State v. Jascalevich

¶1concurring. I join in the comprehensive opinion of Justice Mountain and would briefly refer to factors which seem to me particularly reassuring in justification of that opinion. As pointed out, Judge Arnold in his threshold rulings was quite familiar with testimony introduced in a very long trial. As mentioned by Justice Mountain, this record included testimonial reference to the activities of Myron Earber and to the statements of material trial witnesses, which Earber possesses as agent of the respondent The New York Times. These statements, as shown by the trial record, are demonstrably inaccessible to the criminal trial defendant and should obviously be subject to comparison with the present trial testimony of various witnesses who have made such statements.

¶2It would of course have been better practice for the trial judge to have documented references to that testimonial record to demonstrate, at the threshold: (1) probable rele-l *282vánCe and materiality, (2) absence of opportunity for less intrusive access to the material demanded, (3) the status of any Shield Law protection and ,(4‘) the substantial reality of a consequent Sixth Amendment right to the evidence on the part of the defendant. The failure to have done so, however, should not be conclusive in the face of respondents’ intransigence. Considering that today we have found the threshold requirements to be evident in the record, as doubtless did Judge Arnold as the basis for his rulings, it is clear that respondents have denied to the court in camera access to the only factual base upon which any court c&uld have proceeded from that point to hear proofs and argument and then intelligently and finally determine those issues.

¶3In this context, then, respondents have not truly been denied a hearing ;— they have intentionally withheld from the court the only foundation (that is to say, in camera consideration such as occurs in equally important Pifth Amendment cases) upon which any sensible final hearing and determination could have been based. In that respect they have aborted, alike, any possible fuller hearing and any possible substantive determination based on such a hearing.

¶4Considered in this way, respondents have in fact had all the hearing to which they are presently entitled — that is to say a full consideration of their claimed Shield Law privilege to the extent that such asserted right may be adjudicated in vacuo. Their claim to a final adjudication without an in camera scrutiny by the court upon which to base its decision would project the absurd proposition that the press, and not the courts, should be the final arbiter of the constitutional mandate.

¶5Such a conclusion would be discordant with the entire history of constitutional adjudication since the foundation of the Republic. It would be destructive of values upon which our constitutional democracy rests, that is to say, on the premise that the Constitution is supreme over the transitory will of any man, or of any group of men, or of the Congress itself, or even of a President, or of the press, or of *283any special interest, no-matter how "worthy.' In the' perspective of history, given the need for freedom of the press and religion, of free speech and assemblage and other rights of free people, all such rights are' diminished if men may be condemned without the right to fair trial and without compulsory process to effectuate that right. Eor in the end, this was the constitutional purpose ■ — • that all men might be equal before the law — and thus free to seek without restraint those common goals identified by our ancestors — life, liberty and the pursuit of happiness. All these aré affronted and endangered intolerably, if fair trial is denied to anyone.

¶6dissenting. I respectfully dissent from the Court’s affirmance of the judgments of civil and criminal contempt entered below. Subjecting appellants to sanctions for failure to comply with a judicial order prior to an adjudication as to their legal obligation to comply with that order runs counter to the core concept of our legal system — due process of law. This is not a case in which appellants’ claims of privilege are frivolous and easily disposed of; quite the contrary, substantial questions afe herein presented concerning appellants’ rights under both the Eirst Amendment and the New Jersey Hews Media Privilege Act to refuse to disclose sources and confidential information gathered in the course of appellant-Earber’s investigative reporting activities. Since appellants were denied an opportunity to present these claims prior to the imposition against them of coercive and punitive sanctions, the judgments of contempt must be vacated and the case remanded for a hearing to determine the merits of their objections.

¶7The main question posed by the present ease is whether the New York Times Company and Myron Ear.ber may be adjudged to be in civil and criminal contempt for their refusal to comply with an order of the judge presiding over the trial in State v. Jascalevich to produce certain materials *284for in camera inspection before the merits of various proffered defenses are heard and decided. Other significant questions concern the scope of the New Jersey News Media Privilege Act and the type of hearing that should have been accorded appellants.

¶8My resolution of this controversy makes unnecessary a consideration of appellants5 claims that the subpoena is impermissibly overbroad, see State v. Cooper, 2 N. J. 540 (1949), and that the lower court was without jurisdiction to enter contempt judgments against them. Suffice it to say that grave doubts exist as to the manner in which these issues were treated below.

¶9I

¶10Denial of Due Process

¶11The most fundamental tenet of our legal system is that no man can be deprived of life, liberty or property without due process of law. While due process is a flexible concept whose requirements will vary from case to case, there can be no doubt that at a minimum it mandates that deprivations of liberty or property be preceded by an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950); Grannis v. Ordean, 234 U. S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363 (1914). Where, as here, First Amendment interests are implicated, especially stringent procedural safeguards are required. See, e.g., Carroll v. President and Comm’rs of Princess Anne, 393 U. S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968); Freedman v. Maryland, 380 U. S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); L. Tribe, American Constitutional Law, §§12-34 to 12-36 (1978).

¶12At no point prior to the rendition of the contempt judgments were appellants accorded an opportunity to marshall legal arguments against in camera production of the subpoenaed materials. Their claims that the subpoena is imper-missibly overbroad and that compelled in camera disclosure *285is forbidden by the First Amendment and the New Jersey Shield Law, N. J. S. A. 2A :84A-21, were denied consideration both at the motion to quash the subpoena and during contempt proceedings.

