RULE 508. SECRETS OF STATE AND OTHER OFFICIAL INFORMATION; GOVERNMENTAL PRIVILEGES

Rule 508 was amended, effective March 1, 2014.

Rule 508 is taken from the Uniform Rules of Evidence. The rule does not create a governmental privilege, but rather recognizes and incorporates such privileges as have been, or may be, provided by the laws of the United States or of North Dakota.

Subdivision (a) provides that privileges created by federal law, which must be recognized by state courts, may be claimed in North Dakota in the manner provided by federal law.

Of the federal privileges which must be recognized in North Dakota, the one of most importance to the law of evidence is that commonly known as the "executive privilege." This is not a general privilege on the part of executive officials to refuse to testify; that privilege does not exist, for, as Wigmore has stated of the chief executive of a state: "His temporary duties as an official cannot override his permanent and fundamental duty as a citizen and as a debtor to justice (to give evidence)." 8 Wigmore on Evidence 2370 at 748 (McNaughton Rev. 1961). Rather, the application of the privilege is limited to two distinct instances: (1) secrets of state, which include military secrets and matters of national security; and (2) official communications, which encompass other matters and are privileged in certain instances because of the confidentiality necessary to the operation of a co-equal branch of government.

The privilege protecting secrets of state is one "well established in the law of evidence."United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). It is in this area that the greatest deference is given to the executive.

The privilege protecting official, confidential communications is somewhat more amorphous.Clearly, it applies to the confidential communications of the President and his close advisers, and as to these, at least, is said to have "constitutional underpinnings." United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). And yet, even at this level, the claim of confidentiality does not afford the protection that encloses secrets of state. There are instances in which the privilege must yield:

"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." United States v. Nixon, supra, 418 U.S. 713.

The holding of the Nixon case was expressly limited to evidence for which a specified need in a criminal trial could be shown. What the decision would be in cases in which evidence was sought for use in a civil trial, or in cases in which lesser officials were involved, remains an open question.It may be stated with assurance, however, that the decision will be reached by balancing conflicting interests rather than by application of an absolute privilege.

The ultimate phrase of subdivision (a) provides that "the privilege may be claimed as provided by the law of the United States." This confronts the North Dakota courts with an attendant problem which has long troubled the federal judiciary: To what extent is the trial judge involved in the determination of whether certain information is privileged? As a basic premise, it may be stated that the courts have not departed from the philosophy inherent in Chief Justice Marshall's statement that "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch, 137, 177 (1803). This is certainly true with respect to communications claimed to be privileged on the basis of confidentiality. In these cases it is appropriate for the trial judge to review, in camera, the information asserted to be privileged, and to excise and protect from disclosure those portions deserving of privilege. United States v. Nixon, supra.

There may be cases, however, in dealing with secrets of state, in which the information claimed to be privileged is so sensitive that even review of the information by a judge alone, in camera, would be inappropriate. United States v. Reynolds, supra. In those cases, the trial judge must decide the issue without the benefit of viewing the information itself.

If the court is satisfied, "from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interests of national security, should not be divulged," the privilege should be granted without further inquiry. United States v. Reynolds, supra, at 10.

If the court decides that the privilege does not apply, any order requiring disclosure should allow for appeal to be taken so as to avoid possible injustice.

Subdivision (b) provides that the only privileges that will be recognized, other than those of federal origin, are those created by the North Dakota Constitution or by North Dakota statutes.

The North Dakota Constitution, like its federal counterpart, contains no provision for an executive privilege. Presumably, however, the "constitutional underpinnings" of the privilege (constitutional separation of powers and the implied power to carry out enumerated duties) which were recognized on the federal level in United States v. Nixon, supra, could be said to be present under North Dakota laws. The North Dakota Constitution does provide for a limited legislative privilege in 42, which is known as the "speech and debate" clause. This provision, which operates as more of a means of insulating legislators from substantive liability than as an evidentiary privilege, states that: "Members of the legislative assembly may not be questioned in any other place for any words used in a speech or debate in legislative proceedings."

