§ 37.01   Introduction [537]

 

Privileges differ from most other rules of evidence. They are intended to promote some policy that is external to the goals of a trial.  Most other evidence rules are designed to enhance the search for truth and thus the fact-finding process.  Privileges hinder that goal by excluding relevant and reliable evidence.

 

§ 37.02   Federal Rule 501  [537-40]

                       

Rule 501 is the only provision in the Rules of Evidence that governs the law of privilege. The Supreme Court originally proposed thirteen rules of privilege - a general rule, nine specific privileges, and three procedural rules. Congress rejected these rules, substituting Rule 501, which left the law of privilege unchanged. Unless specified by statute or court rule, "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience."

 

§ 37.03    Rationale for Privileges  [540-44]

 

There are two main theories underlying the law of privilege.  The first is the utilitarian or instrumental justification:  If you want clients to speak to lawyers, patients to therapists, or penitents to the clergy, provide them encouragement by recognizing a privilege for such communications.  The second theory is based on the notion of privacy.          

 

§ 37.04   Source of Privileges  [544]

 

Some privileges, such as Fifth Amendment privilege against compulsory self-incrimination, are constitutional.  Other are based on federal statutes.  In addition, the Civil and Criminal Rules recognize a qualified work product privilege.  Much of the federal law of privilege rests on common law developments.  In the states, however, privileges are often statutory.

 

§ 37.05   Procedural Issues  [544-46]

 

Only the holder may waive a privilege.  Generally, the burden of persuasion is on the person claiming a privilege.  In United States v. Zolin, 491 U.S. 554, 568 (1989), the Supreme Court held, as a matter of federal common law, that the trial judge could review in camera allegedly privileged communications to determine whether they fell within the crime-fraud exception to the attorney-client privilege. 

 

§ 37.06   Choice of Law  [546-47]

 

Rule 501 provides that “in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.”