(Frankfurter, J., concurring). Because the grand jury's mission
is to explore the possibility of criminal conduct and to return
only well-founded indictments, "its investigatory powers are
necessarily broad." Branzburg, 408 U.S. at 688, 92 S.Ct. 2646.
I. The Journalist's Qualified Privilege
In Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir.
1979), the Third Circuit established a qualified federal common
law privilege for journalists to refuse to disclose their
confidential sources. Set in the context of a civil case, the
Court in Riley set forth a three-prong inquiry whereby the
assertion of the privilege and the litigant's need for evidence
would be balanced on an ad hoc, case-by-case basis. See
Riley, 612 F.2d at 716. The Riley Court held that the
materiality, relevance, and necessity of the information sought
must be shown. See id. In so holding, the Court emphasized
that the circumstances in which the issue arose must first be
considered. See id.
The Third Circuit extended the reporter's qualified privilege
to criminal cases in United States v. Cuthbertson,
630 F.2d 139, 148 (3d Cir. 1980). The Court in Cuthbertson also
expanded the Riley holding to protect unpublished materials
held by reporters. See Cuthbertson, 630 F.2d at 147.
Importantly, the Third Circuit, assessing the various factors a
court considers when balancing the privilege against the need
for evidence, noted that "the lack of a confidential source may
be an important element in balancing the defendant's need for
the material sought against the interest of the journalist in
preventing production. . . ." Id. at 147. In applying the
three-prong Riley test, the Court concluded that film and
audio tapes or written transcripts of verbatim or substantially
verbatim statements made by interviewees who were on the
government's witness list were "unique bits of evidence that are
frozen at a particular place and time," and found that the
government's need for the evidence outweighed the privilege.
Id. at 148.
In United States v. Criden, 633 F.2d 346, 359 (3d Cir.
1980), the Third Circuit held that a journalist, summoned as a
defense witness in a criminal proceeding, could not refuse to
affirm or deny that she had a conversation with a particular
individual who had already publicly testified that the
conversation occurred. In so holding, the Court surmised that
the party seeking disclosure of information "probably should be
required to prove less to obtain the reporter's version of a
conversation already voluntarily disclosed by the self-confessed
source than to obtain the identity of the source itself."*fn6
Criden, 633 F.2d at 358; see also Gonzales v. Nat'l Broad.
Co., Inc., 186 F.3d 102, 109 (2d Cir. 1999) (holding that when
protection of confidentiality is not at stake the qualified
privilege should be more easily overcome).
II. Application of the Riley Criteria
In applying the three Riley factors to this case, this Court
will strike "a proper balance between freedom of the press and
the obligation of all citizens to give relevant testimony with
respect to criminal conduct." Criden, 633 F.2d at 357 (quoting
Branzburg, 408 U.S. at 710, 92 S.Ct. 2646). Moreover, the
Court is mindful of the following instructive observations.
First, as the Riley Court admonished, this Court must
"consider first the circumstances in which the issue arose."
Riley, 612 F.2d at 716.
Surveying the specific circumstances of this case, the Court
notes that, unlike Cuthbertson, this case implicates published
information, and not confidential, unpublished information. Also
Cuthbertson, this case deals with a self-avowed source whose
identity is publicly known. In addition, unlike Riley, this
case involves a federal grand jury proceeding.*fn7 It is also
understood that this is not a case where the government is
seeking the reporters' personal notes or files.
The Court further recognizes that the scope of the qualified
privilege is circumscribed by the purposes it serves. Logic and
fairness demand that "[t]he rule follows where its reason leads;
where the reason stops, there stops the rule." Criden, 633
F.2d at 356 (citing United States v. Schreiber, 599 F.2d 534,
537 (3d Cir. 1979)).
And lastly, the government is required to prove less to obtain
the information where, as here, the reporter's version of the
conversation was already voluntarily disclosed by the
self-confessed source. See id. at 358; Cuthbertson, 630 F.2d
With the foregoing in mind, the Court next applies the three
Riley factors. The Court in Riley suggested a "delicate
balancing" of the two interests, in which the materiality,
relevance, and necessity of the information sought must be
demonstrated. See Riley, 612 F.2d at 717. First, the
government must demonstrate that it has made an effort to obtain
the information from other sources. See Criden, 633 F.2d at
358-59. Quite obviously, another source in this case is the
actual published article itself. The article contains the
written version of the taped conversation between the
Star-Ledger reporters and Grieser.
