Rule 508. Secrets of state and other official information: Governmental privileges

Secrets of state and other official information: Governmental privileges.

(a) Claim of privilege under federal law. If the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.

(b) Privileges recognized under state law. No other governmental privilege is recognized except as created by the Constitution or statutes of this State or rules promulgated by the Supreme Court of Alabama.

(c) Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, such as striking the testimony of a witness, declaring a mistrial, making a finding upon an issue as to which the evidence is relevant, or dismissing the action.

Committee Notes

Advisory Committee’s Notes This rule is based upon the language found in the corresponding Uniform Rule of Evidence. See Unif.R.Evid. 508. Rather than undertaking to create a governmental privilege, this rule merely embraces those privileges that, under the law of the United States or the law of Alabama, already exist or may be created in the future. Section (a). Claim of privilege under federal law. This section provides that a governmental privilege arising from federal case law or statute, and which as a matter of federal constitutional law must be enforced by the courts of Alabama, may be claimed in the state courts in the manner provided by federal law. A number of governmental privileges have evolved at common law, either by case law alone or in conjunction with statutes. Sometimes these privileges are said to possess constitutional underpinnings, particularly as they relate to the separation of powers. No effort is made here to list or exhaustively catalog these federal privileges. Chief among them, however, is that applied for the protection of military or diplomatic secrets of state. United States v. Reynolds, 345 U.S. 1 (1953). See 8 J. Wigmore, Wigmore on Evidence § 2370 (McNaughton rev. 1961). While this particular privilege is an absolute one, others are qualified and may give way upon a showing of need for the information. The most celebrated, albeit the least frequently arising, of the qualified privileges is that commonly referred to as the “presidential privilege,” which establishes a cloak of protection for confidential communications between the President of the United States and the President’s immediate advisors. United States v. Nixon, 418 U.S. 683 (1974). See E. Cleary, McCormick on Evidence § 108 (3d ed. 1984). Additionally, an official information privilege has evolved to protect communications within and among governmental agencies. Pacific Molasses Co. v. NLRB, 577 F.2d 1172 (5th Cir.1978). See 5 U.S.C. § 552(b)(5) (1994) (section of Freed