¶13The majority’s assertion that appellants were indeed accorded a due process hearing prior to in camera, inspection is simply without foundation in the record. In fact, it directly contradicts the express words of the trial judge. In response to appellants’ contentions that in camera disclosure was legally impermissible, the judge stated:

When the items are produced, this Court will give the applicants a full hearing as to the materiality of the subpoena, its scope and its contents.

The Court will also decide if the items are barred by the Shield Law and any other legitimate defense that may be asserted.

¶14In effect, appellants were to be afforded an opportunity to contest the legality of in camera disclosure only after the materials had been so disclosed. Such a result not only turns logic on its head, but, more importantly, makes a mockery of “due process.” See In re Vornado, Inc., 159 N. J. Super. 32, 38 (App. Div. 1978), certif. den. 77 N. J. 489 (1978).

¶15Farber has therefore never received the hearing to which he is constitutionally entitled. I find it totally unimaginable that the majority can even consider allowing a man to be sent to jail without a full and orderly hearing at which to present his defenses. Mr. Farber probably assumed, as did I, that hearings were supposed to be held and findings made before a person went to jail and not afterwards.

¶16II

¶17New Jersey News Media Privilege

¶18The appellants’ claims as to the privileged nature of the subpoenaed materials are clearly cogent under N. J. S. A. 2A:84A-21. That statute provides, in pertinent part:

*286… [A] person * * * connected with, or employed by news media for the purpose of gathering * * * or disseminating news for the general public or on whose behalf news is so gathered … or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere

а. The source … * from or through whom any information was procured [;] … and

б. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

¶19This ease is the first major test of New Jersey’s new “Shield Law.” There is no reason to accord this statute an unfriendly reception in any court of this State. There should be no eagerness to narrow or circumvent it. The Shield Law is not an irritation. It is an act of the Legislature.

¶20This law was passed in the aftermath of the Supreme Court’s decision in Branzburg v. Hayes, 408 U. S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). In Branzburg, the Court held that the First Amendment will not always prevent forced disclosure of a reporter’s confidential sources and information. More specifically, it ruled that the reporters there involved had no privilege under the First Amendment against being compelled, on pain of contempt, to reveal such confidential data to an investigating grand jury. In its view, the resulting infringement upon the reporters’ investigating abilities was outweighed by the grand jury’s need to have everyman’s evidence.

¶21The Court emphasized, however, that state legislatures were not powerless to alter the result reached in Branzburg. As Justice White stated:

At the federal level, Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problem® with respect to the relations between law enforcement of*287ficials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to-recognize a newsman’s privilege, either qualified or absolute.

[408 U. S. at 706, 92 S. Ct. at 2669; emphasis supplied]

¶22The News Media Privilege Act was New Jersey’s response to the Court’s invitation. This Act reflects our Legislature’s judgment that an uninhibited news media is more important to the proper functioning of our society than is the ability of either law enforcement agencies, the courts or criminal defendants to gain access to confidential news data.

¶23It cannot be doubted that this legislative judgment rests upon a firm foundation. News media keep the public abreast of goings-on, both public and private, and thus make possible “[e]nlightened choice [s] by an informed citizenry” — “the basic ideal upon which an open society is premised … *” Branzburg v. Hayes, 408 U. S. 665, 736, 93 S. Ct. 2646, 2672, 33 L. Ed. 2d 626 (1973) (Stewart, J., dissenting). Not only does a free press provide people with a wide range of facts and opinion, but,, \y exposing the actions of public officials, it serves as a cheek upon governmental error and abuse. See, e.g., Sheppard v. Maxwell, 384 U. S. 333, 350, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); Estes v. Texas, 381 U. S. 532, 539, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965). As such, it is an “incontestable precondition of self-government.” Branzburg, supra,408 U. S. at 726, 92 S. Ct. 2646 (Stewart, J., dissenting). In the words of James Madison:

* * * A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.

[Letters and Other Writings of James Madison, Fourth

President of the United States, Vol. 3, p. 276 (1865 ed.)]

¶24It was perhaps for this reason that Justice Douglas concluded that “[t]here is no higher function performed under our constitutional regime” than that of reporting the news. *288Branzburg, supra, at 722, 92 S. Ct. at 2696 (Douglas, J., dissenting) .

¶25A reporter’s ability to obtain sensitive information depends on his reputation for keeping confidences. Once breached — that reputation is destroyed. Potential sources of information can no longer rest secure that their identities and confidences will remain free from disclosure.

¶26Realizing that strict confidentiality is essential to the workings of a free press, our Legislature, through the News, Media Privilege Act, has granted reporters an immunity from disclosure which is both absolute and comprehensive. Any person connected with any news media for the purpose of gathering or disseminating news is granted the privilege of refusing to disclose, in any legal or quasi-legal proceeding or before any investigative body, both the source of and any information acquired.

¶27Courts are thus given no discretion to determine on a ease-by-case basis whether the societal importance of a free and robust press is “outweighed” by other assertedly compelling interests. The Legislature has done the weighing and balancing and has determined that in every case the right to non-disclosure is paramount. If a reporter falls within the ambit of the statute, he has a privilege of nondisclosure.

¶28This privilege exists not only with respect to public disclosures; it encompasses revelations to any legal or quasi-legal body, including “any court.” Even forced in camera disclosures are thus prohibited. Indeed, any other conclusion •would subvert the policies underlying the statute. As Justice Marshall noted, denying a stay in this case:

Many potential criminal informants … might well refuse to provide information to a reporter if they knew that a judge could examine the reporter’s notes upon the request of a defendant.

