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I've Been Subpoenaed!
Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 12:42 AM on 11.18.09 |
->> I have ben summoned to testify in court over photos I took in May 2008 of a lawyer who was arrested after a confrontation in out copurthouse. His defense attorney wants me to testify as to the validity of the photos, and also alluded to me as being a witness in the case, which I strongly object to and I feel that I am covered by Tennessee's Shield Law:
www.tnpress.com/shieldlaw.pdf
the dilemma is this: I have to meet with my publisher, a higher-up in news and the company's lawyer. I think I am going to be held up as a sacrifical lamb and be told to testify. The Shield Law relates to me individually, not the paper, so the dilemma is:
1. do I invoke the Shield Law, refuse to testify and if I am overruled, immediately file for an appeal, which stops the whole process?
2. cave in and do it, ruining my reputation as a journalist, and make me look bad?
I have spoken to a lawyer for the tennessee press Association, who gave me some good advise, but I am torm in this dilemma.
I feel that ideals and wanting to speak the truth as a photojournaslist is compromised If I cave in, and I am not confident in my company, who might just want to take the easy way out.
I feel I must make a stand for my fellow journalists, as well as thoise who write and photograph news for a living.
Am I clouded by my ideals or am I right?
I'm not sure, and look to the sometimes wise souls here for guidance.
Discuss, Please...... |
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Craig Mitchelldyer, Photographer, Assistant
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Portland & Orange County | OR and CA | USA | Posted: 12:54 AM on 11.18.09 |
| ->> Am I missing something? What's to shield? Were the photos you would be testifing to photos that you shot and that were published? How would testifing to what you witnessed have anything to do with your journalistic integrety? Sorry, I'm just not seeing the big deal. |
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N. Scott Trimble, Photographer
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Lake Oswego | OR | USA | Posted: 12:59 AM on 11.18.09 |
->> Dave,
Your paper DOES want to take the easy way out. They don't enough about you. Accept that.
If you feel that the case and your rights are important enough to fight and sacrifice for, go for it.
It's 2009. Meaning that the world of journalists being fought for is gone, maybe unless you are a big shot at a big shot news organization, you probably don't matter. Personally, I don't think this case is worth the effort. If you were protecting sources from being revealed in a life threatening case, that would be one thing. But this isn't. This is, for you, a case of reading your fight and picking your battles. Testify to the validity, make note publicly to the court that you are not comfortable with the other part, but comply.
Its simply, to me, not the case to risk yourself. |
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Sam Morris, Photographer
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Henderson (Las Vegas) | NV | USA | Posted: 1:06 AM on 11.18.09 |
->> I'm not exactly sure of your situation given they way you have worded it - and I am not a lawyer, so take what I say with a grain of salt - but I will say stand up for your rights. You just need to be sure you know what they are, then don't let a lawyer strong arm / threaten you.
I was in a similar situation 20 years ago, and I am happy for the consul I had and the path I took. In the long run it was all fine, but at the time, when lawyers were breathing down our neck with the weight of the local police department, it was kind of unnerving. I'm glad we had a good lawyer on the faculty that helped us stand up and hold fast to our legal rights.
Good luck. Let us know how it plays out. |
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Nic Coury, Photographer
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Monterey | CA | | Posted: 1:44 AM on 11.18.09 |
->> I was subpoenaed in college for a similar thing.
I don't think you're giving up an journalistic integrity by testifying, but the only image they're legally allowed to show is the one that was published. The rest of the said photos are private property and not public record.
But I agree with the other repliers, there isn't much you'd be shielding. You were a witness and if you were a reporter, it might have been in your story of what you saw. |
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Matthew Bush, Photographer
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Hattiesburg | MS | USA | Posted: 2:04 AM on 11.18.09 |
->> Do not be so sure the paper will sell you out. My paper went to bat against a supreme court justice's security detail and won . Also what are they using as evidence a copy newspaper or did someone already cave and give them images ? I would explore my options.
