defendant Mayron is charged with kidnapping (N.J.S.A. 2C:13-1b) and murder (N.J.S.A. 2C:11-3) of seventeen year-old Susan Brennan. At trial,*fn1 the State sought the testimony of a reporter, Evan Schuman, whose accounts of telephone conversations with defendant were published in the New Jersey Herald on April 8 and 10, 1986,*fn2 five weeks prior to defendant's indictment.
Schuman's front page articles detailed the substance of their conversations. His April 8, 1986, story, under the headline, "Murder Suspect: 'I just lost it,'" stated as follows:
In an interview with The Herald Monday, Mayron said he had sexual relations with Susan Brennan of Lake Hiawatha late last month and then beat her in a Parsippany motel room before beating her to death and leaving her in Sparta.
Schuman's April 10 article provided further elaboration:
In a follow up phone interview with The Herald on Tuesday, Mayron said he killed Brennan "out of a lot of hate and a lot of anger" for her because she had sex with him so soon after they had met.
"You just don't do that unless you love somebody", he claimed he told the girl as they drove from a Morris County motel to a wooded area of Sparta where he said he kicked and beat her while she pleaded with him.
"'Please don't kill me. I'm sorry,'" Mayron quoted the teenager as saying.
"I didn't mean to kill her. Just to hurt her. She was in the place of my real mother", said Mayron, who was adopted. "And that's what I felt like doing to her" (his mother).
"It was like physically it was me but mentally it wasn't. Anger and hate constantly controlled me for four or five hours."
The State served Schuman with a subpoena to testify on or about March 18, 1987. On April 1, 1987, Schuman moved before the trial court to quash the subpoena. Schuman's affidavit read, in part, as follows:
4. The testimony I am to provide on behalf of the State was obtained solely and exclusively in the course of pursuing my professional activities as a reporter for the New Jersey Herald.
5. I have not been an eyewitness to any alleged act or offense the Defendant is accused of having committed.
6. There is a public perception that newspersons are immune from compulsory process. The belief that newspersons cannot be called upon to testify encourages the free flow of information between sources and reporters regardless of whether the sources request confidentiality. Compelled disclosure would decrease the flow of information available to the public because reporters will be ethically compelled to advise their sources that confidentiality may not be able to be guaranteed, or reporters will refrain from disclosing their sources.
7. The information sought by the subpoena is subject to the newsperson's privilege as set forth in N.J.S.A. 2A:84A-21 et seq., Evid.R. 27, which privilege I do hereby invoke and which information I thus respectfully refuse to disclose as a witness.
At the hearing on the matter, the State explained that it sought to introduce only the specific statements made by Mayron that were reported by Schuman in the published articles.
The State represents that it "has independent evidence to prove how the telephone conversations came about and to prove that the person to whom Mr. Schuman spoke was indeed Gary Mayron." Thus, it sought neither the s nor any other information relating to the interview. Its sole purpose was to obtain a sworn, in-court statement establishing that Mayron had uttered the words quoted in the Herald article. Once such a statement was obtained, it would introduce those words into evidence against Mayron under Evid.R. 63(7) and Evid.R. 63(10) as admissions and declarations against penal interest.
Schuman contends that Evid.R. 27(b), of the New Jersey Shield Law, N.J.S.A. 2A:84A-21(b), which gives a newsperson "a privilege to refuse to disclose . . . any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated," guarantees that a reporter cannot be said to have waived any part of the privilege by virtue of publishing information in a newspaper. Hence, he maintains that dissemination of the information in his articles on Mayron does not constitute a waiver of his Evid.R. 27 privilege. The State, on the other hand, contends that because the newsperson's privilege is expressly "[s]ubject to Rule 37," governing waivers ...