[- U. S. -, 99 S. Ct. 11, 58 L. Ed. 2d 88 (1978) ]

¶29Further, the specter of forced in camera disclosure may, in the words of Justice Douglas, “cause editors and critics to *289write with more restrained pens.” Branzburg v. Hayes, supra 408 U. S. at 721, 92 S. Ct. at 2691 (1972) (Douglas, J., dissenting) .

¶30The majority intimates that a reporter may lose the protection of the Shield Law if he can also he deemed an “investigator.” See <mte at 278. All good reporting must be investigative. If reporting is to be imaginative and understandable, the facts and leads must be searched out. Such resourceful, probing journalism first exposed most of the serious governmental scandals. The process helps people learn what they need to know. To hamper it is to hamper ourselves. To hold therefore that the Shield Law is not applicable to a reporter who is also an investigator is to hold that the Shield Law will never be applicable.1

¶31Branzburg makes clear that the Shield Law is a permissible exercise of legislative authority. As the product of a co-equal branch of government, it must be respected by our Courts.

¶32Appellants’ position that the Media Privilege Act prohibits forced in camera disclosure of confidential data is thus meritorious. Since this is so, it is unnecessary to pass upon their claims that the Eirst Amendment also protects them from such forced disclosure.

¶33Ill

¶34Necessity for Hearing

¶35Jascalevich asserts that the materials subpoenaed in the present case are relevant to his defense, and hence non-disclosure will deprive him of his Eifth and Sixth Amendment rights to a fair trial. It is of course axiomatic that a *290statute cannot be applied so as to abridge an individual’s constitutional rights. However, if the materials are ordered turned over for in camera inspection in order that a determination be made as to their relevance to Jascalevich’s defense, appellants’ statutory privilege of non-disclosure will be eviscerated.

¶36How to deal with this state of affairs? It is submitted that an almost identical situation was faced by the Supreme Court in United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), and that the Court’s solution to the problem in that case should serve as a guide to the case at hand. In Nixon, the production of subpoenaed presidential material was resisted on grounds of “executive privilege.” Disclosure of the data was sought by presidential aides who were criminal defendants as well as by the prosecutors. In the course of its opinion, the Court noted that before the “weighty” interest in confidentiality was undermined by even in camera disclosure, those desirous of obtaining the information were required to make a threshold showing as to the relevance, materiality and necessity of the data to the conduct of the trial. In that case, the Special Prosecutor had met this threshold burden. In the words of the lower court, he had made “a lengthy and detailed showing of [the Government’s] need for the subpoenaed items and their relevance.” United States v. Mitchell, 377 F. Supp. 1326, 1328 aff’d sub nom. United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). See also Brown v. Commonwealth, 214 Va. 755, 204 S. E. 2d 429 (S. Ct.), cert. den. 419 U. S. 966, 95 S. Ct. 229, 42 L. Ed. 2d 182 (1974); State v. St. Peter, 132 Vt. 266, 315 A. 2d 254 (S. Ct. 1974).

¶37The need to impose such a threshold burden upon a criminal defendant is at once manifest. Absent such a requirement, nothing prevents any person accused of a crime from embarking upon “fishing expeditions” into a news media’s files. Such rummaging of a newspaper’s records cannot be permitted. See Brown v. Commonwealth, supra; State v. St. Peter, supra.

¶38*291Case law demonstrates that a criminal defendant’s Eifth and Sixth Amendment rights will be undermined only if subpoenaed data are relevant, material and necessary to the defense. If the information is irrelevant or immaterial or unnecessary to Jasealevich’s defense, or if alternate sources of this information exist, then non-production will not impair his constitutional rights; hence, disclosure cannot be mandated. See Brown v. Commonwealth, supra; State v. St. Peter, supra.

¶39This cause must therefore be remanded for a hearing prior to a decision regarding appellants’ obligation to disclose the subpoenaed materials. At this hearing, evidence can be adduced relating to: (1) the applicability of the Media Privilege to the information sought to be obtained by Dr. Jascale-vich; (2) the existence of a waiver of that privilege; and (3) the relevance, materiality and necessity of the subpoenaed data to Jasealevich’s defense. The latter inquiry will, of course, encompass a determination as to the existence of alternate sources of information. Since the Media Privilege Act prohibits even compelled in camera disclosure, such disclosure should not be ordered, as in Nixon, unless and until Jascalevich has made a threshold showing that the materials are relevant, material and necessary.

¶40The majority suggests that a hearing can he dispensed with, or that its outcome will be foreordained, in every case in which a reporter possesses “considerable knowledge of [a criminal] ease.” See ante at 278. Such a conclusion nullifies the provisions of the Media Privilege Act. In effect, the majority has ruled that Shield Law protection will be withdrawn from reporters who perform their jobs competently — that is, those who gain “considerable knowledge” concerning a criminal case. A hearing as to relevance, materiality, and necessity must be conducted in all cases in which the privilege is invoked. Compelled in camera disclosure must be prohibited unless and until the defendant has met his threshold burden in accordance with the procedures to be discussed below.

¶41*292Those procedures — which will apply to all who may be similarly situated — should be as follows:

¶42(1) The person claiming the privilege should be required to make a prima facie showing that he is a newsperson and that he obtained the subpoenaed materials in the course of his newsgathering duties. This is subject to rebuttal by Dr. Jascalevich; Jascalevich may also show waiver of the privilege.

