Rule 501. Privilege in General

 

A claim of privilege to withhold evidence is governed by:

 

(a)      The Constitution of the United States;

 

(b)      The Constitution of the State of Utah;

 

(c)      These rules of evidence;

 

(d)      Other rules adopted by the Utah Supreme Court;

 

(e)      Decisions of the Utah courts; and

 

(f)       Existing statutory provisions not in conflict with the above.

 

 

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

 

ADVISORY COMMITTEE NOTE

 

It is in the nature of evidentiary privileges that they interfere with establishment of the whole truth. As a consequence, some members of the Committee thought that all statutory privileges not important enough to be incorporated in Article V should be expressly invalidated. Most members, however, felt that in spite of the truth-impeding effect of privileges, the already-existing legislatively created privileges should be preserved. Members of the majority expressed various views:

 

(1) Privileges reflect good policy choices, fostering candor in important relationships by promising protection of confidential disclosures.

 

(2) Even if the statutory privileges are not all wise, the legislature has by democratic process resolved policy disputes and should not be lightly overturned. Under the Utah Constitution, art. VIII, § 4, while the Supreme Court has the basic power to establish rules of privilege, the legislature also has a role, since it is empowered to make amendments by a two-thirds vote of all members of both houses of the legislature. Even the Committee members who would abolish statutory privileges recognized the dismaying magnitude of the task of reevaluating every existing privilege separately.

 

(3) The statutory privileges most often invoked are the traditional ones dealt with in other sections of Article V. The other statutory privileges are relied on rarely, if at all, so that their perpetuation will have almost no impact on court proceedings. If problems involving these more exotic privileges do arise, that is the time for the Court to deal with them.

 

Rule 501 acknowledges the existence of other privileges created by federal and state constitutions, such as the exclusion of the fruits of unreasonable searches and seizures, of coerced confessions, and of compulsory self-incrimination.

 

Rule 501 also accepts all pre-existing statutory privileges, except those inconsistent with these rules. In particular, Utah Code Ann. § 78-24-8, insofar as it defines privileges relating to spouses, attorneys, clergy, and physicians, § 58-25a-8, with respect to psychologists, and § 58-35-10, with respect to social workers, are made ineffectual by the adoption of rules specifically redefining those privileges.

 

The Supreme Court has the power to create rules of privilege formally. It can also create or reshape privileges by its decisions in concrete cases. However, the language of 501, that there are no non-rule, non-statutory privileges, serves as a declaration by the Court that it intends to operate normally through formal rule-making procedures.

 

The Committee made an effort to identify all the statutes in effect in 1989 that specifically provided for a privilege. Other than privileges dealt with in other rules, they are listed below. Statutes that merely imply the existence of a privilege are also included, marked by asterisks. Even though the Committee's own search was augmented by Judge Michael L. Hutchings' article "Privileges in Utah Law," Utah Bar Journal 2:3:34 (Mar. 1989), there may be still other such provisions.

 

Witnesses.

 

§ 78-24-9 (witness need not answer degrading question unless it is closely related to a fact in issue or is conviction of a felony);

 

Grand jury.

 

§ 77-10a-13 (grand juror may not disclose how any juror voted, though grand juror can be compelled to disclose what jurors said );

 

Interpreter.

 

§ 78-24a-10 (information communicated through an interpreter for the hearing-impaired that is otherwise privileged);

 

Health care data.

 

§ 26-3-9 (health care data collected by Department of Health);

 

§§ 26-25a-101 and -102 (communicable disease data collected by health departments) (cf. § 26-6-20.5);

 

§ 26-25-3 (medical information gathered for medical research);

 

§ 76-7-313 (information on abortions);

 

§ 31A-22-617(4)(c) (health care data audited by Department of Health);

 

§§ 26-6a-6* and -7* (test for AIDS);

 

§ 58-17-16* (pharmacy may not release patient's medical profile except to drug law enforcement or at patient's direction; the implication is that it may not be obtained in civil litigation);

 

Professionals working with social or psychological problems.

 

§ 58-41-16 (speech pathologist);

 

§ 30-1-37 (marriage counselor);

 

§ 58-39-10 (marriage counselor);

 

§ 30-3-17.1* (communications to court-appointed domestic relations counselors working toward marital reconciliation; subject to "public interests" under § 78-24-8(5));

 

§ 78-24-8 (sexual assault counselor);

 

§ 78-3c-4 (sexual assault counselor);

 

§ 53A-24-107 (individual information of persons being rehabilitated, except in enforcement of law);

 

Results of private investigations.

 

§ 58-12-43(7) (information collected by professional committee investigating a doctor);

 

§ 78-14-15 (evidence presented to medical malpractice panel);

 

§ 34-38-13 (results of employer tests for drugs or alcohol);

 

§ 78-27-49 (no private financial information obtained from a bank without court order "shall be admissible");

 

Government information.

 

§ 78-24-8 (communications to public officers in official confidence);

 

§ 35-9-14* (trade secrets communicated to Industrial Commission can be used only in enforcement of Occupational Safety and Health Act and then under protective order);

 

§ 78-7-30(3)* (information in proceedings before Judicial Conduct Commission "are privileged in any civil action," except where subpoenaed in case challenging judicial conduct as improper or except when judge does not resign within 6 months);

 

§ 76-8-708 (college administrator "cannot be examined" as to information obtained by procedures for enforcing school rules);

 

§§ 63-2-201 and 63-2-202* (confidential information in state archives);

 

§ 41-2-201* (information provided by doctor or expert in physical, mental or emotional disabilities in determining whether to issue a restricted driver's license to an "impaired" person is "confidential");

 

§ 41-6-40 (compulsory automobile accident reports);

 

§ 54-4-16 (accident reports filed by public utility with Public Service Commission);

 

§ 41-6-170 (traffic convictions);

 

§ 77-18-2(4) and (5)(records of expungement of conviction);

 

§ 77-27-21.5(12)* (sex offender registration);

 

§ 77-18-1(4) (presentence report);

 

§ 78-24-10 (compelled testimony about fraudulent conveyances);

 

§ 63-53a-6 (information collected by governor concerning state energy resources);

 

§ 73-22-6* (logs of geothermal wells);

 

§ 40-8-8* (confidential information communicated to Board of Oil, Gas and Mining "shall be protected and not become public records" unless waived or mining operation terminates);

 

§ 7-1-802* (reports to Commissioner of Financial Institutions);

 

§ 70C-8-103(5)* (identity of persons investigated by Department of Financial Institutions but not subject of enforcement proceedings);

 

§ 13-11-7(2)* (identity of persons investigated for consumer sales fraud but not subject to enforcement proceedings).

 

In addition to statutes which directly or indirectly create evidentiary privileges, there are a great many statutes which seem to impose a professional or institutional obligation of keeping confidence, yet do not clearly exempt the information from subpoena. A great many of the provisions cited by Hutchings are of this sort. A few examples are:

 

§ 78-3e-2 (identity of persons informing about drugs in schools, "shall be kept confidential");

 

§ 26-4-17 (autopsy report is "confidential," though it can be released to police, relatives, or attending physician);

 

§ 65A-1-10 (proprietary geologic or financial information communicated to Division of State Lands and Forestry; the board "may" keep it confidential).