PRIVILEGED MATTER DISCLOSED UNDER
WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE COMMENT UPON OR
INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION
A claim of privilege is not defeated by a disclosure which was (1) compelled
or (2) made without opportunity to claim the privilege.
(a) Comment or inference not permitted. A claim of privilege, whether in the present proceeding or upon a previous occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from the claim.
(b) Claiming privilege without knowledge of jury. In jury cases, proceedings must be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
Rule 511 was amended, effective___________________.
Under Rule 510, a voluntary disclosure of privileged material operates as a waiver
given privilege. This rule provides for a contrary result whenever the disclosure is
erroneously compelled or is made without opportunity by the holder to claim the
The rule will most often operate as a rule of exclusion, i.e., it will render
evidence of the prior disclosure in a civil or criminal action to which the holder of the
privilege is a party. But, the rule does more than prohibit the use of such evidence against
the holder of the privilege, it provides that the privilege shall remain intact, to be treated as
originally granted. Thus, the holder, as a witness, may claim the privilege, in an action to
which he is not a party. Cf. The proposed Federal Rule 512, Deleted and Superseded
Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).
The need for a protective rule of this type is clear with respect to disclosures
compelled. Whether the compulsion is judicial or comes from some other authority, the rules
of privilege should not be left open to circumvention by their very breach.
The second basis for exclusion is meant to deal with those instances in which
made by someone other than the holder of the privilege. This would include disclosure by
a recipient of privileged information (e.g. a lawyer), one allowed to transmit privileged
information (e.g., a lawyer's representative), or an eavesdropper, among others.
It may be argued that once disclosure by a third party is made, the need for
ceases and, therefore, the privilege should not be maintained. However, with the increasing
number and sophistication of intrusions into individual privacy, it is necessary to guard
jealously those confidential communications deemed of such social importance as to warrant
being privileged. This provision will maximize the effect of a given privilege, although, as
may be argued, it cannot totally repair a breach of confidentiality.
Sources: Joint Procedure Committee Minutes: January 29, 1976, page 12. Rule
Uniform Rules of Evidence (1974).
Effective________________, the previous content of Rule 511 was transferred to Rule 510 to create a single rule on waiver of privilege. Former Rule 512 was deleted and its content transferred to this rule.
Subdivision (a) states the general policy of these rules, which is that no comment shall be made upon, nor any inference drawn from, a claim of privilege. This area of the law of privileges is one of dispute, with some courts holding that an inference may be drawn from a claim of privilege, presumably on the basis that the suppression of relevant evidence by a party should be noticed and considered by a jury. See McCormick on Evidence § 76 (2d ed. 1972). That this argument has some merit is recognized; however, it is believed that the position taken in this rule is based upon more weighty considerations, the essence of which have been stated by Lord Chelmsford:
"'The exclusion of such (privileged) evidence is for the general interest of the community, and therefore to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice?' Wentworth v. Lloyd, 10 H.L.Cas. 589, 591 (1864)," quoted in McCormick on Evidence § 76 at 155, 156 (2d ed. 1972).
McCormick concludes his discussion of the subject by stating:
"It is submitted that the best solution is to recognize only privileges which are soundly based in policy and to accord those privileges the fullest protection." McCormick on Evidence, supra, at 156.
This is the approach taken by these rules, and the result is in accord with the case law of North Dakota. State v. Bell, 67 N.D. 382, 272 N.W. 334 (1937); Meyer v. Russell, 55 N.D. 546, 214 N.W. 857 (1927).
Subdivision (b) is an effort to further the announced policy of this rule by providing that claims of privilege should be made, where practicable, outside the hearing of the jury.
In most cases this will be easily accomplished, as it will often be known in advance of trial that a privilege will be claimed. (In this regard, note the case of State v. Bell, supra, in which the practice of forcing a holder to claim a privilege in the presence of the jury was, if not accepted, held not to constitute prejudicial error.)
Subdivision (c) provides that a party against whom the jury may draw an adverse inference from a claim of privilege may have, as a matter of right, an instruction that no inferences may be drawn. This is intended to provide a partial remedy in those instances in which disclosure to the jury of a claim of privilege cannot be reasonably avoided. The instruction may be requested by a party, whether the privilege is being claimed by him or by a witness, if the party will be the subject of an adverse inference arising from the claim of privilege.
Sources: Joint Procedure Committee Minutes
January 29, 1976,
page 12. Rule 511, Uniform Rules of Evidence.
Considered: N.D.C.C. § 29-21-11.