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Rule 512A Comment upon or inference from claim of privilege in civil cases.

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Rule Text

(a) Comment or inference permitted. In a civil action or proceeding, a party’s claim of a privilege, whether in the present action or proceeding or upon a prior occasion, is a proper subject of comment by judge or counsel. An appropriate inference may be drawn from the claim.

(b) Claim of privilege by nonparty witness. The claim of a privilege by a nonparty witness in a civil action or proceeding is governed by the same principles that are applicable to criminal cases by virtue of Rule 512.

Plain-English Summary (for reference only — not a substitute for the rule text above)

This summary is not the rule. The rule text controls.

When someone in a civil lawsuit refuses to answer a question by claiming a privilege (like the right against self-incrimination), this can actually be used against them. Both the judge and the lawyers are allowed to point out that the person claimed a privilege, and the jury can use that fact to draw conclusions about the case. This is different from criminal cases, where prosecutors generally cannot comment on a defendant's silence.

This rule applies whether the privilege was claimed during the current case or at some earlier point, like in a deposition or an earlier hearing. If a party to the lawsuit refuses to answer based on privilege, the other side can bring this up and suggest the jury should hold it against them.

The rule works differently when the person claiming the privilege is a witness but not actually a party to the lawsuit. In that situation, the same rules that apply in criminal cases take over instead. This means the standards from Rule 512 control what comments or inferences are allowed when a nonparty witness claims a privilege.

Committee Notes

Advisory Committee’s Note

Section (a). Comment or inference permitted. This rule continues Alabama’s historic principle that a civil party’s assertion of a privilege, such as that against self-incrimination, may be commented upon by the opponent and that the trier of fact may consider the assertion of the privilege and draw from it inferences against the party asserting it. Cokely v. Cokely, 469 So.2d 635 (Ala.Civ.App.1985) (divorce action in which spouse asserts privilege against selfincrimination when asked questions aimed at disclosing acts of adultery). A comment on the assertion of the privilege likewise is permissible when a party in a civil action or proceeding fails to take the witness stand altogether. Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). See also Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908) (containing basic rationale for allowing such a comment).

The committee recognizes that a number of states have adopted rules of evidence that preclude such comment. See, e.g., Ark.R.Evid. 512; Idaho R.Evid. 512; Neb. Rev. Stat. § 27513; Vt.R.Evid. 512. At the same time, however, such comment has been held constitutional and is regularly permitted in federal courts. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Baxter v. Palmigiano, 425 U.S. 308 (1976). Compare Me.R.Evid. 513.

If in a civil action or proceeding comment is permissible as to the assertion of the privilege against self-incrimination, a constitutionally based privilege, then it seems reasonable to allow like comment when a party in a civil proceeding asserts any other evidentiary privilege.

Section (b). Claim of privilege by nonparty witness. If a nonparty witness takes the stand and asserts a privilege, then comment or inference against a party is not permitted. This appears consistent with preexisting Alabama authority. See Breedwell v. State, 38 Ala.App. 620, 90 So.2d 845 (1956); C. Gamble, McElroy’s Alabama Evidence § 377.04 (4th ed. 1991).

← Previous Rule 512: Comment upon or inference from claim of privilege in criminal cases; instruction. Next → Rule 601: General rule of competency.

Cross-References

References (1)

Ala. R. Evid. Rule 512

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Last updated: September 2026

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