A New York Supreme Court judge has ruled that a person's constitutional right to a fair trial outweighs the press privilege, even if the information obtained by the latter is confidential in nature.

Justice Mark Dwyer has ruled in a second-degree attempted murder case last month that The New York Daily News must disclose the confidential source of information that would enable the accused to get a free trial. In New York, the Supreme Court is a trial-level court.

The prosecutors said Angelo Diaz, Angel Rivera and one more man were caught by the police drinking in a public area in Brooklyn. When the police sought to issue summons to each of them, Rivera resisted and brandished a gun. As Rivera and a police officer grappled with each other to possess control over the gun, Diaz allegedly shouted to Rivera to shoot the cop. However, the Daily News reported in its article that it was informed by authorities that Rivera's mother and not Diaz was the one who shouted shoot the cop.

Following publication of the story, Diaz's lawyers had subpoenaed the Daily News to reveal its source but the newspaper refused to comply, citing the state's shield law.

The shield law, enacted by thirty-one states in the U.S., protects the reporters from disclosing their confidential sources. Most courts, both state and federal, have also held that a qualified reporters' privilege exists under the First Amendment.

However, on Jan. 11 Judge Dwyer ruled otherwise.

A defendant's Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions, Dwyer wrote. A defendant generally could not, for example, insist on presenting testimony about a co-defendant's privileged communications with that co-defendant's attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant's due process right to a fair trial.

The judge said that the press privilege must give way in the face of the Sixth Amendment when a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant’s claim, and (3) is not otherwise available.

And that is true even if the information is confidential, the judge wrote.

The Daily News will disclose to the court in camera whether the source of the relevant information was one of the two officers at the crime scene. If so, the subpoena will require an appearance by a witness from the Daily News, Dwyer ordered.

Many people expected the Daily News to appeal the ruling but instead of risking an unfavorable appellate court ruling that could have sweeping implications for New York’s shield law, earlier this month, it disclosed the source of its information to Dwyer.
According to the First Amendment Center, Dwyer's holding is based on the questionable premise that the New York shield law establishes a rule of evidence - like hearsay - rather than a protected, confidential relationship like that which exists between lawyers and clients or priests and penitents. As such, an appeal of his holding could have succeeded.

However, the advocacy group, which works to preserve and protect First Amendment freedoms through information and education, acknowledged that nothing on appeal is guaranteed.

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