27-513. Rule 513. Comment on or inference from claim of privilege improper; jury instruction.

461 words·~2 min read·/ne/chapter-27/27-513

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)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.

(2)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.

(3)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 therefrom.

A person cannot prove he or she suffered ineffective assistance of counsel by his or her counsel's failure to call a witness who would have most likely invoked Fifth Amendment protections against self-incrimination, because the trial court would have barred the witness from testifying to avoid the witness from claiming privilege in the presence of the jury. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).

A trial court may bar the testimony of a defendant's accomplice who seeks to exculpate the defendant by testifying as to events that are crucial regarding the defendant's culpability, but intends to invoke his or her Fifth Amendment privilege against self-incrimination during cross-examination. State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).

Although a witness invoked his Fifth Amendment privilege in the jury's presence, no error was plainly evident from the record where the bill of exceptions did not contain evidence showing that the parties or the court knew the witness would invoke his privilege and where, after being given immunity, the witness testified and was subject to cross-examination. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

A hearing to determine whether a privilege is claimed is not absolutely required to comply with the requirements of this section, but if held, it is straightforward in that it must provide the witness the opportunity to testify or invoke a privilege. The State may then offer immunity in exchange for the witness’s testimony. Finally, the trial court must decide whether the witness intends to testify and if it would be prejudicial to either the defendant or the State to call or not to call the witness. State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

Pursuant to subsection

(1)of this section, although the trial judge's comments were certainly unnecessary and ill advised, they did not permit the jury to draw an unfavorable inference from the defendant's failure to testify and adduce evidence. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

A prosecutor's reference to the defendant's failure to make an exculpatory statement before the defendant is in custody does not violate the defendant's right to remain silent. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).