¶43(2) If the judge finds that the privilege is arguably applicable, then the burden should shift to Dr. Jascalevich to make a threshold showing (a) that the data are relevant, material and necessary to his defense and (b) that no less intrusive means of gaining the information are extant. This showing must demonstrate what the materials are expected to show with sufficient specificity to allow the trial judge to make an independent judgment thereon. Appellants Earber and the Times should then be given an opportunity to rebut Jasealevieh’s showing. If the judge finds that any or all of the requested data are irrelevant, unnecessary or immaterial, he must quash the subpoena as to such materials.

¶44(3) If the judge finds that Jascalevich has made a threshold showing with respect to any of the subpoenaed materials, he should order these materials — and only these materials — produced for in camera inspection. In order that appellants’ rights be infringed to the least extent possible, appellants should be permitted to delete the names of informants and any other identificational indicia during this stage of the proceedings.

¶45(4) After the judge has inspected the material, he should make a determination as to whether any portion is relevant, material and necessary to Dr. Jascalevich’s defense. He must also decide whether that material will probably be admissible at trial. United States v. Nixon, supra,418 U. S. at 714, 94 S. Ct. 3090. If these criteria are satisfied, then that portion of the material should be released to Jascalevich. All other material must be returned to appellants. Counsel should have an opportuity to be heard.

¶46*293(5) Then judge must make findings of fact and conclusions of law at each stage of the proceedings.

¶47(6) Either party may seek leave to appeal the judge’s decision as to in camera inspection or release of information after inspection.

¶48Throughout all stages of the proceeding, the judge should constantly keep in mind the strong presumption against disclosure of protected materials. All doubts concerning disclosure should be resolved in favor of non-disclosure.

¶49I am mindful that this inquiry will take place in the context of an ongoing murder trial and that delays are undesirable. Therefore, I do not expect that this hearing will be drawn out. The trial judge possesses sufficient powers to ensure that the hearing proceeds expeditiously.

¶50It must be emphasized that such a hearing is to be conducted only in cases in which a criminal defendant asserts that privileged data are necessary to his defense. In all other situations in which the Hews Media privilege is invoked, no constitutional concerns will exist. Hence, given the absolute nature of the statutory privilege, compelled disclosure is forbidden.

¶51Ho such hearing was held prior to the trial judge’s order that the subpoenaed materials be produced for in camera inspection. The majority admits as much. See ante at 277. However, instead of remanding the cause, it invokes its original jurisdiction under E. 2:10-5 in a “patchwork” attempt to make findings of fact essential to its disposition of this controversy. In view of the importance of the questions presented and the state of the record below, this venture into the province of the trial judge is both unwarranted and unwise. An appellate court should rarely engage in original factfinding; its distance from the proceedings below makes factual judgments very difficult. It is not rational to expect that a Court so removed will adequately perform this function. When the issues are of constitutional magnitude, such an undertaking is especially undesirable. A decision whose *294impact will be felt by many persons in many places should not be the product of an incomplete record.

¶52Even were I to agree that original factfinding is appropriate, I could not sanction the manner in which the majority has found its “facts.” The trial judge’s conclusions upon which the majority places so much reliance were not the product of a hearing below in which appellants were allowed to participate. Rather, these conclusions derive solely from the judge’s examination of a handful of newspaper articles. See State v. Jascalevich, 158 N. J. Super. 488, 493 (Law Div. 1978). The “further support” upon which the majority bases its findings of fact, see ante at .278-281, does not even derive from the trial judge. Instead, the majority’s “findings” are taken substantially verbatim from conelusory allegations contained in the statement of facts section of the brief for Dr. Jascalevich. This amalgam of post-hoc, ex parte, and newspaper article “factfinding” is not my idea of what a Shield Law hearing is all about.

¶53IY

¶54Conclusion

¶55I believe the majority holding results in the Shield Law leaving a reporter unshielded and the free press not-so-free. Justice Frankfurter once noted that any court can properly decide a case if only a single principle is in controversy. The difficulty is that this case entails more than one so-called principle. It is therefore a hard case that is destined to make bad law. The victims will be the press, the courts and the public interest.

¶56Appellants were never accorded a Shield Law hearing prior to the imposition against them of contempt sanctions. Indeed, they were not even given an opportunity to argue that such a hearing should be held. Instead, they were told that a hearing would be forthcoming only after the material had been turned over for in camera inspection. The majority’s attempt to compensate for these procedural in*295firmities by engaging in ad hoc factfinding is “too little, too late.” It did not have to happen this way. This constitutional confrontation should have been avoided by granting a fair hearing to Earber and the New York Times under the guidelines mandated above. If the ultimate evidential test had been met by Dr. Jascalevieh in accordance with those guidelines, Mr. Earber would have had to comply with the trial court order for in camera inspection. No one is above the law.

¶57Since appellants were denied “an opportunity to be heard” prior to the imposition of sanctions against them, the judgments below must be vacated.

¶59dissenting. This appeal poses significant and novel issues the resolution of which will endure long after the underlying, highly publicized criminal case has become history. We are required on the appellate level to determine in the context of an ongoing criminal prosecution, now in its seventh month of continuous trial, whether judgments for contempt and the imposition of civil and punitive sanctions were properly visited upon a newspaper and its reporter for their refusal to obey subpoenas requiring that they turn over to the trial court for its in camera inspection information related to the case but generated in the course of news gathering and news publication. This Court now rules that the subpoenas duces tecum to produce the contested material for the trial judge’s in camera inspection were enforceable and that the refusal of the reporter and the newspaper to comply with the trial court’s compulsive turn-over order properly subjected them to civil and punitive sanctions for contempt, this notwithstanding their claim that they had no adequate opportunity to demonstrate the invalidity of the subpoenas and applicability of a newsman’s privilege.