Now for the armchair lawers ......
I am guessing this is the image from the story below. All it is going to take is the DA to point out the hand on the officers arm and the resisting charge is going to stick.
http://www.roanecounty.com/cgi-bin/c2.cgi?062+article+News+20090519092848062062031
Best of luck. |
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Rob Mattson, Photographer
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Denver | CO | USA | Posted: 6:12 AM on 11.18.09 |
->> Try it. Why not? I'd just testify, because you'll probably say 1,000 words (note reference: "a picture is worth a thousand words"), only to repeat exactly what is documented in the photograph. But this case could be a good litmus test for said shield law. If you invoke it, the judge will give you a thumbs up, or a thumbs down. Thumbs up: you win. Thumbs down: you risk being held in contempt and/or an amassing of legal debt if you stick to your guns and hold out. Can you talk to the D.A. about this? Why not try? You know your boundaries, Dave. As long as you stay within them, you'll be able to walk away from this experience with your head held high, regardless of the outcome.
Cheers,
Rob |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 7:14 AM on 11.18.09 |
| ->> lots of good advice.thanks all Guess I'll find out what to do this morning. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 8:19 AM on 11.18.09 |
->> Dave -
I'm NOT AN ATTORNEY - so this is just a personal observation. The shield law seems to protect against you having to produce note/images/sources of information used for publication. From your original post, they already have the image, which I presume already was accredited to you. I guess I'm not seeing the issue with your integrity if you simply verify that the you took the image and it has not been manipulated to change the truth.
I would imagine though that you may find yourself on your own when it comes to legal fees if you do not follow your employer's advice. |
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Alan Herzberg, Photographer
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Elm Grove | WI | USA | Posted: 8:24 AM on 11.18.09 |
->> I am a lawyer and have tried many cases.
It sounds as though you are being called to "authenticate" the photos that one party or the other wants to introduce into evidence. Basically, that amounts to little more than answering questions that show where and when the photos were taken and affirming that the photos being introduced are accurate depictions of what is portrayed in them (they haven't been altered and are the same as the original image you took).
It's possible, but unlikely, that you will be asked to testify about the incident itself. If either side had an interest in having you do that, they almost certainly would have talked to you about it before now. No lawyer wants to call a witness without first knowing what he/she is going to say. |
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Jeff Kowalsky, Photographer
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West Bloomfield | MI | United States | Posted: 8:41 AM on 11.18.09 |
| ->> Are you a member of NPPA or ASMP? I believe each organization has an attorney to ask legal advice. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 8:50 AM on 11.18.09 |
->> They want me to testify to what I saw, as well as authenticate the images. The latter is all I feel comfortable in doing.
we feel the defense attorney called me YESTERDAY!! as a maneuver from our lawyers from taking action, Our company is based in Kentucky. I have consulted the attorney from TPA and he gave some good advice. |
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Wesley R. Bush, Photographer
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Nashville | TN | U.S. | Posted: 9:07 AM on 11.18.09 |
| ->> I don't see the problem. Your job as a journalist is to tell people what happened as you saw it, and you did that. Now you're being asked to do the same thing in court and you don't want to, even though you really haven't agreed to protect anyone by your knowledge of those events. The law is designed to keep you from outing someone who gave you the information in the expectation that you would not divulge their identity, effectively keeping people from sharing information in the future. I do not see that as the case here. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 9:12 AM on 11.18.09 |
->> Wesley, apparently you haven't read the Tennessee Shield Law.
Its not about telling what happened, its abut protecting journalists from being witnesses.
If we are called to testify about every incident we cover, we lose our objectivity, and since we are in court all the time, we cannot effectivle do our jobs!
the first paragraph of the law states as such, its not just about protecting sources.