By statute in North Dakota, a public officer "cannot be examined as to communications made to him in official confidence when the public interests would suffer by the disclosure." N.D.C.C. § 31-01-06(4). Statutes of similar wording have been said to create a privilege for "official information," those confidentialcommunications made in the course of governmental operations which do not qualify as secrets of state. 8 Wigmore on Evidence 2378 (McNaughton Rev. 1961).

In addition to the general privilege of N.D.C.C. § 31-01-06(4), the North Dakota legislature has shielded certain specific information from disclosure. For example, as to motor vehicle accident reports, it is stated in N.D.C.C. § 39-08-14(3): "No written reports or written information mentioned in this section shall be used as evidence in any trial, civil or criminal * * *." In this and other "secrecy statutes," the legislature has made an express determination that the candor and accuracy of official reports which is gained by making those reports confidential outweighs the assistance to judicial proceedings disclosure might bring.

The privileges these statutes provide remain undisturbed under this rule.

Subdivision (c) directs the trial judge, in cases in which a sustained claim of privilege deprives a party of material evidence, to "make any further orders the interests of justice require * * *."The balance of the subdivision lists, by way of example and not of limitation, some devices which may be involved. The particular order issued would depend, inter alia, upon the nature of the case and the prejudice to a party occasioned by the exclusion of evidence. As stated in the Advisory Committee's Note to Federal Rule 509 (the Secrets of State rule which was deleted prior to passage of the Federal Rules):

"Reference to other types of cases serves to illustrate the variety of situations which may arise and the impossibility of evolving a single formula to be applied automatically to all of them. The privileged materials may be the statement of government witness, as under the Jencks statute, which provides that, if the government elects not to produce the statement, the judge is to strike the testimony of the witness, or that he may declare a mistrial if the interests of justice so require.18 U.S.C. 3500(d). Or the privileged materials may disclose a possible basis for applying pressure upon witnesses. United States v. Beekman, 155 F.2d 580 (2d Cir. 1946). Or they may bear directly upon a substantive element of a criminal case, requiring dismissal in the event of a successful claim of privilege. United States v. Andolschek, 142 F.2d 503 (2d Cir. 1944); and see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). Or they may relate to an element of a plaintiff's claim against the government, with the decisions indicating unwillingness to allow the government's claim of privilege for secrets of state to be used as an offensive weapon against it. United States v. Reynolds, supra; Republic of China v. National Union Fire Ins. Co., 142 F.Supp. 551 (D.Md. 1956)."

As may be seen, the parties to a lawsuit and their roles as plaintiff or defendant will have an effect on the question of what remedial order, if any, should be issued.

In cases in which the government is a party, the considerations involved in issuing a remedial order under this section will vary according to the government's position in the case. In a criminal prosecution, exclusion of privileged evidence may warrant dismissal, for the government should not be allowed to convict a defendant without full disclosure of potentially exculpatory evidence.In a case brought against the government, the claim of privilege should not operate as an "offensive weapon" against the government.

In cases in which the government is not a party, the considerations upon which a remedial order is based may be less clear. In fact, under the proposed federal rule, no remedial order could issue in cases in which the government was not a party. See Rule 509, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975). Despite the argument made under the proposed federal rule that the excluded evidence should be treated as simply unavailable, as in the case of a successful claim of the self-incrimination privilege, it is felt that there is no reason to withhold a remedy if one can be reasonably afforded. However, this subdivision should be applied with caution in those cases in which the government is not a party; in attempting to remedy the injustice worked upon the proponent of such evidence, the rights of the opposing party should not be made to suffer unduly.

Rule 508 was amended, effective March 1, 2014, to follow the 1999 amendments to Uniform Rule of Evidence 508, adding titles to subdivisions (a) and (b).

SOURCES: Joint Procedure Committee Minutes of April 25-26, 2013, page 34; January 29, 1976, page 9. Rule 508, Uniform Rules of Evidence (1974).