Alaska Comm. R. Evid. 501
This rule codifies the existing law that privileges are not recognized in the absence of statutes or rules specifically providing for them. No attempt is made in these rules to incorporate the constitutional provisions which relate to the admission and exclusion of evidence, whether denominated as privileges or not. Similarly, privileges created by specific statutes generally are not within the scope of these rules. E.g., AS 09.25.150-220 (public officials, reporters); AS 24.55.260 (ombudsman).
Although Federal Rule 501 adopts state created privileges whenever state law governs with respect to any element of a claim of defense, this Rule does not adopt the converse; i.e., except in unusual cases, federal privileges will not govern in Alaska courts even though federal law provides the rule of decision with respect to any element of a claim or defense. Some commentators have suggested that the approach taken by this rule is so plainly correct that explanation is unnecessary. See, e.g., Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 508 (1954) ("The general rule . . . is that federal law takes the state courts as it finds them . . . [S]tate rules . . . may ordinarily be applied also to federal claims and defense . . ."; Ladd, Privileges, 1969 Law & Social Order 555, 560 ("If the action arose in a state court upon a matter involving a federal question, it would appear impossible to prevent the state court from using state privileges . . . \m). But, in view of Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 96 L. Ed. 398 (1952), and Brown v. Western Ry., 338 U.S. 294, 94 L. Ed. 100 (1949), a few words are in order.
In the vast majority of federal cases, state law issues are not so intertwined with federal questions that deference to state policies that both govern primary human conduct and possibly affect the outcome of litigation in important ways imposes much of an incremental burden on the judges who must determine state substantive law. Indeed, Congress has not only restricted the power of the Supreme Court to modify state created substantive rights, 28 U.S.C.A. § 2072 (West Cum. Supp. 1978), but has itself demonstrated respect for state law in Rule 501. On the other hand, federal law, especially federal constitutional questions, may arise throughout state litigation. To separate federal and state issues could be an enormous burden on state judges. Federal issues have been decided by state courts from the nation's beginning. There is no indication that the Congress is unhappy with the results. Since state law governs most conduct of most citizens, its rules of privilege are especially important to citizens seeking guidance as to what is and is not privileged. Hence, state privilege law will govern in all litigation in Alaska state courts, unless the supremacy clause of the United States Constitution requires otherwise.
This rule is drawn from proposed federal rule 501. However, it adds language to make clear that persons protected by privileges can include organization and government entities.
Despite these rules, claims of privilege at times may have to give way to constitutionally protected rights, especially in criminal cases. See, e.g., Salazar v. State, 559 P.2d 66 (Alaska 1976).
On the other hand, claims of privilege themselves may have roots in the Constitution. The attorney-client privilege is not unrelated to the right to counsel guaranteed all citizens in all but the most petty criminal cases. And the marital communications privilege reflects an ideal of privacy and special relationship that has received constitutional protection in other contexts. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510 (1965). The communications to clergymen privilege and the political vote privilege are related to first amendment concepts. Recently, the Alaska Supreme Court has suggested that the doctor-patient privilege has constitutional overtones. See, e.g., Falcon v. Alaska Public Offices Commission, 570 P.2d 469 (Alaska 1977).
Alaska Comm. R. Evid. 501