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

(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.

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Annotations

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).