Alaska R. Evid. 501 commentary

This rule codifies the existing law that privileges are not

recognized in the absence of statutes or rules specifically

providing for them. No attempt is made in these rules to

incorporate the constitutional provisions which relate to the

admission and exclusion of evidence, whether denominated as

privileges or not. Similarly, privileges created by specific

statutes generally are not within the scope of these rules. E.g.,

AS 09.25.150-220 (public officials, reporters); AS 24.55.260

(ombudsman).

Although Federal Rule 501 adopts state created privileges

whenever state law governs with respect to any element of a

claim of defense, this Rule does not adopt the converse; i.e.,

except in unusual cases, federal privileges will not govern in

Alaska courts even though federal law provides the rule of

decision with respect to any element of a claim or defense.

Some commentators have suggested that the approach taken by

this rule is so plainly correct that explanation is unnecessary.

See, e.g., Hart, The Relations Between State and Federal Law,

54 Colum. L. Rev. 489, 508 (1954) (“The general rule…is that

federal law takes the state courts as it finds them…[S]tate

rules…may ordinarily be applied also to federal claims and defense…”; Ladd, Privileges, 1969 Law & Social Order 555, 560

(“If the action arose in a state court upon a matter involving a

federal question, it would appear impossible to prevent the

state court from using state privileges…\m). But, in view of

Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 96 L.

Ed. 398 (1952), and Brown v. Western Ry., 338 U.S. 294, 94 L.

Ed. 100 (1949), a few words are in order.

In the vast majority of federal cases, state law issues are not

so intertwined with federal questions that deference to state

policies that both govern primary human conduct and possibly

affect the outcome of litigation in important ways imposes

much of an incremental burden on the judges who must determine state substantive law. Indeed, Congress has not only

restricted the power of the Supreme Court to modify state

created substantive rights, 28 U.S.C.A. § 2072 (West Cum.

Supp. 1978), but has itself demonstrated respect for state law

in Rule 501. On the other hand, federal law, especially federal

constitutional questions, may arise throughout state litigation.

To separate federal and state issues could be an enormous

burden on state judges. Federal issues have been decided by

state courts from the nation’s beginning. There is no indication

that the Congress is unhappy with the results. Since state law

governs most conduct of most citizens, its rules of privilege are

especially important to citizens seeking guidance as to what is

and is not privileged. Hence, state privilege law will govern in

all litigation in Alaska state courts, unless the supremacy

clause of the United States Constitution requires otherwise.

This rule is drawn from proposed federal rule 501. However,

it adds language to make clear that persons protected by

privileges can include organization and government entities.

Despite these rules, claims of privilege at times may have to

give way to constitutionally protected rights, especially in

criminal cases. See, e.g., Salazar v. State, 559 P.2d 66 (Alaska

1976).

On the other hand, claims of privilege themselves may have

roots in the Constitution. The attorney-client privilege is not

unrelated to the right to counsel guaranteed all citizens in all

but the most petty criminal cases. And the marital communications privilege reflects an ideal of privacy and special

relationship that has received constitutional protection in other

contexts. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 14

L.Ed.2d 510 (1965). The communications to clergymen

privilege and the political vote privilege are related to first

amendment concepts. Recently, the Alaska Supreme Court has

suggested that the doctor-patient privilege has constitutional

overtones. See, e.g., Falcon v. Alaska Public Offices

Commission, 570 P.2d 469 (Alaska 1977).