We should be able to tell the story without lawyers looking over our shoulders. |
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Wesley R. Bush, Photographer
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Nashville | TN | U.S. | Posted: 9:58 AM on 11.18.09 |
| ->> I've read the shield law, although I admit it's been a while. I just don't see what you're being protected from in this instance. You say you want to be protected from being a witness, but by trade alone, you are a professional witness. If you can say what you saw on paper, why can't you say the same thing in court? It doesn't take away your objectivity. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 10:07 AM on 11.18.09 |
->> read this:
T.C.A. § 24-1-208
24-1-208. Persons gathering information for publication or broadcast -
Disclosure.(a) A person engaged in gathering information for publication or
broadcast connected with or employed by the news media or press, or who is
independently engaged in gathering information for publication or broadcast,
shall not be required by a court, a grand jury, the general assembly, or any
administrative body, to disclose before the general assembly or any Tennessee
court, grand jury, agency, department, or commission any information or the
source of any information procured for publication or broadcast.
it applies here. |
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Yamil Sued, Photographer, Photo Editor
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Peoria | AZ | USA | Posted: 10:43 AM on 11.18.09 |
->> I'm not a lawyer, I am not a journalist, I am a Photographer.
As I read it, the Shield law says that you can not be forced to Disclose:
"any information or the source of any information procured for publication or broadcast."
What the court wants you to do is to authenticate Images you created!!
You refuse, you might find yourself with a nice free Room and Board for a few days and maybe unemployed if your paper gets pissed at you for not following their orders.
OTOH, if they think you are right and they stand behind your decision, you are OK I guess!! But I think they won't!!
Don't get mad at us if we don't see it your way. I don't see how telling the court what happened and authenticating the images you took can affect your integrity. They just want to know that the Image shows what really happened!! Why would you refuse?? |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 10:44 AM on 11.18.09 |
->> Dave,
Shield laws are intended to protect journalists from being compelled to divulge confidential sources or from producing unpublished work.
Shield laws were never intended to release journalists from their obligations as citizens.
--Mark |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 10:55 AM on 11.18.09 |
->> Mark,
but I was there as a journalist, not a private citizen. Probably wouldn't have no business there that day as a private citizen.
and,again, it is not about sources alone!
read the law. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 10:58 AM on 11.18.09 |
->> Yamil,
I have no problem authenticating the images.
The issue is if I take the stand, I am open to a whole other line of questions on what I saw, of heard, as a witness.
THAT bothers me. |
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Mark Sobhani, Photographer
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San Antonio | TX | USA | Posted: 11:21 AM on 11.18.09 |
| ->> Dave, judging by your responses to other people's suggestions here, it seems like you already have made up your mind. |
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Neemah Aaron, Photographer
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Little Rock | AR | USA | Posted: 11:22 AM on 11.18.09 |
->> "but I was there as a journalist, not a private citizen."
Journalists are citizens. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 11:23 AM on 11.18.09 |
->> well I am taking my marching orders from the bosses, but confidence is high we can win.
I am appreciative the company is going to bat for me.
I am just trying to clarify comments from folks who misinterpret the law. I do appreciate everyone's comments. |
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Michael Granse, Photographer
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Urbana | IL | USA | Posted: 11:35 AM on 11.18.09 |
->> Win? Precisely what will you have won here? Being able to shirk one's civic duty as the result of a poorly written piece of legislation is a "victory" for no one. The intent of such laws is to guarantee the ongoing anonymity of sources, not to keep journalists from being inconvenienced by having to testify in a court case.
This sort of misuse of the protections that were intended in shield laws will only serve to weaken these laws. It also furthers the ever growing public opinion that journalists consider themselves to be above the law.
In sacrificing your lunch hour to testify, you should hope that if you ever stand accused of a crime that someone would do the same for you. |
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Yamil Sued, Photographer, Photo Editor
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Peoria | AZ | USA | Posted: 12:00 PM on 11.18.09 |
->> Amen to that Michael!!