¶60Because I am in substantial accord with much of the reasoning of the Court, it is with misgivings that I voice a dissent. I subscribe to the view that the newsman’s privilege *296is not predicated on the First Amendment and that under the New Jersey media privilege law, N. J. S. A. 2A:84A-21, it is not absolute and unqualified; the.privilege must yield in appropriate circumstances to a defendant’s constitutional right to material evidence in a criminal trial. Further, I agree generally that in camera inspection of private or confidential matter by a court may be necessary on a requisite showing in a given case to settle a legal tug of war for the information. I would, however, reach a different result and order a remand in this case in light of the inadequacy of the present record to justify the judgments of contempt. I would do so because of the strength of the newsman’s privilege under the New Jersey shield law and the rigorous standards which ought to be applied in determining whether in camera inspection of contested information is appropriate in the face of a claim based on that privilege.

¶61I

¶62I agree with the Court that the appellants do not have a privilege founded upon the freedom of press clause of the First Amendment to the United States Constitution. The First Amendment does not stand as a bar to the issuance of a subpoena to a newsman to produce information material to the defense of a criminal case. The United States Supreme Court in Branzburg v. Hayes, 408 U. S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), effectively so decided:.

…■ We are asked to create another [privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. * … On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant ques*297tions put to them in the course of a valid grand jury investigation or criminal trial.

[408 U. S. at 690-691, 92 S. Ct. at 2661, 33 L. Ed. 2d at 644-645; footnote omitted]*

¶63See also Houchins v. KQED, 438 U. S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978); Zurcher v. Stanford Daily, 436 U. S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978); Pell v. Procunier, 417 U. S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974); Zemel v. Rusk, 381 U. S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179, reh. den. 382 U. S. 873, 86 S. Ct. 17, 15 L. Ed. 2d 114 (1965); United States v. Liddy, 354 F. Supp. 208 (D. D. C. 1972); In re Bridge, 120 N. J. Super. 460 (App. Div.), certif. den. 62 N. J. 80 (1972), cert. den. 410 U. S. 991, 93 S. Ct. 1500, 36 L. Ed. 2d 189 (1973); Annot., “Privilege of Newspaper or Magazine and Persons Connected Therewith Not to Disclose Communications to or Information Acquired by Such a Person”, 7 A. L. R. 3d 591 (1966).

¶64It cannot be overemphasized that despite the absence in the Eirst Amendment of any absolute privilege in favor of a newsman to resist claims for his information in the context of a criminal proceeding, the Amendment does embody constitutional values which are necessarily incidental to a free press in our democratic society. Nebraska Press Association v. Stuart, 427 U. S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); Branzburg v. Hayes, supra, 408 U. S. at 681, 92 S. Ct. at 2656, 33 L. Ed. 2d at 639; New York Times Co. *298v. United States, 403 U. S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971); Curtis Publishing Co. v. Butts, 388 U. S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094, reh. den. 389 U. S. 889, 88 S. Ct. 11, 13, 19 L. Ed. 2d 197, 198 (1967); New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); State v. Allen, 73 N. J. 132 (1977). Thus, while Justice White in Branzburgeschewed a balancing test to determine whether there was a privilege to refuse to disclose information .(408 U. S. at 701-706, 93 S. Ct. at 3666-3669, 33 L. Ed. 3d at 651-654), he nevertheless made it clear that the subject matter of the testimony and the relevancy of any material sought by a subpoena are legitimate questions to be raised and weighed:

Finally, as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.

[408 U. S. at 707-708, 92 S. Ct. at 2670, 33 L. Ed. 2d at 655; footnote omitted].

¶65Justice Powell elaborated on that aspect of the majority decision in a concurring opinion:

As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the Court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper *299balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

[408 U. S. at 709-710, 92 S. Ct. at 2671, 33 L. Ed. 2d at 656; footnote omitted].

¶66It is, I believe, in necessary recognition of the Eirst Amendment concern for the unfettered functioning of the news media in a free and democratic society that many courts have espoused the “balancing” approach articulated by Justice Powell. In Brown v. Commonwealth, 214 Va. 755, 204 S. E. 2d 429 (Sup. Ct.), cert. den. 419 U. S. 966, 95 S. Ct. 229, 42 L. Ed. 2d 182 (1974), the Virginia Supreme Court, relying on Branzburg, held that the reporter had a privilege “related to the Eirst Amendment” to retain the confidentiality of his sources; since that privilege, however, was not a right guaranteed by the Eirst Amendment it could be subordinated but

… only when the defendant’s need is essential to a fair trial. Whether the need is essential to due process must be determined from the facts and circumstances in each case. We are of the opinion that when there are reasonable grounds to believe that information in the possession of a newsman is material to proof of any element of a criminal offense, or to proof of the defense asserted by the defendant, or to a reduction in the classification or gradation of the offense charged, or to a mitigation of the penalty attached, the defendant’s need to acquire such information is essential to a fair trial; when such information is not otherwise available, the defendant has a due process right to compel disclosure of such information and the identity of the source; and any privilege of confidentiality claimed by the newsman must, upon pain of contempt, yield to that right.

