COMMENT UPON OR INFERENCE FROM CLAIM
(a) Comment or inference not permitted. The claim of a privilege, whether in the
proceeding or upon a prior occasion, is not a proper subject of comment by court or counsel.
No inference may be drawn therefrom.
(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall
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 against whom the jury might draw an
inference from a claim of privilege is entitled to an instruction that no inference may be
The content of Rule 512 was transferred to Rule 511, effective_________________.
Subdivision (a) states the general policy of these rules, which is that no comment
made upon, nor any inference drawn from, a claim of privilege. This area of the law of
privileges is one of dispute, with some courts holding that an inference may be drawn from
a claim of privilege, presumably on the basis that the suppression of relevant evidence by
a party should be noticed and considered by a jury. See McCormick on Evidence § 76
(2d ed. 1972). That this argument has some merit is recognized; however, it is believed that
the position taken in this rule is based upon more weighty considerations, the essence of
which have been stated by Lord Chelmsford:
" 'The exclusion of such (privileged) evidence is for the general interest of the
and therefore to say that when a party refuses to permit professional confidence to be broken,
everything must be taken most strongly against him, what is it but to deny him the protection
which, for public purposes, the law affords him, and utterly to take away a privilege which
can thus only be asserted to his prejudice?' Wentworth v. Lloyd, 10 H.L.Cas. 589, 591
(1864)," quoted in McCormick on Evidence § 76 at 155, 156 (2d ed. 1972).
McCormick concludes his discussion of the subject by stating:
"It is submitted that the best solution is to recognize only privileges which are
based in policy and to accord those privileges the fullest protection." McCormick on
Evidence, supra, at 156.
This is the approach taken by these rules, and the result is in accord with the case
North Dakota. State v. Bell, 67 N.D. 382, 272 N.W. 334 (1937); Meyer v. Russell, 55 N.D.
546, 214 N.W. 857 (1927).
Subdivision (b) is an effort to further the announced policy of this rule by
claims of privilege should be made, where practicable, outside the hearing of the jury.
In most cases this will be easily accomplished, as it will often be known in advance
that a privilege will be claimed. (In this regard, note the case of State v. Bell, supra, in which
the practice of forcing a holder to claim a privilege in the presence of the jury was, if not
accepted, held not to constitute prejudicial error.)
Subdivision (c) provides that a party against whom the jury may draw an adverse
from a claim of privilege may have, as a matter of right, an instruction that no inferences
may be drawn. This is intended to provide a partial remedy in those instances in which
disclosure to the jury of a claim of privilege cannot be reasonably avoided. The instruction
may be requested by a party, whether the privilege is being claimed by him or by a witness,
if the party will be the subject of an adverse inference arising from the claim of
Sources: Joint Procedure Committee Minutes: of________________;
January 29, 1976,
page 12. Rule 512, Uniform Rules of Evidence (1974).
Considered: N.D.C.C. § 29-21-11.