215.Exercise of a Communication Privilege
[Name of party/witness] has an absolute right not to disclose what [he/
she] told [his/her] [doctor/attorney/[other]] in conﬁdence because the law
considers this information privileged. Do not consider, for any reason at
all, the fact that [name of party/witness] did not disclose what [he/she]
told [his/her] [doctor/attorney/[other]]. Do not discuss that fact during
your deliberations or let it inﬂuence your decision in any way.
New September 2003; Revised December 2012
Directions for Use
This instruction must be given upon request, if appropriate and the court has
determined that the privilege has not been waived. (Evid. Code, § 913(b).)
Sources and Authority
• No Presumption on Exercise of Privilege. Evidence Code section 913(b).
• The comment to Evidence Code section 913 notes that this statute “may modify
existing California law as it applies in civil cases.” Speciﬁcally, the comment
notes that section 913 in effect overrules two Supreme Court cases: Nelson v.
Southern Paciﬁc Co. (1937) 8 Cal.2d 648 [67 P.2d 682] and Fross v. Wotton
(1935) 3 Cal.2d 384 [44 P.2d 350]. The Nelson court had held that evidence of
a person’s exercise of the privilege against self-incrimination in a prior
proceeding may be shown for impeachment purposes if he or she testiﬁes in a
self-exculpatory manner in a subsequent proceeding. Language in Fross
indicated that unfavorable inferences may be drawn in a civil case from a
party’s claim of the privilege against self-incrimination during the case itself.
2 Witkin, California Evidence (5th ed. 2012) Witnesses, §§ 97–99
7Witkin, California Procedure (5th ed. 2008) Trial, § 299
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 35.26–35.27
Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)
3 California Trial Guide, Unit 51, Privileges, §§ 51.01–51.32 (Matthew Bender)
Matthew Bender Practice Guide: California Civil Discovery, Ch. 2, Scope of
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 8.74 (Cal CJER