Karma is a Bitch!! |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 12:07 PM on 11.18.09 |
->> Michael, I misreprsented myself when I said "win." True there are no winners, but this is a battle to maintain the freedom that the press has in the Constitution, and if a small battle like this to preserve our freedom in Roane County had to be fought, then I will. I hope that if I am ever in court for something, that the Constitution will protect me as well as the law. The law might be blind, but its not stupid!
I think you are a little flip at saying that I am testifying on my lunch hour. and also please, please, explain how this is a misuse of the Shield Law?
Did you read it? Maybe you should give it a look before you dismiss it as "poorly written"
I don't consider my self above the law, and frankly I resent the implication.
This is NOT about being inconvenienced , it is about reporting the news, not BEING the news. |
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Jeff Martin, Photographer
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wellington | OH | usa | Posted: 12:14 PM on 11.18.09 |
->> "to disclose ..... any information or the
source of any information procured for publication or broadcast."
Go with legal advice. I find the wording interesting. If you are a photographer, does what you saw and didn't photograph fall under the law?
Good luck with this. It will be interesting to see how it plays out in court. Unfortunately, you are at the mercy of a single judge. They have been know to ignore law and impose their opinion instead. |
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Yamil Sued, Photographer, Photo Editor
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Peoria | AZ | USA | Posted: 12:21 PM on 11.18.09 |
->> " Unfortunately, you are at the mercy of a single judge. They have been know to ignore law and impose their opinion instead."
That is the truth!!
If the Judge says testify or be in contempt of court, you will go to jail. Journalist or not. Until you testify, the judges decision is reversed by a higher court, a big fine is paid or hell freezes over.
But you never know, the judge might agree with you on the shield law, but I doubt it. I honestly don't see that your case falls under the shield law and I don't read it like you do. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 12:39 PM on 11.18.09 |
->> Well I am going prepared to testify. It sucks but the cost ($$) of being a crusader is high, and in these trying economic times I need my job.
Hopefully my lawyer will fight diligently for me and keep me from doing so.
Sad part is , the judge is not from here, so I don't know him, guess I lose the home field advantage.
will keep you posted. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 12:40 PM on 11.18.09 |
->> Dave,
I believe that those who disagree with you have stated why - they don't see that the plain english of statute encompasses what you are describing. I'm in their camp.
Perhaps you can enlighten us on how you are interpreting that your mere presence on the scene as the result of an assignment automatically makes everything that you saw or heard "information procured for publication or broadcast" and thus covered by the shield law.
Also, can you explain exactly how you would possibly lose your objectivity by merely conveying the truth - you completely lost me on that one. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 12:41 PM on 11.18.09 |
| ->> Crusader? Really? |
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Yamil Sued, Photographer, Photo Editor
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Peoria | AZ | USA | Posted: 1:34 PM on 11.18.09 |
->> "Sad part is , the judge is not from here, so I don't know him, guess I lose the home field advantage."
Isn't justice supposed to be blind that there isn't supposed to be a "Home Field Advantage" anyway!!
Justice, in order to be fair should be applied equally to everyone!! It shouldn't matter where the judge is from, his Sex, Race, Age or anything like that!!
Y |
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Alan Look, Photographer
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Bloomington/Normal | IL | United States | Posted: 1:36 PM on 11.18.09 |
->> Cursader, sheild law, citizen, working journalist. I don't know much if anything about all those nuances or how they work together, What I do know is there are generally ways around all this ruckus if all one wants to do is to verify a photo.
I was sent a notice to appear for a depo for an injury related affair a few years ago. I fought it pretty hard and the date to meet with the parties from both sides kept getting put off for one reason or another (never mine). In the end, all they wanted to know was what day and time the images were taken. Yep, something a good legal assistant could have figured out on their own.
Took me a whole sum of 5 minutes to boot up and look at the IPTC to give them the information. They didn't even care if it was in writing.