The government has attempted to obtain the information it
requires from the article. However, as the government
articulated during oral argument, the actual published article
is not sufficient. The printed article is not the equivalent of
the audio tape and must be distinguished from the audio tape
containing the interview from which the quotes in the article
derived from. In order for the grand jury to properly assess the
evidence, it must be able to hear the actual conversation
between the reporter and Grieser, and not just read mere
snippets of the interview printed in the article.
Simply put, there is a world of difference between cold and
lifeless written words on paper and the sound of a live; verbal
conversation. A live conversation permits the listener to judge
certain credibility aspects of the speakers. For example, in
Criden a United States Attorney was interviewed by a reporter.
During the trial, the reporter was asked to answer certain
questions regarding the conversation. Although the United States
Attorney had already testified and admitted that he was in fact
the interviewee, the Third Circuit concluded that this testimony
was not sufficient because "[the reporter] is the most logical
source of information about the conversation . . . because she
was the other participant in it." Criden, 633 F.2d at 359.
Thus, the Court required the reporter to answer questions
regarding the conversation.
The Court in Criden emphasized that the evidence would be
unobtainable elsewhere because only the reporter would be able
to testify to the interviewee's credibility with respect to the
conversation. See id. Although in this case the reporter is
not being asked to testify, the essence of the audio tape here —
live, verbal conversation — is no different than live testimony
for purposes of this inquiry. In fact, listening to the actual
audio version of the conversation may be more effective for
purposes of the grand jury's task than listening to a reporter's
recollection of the conversation. Therefore, inasmuch as the
published article is insufficient as evidence for the grand
jury, the government has satisfied the first criterion.
Secondly, the government must show that the only access to the
information sought is through the journalist and the source.
See Criden, 633 F.2d at 359. The facts of this case are
somewhat different in that the government is seeking the
journalist's audio tape, and not the journalist's testimony or
identification of a confidential source. Nevertheless, this
analysis is the same as that for the first criterion. The
Star-Ledger argues that the government has an alternative source
to obtain its information — namely, the published article. As
stated above, however, the article is not the equivalent of the
tape and must be distinguished from the audio tape. What is
sought by the government is not so much "what" was said in the
article but more so "how" it was said. Here, much like in
Criden, only by listening to the audio tape will the grand
jury be able to evaluate Grieser's credibility. This particular
quality of the conversation can only be experienced by listening
to the audio tape itself. Much like Cuthbertson, the audio
tape represents "unique bits of evidence that are frozen at a
particular place and time." Cuthbertson, 630 F.2d at 148.
Therefore, the government has no other source from which they
can acquire this insight.
Relevance and importance to the particular proceeding is the
final criterion under Riley. See Criden, 633 F.2d at 359.
Although Criden intimated that the party seeking the
privileged information must demonstrate that the information is
"crucial" to the claim, the government need not satisfy such a
high burden in this case. The seeker of information is required
to prove less where, as here, the information sought is
nonconfidential and the source self-avowed. See id. at 358;
Cuthbertson, 630 F.2d at 147. Accordingly, the government
should only have to establish that the information sought is
necessary for the grand jury's purposes.
The government has satisfied the final criterion. The purpose
of the grand jury is to sift through evidence and determine
whether crimes were committed. Clearly the motivation and
credibility of Grieser are pertinent to the grand jury's
deliberations. Only by listening to the audio tape will the
panel be able to appraise the credibility of Grieser's "story"
as to the broader real estate scheme and other conspirators
involved. In light of the grand jury's purpose and broad
investigatory powers, then, the contents of the audio tape are
germane to the determination of whether crimes were committed.
The audio tape is necessary to the grand jury's investigation of
the real estate scheme described by Grieser in the Star-Ledger's
audio tapes. Accordingly, the government has met all the Riley
factors and, therefore, the Star-Ledger must comply with the
grand jury subpoena by providing those portions of Grieser's
interview contained in the audio tape that are delineated in the
For the aforementioned reasons, The Star-Ledger's motion to
quash the grand jury subpoena is DENIED. Accordingly, The
Star-Ledger must comply with the government's grand jury
subpoena requesting a redacted copy of the audio tape containing
Grieser's interview with Star-Ledger reporters. An appropriate
Amended Order accompanies this Letter Opinion.