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Confrontation, the Journalist's Privilege, and Harmless Error

By Richard D. Friedman

Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused?s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v. Treacy.

Treacy is a former president of the company that operates the job-hunting website Monster.com. He was convicted of securities fraud, the theory being that he participated in the back-dating of stock options. One of the witnesses against him was a Wall Street Journal reporter, Charles Forelle, who was subpoenaed by the Government to testify to the proposition that Treacy had made statements attributed to him in an article co-written by Forelle. Probably because the Second Circuit accords a journalist a qualified privilege protecting him from the compelled disclosure of even non-confidential materials, the district judge, while denying Forelle?s motion to quash the subpoena, tightly circumscribed both direct and cross-examination. For example, the court prevented defense counsel from asking Forelle about a follow up e-mail that he had sent to the company?s public relations representative and that arguably supported the defense?s version of the conversation between Forelle and Treacy. The Second Circuit held that the limitations on cross- examination were improper. It declared that

once a trial court has determined that the Government has made the required showing to overcome the journalists privilege and compel a reporter?s direct testimony, the trial court may not, consistent with the Sixth Amendment?s Confrontation Clause, thereafter employ the privilege to restrict the defendant?s cross-examination of the reporter to a greater degree than it would restrict such cross-examination in a case where no privilege was at issue.

That seems correct, or at least close to correct, to me. The case to bear in mind is Davis v. Alaska, 415 U.S. 308 (1974). There, the state had a general rule preventing the disclosure of a juvenile adjudication, but the Supreme Court held that this rule must give way to the confrontation right where the young witness?s history of trouble with the law gave him a possible motivation to point the finger for a theft to the accused.

In Treacy, the jurisdiction has a rule limiting the ability of a party to call on a journalist for testimony. But once a court decides that the constraints of this rule may be overcome in the particular case on behalf of the prosecution, the accused must be allowed robust cross-examination. Perhaps at the margin, the policy behind the qualified privilege may guide the trial judge?s discretion in limiting cross-examination ? this is why I am not certain that the Second Circuit is correct in saying that the privilege washes out altogether ? but in this case the cross-examination seemed a natural follow-up to the direct and should have been allowed.

The Second Circuit held that the error was harmless. In assessing harmlessness of a Confrontation Clause violation, it is important that the court not speculate as to how effective cross-examination would have been if it were allowed. Delaware v. Van Arsdall, 475 U.S. 673 (1986). The simplest way to do this is to examine the case on the hypothetical assumption that the direct testimony had never been introduced. Ultimately, this is what the Second Circuit did, concluding (whether accurately or not I don?t know) that ?it is highly unlikely that [the Government] would have been unable to secure a conviction in the absence of Forelle?s testimony.?

Full post as published by The Confrontation Blog on March 10, 2011 (boomark / email).