California Civil Jury Instructions (CACI)

216. Exercise of Right Not to Incriminate Oneself (Evid. Code, § 913)

[Name of party/witness] has an absolute constitutional right not to give testimony that might tend to incriminate [himself/herself]. Do not consider, for any reason at all, the fact that [name of party/witness] invoked the right not to testify. 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

The privilege against self-incrimination may be asserted in a civil proceeding. (Kastigar v. United States (1972) 406 U.S. 441, 444 [92 S.Ct. 1653, 32 L.Ed.2d 212]; People v. Merfeld (1997) 57 Cal.App.4th 1440, 1443 [67 Cal.Rptr.2d 759].) Under California law, neither the court nor counsel may comment on the fact that a witness has claimed a privilege, and the trier of fact may not draw any inference from the refusal to testify as to the credibility of the witness or as to any matter at issue in the proceeding. (Evid. Code, § 913(a); see People v. Doolin (2009) 45 Cal.4th 390, 441–442 [87 Cal.Rptr.3d 209, 198 P.3d 11].)

Therefore, the issue of a witness’s invocation of the Fifth Amendment right not to self-incriminate is raised outside the presence of the jury, and the jury is not informed of the matter. This instruction is intended for use if the circumstances presented in a case result in the issue being raised in the presence of the jury and a party adversely affected requests a jury instruction. (See Evid. Code, § 913(b).)

Sources and Authority

  • Evidence Code section 913 provides:

    (a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

    (b) The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.

  • Evidence Code section 940 provides: “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”
  • “[I]n any proceeding, civil or criminal, a witness has the right to decline to answer questions which may tend to incriminate him in criminal activity.” (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [151 Cal.Rptr. 653, 588 P.2d 793], internal citation omitted.)
  • “[T]he privilege may not be asserted by merely declaring that an answer will incriminate; it must be ‘evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ” (Troy v. Superior Court (1986) 186 Cal.App.3d 1006, 1010–1011 [231 Cal.Rptr. 108], internal citations omitted.)
  • “The Fifth Amendment of the United States Constitution includes a provision that ‘[no] person . . . shall be compelled in any criminal case to be a witness against himself, . . . .’ Although the specific reference is to criminal cases, the Fifth Amendment protection ‘has been broadly extended to a point where now it is available even to a person appearing only as a witness in any kind of proceeding where testimony can be compelled.’ ” (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 708 [226 Cal.Rptr. 10], citation and footnote omitted.)
  • “There is no question that the privilege against self-incrimination may be asserted by civil defendants who face possible criminal prosecution based on the same facts as the civil action. ‘All matters which are privileged against disclosure upon the trial under the law of this state are privileged against disclosure through any discovery procedure.’ ” (Brown, supra, 180 Cal.App.3d at p. 708, internal citations omitted.)
  • “It is well settled that the privilege against self-incrimination may be invoked not only by a criminal defendant, but also by parties or witnesses in a civil action. However, while the privilege of a criminal defendant is absolute, in a civil case a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it.” (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712 [204 Cal.Rptr. 864], internal citations omitted.)
  • “The privilege against self-incrimination is guaranteed by both the federal and state Constitutions. As pointed out by the California Supreme Court, ‘two separate and distinct testimonial privileges’ exist under this guarantee. First, a defendant in a criminal case ‘has an absolute right not to be called as a witness and not to testify.’ Second, ‘in any proceeding, civil or criminal, a witness has the right to decline to answer questions which may tend to incriminate him [or her] in criminal activity.’ ” (People v. Merfeld, supra, 57 Cal.App.4th at p. 1443, internal citations omitted.)
  • “The jury may not draw any inference from a witness’s invocation of a privilege. Upon request, the trial court must so instruct jurors. ‘To avoid the potentially prejudicial impact of having a witness assert the privilege against self-incrimination before the jury, we have in the past recommended that, in determining the propriety of the witness’s invocation of the privilege, the trial court hold a pretestimonial hearing outside the jury’s presence.’ Such a procedure makes sense under the appropriate circumstances. If there is a dispute about whether a witness may legitimately rely on the Fifth Amendment privilege against self-incrimination to avoid testifying, that legal question should be resolved by the court. Given the court’s ruling and the nature of the potential testimony, the witness may not be privileged to testify at all, or counsel may elect not to call the witness as a matter of tactics.” (People v. Doolin, supra, 45 Cal.4th at pp. 441–442, original italics, internal citations omitted.)

Secondary Sources

2 Witkin, California Evidence (4th ed. 2000) Witnesses, § 96

5 Levy et al., California Torts, Ch. 72, Discovery, §§ 72.20, 72.30 (Matthew Bender)

Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)

3 California Trial Guide, Unit 51, Privileges, § 51.32 (Matthew Bender)

16 California Forms of Pleading and Practice, Ch. 191, Discovery: Privileges and Other Discovery Limitations, § 191.30 et seq. (Matthew Bender)

1 California Deposition and Discovery Practice, Ch. 21, Privileged Matters in General, § 21.20, Ch. 22, Privilege Against Self-Incrimination (Matthew Bender)