Rule 513  Comment upon or inference from claim of privilege; instructions.  (a)  Comment or inference not permitted.  The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel.  No inference may be drawn therefrom.

     (b)  Claiming privilege without knowledge of jury.  In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

     (c)  Jury instruction.  Upon request, any party exercising a privilege (1) is entitled to an instruction that no inference may be drawn therefrom, or (2) is entitled to have no instruction on the matter given to the jury.  Conflicting requests among multiple parties shall be resolved by the court as justice may require. [L 1980, c 164, pt of §1]

RULE 513 COMMENTARY

  This rule is similar to Uniform Rule of Evidence 512.  The foundation for the rule may be inferred from Griffin v. California, 380 U.S. 609 (1965), in which the Supreme Court held that adverse judicial comment upon a claim of privilege against self-incrimination impermissibly burdens the privilege itself.  See Tehan v. Shott, 382 U.S. 406, 415 (1966).  McCormick agrees that "allowing comment upon the exercise of a privilege or requiring it to be claimed in the presence of the jury tends greatly to diminish its value."  McCormick §76.  McCormick recommends recognizing "only privileges which are soundly based in policy and [according] those privileges the fullest protection [by precluding comment and drawing of inferences]."  Id.  The present rule does just that.

  To the extent that it relates to the privilege against self-incrimination, Hawaii has recognized the "no comment" rule in both prior statute and case law.  Hawaii Rev. Stat. §621-15 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §52) provided, in part:  "[N]o inference shall be drawn prejudicial to the accused by reason of such neglect or refusal [to testify], nor shall any argument be permitted tending to injure the defense of the accused person on account of such failure to offer himself as a witness."

  In The King v. McGiffin, 7 H. 104 (1887), the court noted that the prosecution's comment in its summation upon the failure to the accused to testify was improper, and in Kaneshiro v. Belisario, 51 H. 649, 466 P.2d 452 (1970), the court extended the "no comment" rule to civil as well as criminal proceedings.  The present rule applies to all the privileges established in this article.

  Subsection (c) accords to the party against whom adverse inferences from a claim of privilege might be drawn the option of having the admonitory instruction given to the jury or waiving it.  In State v. Baxter, 51 H. 157, 454 P.2d 366 (1969), the court held that the admonitory instruction could be given even over the objection of the party claiming the privilege, but cautioned that "a trial court may well be advised not to give an admonitory instruction when the [party] objects."  The same result was reached in Lakeside v. Oregon, 435 U.S. 333 (1978).  The present rule modifies these holdings by investing in the party exercising the privilege the right "to have no instruction on the matter given to the jury."  The same result was contended for by Justice Abe in his dissent in Baxter, supra.

Case Notes

  Where trial court was put on advance notice that defendant intended to invoke Fifth Amendment privilege against self-incrimination, court abused discretion by permitting prosecution to question defendant about false identification cards; risk of unfair prejudice occasioned by compelling criminal defendant to invoke privilege in front of jurors was substantial and not outweighed by probative value of prosecution's unanswered questions.  97 H. 206, 35 P.3d 233 (2001).

  In order to more fully protect the right not to testify under the Hawaii constitution, the trial courts, when informing the defendant of the right not to testify during the pretrial advisement, must also advise the defendant that the exercise of this right may not be used by the fact finder to decide the case.  134 H. 361, 341 P.3d 567 (2014).

  Trial court did not abuse its discretion by prohibiting defense from calling witness in order to have witness invoke witness' Fifth Amendment privilege against self-incrimination in front of the jury where, under subsection (a), witness' invocation of privilege in front of jury would not have been entitled to any probative weight and could not properly have been considered by the jury.  110 H. 386 (App.), 133 P.3d 815 (2006).

  Based on the plain language of subsection (c), former directors were entitled to the circuit court's jury instruction precluding the jury from making any inference based on former directors' assertion of the attorney-client privilege; asking the jury to accept that former directors' assertion of the privilege suggested that former directors had not relied on the advice of their attorneys and, hence, had not acted reasonably and with due care in the merger would have been tantamount to asking the jury to make an inference based on former directors' assertion of the privilege; thus, circuit court properly denied motion in limine.  123 H. 82 (App.), 230 P.3d 382 (2009).