Alaska R. Evid. 511 commentary

Ordinarily a privilege is invoked in order to forestall

disclosure. However, under some circumstances consideration

must be given to the status and effect of a disclosure already

made. Rule 510, immediately preceding, gives voluntary

disclosure the effect of a waiver, while the present rule covers

the effect of a disclosure made under compulsion or without

opportunity to claim the privilege. “[Rule 511] is the converse

of [Rule 510]. [Rule 510] deals with waiver and its

consequences; [Rule 511] deals with the consequences of

disclosure in the absence of waiver.” 2 J. Weinstein & M.

Berger, Weinstein’s Evidence Paragraph 512[02] (1979).

Confidentiality, once destroyed, is not susceptible of

restoration, yet some measure of repair may be accomplished

by preventing use of the evidence against the holder of the

privilege. The remedy of exclusion is therefore made available

when the earlier disclosure was compelled erroneously or

without opportunity to claim the privilege.

With respect to erroneously compelled disclosure, the

argument may be made that the holder should be required in

the first instance to assert the privilege, stand his ground,

refuse to answer, perhaps incur a judgment of contempt, and

exhaust all legal recourse, in order to sustain his privilege.

However, this exacts of the holder greater fortitude in the face

of authority than ordinary individuals are likely to possess, and

assumes unrealistically that a judicial remedy is always

available. In self-incrimination cases, the writers agree that

erroneously compelled disclosures are inadmissible in a

subsequent criminal prosecution of the holder, Maguire,

Evidence of Guilt 66 (1959) McCormick (2d ed.) E 127; 8

Wigmore § 2270, and the principle is equally sound when

applied to other privileges.

The second circumstances stated as a basis for exclusion is a

disclosure made without opportunity to the holder to assert his

privilege. Illustrative possibilities are disclosure by an

eavesdropper, by a person used in the transmission of a

privileged communication, by a family member participating

in psychotherapy, or privileged data improperly made available

from a computer bank. The advent of increasingly sophisticated interception techniques for confidential communications makes this basis for exclusion especially

important. See the Reporter’s Comment accompanying Rule

503 (b).