Maine Restyling Note [November 2014]
Maine Rule 513 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.
Advisers’ Note to former M.R. Evid. 513
(February 2, 1976)
This rule allows an adverse inference from a claim of privilege by a party in a civil case and permits comment upon it by the judge or counsel. It is not clear under Maine law whether such inference and comment are permissible. There is a suggestion in Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 374, 155 A.2d 721, 735 (1959), that an inference is improper. The majority of the surprisingly few cases in other jurisdictions dealing with the question allow inference and comment. See Kaye v. Newhall, 356 Mass. 300, 249 N.E.2d 583 (1969).
Since the rule allows an adverse inference from the claim, the procedure under Rule 512 for making the claim out of the jury’s hearing would be wholly inappropriate. Indeed, the failure to ask in the hearing of the jury a question to which a privilege claim could be raised might itself lead to an inference against the party who did not ask it.
Subdivision (b)62 recognizes the difference between a claim a party in a civil case and a claim by a nonparty witness. It treats a nonparty witness the same in a civil case as in a criminal proceeding and does not allow inference or comment.
62 Now subsection (c).
The rules as promulgated by the Supreme Court made no distinction between civil and criminal cases and did not allow adverse comment or inference in either.
Advisory Committee Note
(November 2011)
Since the adoption of the Maine Rules of Evidence in 1975, Maine has been one of a small minority of jurisdictions that have generally permitted comment and inference in a civil case based on a party’s invocation of an evidentiary privilege. In most jurisdictions that permit such comment and inference, it is limited to the privilege against self-incrimination. Practically all of the cases that have addressed this issue have been concerned with the privilege against self-incrimination. The Maine experience has been similar. To the extent that privileges such as the lawyer-client privilege are grounded on policies other than self-incrimination, there can be a question whether burdening the invocation of such privileges might affect these policies.
The proposed amendment, which will limit the potential for comment and inference to the invocation of the privilege against self-incrimination, will resolve potential confusion arising from the existing rule. See Tanguay v. Asen, 1998 ME 277, 722 A.2d 49.
