Rule 501 Privileges Recognized Only as Provided

This rule tracks U.R.E. 501 and draft of F.R.E. 501 except that the words “court decision, these rules or other rules of court” were substituted for the words “these or other rules promulgated by the Supreme Court of this State.”

F.R.E. as adopted by Congress does not include any rules in article V except for a different Rule 501 and a different Rule 502. With limited exceptions, these rules, in effect, leave the rules of evidence as to privilege in federal courts as they existed prior to the adoption of the F.R.E. The draft of article V of the F.R.E. as prepared by the United States Supreme Court Advisory Committee and submitted to Congress contained 13 rules which were similar to article V of the U.R.E. and the rules adopted herein. These proposed but not adopted rules are referred to in these comments as “draft rules.” The rationale of Congress in rejecting article V, as presented to it, was that federal law should not supersede the law of the states in the area of privilege. The Committee did not believe this rationale was pertinent as to a state and therefore article V, modeled on the U.R.E. article V, is recommended for adoption in Delaware. The article, as adopted, is consistent (except for minor refinements) with existing Delaware law.

This rule allows for the continuation of privileges or exceptions to privileges specifically provided by the Constitution, by rule or decision of court or by statutes, such as 16 Del. C. § 909 or 12 Del. C. § 3914 [repealed].

D.R.E. 501 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 “Comment” to D.R.E. 501 was revised only as necessary to reflect the 2017 amendments and the current language of the Federal Rules of Evidence. There is no intent to change any result in ruling on evidence admissibility.