A claimof privilege to withhold evidence is governed by:
2011 Advisory Committee Note.
(1)Privileges reflect good policy choices, fostering candor in importantrelationships by promising protection of confidential disclosures.
(2) Evenif the 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 501also accepts all pre-existing statutory privileges, except those inconsistentwith these rules. In particular, Utah Code ? 78-24-8, insofar as it definesprivileges relating to spouses, attorneys, clergy, and physicians, Utah Code ?58-25a-8, with respect to psychologists, and Utah Code ? 58-35-10, with respectto social workers, are made ineffectual by the adoption of rules specificallyredefining those privileges.
TheSupreme Court has the power to create rules of privilege formally. It can alsocreate or reshape privileges by its decisions in concrete cases. However, thelanguage of 501, that there are no non-rule, non-statutory privileges, servesas a declaration by the Court that it intends to operate normally throughformal rule-making procedures.
TheCommittee made an effort to identify all the statutes in effect in 1989 thatspecifically provided for a privilege. Other than privileges dealt with inother rules, they are listed below. Statutes that merely imply the existence ofa privilege are also included, marked by asterisks. Even though the Committee'sown search was augmented by Judge Michael L. Hutchings' article"Privileges in Utah Law," Utah Bar Journal 2:3:34 (Mar. 1989), theremay be still other such provisions.
Utah Code? 78-24-9 (witness need not answer degrading question unless it is closelyrelated to a fact in issue or is conviction of a felony);
Utah Code? 77-10a-13 (grand juror may not disclose how any juror voted, though grandjuror can be compelled to disclose what jurors said );
Utah Code? 78-24a-10 (information communicated through an interpreter for thehearing-impaired that is otherwise privileged);
Utah Code? 26-3-9 (health care data collected by Department of Health);
Utah Code?? 26-25a-101 and -102 (communicable disease data collected by healthdepartments) (cf. ? 26-6-20.5);
Utah Code? 26-25-3 (medical information gathered for medical research);
Utah Code? 76-7-313 (information on abortions);
Utah Code? 31A-22-617(4)(c) (health care data audited byDepartment of Health);
Utah Code?? 26-6a-6* and -7* (test for AIDS);
Utah Code? 58-17-16* (pharmacy may not release patient's medical profile except to druglaw enforcement or at patient's direction; the implication is that it may notbe obtained in civil litigation);
Utah Code? 58-41-16 (speech pathologist);
Utah Code? 30-1-37 (marriage counselor);
Utah Code? 58-39-10 (marriage counselor);
Utah Code? 30-3-17.1* (communications to court-appointed domestic relations counselorsworking toward marital reconciliation; subject to "public interests"under ? 78-24-8(5));
Utah Code? 78-24-8 (sexual assault counselor);
Utah Code? 78-3c-4 (sexual assault counselor);
Utah Code? 53A-24-107 (individual information of persons being rehabilitated, except inenforcement of law);
Utah Code? 58-12-43(7) (information collected by professional committee investigating adoctor);
Utah Code? 78-14-15 (evidence presented to medical malpractice panel);
Utah Code? 34-38-13 (results of employer tests for drugs or alcohol);
Utah Code? 78-27-49 (no private financial information obtained from a bank without courtorder "shall be admissible");
Utah Code? 78-24-8 (communications to public officers in official confidence);
Utah Code? 35-9-14* (trade secrets communicated to Industrial Commission can be usedonly in enforcement of Occupational Safety and Health Act and then underprotective order);
Utah Code? 78-7-30(3)* (information in proceedings before Judicial Conduct Commission"are privileged in any civil action," except where subpoenaed in casechallenging judicial conduct as improper or except when judge does not resignwithin 6 months);
Utah Code? 76-8-708 (college administrator "cannot be examined" as toinformation obtained by procedures for enforcing school rules);
Utah Code?? 63-2-201 and 63-2-202* (confidential information in state archives);
Utah Code? 41-2-201* (information provided by doctor or expert in physical, mental oremotional disabilities in determining whether to issue a restricted driver'slicense to an "impaired" person is "confidential");
Utah Code? 41-6-40 (compulsory automobile accident reports);
Utah Code? 54-4-16 (accident reports filed by public utility with Public ServiceCommission);
Utah Code? 41-6-170 (traffic convictions);
Utah Code? 77-18-2(4) and (5)(recordsof expungement of conviction);
Utah Code? 77-27-21.5(12)* (sex offender registration);
Utah Code? 77-18-1(4) (presentence report);
Utah Code? 78-24-10 (compelled testimony about fraudulent conveyances);
Utah Code? 63-53a-6 (information collected by governor concerning state energyresources);
Utah Code? 73-22-6* (logs of geothermal wells);
Utah Code? 40-8-8* (confidential information communicated to Board of Oil, Gas andMining "shall be protected and not become public records" unlesswaived or mining operation terminates);
Utah Code? 7-1-802* (reports to Commissioner of Financial Institutions);
Utah Code? 70C-8-103(5)* (identity of persons investigated by Department of FinancialInstitutions but not subject of enforcement proceedings);
Utah Code? 13-11-7(2)* (identity of persons investigated for consumer sales fraud butnot subject to enforcement proceedings).
Inaddition to statutes which directly or indirectly create evidentiaryprivileges, there are a great many statutes which seem to impose a professionalor institutional obligation of keeping confidence, yet do not clearly exemptthe information from subpoena. A great many of the provisions cited byHutchings are of this sort. A few examples are:
Utah Code? 78-3e-2 (identity of persons informing about drugs in schools, "shall bekept confidential");
Utah Code? 26-4-17 (autopsy report is "confidential," though it can bereleased to police, relatives, or attending physician);
Utah Code? 65A-1-10 (proprietary geologic or financial information communicated toDivision of State Lands and Forestry; the board "may" keep itconfidential).