Fact Pattern V Federal court action against Los Angeles Police Department officers for an injunction and declaratory relief arising out of the search and seizure of certain items from the plaintiff, the Hollywood Free Paper and Adult Cinema Cooperative. Plaintiff alleges that defendants' search and seizure violated the first and fourth amendments to the U.S. Constitution and the qualified journalist's privilege recognized by some members of the Supreme Court in Branzburg v. Hayes. In support of its motion for summary judgment, plaintiff submits an affidavit from Robert Woodstein, a reporter for the Washington Boast. Woodstein's affidavit states that press searches tend to chill confidential news sources in and out of government. The affidavit contains several examples in which Woodstein allegedly lost sources of his own after he was subpoenaed by the Attorney General and forced to disclose the identity of Deep Throat, a source for a particularly sensitive story that died when the Attorney General's subpoena was served.
Defendants object and move to strike the affidavits on the grounds of hearsay.
Ordinarily this question would be objectionable because it is leading. The trial judge has a wide range of discretion and control over this area. The Advisory Committee's Note lists many exceptions to the general rule against leading on direct including situations where the witness's recollection is exhausted. Once a witness's recollection is exhausted or he otherwise gets stuck counsel may be permitted to lead but he should do so only after asking permission and then only to the minimum amount necessary to get the witness unstuck. Ordinarily, as cross-examination the question would be completely permissible.