Dave, go with your legal expert/representative, but you all might explore alternatives if you have the option. |
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Eric Francis, Photographer
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Omaha | NE | United States | Posted: 2:02 PM on 11.18.09 |
| ->> Boy Dave, I hope the day you find yourself ic court, I certainly hope you don't need a photograph entered into evidence to prove your case..... that would be really ironic |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 2:22 PM on 11.18.09 |
->> "...any information or the source of any information procured for publication or broadcast."
The key phrase in the statute and where I believe Dave's legal counsel is hoping they have footing is the wording 'any information'. As written, I interpret this to have broader implications protecting journalists and their sources. If observed to letter of the law, I can see Dave's legal position, right or wrong in principle, he should not be compelled to testify.
However, like most of my esteem colleagues who posted thus far, I don't see the problem with you saying, "I stood here. I took the picture at this date and time." |
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Brian Blanco, Photographer
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Tampa / Sarasota | FL | USA | Posted: 2:43 PM on 11.18.09 |
->> Dave,
The question remains: How many images do they (the lawyers) have of the incident and were they all previously published before you or your paper released them? |
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Neemah Aaron, Photographer
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Little Rock | AR | USA | Posted: 3:00 PM on 11.18.09 |
->> Dave, read an entire statute before coming to a conclusion. Subsection c:
(c)
(1) Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection. Such application shall be made to the judge of the court having jurisdiction over the hearing, action or other proceeding in which the information sought is pending.
(2) The application shall be granted only if the court after hearing the parties determines that the person seeking the information has shown by clear and convincing evidence that:
(A) There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;
(B) The person has demonstrated that the information sought cannot reasonably be obtained by alternative means; and
(C) The person has demonstrated a compelling and overriding public interest of the people of the state of Tennessee in the information.
In other words...you're wrong. |
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Alan Stewart, Photographer
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Corydon | IN | USA | Posted: 3:08 PM on 11.18.09 |
->> .
Informative (0)
Funny (0)
Huh? (0)
Off Topic (0)
Inappropriate (0)
WTF???? (+1) |
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N. Scott Trimble, Photographer
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Lake Oswego | OR | USA | Posted: 3:47 PM on 11.18.09 |
->> I have gotten some interesting comments from my post, pointing bony fingers at me, so let me clarify more, although Mark and several others have said what I thought I did.
In THIS instance, you were in public, a witness of the events that unfolded. You photographed the situation, and you WERE a witness. Everything is up front, nothing is gathered outside of the situation in question, which I define the Shield law as protecting. As a journalist, you report the Who, What, When, Where, Why, and How. You did that at the arrest on the front page of your paper, and they just want your testimony to the validity of the photos (necessary especially in these digital times, be proud to do so,) and to state the five W's and the H. Now, if the subject confided in you information before or after that paints a different light, and the prosecution wanted it revealed, now that maybe a different matter. But in this instance, I really feel you would be rocking a boat that ought not be rocked, and causing you professional problems, as well as your paper, which can always find a softer keel photographer---or reporter who can shoot---to fill your shoes.
I agree above, contact NPPA or ASMP if you are a member, or even if not, to ask their legal counsel.
In addition, I would blog about it and what you learn from it so other photographers can add it to their armament in the battle of photogrpaher's rights in the new US of A. |
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Jeff Jones, Photo Editor
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Gallup | NM | USA | Posted: 4:12 PM on 11.18.09 |
->> I sat in on some of the fall-out in the mid-1990s when there was a case involving the Minnesota Daily. One of the things that I heard and has stuck with me all this time was the following statement:
Photojournalists make lousy witnesses. They are so busy looking at composition, shutter and f-stop settings, checking batteries, changing film (it was mid 1990s), looking at the flash, changing lenses, moving to a better spot, trying to look for a notebook to make notes, checking your watch for deadline to move to the next assignment and many other things that they are never really sure exactly what happened....
Now, my memory fails me and I don't remember exactly who said that - I think it was an attorney meeting with us at the MN Daily... but the idea is we (photographers) seldom are able to give our full attention to all the happenings with so many things to pay attention to.
