Austin Harrouff faces two counts of first degree murder in Florida for the fatal stabbings of John Stevens and Michelle Mishcon on August 15, 2016.  The case was widely publicized after police investigators said that when they apprehended Harrouff, he was on top of Stevens, biting his face.

Ever since, Harrouff’s attorneys have been involved in a two year legal battle with CBS over unpublished excerpts of an interview CBS obtained between talk-show host Dr. Phil McGraw and Harrouff, conducted at the St. Mary’s Medical Center just days after his arrest.  CBS aired clips from the interview on Dr. Phil’s show in which Harrouff claimed that he did not remember much from the night of the incident, but said it was “like a nightmare” and that he “never wanted it to happen.”  CBS later released an edited 22-minute version of the interview.

Harrouff’s lawyers argued that the full recording, including the outstanding 8 minutes of unpublished material, should be released so that their expert could make sure that Harrouff was not coached by McGraw or his staff during the interview in order to evaluate the defendant’s anticipated insanity defense.  CBS argued that there was no dialogue between Harrouff and McGraw during the 8 minutes of unpublished material.  In September 2017, the trial judge in Florida ruled that the recording was essential to Harrouff’s defense and ordered that the full recording be released.  Harrouff subsequently issued a subpoena to CBS in California for the full recording.

California has a robust “shield law” for the press which provides an immunity from being held in contempt to reporters, editors, publishers, and other press-related individuals and organizations as embodied in the California Constitution, Article I, Section 2(b) and California Evidence Code § 1070.  The shield law protects both confidential sources of information and “unpublished information” including notes, outtakes, photographs, audio recordings, or videos that have not been transmitted to the public.

California courts have applied the shield law differently in various contexts.  For example, in civil suits where the press is a non-party, the immunity from contempt is absolute.  New York Times v. Superior Court, 51 Cal. 3d 453 (1990).  Similarly, in a criminal case, the shield law is also absolute where the prosecution seeks confidential or unpublished information from the press.  Miller v. Superior Court, 21 Cal. 4th 883 (1999).

Where, as here, however, when a criminal defendant seeks information from the press protected by the shield law, the criminal defendant must first establish “a reasonable possibility that the information will materially assist his defense.”  If that threshold is met, then the California Supreme Court has set forth a balancing test to determine whether the defendant’s federal constitutional right to a fair trial preempts California’s shield law immunity.  Delaney v. Superior Court, 50 Cal. 3d 785 (1990).  The factors considered are (1) whether the unpublished information is confidential or sensitive; (2) the interests sought to be protected by the shield law; (3) the importance of the information to the criminal defendant; and (4) whether there is an alternative source for the unpublished information.

In the Harrouff case, the California court concluded that the subpoena to CBS was subject to California’s Press Shield Law and held that Harrouff was unable to make the requisite threshold showing of “a reasonable possibility” that the information would assist his defense.  The court determined that Harrouff had failed to prove that the 8 minutes of outstanding video, “which does not contain any interactions or questions towards Harrouff or otherwise capture his behavior or demeanor,” was sufficiently relevant to Harouff’s defense to overcome shield law immunity.

The case is State of Florida v. Harrouff, Los Angeles Superior Court, Case No. BS172573.