(a) Civil Case. Comment may be made and an adverse inference may be drawn against a party when that party, or in certain circumstances a witness, invokes a privilege.
(1) No comment may be made and no adverse inference may be drawn against a defendant who invokes the privilege against self-incrimination or against a defendant for calling a witness who invokes a privilege that belongs to the witness and not to the defendant.
(2) In a case tried to a jury, the assertion of a privilege should be made outside the presence of the jury whenever reasonably possible.
Subsection (a). This subsection is derived from the long-standing rule in Massachusetts that an adverse inference may be drawn against a party who invokes a testimonial privilege in a civil case. Phillips v. Chase, 201 Mass. 444, 450, 87 N.E. 755, 758 (1909) (attorney-client privilege). Drawing the adverse inference in a civil case does not infringe on the party’s privilege against self-incrimination under either Article 12 of the Declaration of Rights of the Massachusetts Constitution or the Fifth Amendment to the Constitution of the United States. Kaye v. Newhall, 356 Mass. 300, 305–306, 249 N.E.2d 583, 586 (1969) (attorney-client privilege). It makes no difference that criminal matters are pending at the time. Frizado v. Frizado, 420 Mass. 592, 596, 651 N.E.2d 1206, 1210 (1995) (privilege against self-incrimination).
In Labor Relations Comm’n v. Fall River Educators’ Ass’n, 382 Mass. 465, 471–472, 416 N.E.2d 1340, 1344–1345 (1981), the Supreme Judicial Court expanded the rule to allow an adverse inference to be drawn against an organizational party as a result of a claim of the privilege against self-incrimination by its officers who had specific knowledge of actions taken on behalf of the organization in connection with the underlying claim. In Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. 23, 26–32, 768 N.E.2d 538, 541–545 (2002), the Supreme Judicial Court expanded the principle even further to include circumstances in which the court finds, as a preliminary question of fact, that the witness who invokes the privilege against self-incrimination is acting on behalf of or to further the interests of one of the parties. The Supreme Judicial Court also noted that the potential for prejudice can be reduced by limiting the number of questions that may be put to the witness who invokes the privilege, and by a limiting instruction. Id. at 30–31, 768 N.E.2d at 544.
Counsel has the right to comment on an opposing party’s failure to testify in a civil case. See Kaye v. Newhall, 356 Mass. at 305, 249 N.E.2d at 586; Silveira v. Kegerreis, 12 Mass. App. Ct. 906, 906–907, 422 N.E.2d 789, 789 (1981).
When a nonparty witness is closely aligned with a party in a civil case, and the nonparty witness invokes the privilege against self-incrimination, the jury should be instructed that the witness may invoke the privilege for reasons unrelated to the case on trial, and that they are permitted, but not required, to draw an inference adverse to the party from the witness’s invocation of the privilege against self-incrimination. The jury is permitted to draw an inference adverse to a party from the witness’s invocation of the privilege against self-incrimination. Lentz v. Metropolitan Prop. & Cas. Ins. Co., 437 Mass. at 26–32, 768 N.E.2d at 541–545.
Subsection (b)(1). This subsection is derived from Article 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the Constitution of the United States, as well as from G. L. c. 233, § 20, Third, and G. L. c. 278, § 23. See Commonwealth v. Goulet, 374 Mass. 404, 412, 372 N.E.2d 1288, 1294 (1978). See also Commonwealth v. Szerlong, 457 Mass. 858, 869–870 n.13, 933 N.E.2d 633, 644 n.13 (2010). In Commonwealth v. Vallejo, 455 Mass. 72, 78–81, 914 N.E.2d 22, 28–30 (2009), the Supreme Judicial Court adopted the reasoning of Commonwealth v. Russo, 49 Mass. App. Ct. 579, 731 N.E.2d 108 (2000), and held that a defendant’s privilege against self-incrimination may be violated by comments made by a codefendant’s counsel on the defendant’s pretrial silence or the defendant’s decision not to testify. For a discussion of the numerous cases dealing with the issue of whether a remark by a judge, a prosecutor, or a co-counsel constitutes improper comment on the defendant’s silence, see M.S. Brodin & M. Avery, Massachusetts Evidence § 5.14.8 (8th ed. 2007). A defendant may have the right to simply exhibit a person before the jury without questioning the person. See Commonwealth v. Rosario, 444 Mass. 550, 557–559, 829 N.E.2d 1135, 1141 (2005). When there is a timely request made by the defense, the trial judge must instruct the jury that no adverse inference may be drawn from the fact that the defendant did not testify. See Carter v. Kentucky, 450 U.S. 288, 305 (1981); Commonwealth v. Sneed, 376 Mass. 867, 871–872, 383 N.E.2d 843, 845–846 (1978). See also Commonwealth v. Rivera, 441 Mass. 358, 371 n.9, 805 N.E.2d 942, 953 n.9 (2004) (“We remain of the view that judges should not give the instruction when asked not to do so. We are merely saying that it is not per se reversible error to do so.”).
Subsection (b)(2). This subsection is derived from Commonwealth v. Martin, 372 Mass. 412, 413, 421 n.17, 362 N.E.2d 507, 508, 512 n.17 (1977) (privilege against self-incrimination), and Commonwealth v. Labbe, 6 Mass. App. Ct. 73, 79–80, 373 N.E.2d 227, 232 (1978) (spousal privilege). “Where there is some advance warning that a witness might refuse to testify, the trial judge should conduct a voir dire of the witness, outside the presence of the jury, to ascertain whether the witness will assert some privilege or otherwise refuse to answer questions.” Commonwealth v. Fisher, 433 Mass. 340, 350, 742 N.E.2d 61, 70 (2001). If the witness asserts the privilege or refuses to testify before the jury when it was not anticipated, the judge should give a forceful cautionary instruction to the jury. Commonwealth v. Hesketh, 386 Mass. 153, 157–159, 434 N.E.2d 1238, 1241–1243 (1982).