Rule 511 Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege

pulsion or Without Opportunity to Claim Privilege. Ordinarily a privilege is invoked in order to forestall disclosure. However, under some circumstances consideration must be given to the status and effect of a disclosure already made. Rule 510, immediately preceding, gives voluntary disclosure the effect of a waiver, while the present rule covers the effect of a disclosure made under compulsion or without opportunity to claim the privilege. “[Rule 511] is the converse of [Rule 510]. [Rule 510] deals with waiver and its consequences; [Rule 511] deals with the consequences of disclosure in the absence of waiver.” 2 J. Weinstein & M. Berger, Weinstein’s Evidence Paragraph 512[02] (1979). Confidentiality, once destroyed, is not susceptible of restoration, yet some measure of repair may be accomplished by preventing use of the evidence against the holder of the privilege. The remedy of exclusion is therefore made available when the earlier disclosure was compelled erroneously or without opportunity to claim the privilege. With respect to erroneously compelled disclosure, the argument may be made that the holder should be required in the first instance to assert the privilege, stand his ground, refuse to answer, perhaps incur a judgment of contempt, and exhaust all legal recourse, in order to sustain his privilege. However, this exacts of the holder greater fortitude in the face of authority than ordinary individuals are likely to possess, and assumes unrealistically that a judicial remedy is always available. In self-incrimination cases, the writers agree that erroneously compelled disclosures are inadmissible in a subsequent criminal prosecution of the holder, Maguire, Evidence of Guilt 66 (1959) McCormick (2d ed.) E 127; 8 Wigmore § 2270, and the principle is equally sound when applied to other privileges. The second circumstances stated as a basis for exclusion is a disclosure made without opportunity to the holder to assert his privilege. Illustrative possibilities are disclosure by an eavesdropper, by a person used in the transmission of a privileged communication, by a family member participating in psychotherapy, or privileged data improperly made available from a computer bank. The advent of increasingly sophisticated interception techniques for confidential communications makes this basis for exclusion especially important. See the Reporter’s Comment accompanying Rule 503 (b).