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 §621-15 (1976) (repealed
1980) (originally enacted as L 1876, c 32, §52) provided, in part:  "[N]o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.



  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.