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Barbara Lombardo of Saratoga Springs, NY, is a journalism adjunct at University at Albany and retired executive editor of The Saratogian, The Record and the Community News. Follow her on Twitter @Barb_Lombardo.

Friday, September 23, 2011

Reporters shouldn't turn over notes and video outtakes lightly

Lucian McCarty was doing his job as a multi-media reporter on the day one man stabbed another in a “road rage” incident in Wilton. He interviewed people, wrote a story, and shot a video.
The video shows the track of blood in the parking lot leading into the Wilton CVS and contains an interview with the clerk who saw the stabbing victim and called 911.
Good work, McCarty.
Next thing I know, I’m handed a subpoena (as head of the newsroom) commanding me (yes, the subpoena includes the phrase, all in capital letters, “WE COMMAND YOU … ”) to appear before the Saratoga County Grand Jury with a copy of the video, including all out takes.

Anyone can see the video on The Saratogian website. But the outtakes? Um, I don’t think so.
A journalist should not impede an investigation or a court proceeding. And sound case law precludes a news organization from being forced to disclose material that it gathers. Exceptions to the rule would be based on this reasonable three-prong test: that the items or information sought is highly material to the case, is critical to the litigant’s claim, and is not otherwise available.
The Saratogian argued that the material sought by the prosecution did not pass that test, and the demand was modified to require only a disk of the video as it appears online.
That was a fair solution. Reporters routinely take more notes and more video footage than they end up publishing. It would be an unnecessary and excessive intrusion for reporters to be expected to work under the cloud of having to turn over their notes or outtakes. Nothing we could have provided would have helped or hindered the case.
Being subpoenad for video was a new experience for us here at The Saratogian. The first time I received a subpeona, I was a rookie reporter ordered to appear before the grand jury for something I wrote. My publisher at the time hired an attorney, a move that blossomed into a relationship (between the publisher and the attorney) and a 30-plus-year marriage.
No romance is in the cards this time around. The subpoena was withdrawn — and my current publisher is already married.


Anonymous Tom Barkley, Saratoga Springs said...

I saw this blog in the paper and felt compelled to comment. While reporters shd not turn over such things lightly, the acceptance of a finished product without the outtakes may allow the investigation to be unjustly influenced by the reporter's bias.
Take these examples: Lets suppose that an initial interview with a witness sounds confused, and she equivocates on what she thinks she saw happen. For the sake of editing and creating the finished product, the reporter deletes the part where the clerk seems unsure and goes with what she finally decides, inadvertently creating a greater sense of certainty than what existed. Or, lets say the reporter has heard about a certain suspect and his criminal history and thinks that he must be the guy who did it. By leaving out leading conversations with the clerk that occur before the actual footage included in the finished product, the reporter gets the story HE thinks is right and helps get the man convicted. Or, by editing out the way questions were asked, or any information not consistent with the desired story line a reported might be creating slanted "evidence" that is actually and construction of his bias or opinion, either conscious or not.
Or, what if one of the outtakes shows a potential witness in the background that the police would otherwise not be aware of?
While there may be times when showing all would be harmful, I would hope that reporters would be open to aiding the police via a fully unbiased disclosure.

September 26, 2011 at 12:05 AM 

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