United States v. Wuterich

Marine Corps Staff Sergeant Frank Wuterich (defendant) was accused of killing civilian men, women, and children in Iraq. Wuterich gave an interview to CBS Broadcasting, Inc. (CBS) about the events. Wuterich was represented by his lawyer during the interview, and he knew that some or all of the interview would be televised. The prosecution (plaintiff) in Wuterich’s court-martial subpoenaed CBS’s interview materials, including any outtakes that were not included in the televised version. The military judge quashed the subpoena, finding that forcing CBS to produce the outtakes would be unreasonable and oppressive given the outtakes’ limited relevance to the case’s issues. The government appealed. The Court of Appeals for the Armed Forces vacated the ruling and remanded the matter for the judge to conduct an in camera review of the material before determining how necessary the outtakes were to the case’s issues. On remand, the military judge determined that three of the eight DVDs containing CBS’s raw interview material were relevant and material to the case issues. However, the military judge also found that a reporter’s privilege existed for the information gathered by CBS in its capacity as a news reporter. The reporter’s privilege protected a journalist’s information from forced disclosure unless the information was (1) highly relevant to and necessary for the case’s issues and (2) not obtainable from other sources. Although the three DVDs contained relevant and necessary information, all the information on the DVDs had already been disclosed by other sources in the case. Accordingly, the military judge found that the reporter’s privilege was grounds to quash the subpoena for the DVDs. The government appealed the ruling.