[204 S. E. 2d at 431].

¶67See also Farr v. Pitchess, 522 F. 2d 464 (9 Cir. 1975), cert. den. 427 U. S. 912, 96 S. Ct. 3200, 49 L. Ed. 2d 1203 (1976); State v. St. Peter, 132 Vt. 266, 315 A. 2d 254 (Sup. Ct. 1974); cf. United States v. Liddy, supra.

¶68*300These decisions take Branzburgperhaps further than justified by a flat reading of either its majority or concurring opinion. They nevertheless show, as does Branzburg, that the reporter’s conduct in obtaining and recounting news is a matter of constitutional consideration. A newsman’s interest in the gathering of news is an indispensable component in its dissemination and a vital incident to freedom of the press. See State v. Allen, supra, 73 N. J. at 170-171 (Schreiber, J., concurring). Also New York Times Co. v. Sullivan, supra, 376 U. S. at 270, 84 S. Ct. at 720-721, 11 L. Ed. 2d at 700-701; Associated Press v. United States, 326 U. S. 1, 20, 65 S. Ct. 1416, 1424-1425, 89 L. Ed. 2013, 2030 (1945); Id.326 U. S. at 28-29, 65 S. Ct. at 1428-1429, 89 L. Ed. at 2034-2035 (Frankfurter, J., concurring); Grosjean v. American Press Co., 297 U. S. 233, 250, 56 S. Ct. 444, 449, 80 L. Ed. 660, 668-669 (1936). See also Saxbe v. Washington Post, 417 U. S. 843, 862-863, 94 S. Ct. 2811, 2821, 41 L. Ed. 2d 514, 526-527 (1974) (Powell, J., dissenting). That interest is therefore entitled to protection. In this perspective the reporter stands apart from the ordinary citizen, and although he is not thereby shed of the burdens of citizenship and must respond as any citizen to legal process, he should not needlessly be hobbled in the pursuit and presentation of news. Constraints upon the news media should therefore be tolerated only when they are essential in the good faith discharge of legitimate governmental objectives, or when clearly required for the vindication of individual constitutional rights. We are here confronted with such a case and it is in this framework that the fundamental, contending claims of the principals should be assessed.

¶69II

¶70The Supreme Court in Branzburgmade it clear that states have complete freedom of action “within First Amendment limits, to fashion their own standards . . . as to a . . . news*301man’s privilege, either qualified or absolute.” 408 U. S. at 706, 92 S. Ct. at 2669, 33 L. Ed. 2d at 654.

¶71Appellants contend vigorously that the New Jersey Legislature by enacting L. 1977, c. 253 fashioned an absolute privilege and thereby obviated any requirement for balancing or weighing its application against a claim for material information even in a criminal proceeding. In advancing this argument, appellants build upon the Attorney General’s assertion that the present statutory privilege reflects “a purposeful legislative intention and State policy to go beyond the requirements of the Eederal and State Constitutions … and to protect the press and representatives thereof from any disclosure, even to the court * They conclude that the 'law itself strikes the balance in favor of a privilege, in all non-waived situations, for a journalist 'to refuse to disclose … to (sic: in) any court’ [N. J. S. A-2A:84A-21; Evid. R. 27] his sources or information.”

¶72While the statutory language by its literal, facial terms appends no qualifications to the privilege for newsmen to withhold information, it is difficult to attribute to the Legislature an intent to create an absolute privilege. When enacted it was thoroughly established in this jurisdiction that statutory privileges obstruct truth and ought to be construed restrictively, In re Selser, 15 N. J. 393, 405-407 (1954); also State v. Jamison, 64 N. J. 363, 375 (1974); In re Richardson, 31 N. J. 391, 396-397 (1960); Hansen v. Janitschek, 31 N. J. 545 (1960) rev’g on dissenting opinion of Conford, J. A. D., 57 N. J. Super. 418, 433 (App. Div. 1959); L. J. v. J. B., 150 N. J. Super. 373, 378-380 (App. Div. 1971); Metalsalts Corp v. Weiss, 76 N. J. Super. 291, 297 (Ch. Div. 1962), and ''in sensible accommodation to the aim of a just result”, State v. Briley, 53 N. J. 498, 506 (1969); In re Murtha, 115 N. J. Super. 380, 385-386 (App. Div. 1971); State v. Roma, 140 N. J. Super. 582, 589 (Law Div.), 143 N. J. Super. 504 (Law Div. 1976) (supplemental opinion); see D. v. D., 108 N. J. Super. 149 (Ch. Div. 1969). It was also axiomatic in our law that no claimant of a privilege can *302be the final judge of his own claim, a rule recognized in innumerable contexts. In re Addonizio, 53 N. J. 107, 116-117 (1968); In re Boyd, 36 N. J. 285, 286-287 (1962); In re Boiardo, 34 N. J. 599, 602 (1961); State v. DeCola, 33 N. J. 335, 350 (1960); In re Selser, supra, 15 N. J. at 404-405; State v. Toscano, 13 N. J. 418, 423 (1953); In re Pillo, 11 N. J. 8, 19-20 (1952); In re Ippolito; 145 N. J. Super. 262, 266-267 (App. Div. 1976); Zucker v. Silverstein, 134 N. J. Super. 39, 53 (App. Div. 1975); State v. Craig, 107 N. J. Super. 196, 198-199 (App. Div. 1969). Moreover, restrictive evidentiary rules ordinarily must yield to the fundamental rights of a defendant to call and confront witnesses, such as invoked in this very case. See Davis v. Alaska, 415 U. S. 308, 315-320, 94 S. Ct. 1105, 1110-1112, 39 L. Ed. 2d 347, 353-356 (1974); Chambers v. Mississippi, 410 U. S. 284, 294-302, 93 S. Ct. 1038, 1045-1049, 35 L. Ed. 2d 297, 308-313 (1973); Washington v. Texas, 388 U. S. 14, 17-19, 87 S. Ct. 1920, 1922-1923, 18 L. Ed. 2d 1019, 1022-1023 (1967); Roviaro v. United States, 353 U. S. 53, 60-61, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 645 (1957); State v. Briley, supra; State v. Roma, supra, 140 N. J. Super. at 587-592.

