Maine Restyling Note [November 2014]
The Federal Rules of Evidence do not set forth privileges, except for the Attorney-Client Privilege in Federal Rule 502, and therefore the Maine Rules of Evidence 501–514 are entirely different from Article V of the Federal Rules. The Maine Rules in this Article have each been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor nonsubstantive changes to clarify the Rules.
Maine Rule 501 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.
Advisers’ Note to former M.R. Evid. 501
(February 2, 1976)
This rule limits privileges to those provided by Constitution or statute or by rules promulgated by the Supreme Judicial Court. This means that common law privileges, such as that between attorney and client, must be included in these rules. On the other hand, a privilege created by statute is preserved without any need to deal with it. No attempt is made to incorporate the constitutional provisions relating to admission or exclusion of evidence. They do not readily lend themselves to codification, and the best point of reference is the provisions themselves and the decisions construing them. The most familiar constitutional privilege is the privilege against self- incrimination. Other concepts having constitutional dimension are the required exclusion of involuntary confessions, confessions made by one deprived of the right to counsel, and the fruits of unlawful search and seizure. There are also various federal and state immunity statutes to protect persons compelled to testify. A degree of secrecy of grand jury deliberations is provided by M.R. Crim. P. 6(e).
The Court did not use its rulemaking power to create new privileges. Most evidentiary rules relate to what happens in the courtroom and are designed to facilitate ascertainment of the truth. Privileges, on the other hand, are designed to shut out the truth so as to protect relationships of sufficient social importance to assure their confidentiality. This judgment based on social policy is one which is best made by the elected representatives of the people.
Where there is a common law privilege, the Court has felt free in codifying it to fill gaps for which there is no precise Maine authority. Similarly, with respect to statutory privileges, such as the clergyman-penitent privilege, the Court has altered the statutory wording to fit the format of the rules and prescribed details not in the statute but consistent with the legislative policy.
The changes that have been made are set forth in the Notes to the several privileges that follow.
The Federal Rules confine the treatment of privilege to Rule 501, which provides (1) that in federal cases privileges shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience (the language48 of F.R.Crim.P. 26); and (2) that in actions where state law supplies the rule of decision privileges shall be determined in accordance with state law.
The rules that follow are based in a large measure on the rules with respect to privilege promulgated by the Supreme Court, with some changes made in the Uniform State Law.
