Alaska Comm. R. Evid. 512

As amended through December 18, 2024

Rule 512 - Comment Upon or Inference From Claim of Privilege-Instruction

Rule 512, like Rule 511, "is a rule designed to ensure that a privilege will be given its maximum effect. It seeks to eliminate any possibility of prejudice arising against the holder, which would either intimidate him into waiving his privilege, or penalize him for exercising a right given to him by law." 2 J. Weinstein & M. Berger, Weinstein's Evidence Paragraph 513 [02] (1979). There has been some controversy on the desirability of maximizing the effects of privileges by disallowing comment and inference. The Model Code of Evidence, in the comment to Rule 233, permitted both comment and inference upon the invocation of a privilege. However, the better view is that "if privileges are considered valuable enough to adopt, then they are also worth effectuating." Comments, Federal Rules of Evidence and the Law of Privileges, 15 Wayne L. Rev. 1286, 1370-1371 (1969). This is the approach followed by Rule 39 of the Uniform Rules of Evidence and Section 913 of the California Evidence Code.

(a)Comment or Inference Not Permitted. This subdivision prohibits judge and counsel from commenting upon a claim of privilege and the trier of fact from drawing any inference therefrom. It is in accord with the weight of authority. 8 Wigmore § § 2243, 2322, 2386; Barnhart, Privilege in the Uniform Rules of Evidence, 24 Ohio St. L. J. 131, 137-138 (1963). Subdivision (a) is probably not constitutionally required for privileges not required to be recognized by the constitution. Nevertheless, its policy is sound, for "it furthers the value judgments which underlie the creation of privileges." 2 J. Weinstein & M. Berger, Weinstein's Evidence, Paragraph 513 [02] (1979).

(b)Claiming Privilege Without Knowledge of Jury. The value of a privilege may be greatly depreciated by means other than expressly commenting to a jury upon the fact that it was exercised. Thus, the calling of a witness in the presence of the jury and subsequently excusing him after a side-bar conference may effectively convey to the jury the fact that a privilege has been claimed, even though the actual claim has not been made in its hearing. Whether a privilege will be claimed is usually ascertainable in advance and the handling of the entire matter outside the presence of the jury is feasible. Destruction of the privilege by innuendo can and should be avoided. 6 Wigmore § 1808. This position is in accord with the general agreement of the authorities that an accused cannot be forced to make his election not to testify in the presence of the jury. 8 Wigmore § 2268, at 407.

Unanticipated situations are, of course, bound to arise, and much must be left to the discretion of the judge and the professional responsibility of counsel.

(c)Jury Instruction. Opinions will differ as to the effectiveness of a jury instruction not to draw an adverse inference from the making of a claim of privilege. Whether an instruction shall be given is left to the sound judgment of counsel for the party against whom the adverse inference may be drawn. The instruction is a matter of right, if requested.

The right to the instruction is not impaired by the fact that the claim of privilege is by a witness, rather than by a party, provided an adverse inference against the party may result.

(d)Application -- Self-Incrimination. This subdivision is a departure from Proposed Federal Rule of Evidence 513, which is the counterpart of Rule 512. Subdivision (d), adopted from Wisconsin Statute § 905.13, attempts to deal with the problem presented when a party in a civil case claims a privilege against self-incrimination. It provides that a party to a civil suit who claims a privilege against self-incrimination may not take advantage of subdivisions (a)--(c) to avoid comment and inference from his privilege claim. See Grognet v. Fox Valley Trucking Service, 172 N.W.2d 812 (Wis. 1979); Molloy v. Molloy, 176 N.W.2d 292 (Wis. 1970).

Although the privilege against self-incrimination does not apply to protect disclosures that might tend to establish one's liability for civil damages, see, e.g., McCormick (2d ed.) § 121, at 257-58, the privilege not to incriminate oneself in future criminal matters may be raised in any judicial proceeding, see e.g., McCarthy v. Arndstein, 266 U.S. 34, 69 L.Ed.2d 34 (1924). While comment on a defendant's silence in a criminal proceeding is proscribed by the constitution, Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106 (1965), comment in other settings is not barred by the constitution. Baxter v. Palmigiano, 425 U.S. 308, 47 L.Ed2d 810 (1976). The position taken by this rule protects civil litigants from being disadvantaged because an opposing party's invocation of the privilege against self-incrimination suppresses relevant evidence. The party claiming the privilege retains protection against government prosecution but cannot insulate himself from civil liability. See Baxter v. Palmigiano, id., at 425 U.S., 426-430 (Brennan, J., dissenting). This rule does not address the subject of continuances in civil cases to accommodate a party's desire to remain silent in a criminal prosecution but to testify in a later civil case. Such continuances are possible under Alaska Rule of Civil Procedure 40. Because a criminal defendant has a right to a speedy trial, criminal cases often will be disposed of before related civil cases as a matter of course. An uncomfortable situation might arise when no criminal prosecution is pending or even contemplated but testimony in a civil case might lead to a prosecution. This rule allows a comment on the invocation of a privilege and permits adverse inferences to be drawn despite the attendant discomfort. Some of the policies of the privilege are concededly disserved, but such disservice must be balanced against fairness to civil litigants who need the evidence suppressed by the privilege.

This rule does not address the question of whether it is constitutionally permissible for the government to bring a civil action before a criminal action in order to put the defendant to the choice of costly silence or possible incrimination. When the government is plaintiff in both actions, the balance struck here is more tenuous. Whether is it constitutional remains to be decided if the issue ever arises.

Alaska Comm. R. Evid. 512