It is in thenature of evidentiary privileges that they interfere with establishment of thewhole truth. As a consequence, some members of the Committee thought that allstatutory privileges not important enough to be incorporated in Article Vshould be expressly invalidated. Most members, however, felt that in spite ofthe truth-impeding effect of privileges, the already-existing legislativelycreated privileges should be preserved. Members of the majority expressedvarious views:
(1)Privileges reflect good policy choices, fostering candor in importantrelationships by promising protection of confidential disclosures.
(2) Even ifthe statutory privileges are not all wise, the legislature has by democraticprocess resolved policy disputes and should not be lightly overturned. Underthe Utah Constitution, art. VIII, § 4, while the Supreme Court has the basicpower to establish rules of privilege, the legislature also has a role, sinceit is empowered to make amendments by a two-thirds vote of all members of bothhouses of the legislature. Even the Committee members who would abolishstatutory privileges recognized the dismaying magnitude of the task ofreevaluating every existing privilege separately.
(3) Thestatutory privileges most often invoked are the traditional ones dealt with inother sections of Article V. The other statutory privileges are relied onrarely, if at all, so that their perpetuation will have almost no impact oncourt proceedings. If problems involving these more exotic privileges do arise,that is the time for the Court to deal with them.
Rule 501acknowledges the existence of other privileges created by federal and stateconstitutions, such as the exclusion of the fruits of unreasonable searches andseizures, of coerced confessions, and of compulsory self-incrimination.
Rule 501 alsoaccepts all pre-existing statutory privileges, except those inconsistent withthese rules. In particular, Utah Code Ann. § 78-24-8, insofar as it definesprivileges 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 thoseprivileges.
The SupremeCourt has the power to create rules of privilege formally. It can also createor reshape privileges by its decisions in concrete cases. However, the languageof 501, that there are no non-rule, non-statutory privileges, serves as adeclaration by the Court that it intends to operate normally through formalrule-making procedures.
The Committeemade an effort to identify all the statutes in effect in 1989 that specificallyprovided for a privilege. Other than privileges dealt with in other rules, theyare listed below. Statutes that merely imply the existence of a privilege arealso included, marked by asterisks. Even though the Committee's own search wasaugmented by Judge Michael L. Hutchings' article "Privileges in UtahLaw," Utah Bar Journal 2:3:34 (Mar. 1989), there may be still other suchprovisions.
§ 78-24-9(witness need not answer degrading question unless it is closely related to afact in issue or is conviction of a felony);
§ 77-10a-13(grand juror may not disclose how any juror voted, though grand juror can becompelled to disclose what jurors said );
§ 78-24a-10(information communicated through an interpreter for the hearing-impaired thatis otherwise privileged);
§ 26-3-9(health care data collected by Department of Health);
§§ 26-25a-101and -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 lawenforcement or at patient's direction; the implication is that it may not beobtained in civil litigation);
Professionalsworking 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 towardmarital 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 enforcementof law);
Results ofprivate 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 (noprivate financial information obtained from a bank without court order"shall be admissible");
§ 78-24-8(communications to public officers in official confidence);
§ 35-9-14*(trade secrets communicated to Industrial Commission can be used only inenforcement of Occupational Safety and Health Act and then under protectiveorder);
§ 78-7-30(3)*(information in proceedings before Judicial Conduct Commission "areprivileged in any civil action," except where subpoenaed in casechallenging judicial conduct as improper or except when judge does not resignwithin 6 months);
§ 76-8-708(college administrator "cannot be examined" as to informationobtained by procedures for enforcing school rules);
§§ 63-2-201and 63-2-202* (confidential information in state archives);
§ 41-2-201*(information provided by doctor or expert in physical, mental or emotionaldisabilities in determining whether to issue a restricted driver's license toan "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 ormining operation terminates);
§ 7-1-802*(reports to Commissioner of Financial Institutions);
§ 70C-8-103(5)*(identity of persons investigated by Department of Financial Institutions butnot subject of enforcement proceedings);
§ 13-11-7(2)*(identity of persons investigated for consumer sales fraud but not subject toenforcement proceedings).
In additionto statutes which directly or indirectly create evidentiary privileges, thereare a great many statutes which seem to impose a professional or institutionalobligation of keeping confidence, yet do not clearly exempt the informationfrom subpoena. A great many of the provisions cited by Hutchings are of thissort. A few examples are:
§ 78-3e-2(identity of persons informing about drugs in schools, "shall be keptconfidential");
§ 26-4-17(autopsy report is "confidential," though it can be released topolice, relatives, or attending physician);
§ 65A-1-10(proprietary geologic or financial information communicated to Division ofState Lands and Forestry; the board "may" keep it confidential).