Professor Imwinkelried participates in Vanderbilt Law teleconference

On April 16, Professor Emeritus Ed Imwinkelried participated in a national teleconference on evidentiary topics hosted by Vanderbilt University Law School. He discussed the legislative history of the Federal Rules of Evidence with particular emphasis on the congressional deliberations over draft Article V on privileges.

The original draft included 13 provisions, with nine dealing with specific privileges. The draft, including a broad government privilege section, was submitted to the same Congress that had just fought Richard Nixon in federal court over claims of presidential privilege.

Draft Article V was so controversial that Congress immediately blocked the Supreme Court's attempt to promulgate the rules and deliberated over the rules for two years. So many special interest groups weighed in on privilege provisions that although the privilege provisions initially prompted Congress to intervene, Congress ultimately found itself unable to legislate on the topic and instead adopted the current Rule 501 as a compromise.

Imwinkelried argued that since the legislative history of Rule 501  is so conflicted, the courts should rely on context to decide the central question of whether Rule 501 embodies a bias against the recognition of novel privileges. He pointed out that many other FRE provisions such as Rules 401-03 manifest a strong legislative intent to liberalize the admission of logically relevant evidence. He concluded that given that context, the courts ought to be cautious in recognizing new privileges.  

Professor Imwinkelried is the author of The New Wigmore: Evidentiary Privileges (3d ed. 2017) and numerous articles on privilege law.