A Critique on John OConnors "I'm the Guy They Called Deep Throat"

I'm saying that when the President does it, it's *not* illegal!
-Richard Nixon, in response to a question from David Frost, a British journalist
The role of an informer or an anonymous tipper has been crucial to solving cases and
prosecuting crimes. One of the most popular informers in history is Deepthroat, an important
piece in resolving the events of the Watergate Scandal. Based on OConnors article, Deepthroat
provided information to Bob Woodward, writer in The Washington Post, about the involvement
of United States President Richard Nixon's administration in the Watergate scandal. Deepthroat
revealed information so confidential that the journalists swore to bring their knowledge of
Deepthroats identity with them to the grave. This privileged information that the journalists got
from their informant threatened the sanctity of their life and limb. In fact, when Woodward
desired a meeting, he would place a flowerpot with a red flag on the balcony of his apartment.
When Deep Throat wanted a meeting he would make special marks on page twenty of
Woodward's copy of The New York Times; then he would circle the page number and draw clock
hands to indicate the hour. President Nixon was not happy about the leaked information and he
wanted to find the culprit. Due to this secrecy, he could only make assumptions and hunches as
he lacked credible proof in pinpointing the informant.
But why was this so confidential in the first place? A brief background of the Watergate
Scandal shows that break-in of the Democratic National Committee headquarters at the
Watergate office complex in Washington, D.C. and the Nixon administration's attempted cover
up of its involvement. William B. Dickinsons article on the Watergate Scandal shows that,
[t]he affair began with the arrest of five men for breaking and entering into
the Democratic National Committee (DNC) headquarters at the Watergate complex
on June 17, 1972. The Federal Bureau of Investigation (FBI) connected the
payments to the burglars to a slush fund used by the 1972 Committee to Re-elect

A Critique on John OConnors "I'm the Guy They Called Deep Throat"

the President, a fundraising group for the Nixon campaign. As evidence mounted
against the president's staff, which included former staff members testifying
against them in an investigation conducted by the Senate Watergate Committee, it
was revealed that President Nixon had a tape recording system in his offices and
that he had recorded many conversations. Recordings from these tapes implicated
the president, revealing that he had attempted to cover up the break-in. 1

All the information was obtained through Deepthroat, who soon revealed his identity to
be Mark Felt, a former FBI Associate Director. In the end, President Nixon resigned from office
and was pardoned by President Gerald Ford. A lingering question presents itself; What if this
fell in the Philippine setting? Can one invoke the newsmans privilege? Or is there a greater right
of confrontation of witnesses?

The Right of Confrontation

Based on our Constitution, the Bill of Rights states that [the accused has the right] to
meet the witnesses face to face.2 In one case, it has been held that extrajudicial statements of the
accused implicating another should not be used against another even if not repeated in open
court.3 In fact, affidavits by witnesses cannot be admitted in evidence if a witness is not produced
in court.4 This means that an accused has the right to meet the witness face to face and in fact,
cross-examine him in order to protect his (the accuseds) rights.

Dickinson, William B.; Mercer Cross, Barry Polsky (1973). Watergate: chronology of a crisis.
1. Washington D. C.: Congressional Quarterly Inc.. pp. 8 133 140 180 188.
2

PHIL. CONST.

People v. Dela Cruz, G.R. No. 33030, August 25, 1983.

People v. Ramos, G.R. No. 59318, May 16, 1983.

ART.

III, 14.

A Critique on John OConnors "I'm the Guy They Called Deep Throat"

Based on these facts, does President Nixon have the right to confront Deepthroat? Signs
would point to a resounding yes, as it would result to an injustice if he were to be prosecuted
based on such statements without having the chance to cross-examine.

Newsmans Privilege
The Revised Rules of Evidence will include the Newsmans Privilege as part of the Rules
on Testimonial Privilege. The Committee, headed by former Supreme Court Justice Romeo
Callejo, inserted RA 1477 stating that,
[a] person engaged in, connected with or employed by, news media cannot
be compelled to disclose the source of any news report or information disclosed in
confidence to such person, unless the court finds that the disclosure is
required by the interest of the state. This rules shall not apply to radio or
television stations, unless the radio or television station maintains and keeps open
for inspection for a period of at least one (1) year from the date of an actual
broadcast or telecast an exact recording, transcription, kinescopic film or certified
written transcript of the actual broadcast or telecast 5 [Emphasis supplied]

This provision is not found under our current rules on evidence. As such, the Committee
proposed a privilege for newsmen and their sources. Taking this into account however, a
compelling state interest could require the disclosure of the newsmans informant. According to
Attorney Francis Lim, one of the Committees members, the privilege belongs to the newsman so
only he can move to quash a subpoena ad testificandum. Furthermore, the prohibition is only
against compelling the newsman to reveal his source, the privilege does not apply if the
newsman himself voluntarily elects to disclose his source. In this case, Woodward can invoke the
newsmans privilege in order to protect Deepthroats identity from being disclosed. But wouldnt
this deprive the accused from his right of confrontation?
5

Revised Rules of Evidence, Rule 130, sec. 26.

A Critique on John OConnors "I'm the Guy They Called Deep Throat"

Conclusion
Is there a compelling state interest in the identity of Deepthroat? Jurisprudence has not
drawn the line between such rights. However, the case of People v. Ong6 may serve as a guide. In
this case, the only evidence police had against the accused (on trial for drug pushing) was a tip
from an informer. Such informant was the only one who knew the details of the buy-bust
operation and he was not presented as a witness. In this case, the right of the accused for a fair
trial prevailed over the right of confidentiality of an informer. The Court ratiocinated that the
crime charged (drug pushing) against the accused is capital in character and can result in the
imposition of the death penalty. As such, the testimony of the witness is necessary.
Does this mean that Deepthroats identity can be revealed in this case? This writer thinks
so. There is a compelling state interest in the facts of the Watergate Scandal. A prosecution based
on an informants testimony without a right to cross-examine him would be hearsay and such
should be inadmissible in evidence.

People v. Ong, G.R. No. 137348, June 21, 2004.