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Rule 510. Miscellaneous Matters.

 

(a)      Waiverof Privilege. Aperson who holds a privilege under these rules waives the privilege if theperson or a previous holder of the privilege:

 

(1)   voluntarily disclosesor consents to the disclosure of any significant part of the matter orcommunication, or

 

(2)   fails to take reasonable precautionsagainst inadvertent disclosure.

 

This privilege is not waived if thedisclosure is itself a privileged communication.

 

(b)      Inadmissibility ofDisclosed Information. Evidence of a statement or other disclosure ofprivileged matter is not admissible against the holder of the privilege ifdisclosure was compelled erroneously or made without opportunity to claim theprivilege.

 

(c)      Commentor Inference Not Permitted.The claim of privilege, whether in the present proceeding or upon a prioroccasion, is not a proper subject of comment by judge or counsel. No inferencemay be drawn from any claim of privilege.

 

(d)      Claiming PrivilegeWithout the Jury’s Knowledge. To the extent practicable, jury cases shall beconducted to allow claims of privilege to be made without the jury’s knowledge.

 

(e)      Jury Instruction. Uponrequest, any party against whom the jury might draw an adverse inference fromthe claim of privilege is entitled to a jury instruction that no inference maybe drawn from that claim of privilege.

 

(f)       PrivilegeAgainst Self-Incrimination in Civil Cases. In a civil case, the provisions of paragraph (c)-(e) donot apply when the privilege against self-incrimination has been invoked.

 

 

2011 Advisory Committee Note. – Thelanguage of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intended to be stylisticonly. There is no intent to change any result in any ruling on evidenceadmissibility.

 

ADVISORYCOMMITTEE NOTE

 

The subjectmatter of Rule 510 was previously included in Utah Rules of Evidence 37, 38, 39and 40. The language recommended by the Committee, however, is largely that ofproposed Federal Rules 511, 512 and 513, rules not included among those adoptedby Congress.

 

ProposedFederal Rule 511 became Rule 510(a), replacing Rule 37. Proposed Federal Rule512 became Rule 510(b), replacing Rule 38. Proposed Federal Rule 513 becameRule 510(c), replacing Rule 39. No replacement was adopted for Rule 40 sincethe Committee determined that the subject matter of that rule need not becovered by a rule of evidence.

 

Subparagraph(a). Since the purpose of evidentiary privileges is the protection of somesocietal interest or confidential relationship, the privilege should end whenthe purpose is no longer served because the holder of the privilege has alloweddisclosure or made disclosure. For the same reason, although Rule 37 required aknowing waiver of the privilege, Rule 510(a) as drafted does not require suchknowledge. A stranger to the communication may testify to an otherwiseprivileged communication, if the participants have failed to take reasonableprecautions to preserve privacy.

 

Subparagraph(b). Once disclosure of privileged matter has occurred, althoughconfidentiality cannot be restored, the purpose of the privilege may still beserved in some instances by preventing use of the evidence against the holderof the privilege. For that reason, privileged matter may still be excluded whenthe disclosure was not voluntary or was made without an opportunity to claimthe privilege.

 

Subparagraph(c).

 

(1) Allowinginferences to be drawn from the invocation of a privilege might undermine theinterest or relationship the privilege was designed to protect.

 

(2) For thesame reason, the invocation of a privilege should not be revealed to the jury.Doing so might also result in unwarranted emphasis on the exclusion of theprivileged matter.

 

(3) Whetherto seek an instruction is left to the judgment of counsel for the party againstwhom the inference might be drawn. If requested, such an instruction is a matterof right.

 

(4) Theprovisions of subparagraph (c)(4) are not intended to alter the common lawrules as to inferences that may be drawn or as to when a party may comment orbe entitled to a jury instruction when the privilege has been invoked.