Lexis Nexis - Case Brief

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Law School Case Brief

Branzburg v. Hayes - 408 U.S. 665, 92 S. Ct. 2646 (1972)


Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, a grand jury's investigative powers are necessarily broad. It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. Hence, the grand jury's authority to subpoena witnesses is not only historic, but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that the public has a right to every man's evidence, except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings.


Petitioner Branzburg, a news reporter, wrote a story in the Courier-Journal describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marijuana, an activity which, they asserted, earned them about $ 5,000 in three weeks. The article stated that petitioner had promised not to reveal the identity of the two hashish makers. The reporter was shortly subpoenaed by the Jefferson County grand jury. He appeared but refused to identify the individuals he had seen possessing marijuana or the persons he had seen making hashish from marijuana. A state trial court judge ordered the reporter to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, Ky. Rev. Stat. § 421.100 (1962), the First Amendment of the United States Constitution, or §§ 1, 2, and 8 of the Kentucky Constitution authorized his refusal to answer. The reporter sought prohibition and mandamus in the Kentucky Court of Appeals on the same grounds, but the Kentucky Court of Appeals denied the petition, holding that the reporter had abandoned his First Amendment argument in a supplemental memorandum he had filed and tacitly rejected his argument based on the Kentucky Constitution. It also construed Ky. Rev. Stat. § 421.100 as affording a newsman the privilege of refusing to divulge the identity of an informant who supplied him with information, but held that the statute did not permit a reporter to refuse to testify about events he had observed personally, including the identities of those persons he had observed. 


Did the First Amendment grant the reporter the privilege to refuse to appear before a grand jury and answer the jury’s questions?




On a writ of certiorari, the Supreme Court of the United States held that the First Amendment accorded a newsman no privilege against appearing before a grand jury and answering questions as to either the identity of his news sources or information which he has received in confidence. The Court perceived no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings was insufficient to override the consequential, but uncertain, burden on news gathering that petitioner argued would result from insisting that he answer to the grand jury. Moreover, the Court ruled that the evidence failed to demonstrate that there would be a significant constriction of the flow of news to the public if the Court reaffirmed the prior common law and constitutional rule regarding testimonial obligations of newspaper reporters. The Court affirmed the decision of the lower court and held that petitioner had to appear before the grand jury to answer questions put to him. 

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