¶73I can therefore agree with the Court that the privilege under the New Jersey shield law is not absolute. It would be a mistake, however, to impute to the Legislature an intent in creating the privilege to furnish only middling protection for the confidentiality of the newsman’s work. Eather it seems clear that short of making the privilege absolute, the Legislature sought to establish the strongest possible protection for the newsman and the news media. This is evinced not only by the clear and direct terms of the statute, N. J. S. A. 2A:84A-21, which the Court has noted is one of the most strongly expressed in the country. It is demonstrated by the legislative and judicial evolution of the privilege. That has been a history starting at a point when there was no privilege at all, In re Grunow, 84 N. J. L. 235 (Sup. Ct. 1913), through sequential legislation creating and expanding *303the protection afforded the news media and the newsman. Compare L. 1933, c. 167 (protecting “source” of any information) with L. 1960, c. 52, § 21 (protecting “source, author, means, agency or person from … whom information … was procured …”) and L. 1977, c. 253, N. J. S. A. 2A:84A-21 (protecting “any news or information obtained in the course of [a reporter’s] professional activities whether or not it is disseminated”). The most recent amendment, the current shield law, L. 1977, c. 253, was a direct answer to In re Bridge, supra, and Branzburg, which allowed grand jury access to a reporter’s material, revealing a purpose on the part of the Legislature to accord the broadest protection for the news media and reporters.

¶74This legislative and judicial course highlights the significant public policy embodied in the statutory newspapermen’s privilege. It seems to me that the majority of this Court does not give full weight to this public policy and, perhaps for that reason, minimizes the serious impact which an in camera inspection, with all its protective accoutrements, has upon the newsman’s privilege.

¶75Even though courts have approved the use of in camera inspection when a claim of privilege is assertéd, at best it is a temporizing solution borne of a paradox —the need to see evidence in order to determine whether the evidence can be seen. The dilemma was aptly perceived by Justice Brennan (then of this Court) in In re Pillo, supra 11 N. J. at 20, drawing from Judge Learned Hand in United States v. Weisman, 111 F. 2d 260, 262 (2 Cir. 1940) : “The only practicable solution is to be content with the door’s being set a little ajar, and while at times this no doubt partially destroys the privilege, and at times it permits suppression of competent evidence, nothing better is available.” Also United States v. Melchor Moreno, 536 F. 2d 1042 (5 Cir. 1976); In re U. S. Hoffman Can Corp., 373 F. 2d 622 (3 Cir. 1967). It must be stressed nevertheless that the in camera inspection is in fact an incursion into confidentiality. Cf. State v. *304Milligan, 71 N. J. 373, 393 n. 12 (1976); State v. Oliver, 50 N. J. 39 (1967). We cannot assume that such a loss of confidentiality, even at the hands of judges, does not obtrude upon the freedom of the press which the privilege is designed to secure. New York Times Co. v. Jascalevich, - U. S. -, 99 S. Ct. 11, 58 L. Ed. 2d 38 (July 12, 1978, Marshall, J., denying reapplieation for stay); see Murasky, “The Journalist’s Privilege: Branzburgand Its Aftermath”, 52 Tex. L. Rev. 820, 857-866 (1974).

¶76While the assertion of privilege may not defeat a need for evidence, at least for an in camera inspection, and especially when requested to satisfy a defendant’s constitutional right in a criminal trial, the presence of the privilege adds measurably to the difficulty in justifying such disclosure. Cf. United States v. Marshall, 377 F. Supp. 1326, aff’d sub nom. United States v. Mitchell, 377 F. Supp. 1326, aff’d sub nom. L. Ed. 2d 1039 (1974); also Nixon v. Administrator of General Services, 433 U. S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977); Environmental Protection Agency v. Mink, 410 U. S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1977). Since the in camera inspection itself “partially destroys the privilege” — and the privilege in this ease is deserving of the strongest support — the standards for permitting even so limited a breach of confidentiality should be exacting. Certain initial or threshold showings of need must be required and the burden of convincing the court that such need exists should be a substantial one. Thus an in camera inspection of a newspaperman’s work or work product ought not be allowed unless a defendant has demonstrated in convincing fashion that (1) such information probably contains evidence relevant and material to the question of guilt; (2) in the context of the criminal trial such information appears necessary in the search for truth; and (3) there are no other feasible alternative sources or less intrusive means by which the same evidence can be procured. Additionally, it should be shown that the request for information is not overbroad, oppressive or unreasonable. These criteria overlap those generally ap*305plicable to the issuance and enforcement of subpoenas even in the absence of a claim of privilege. R. 1:9-2; e. g., State v. Cooper, 2 N. J. 540 (1949); cf. Schlossberg v. Jersey City Sewerage Authority, 15 N. J. 360 (1954); Wasserstein v. Swern and Co., 84 N. J. Super. 1, 6-7 (App. Div. 1964); State v. Asherman, 91 N. J. Super. 159, 162 (Cty. Ct. 1966). The existence of the privilege, however, enhances the quality of proofs required for the production of evidence. Where the claims for subpoenaed materials implicate privileged interests, and the privilege invoked is of singular importance, as here, the court’s insistence upon the requisite showing of need should be unyielding and meticulous. Cf. United States v. Nixon, supra,418 U. S. at 697— 702, 94 S. Ct. at 3102-3105, 41 L. Ed. 2d at 1058-1061.

