On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Antell, Scalera and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The issues presented on appeal are: 1) once a newsperson invokes the privilege afforded by the Shield Law, N.J.S.A. 2A:84A-21 et seq., who has the burden of proving the eyewitness exception to the privilege provided in N.J.S.A. 2A:84A-21a(h) of the law, and 2) can a newsperson's testimony be compelled in order to supply the threshold evidence necessary to overcome the exception?
On October 11, 1989, defendant Carlos Santiago was indicted for events which occurred on October 29, 1988 in Newark. The indictment charged Santiago with eight counts of second degree aggravated assault; third degree possession of a prohibited device, a bullet proof vest; third degree unlawful possession of a handgun without a permit; second degree unlawful possession of a handgun with a purpose to use it unlawfully against the person of another; and fourth degree possession of Dum Dum bullets. Approximately one year later on the eve of trial, Santiago caused subpoenas to be served upon Kinga Borondy, a reporter for the Star-Ledger who wrote two articles pertaining to the events of October 11th, and Tom Kitts, a staff photographer employed by New Jersey News Photos, who took photographs at the scene and provided them to the Star-Ledger.
Borondy and Kitts moved to quash the subpoena ad testificandum. In support of their application, they filed certifications setting forth the nature of their employment and asserted that any information received concerning defendant or the crimes in which he was allegedly involved was obtained solely during the course of their professional duties. The trial judge, apparently finding that Borondy and Kitts had properly invoked their privilege under the Shield Law, entered an order quashing
the subpoenas.*fn2 Santiago made an emergent application for leave to appeal. We granted the motion and summarily reversed the orders quashing the subpoenas because the record was insufficient for us to address the issues raised by the parties in their emergent application. The matter was remanded "to the Law Division for a plenary hearing, findings and conclusions with respect to the witness's privilege under N.J.S.A. 2A:84A-21 and particularly with respect to whether the circumstances of the case fall within the eyewitness exception contained in N.J.S.A. 2A:84A-21a."
A plenary hearing was promptly held by the trial judge. At the hearing, defendant contended that newspaper articles and accompanying photographs concerning the event resulting in his indictment were sufficient evidence, standing alone, to prove that Borondy and Kitts were eyewitnesses within the intent of the Shield Law.*fn3 For that reason, defendant maintained that he should be permitted to call Borondy and Kitts to the witness stand and question them for the purpose of determining whether both, or either one of them, possessed knowledge relevant to Santiago's defense. Defense counsel admitted that he did not know what either Borondy or Kitts actually saw.
The trial judge denied defendant's request to call Kitts to the witness stand. However, above the objection of Borondy, the judge permitted defendant to call her as a witness. Borondy was sworn and during the course of her testimony asserted the Shield Law privilege. The trial judge held Borondy in "technical contempt" for refusing to answer defense counsel's questions but stayed the order pending appeal. He entered an order quashing the subpoena served on Kitts. Borondy filed a motion
for leave to appeal from the order holding her in technical contempt, and defendant filed a motion for leave to appeal from the order quashing the subpoena served on Kitts. We granted both motions and ordered the appeals to be heard on the same calendar. For the reasons stated herein, we reverse the order finding Borondy in technical contempt and affirm the order quashing the subpoena served on Kitts.
Generally speaking, any person employed by the news media for the purpose of gathering, transmitting or disseminating news has a privilege to refuse to disclose "[a]ny news or information obtained in the course of pursuing his professional activities whether or not it is disseminated." N.J.S.A. 2A:84A-21b. News includes both written and pictorial information. N.J.S.A. 2A:84A-21a(b).
N.J.S.A. 2A:84A-21.3 requires that a newsperson invoking the privilege make a " prima facie showing" that the newsperson is: 1) "engaged in, connected with, or employed by a news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated," and 2) "that the subpenaed materials were obtained in the course of pursuing his professional activities." N.J.S.A. 2A:84A-21.3a. Defendant does not claim that Borondy and Kitts failed to make the required prima facie ...