The draft Federal Rules of Evidence proposed to Congress in 1972 contained a set of rules governing privileges. After a storm of protest over both the concept of codified federal privilege rules and the content of the drafted rules, Congress excluded the proposed privilege rules from its 1975 enactment of the Federal Rules of Evidence. It substituted current Rule 501, which provides for privileges to be governed by the state law of privilege in diversity cases and the "principles of the common law" in all other cases.
This Article traces the legislative history of the Federal Rules of Evidence with regard to privileges and the development of federal privilege law under Rule 501. It then discusses the arguments for and against codification and concludes that the time has arrived for another attempt to codify the law of privilege in the federal courts.
This Article asserts that any new attempt at codification must avoid the mistakes of the first effort by recognizing the Congressional decision to follow state privilege law in diversity cases and by drafting a set of rules that adheres to principles generally accepted in both federal and state law. Unlike the 1972 draft privilege rules, the codification should include a marital communications privilege and a general physician-patient privilege. Congress has required that it enact any rules governing privilege as opposed to such rules coming into being under the Rules Enabling Act. However, the drafting process can begin with the Advisory Committee on the Federal Rules of Evidence and the proposed rules can be submitted through the Supreme Court to Congress.
Kenneth S. Broun,
Giving Codification a Second Chance--Testimonial Privileges and the Federal Rules of Evidence,
53 Hastings L.J. 769
Available at: https://repository.uchastings.edu/hastings_law_journal/vol53/iss4/2