¶77Ill

¶78In applying these principles to this case, we are confronted with certain disabling limitations not of our making. In our appellate review of the contempt judgments on an accelerated basis we have not been made privy to the total record or even a substantial part thereof. In view of the conclusory expression of the trial court judge in justification of his June 30 order for in camera inspection and the absence of any findings or exposition of his reasoning, I do not believe we are in a position to assess the validity of the order or to consider the reasonableness of appellants’ refusal to obey that order.

¶79It is argued by defendant that there is a record basis for the judge’s conclusion that it would be “impossible” to weigh appellants’ substantive claims without an in camera inspection of the subpoenaed material. The majority has adopted defendant’s rendition of the record to show that there are several instances where appellant Farber is likely to have relevant and necessary information. Unfortunately we do not have the slightest hint that the trial judge contemplated these examples in reaching his ultimate conclusion or in what *306way he might have considered that information to he relevant and necessary. Rather it appears so far that the basis for the court’s order for in camera inspection was the same advanced for the initial and second certificates of materiality issued by the trial judge. These certificates disclose some likelihood that some material sought is somewhat relevant; they yield only a bare conclusion as to its necessity, are silent as to alternative sources and are indifferent to matters of overbreadth, oppressiveness and unreasonableness. The determination of the New York court as to the adequacy of the initial certificate of materiality, which resulted in the issuance of the subpoenas, though buttressed by a hearing as required under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (N. J. S. A. 3A-.81-18 el seq.); N. Y. Crim. Proc. L. § 640.10 (McKinney 1971), was not based on matters of record which appreciably augmented that furnished in connection with the certificate of materiality. Moreover, it was assumed by the New York court that appellants would be given a further opportunity to demonstrate on grounds of reasonableness and privilege that the subpoenas should not be enforced.

¶80It may be that the ultimate conclusion of the trial judge as to the necessity for in camera inspection is sound and can be supported by the record. But for us to so rule on hypothetical findings extrapolated from only a small part of a huge record would be a flight of fancy. This is not a proper case for the exercise of original jurisdiction. R. 3:10-5. This is peculiarly so in view of the high order of the proofs which I consider requisite to establish the threshold requirements of relevance, necessity and the absence of alternatives. In light of the gravity of the issues and the complexity of the record, only a tip of which has been exposed to us, it should be the obligation and province of the trial judge to explain to the litigants, and the appellate court, why he has ordered an in camera inspection of confidential matter. Cf. United States v. Nixon, supra.

¶81*307A party whose claim of a strong statutory privilege has been thus overborne and who has been visited with a compulsory turnover order which constitutes a real invasion of confidentiality, and has been adjudicated guilty of the crime of contempt and subjected to onerous civil as well as punitive sanctions, is entitled to redress. The proper solution, I feel, would be a remand to complete the record. This can be done by the trial judge making findings in support of his conclusion that an in camera inspection of the subpoenaed evidence is now necessary as a prelude to further proceedings in the criminal trial. This will enable us to determine whether the requisite showing has been made with respect to the threshold issues and to accord appellants the judicial review to which they are entitled. Since it appears that the judge is thoroughly immersed in the case and conversant with all of its facets and that the parties have had numerous opportunities to impress upon the trial court their positions with respect to the materials sought, a further hearing at this juncture is not required as a matter of fair procedure or due process. Because the issues engage so completely the knowledge and discretion of the trial judge, however, he should not be precluded from permitting the parties to supplement the record by affidavit or limited testimony if this appears desirable or necessary. In view of the exigencies of the trial, this course is not mandated. These same exigencies reasonably dictate that this Court should retain justification of this proceeding and direct that the trial judge submit his findings within a few days.

¶82Under these circumstances, the judgments of contempt should be vacated. Criminal contempt proceedings are attended with virtually the same solemnity as ordinary criminal actions. N. J. Dept. of Health v. Roselle, 34 N. J. 331 (1961); In re Buehrer, 50 N. J. 501 (1967). These include notice of the essential elements of the charges and a reasonable opportunity to challenge their sufficiency. In re Tiene, 17 N. J. 170 (1954). The appellants did not have an adequate opportunity to confront the merits of the enforcement *308order of June 30, 1978, which constitutes the basis of the contempt proceedings. In the absence of any disclosure by the trial judge as to his specific reasons compelling the in camera inspection, there was no viable chance for appellants to defend against the order to enforce on the grounds of privilege and the invalidity of the subpoenas. Since the hearings in both contempt proceedings, that in aid of a litigant as well as the criminal action, were substantially merged, the vice of inadequate notice and opportunity to challenge infects each. I would therefore vacate both contempt judgments.

¶83For affirmance — Chief Justice Hughes and Justices Mountain, Sullivan, Clifford and Schreiber — 5.

¶84For reversal — Justices Pashman and Handler — 2.