The case of the day is Commonwealth v. Read (Mass. Super. Ct. 2024). This is not a typical Letters Blogatory case, but it has been in the headlines here in Massachusetts and, I think, elsewhere in America. I’m curious to know whether any readers abroad have heard of it! And there is a connection to some old Letters Blogatory coverage, as you’ll see.

Anyway, here is the basic story. John O’Keefe, a Boston police officer, was found dead outside the home of another police officer in Canton, Mass., in a winter storm in early 2022. His girlfriend, Karen Read, had dropped him there to go to a party after the couple spent an evening out drinking at area bars (yes, in the storm). Read was indicted for murder by a Norfolk County grand jury and pleaded not guilty. The Commonwealth’s theory was that the couple had fought, and in a drunken rage, Read had backed her car into O’Keefe, killing him. Read hired an excellent team of lawyers, who proposed an alternative theory of the crime: O’Keefe had been killed inside the house and his body left out in the snow. According to Read’s lawyers, the people in the house lied to cover up the crime and planted evidence. The Commonwealth’s case was not helped by a flawed investigation. One of the lead investigators, state trooper John Proctor, had to admit in his trial testimony that he had been looking for nude photos of Read when he searched her phone. And there were some odd facts. For instance, one of the people in the house had searched on Google for “hos[sic] long to die in cold” in the early hours, before the body was found. But there was testimony that Read said, “I hit him,” repeatedly, and O’Keefe’s DNA was found on a piece of broken taillight from the car, found at the scene (the defense argued it was planted evidence).

The case went to trial in Norfolk Superior Court in Dedham this summer. I had business in that courthouse at the time and had to walk through the large crowd of “Free Karen Read” activists who gathered each day outside the courthouse to support Read. The jury never heard Read’s account of events, as she exercised her right to remain silent. The jury could not reach a verdict, and eventually the judge declared a mistrial. The case is going to be retried next year.

Read’s lawyers had had a press strategy all along, but Read herself had not really spoken publicly about what happened, at least as far as I know. But after the trial, that changed. She was interviewed for Vanity Fair, Boston Magazine, and Dateline. But apparently Read made statements that weren’t published in the reports. These include “off-the-record” statements she made to a reporter. The government served subpoenas on the reporters for the notes and recordings of what Read said. And in today’s case of the day (the link above is to the only online version of the judge’s decision I could find, on Reddit), the judge allowed the motion.

Really long-time readers of Letters Blogatory may remember the Belfast Project case. This was the case of the oral history of the Troubles in Northern Ireland, kept at Boston College. The project was the brainchild of Irish writer Ed Moloney, who recruited former IRA member Anthony McIntyre to interview participants in the Troubles, with a promise that their interviews would not be released until after their deaths. This was an interesting and important project, but making the promise of confidentiality was a big mistake, because, as BC, Moloney, and McIntrye found out to their dismay, there is no federal evidentiary privilege for reporters, let alone oral historians. I followed the case closely, particularly the Section 1782 application the US government brought on behalf of the Northern Ireland authorities that arose after a woman named Dolours Price publicized the existence of the archive, leading the authorities to seek evidence for use in the investigation of the murder of Jean McConville, the subject of the 2018 book, Say Nothing: A True Story Of Murder and Memory In Northern Ireland, by Patrick Radden Keefe. You can find an archive of all my posts on the case here.

I wrote about the evidentiary issue in posts such as my reply to American historian Chris Bray, where I explained the policy of the common law rule against such a privilege and explained why I thought the case for extending such a privilege in the Belfast Project affair was weak. I earned or in any event received the enmity of Ed Moloney, who never really understood what Letters Blogatory was about or what my project was.

In the Belfast Project case, the justification for a privilege was weak because a privilege wouldn’t have provided the public benefits that justify privileges in the first place. Here is what I had to say about that at the time:

The closest privilege to the “oral history privilege” that Chris Bray and others wish were applied in this case is probably the so-called reporter’s privilege, which is the privilege of a reporter to refuse to disclose the confidential source of a story he or she has published. Now, we use the term “reporter’s privilege” as though the privilege were as well-established in the law as, say, the attorney-client privilege, but that’s simply not the case. If it does exist, it’s a qualified privilege, that is, a privilege that, unlike the attorney-client privilege, can be overridden in cases of particularly pressing necessity. But let’s simply assume for the sake of argument that the law recognizes a reporter’s privilege. Do the rationales for that privilege support the notion that there should be an oral history privilege?

To my mind the two key features of the reporter’s privilege are these: (1) the source the reporter is protecting is a confidential source whose identity is unknown; and (2) the reporter has used the information the source provided to publish a newsworthy story. The basic rationale of the privilege is simple. We want to encourage people to bring information to the public’s attention by reducing the risk that they will be prosecuted, or fired from their jobs, or whatever, if they speak to the press. The public benefit that results from having more information publicly available is said to outweigh whatever benefits result from giving the government or private parties the power to hold a leaker to account.

How does an oral history privilege compare? Well, in the Belfast Project case at least, some of the people who provided the information to the historians—Dolours Price in particular—are publicly known. The question isn’t whether she spilled the beans, but whether she spilled lima beans or navy beans, so to speak. (Of course, other of the interviewees are unknown at present). And more importantly, Moloney & McIntyre are not seeking to bring the information at issue to the public’s attention, but to shield it from public view until the interviewees’ deaths. Of course, the idea is to bring the information to the public’s notice some day in the future, but there seems to me to be a time value of information. It’s better, from a First Amendment perspective, to make the information available sooner rather than later.

So I think that the justifications for an oral history privilege in this case are significantly weaker than the justifications for a reporter’s privilege, and as I noted, it’s not clear that a reporter’s privilege exists in the first place; if it does exist, it exists in a weak form. These are some of the reasons why I think that the oral history privilege might not, in the absence of legislation, be protected by the common law.

Now, what about the Read case? On the one hand, if there is a privilege, it is a reporter’s privilege. In Massachusetts law, there is no reporter’s privilege, though as the judge found, a court is obligated to balance the need for the information against the threat to the free flow of information.¹When there is a privilege, e.g., the attorney-client privilege, the privilege holder cannot be required to disclose the privileged information no matter how useful disclosure would be. That’s what makes it a privilege. Perhaps we could call the protection for reporters a qualified privilege.

I have a mild disagreement with the judge’s view that the reporter had shown a threat to the free flow of information arising from the fact that Read had spoken to her “off the record.” In US journalism parlance, “off the record” means that the information reported cannot be reported or attributed to the source. Since the journalist can’t publish the information, I don’t see any risk to the free flow of information. But in any event, the judge held that the need for the information outweighed the policies favoring the journalist. The judge found there was a basis to think that what Read told the reporter about the night of O’Keefe’s death was different than what she had said publicly. And so her statements, which of course are not hearsay and are likely admissible in evidence, are highly relevant and cannot be obtained from any other source.

It seems to me that Read wanted to have it both ways. She wanted to get her version of events out into the public. She presumably does not plan to testify at trial. But she wants statements that she made to others but didn’t want published to be kept out of evidence. When the justification for a privilege is as weak as it is here, I don’t think I can do better than quote the great John Henry Wigmore:

In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This common law rule is not questioned today. No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.

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  When there is a privilege, e.g., the attorney-client privilege, the privilege holder cannot be required to disclose the privileged information no matter how useful disclosure would be. That’s what makes it a privilege. Perhaps we could call the protection for reporters a qualified privilege.