Journalists can resist a subpoena.
In Philippine law, the shield law still has to evolve. We do have a shield law, but it is seldom used.
If a newsman is served a subpoena and is required to bring to court matrials which are confidential in nature, he can resist the subpoena.
The procedure is to file a motion to "quash" the subpoena. In this motion the newsman must politely explain to the court that he cannot produce the material being sought as it is condiential in nature, and producing such materials may violate what I would call the "newsman-source confidence" pursuant to the shield law.
But the Philippine shield law is not absolute immunity from compelled revelations.
Let us remember that what cannot be revealed is the SOURCE of any news report or information APPEARING IN SAID PUBLICATION.
It is required that such information must have been related to the newsman IN CONFIDENCE.
Therefor, it the source of the information was not given in confidence, then a newsman can be required to produce such material.
Let me cite a common example. A suspect in a crime confesses to a newsman the crime the former committed. This was revealed while the suspect was detained and in full hearing view of other people like other detainees, and the police. This confession is tape-recorded. A news item appears in the newspaper.
Can the tape recording be subpoenaed for use as evidence for the prosecution?
It is obvious that the source of the infromation, the confessor himself did not confess in confidence.
Thus, such material can be required to be brought to court via a subpoena.
Because our shield law requires that such information must hav ebeen revealed in confidence, the law is quite restrictive.
For how much information really is gathered with an explicit agreement of confidence?
That is why I propose that we follow the American state shield laws which generally does not require that the communication be confidential before the shield law can be invoked.
Under US state shield laws, a newsman cannot be compelled to testify or produce any document, unless the court is convinced, AFTER A HEARING and giving the newsman an opportunity to be heard, that the party seeking to compel production of such testimony or document has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than the newsman himself.
I fully agree with this concept.
Using the newsman's materials as evidence (for the prosucution) must be the last resort. It should not be resorted to until all means to obtain such information have been exhasuted.
Newsman, by the nature of the profession, obtain infromation that are not normally obtainable by ordinary persons. This peculiar characteristic must be observed and respected.
In other words, the prosecution must not be too quick to subpoena a newsman in procuring evidence.
The proseuction must first obtain the evidence by other means.
Otherwise, we will be having lazy policemen and prosecutors so sloppy in gathering evidence.
We must always bear in mind that newsmen should be netural.
They should not be made part of the prosecutorial team.
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