(a) Comment or Inference Not Permitted. A claim of privilege, whether in the present proceeding or upon a previous occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from the claim.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings must 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 against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn from the claim.
Rule 512 was amended, effective March 1, 2014.
Subdivision (a) states the general policy of these rules, which is that no comment shall be 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 Evidence76 (2d ed. 1972). That this argument has 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 community, 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 soundly 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 law of 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 providing that 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 of trial 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 inference 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 privilege.
Rule 512 was amended, effective March 1, 2014, to follow the 1999 amendments to Uniform Rule of Evidence 512.
CONSIDERED: 29-21-11, NDCC.