In re Farber - 78 N.J. 259, 394 A.2d 330 (1978)

Rule:

The threshold determination would normally follow the service of a subpoena by a defendant upon a newspaper, a reporter or other representative of the media. The latter foreseeably would respond with a motion to quash. If the status of the movant -- newspaper or media representative -- were not conceded, then there would follow the taking of proofs leading to a determination that the movant did or did not qualify for the statutory privilege. Assuming qualification, it would then become the obligation of the defense to satisfy the trial judge, by a fair preponderance of the evidence including all reasonable inferences, that there was a reasonable probability or likelihood that the information sought by the subpoena was material and relevant to his defense, that it could not be secured from any less intrusive source, and that the defendant had a legitimate need to see and otherwise use it. 

Facts:

Appellants, The New York Times Company and Myron Farber, a reporter employed by the newspaper, were charged with contempt of court for failure to disclose information sought by subpoenas duces tecum by appellee State of New Jersey in a criminal case. They contended they had a privilege to remain silent with respect to confidential information that emanated from the "free speech" and "free press" clauses of the U.S. Const. amend. I. The court on appeal held that the Supreme Court of the United States rejected a similar claim and held that no such right existed. The New York Times and Farber also argued that a shield law, N.J. STAT. ANN. §§ 2A:84A-21 and 21a applied. 

Issue:

Did the state constitutional guarantee of a criminal defendant's right to confront witnesses prevail over the state statute granting privilege to newspersons regarding their sources of confidential information?

Answer:

Yes.

Conclusion:

The court found the law constitutional on its face, but held that it violated the U.S. Const. amend. VI and the N.J. Const. art. 1, para. 10, as applied to the facts of the case, by denying a criminal defendant the right to have compulsory process for obtaining witnesses.