Regardless, you have been called. Show up, confirm that you took the photos and testify to the facts that you presented in print/public record. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 5:01 PM on 11.18.09 |
->> well lawyer quashed the subpoena. and the case went on without me.
all over, back to dealing with people wanting free content and Scott Kelby contests. |
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Craig Mitchelldyer, Photographer, Assistant
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Portland & Orange County | OR and CA | USA | Posted: 5:37 PM on 11.18.09 |
| ->> man, I am still even more confused as to what the big deal was/is. You make it sound like they were going to make you lie or say something that wasn't the truth. I don;t get why all the fuss over getting on the stand and saying "yes, I took that photo, no I did not alter it, this is what I saw". Your "journalistic integrity" isn't going to be any less by stating what you already published in the paper. Please clarify what the heck is the big deal? |
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Darren Whitley, Photographer
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Maryville | MO | USA | Posted: 5:41 PM on 11.18.09 |
| ->> I agree Craig. The truth should be your best defense and let the chips fall where they may. |
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Jeff Martin, Photographer
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wellington | OH | usa | Posted: 6:25 PM on 11.18.09 |
| ->> Well, the judge agreed with Dave. Let's assume he had more information and a better understanding about the law than us (or not). But without appeal, the ruling stands. |
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Dirk Dewachter, Photographer
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Playa Del Rey | CA | USA | Posted: 6:29 PM on 11.18.09 |
| ->> There was nothing to hide or disclose, you just happened to have been there, took some photographs and the court just wanted to authenticate the photographs with probably just one question: was this the scene or incident as you saw it, as it is depicted in the photograph you took? Answer: Yes! nothing more nothing less. Sometimes we make things just sooooo complicated. We, the people, create more stress and headaches for ourselves than we really need to and often make mountains out of molehills. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 9:18 PM on 11.18.09 |
->> Dave,
Respectfully, you're either mis-reading the shield law that you provided above, or you're taking such an extreme view of what it protects that it effectively renders the situation absurd.
Nobody has asked you to divulge a source, and if the question is presented during a deposition or hearing, that would be the more appropriate time to raise the shield law as a basis for refusing to answer certain questions.
However, there seems to be a more fundamental problem running through this thread, and that is the role of the journalist in our society and even basic civics. Journalists are citizens, must comply with the laws like any other citizen, and should be proud to do their civic duty. While shield laws have developed, largely as a means of protecting a citizen's ability to exercise certain acts protected by the Bill of Rights, they are not absolute and really don't seem to apply here.
I suppose the real question to ask is how would you feel if you needed photographs another journalist had created to establish your innocence, and the journalist refused citing instead the shield law you provided above? Should an innocent person suffer because you don't want to be troubled by complying with a subpoena? |
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David Harpe, Photographer
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Louisville | KY | USA | Posted: 10:02 PM on 11.18.09 |
->> No one on here can help you with this one.
Talk with a lawyer in your own city who is familiar with the applicable state and local laws. Give them the subpoena, ask them what you should do and how you should respond. It's probably no big deal, and a few hundred bucks is a good investment for peace of mind. |
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Jesse Beals, Photographer
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Tracyton | WA | USA | Posted: 11:07 PM on 11.18.09 |
| ->> Craig you crack me up. To the point, I felt the same way after reading this post. |
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N. Scott Trimble, Photographer
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Lake Oswego | OR | USA | Posted: 2:19 AM on 11.19.09 |
| ->> Amen... |
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Nick Adams, Photographer
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Salt Lake City | UT | | Posted: 4:16 AM on 11.19.09 |
->> According to Student Press Law Center.
"To date, there is no court-recognized reporter's privilege in Tennessee."
http://www.splc.org/legalresearch.asp?id=59
So if you used to shield law to try to not testify, it seems very likely you would of been shot down.
I really dont see how the shield law applied to you at all, since you are not giving up a confidential source or having to show unpublished photos. And if you were going to be such a great witness for the defense, I'm sure the DA would of found away for you not to testify. |
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