ARTICLE V.

PRIVILEGES

 

Rule 501 Privileges recognized only as provided. Except as otherwise required by the Constitution of the United States, the Constitution of the State of Hawaii, or provided by Act of Congress or Hawaii statute, and except as provided in these rules or in other rules adopted by the Supreme Court of the State of Hawaii, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing. [L 1980, c 164, pt of 1]

 

RULE 501 COMMENTARY

 

This rule closely resembles Uniform Rule of Evidence 501 and Cal. Evid. Code 911, the commentary to which states: "This section codifies the existing law that privileges are not recognized in the absence of statute."

The resolution of privilege rules was perhaps the most controversial aspect in the promulgation of the federal evidence rules. The U.S. Supreme Court proposed for adoption thirteen privilege rules that were ultimately rejected by Congress, which enacted one rule, Fed. R. Evid. 501. The U.S. Senate Report to Fed. R. Evid. 501 explains:

Since it was clear that no agreement was likely to be possible as to the content of specific privilege rules, and since the inability to agree threatened to forestall or prevent passage of an entire rules package, the determination was made that the specific privilege rules proposed by the Court should be eliminated and a single rule (rule 501) substituted, leaving the law in its current condition to be developed by the courts of the United States utilizing the principles of the common law. In addition, a proviso was approved requiring Federal courts to recognize and apply state privilege law in civil cases governed by Erie R. Co. v. Tompkins, ... as under present Federal case law. [S. Rep. No. 93-1277, 93d Cong., 2d Sess. (1974).]

The Supreme Court's proposed privilege rules can be found in Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975), and these unenacted rules, as well as the Uniform Rule of Evidence, served as models for the present article.

 

 

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