Rule 512. Comment Upon or Inference From Claim of Privilege in Criminal Cases; Instruction

(a) Comment or inference not permitted. The claim of a privilege is not a proper subject of comment by either a judge or counsel in a criminal case, regardless of whether the privilege was claimed in the present proceeding or on a prior occasion. The fact finder may not draw any inference from the claim of privilege.

(b) Claiming privilege outside the hearing of the jury. In criminal jury trials, proceedings shall be conducted, to the extent practicable, so as to allow privilege claims to be made outside of the hearing of the jury.

(c) Jury instruction. Unless waived, any criminal defendant who has claimed a privilege is entitled to an instruction that no inference may be drawn from the claim of privilege.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 512 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule and make it consistent with Maine precedent. See State v. Libby , 410 A.2d 562, 564 (Me. 1980); Alexander, Maine Jury Instruction Manual § 6-8 at 116 (2014 ed.).

Advisers' Note to former M.R. Evid. 512 (February 2, 1976) This rule is consistent with Maine law so far as the privilege against self-incrimination is concerned. It is provided in 15 M.R.S.A. § 1315 that the fact an accused does not testify in his own behalf shall not be taken as evidence of guilt, and that the accused is entitled to an instruction to that effect. If a claim of privilege is not a proper subject for comment or inference, it follows that proceedings for making the claim should, to the extent practicable, not be conducted in the presence of the jury. It is especially important not to allow the jury to hear a claim of privilege by a nonparty witness. An inference against a party from a claim of privilege over which he has no control is clearly unfair. This is also in accord with Maine law. In State v. Robbins, 318 A.2d 51, 57 (Me. 1974), the Law Court said: "It is desirable that a witness' invocation of the privilege before the jury is to be avowed, though it is not per se prejudicial." Usually it is ascertainable in advance whether a privilege will be claimed, but unforeseen situations are bound to arise. Much must be left to the discretion of the trial judge and the professional responsibility of counsel. Since opinions will differ as to whether a jury instruction not to draw an adverse inference will be helpful or harmful, subdivision (c) leaves it to the judgment of counsel for the accused whether to request it. It is a matter of right if requested.