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

A privilege is not waived by a disclosure that was:

(a) Compelled erroneously; or

(b) Made without opportunity to claim the privilege.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 511 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. 511 (February 2, 1976) When disclosure of privileged matter has been erroneously compelled or has been made without an opportunity for the holder to claim it, the confidentiality cannot be restored. This rule gives, however, the remedy of excluding the evidence if later offered in evidence against the holder. It may be argued that the holder should stand his ground when the privilege is wrongly denied him, refuse to answer, take the consequences including a judgment of contempt, and exhaust all his legal remedies. But, in the words of the Federal Advisory Committee, "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." It is well settled in self-incrimination cases that a disclosure erroneously compelled cannot be used in a subsequent criminal prosecution against the holder. The principle is equally sound when applied to other privileges. Illustrations of disclosure without opportunity to claim the privilege are disclosure by an eavesdropper, by a person used in the transmission of a privileged communication and by a person participating in group therapy under the direction of a psychotherapist. The rule deals only with disclosure of privileged matter. It does not affect the determination of what is or is not privileged. The law is in a state of flux as to whether this prohibition against disclosure of a communication from attorney to client or from one spouse to the other extends to persons who obtain knowledge of it by overhearing it either by eavesdropping or accidentally. The traditional view is that the communication is not privileged since the means of preserving secrecy are largely of the person making the communication. Wigmore, Evidence, § 2326 (attorney-client), § 2339(1) (husband-wife). The Uniform Rules of Evidence (1953) couch the attorney-client privilege so as to apply it if knowledge of the communication came to the witness in a manner not reasonably to be anticipated by the client. There are no Maine decisions on the subject. In any event, this rule is inapplicable if the matter is not privileged. If it is privileged, the holder has the right to prevent disclosure, and the evidence is inadmissible against the holder, provided, of course, that he objects when it is offered at trial.