Intro to the Federal Rules of Evidence - 18

III. PRIVILEGES (ART. V)

Around 1973, in the midst of the Watergate incident, the Rules drafted by the U.S. Supreme Court under the enabling act went to Congress. Nixon was claiming executive privilege. Acutely sensitive on the matter of legislative prerogative, Congress held hearings and prepared committee reports, scrutinized the Rules, and changed them substantially. The deletion of privilege rules was one of them.

Privileges differ from 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 for fact-finding process. Privileges hinder than goal by excluding relevant evidence.

A. GOVERNING LAWS (FRE 501)
1. Federal Law
The U.S. Constitution (5th Amend. Privilege against self-incrimination), Act of Congress, the FREs, federal common law : psychotherapist/social worker – patient (Jaffe v. Redmond, 518 U.S. 1 (1996)); attorney-client; spousal privilege.

2. Diversity cases
In diversity cases, the existence and scope of a privilege is decided by the law of the state whose substantive law is being followed.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

The states vary greatly on what privileges they recognize. All recognize the husband-wife and attorney-client privileges, most by statute. All recognize a privilege for certain government information. Nearly all recognize some kind of physician-patient and clergyman-penitent privileges. Three other privileges are recognized only in a minority of states: journalist-source, parent-child, and accountant-client.