Section 355 | CALCRIM (Jury Instructions)

320. Exercise of Privilege by Witness
<Alternative A—Valid Exercise of Privilege>
[A witness may refuse to answer questions that call for privileged
information. Under the law,
<insert name of witness> was
justified in refusing to answer certain questions. Do not consider (his/
her) refusal to answer for any reason at all and do not guess what (his/
her) answer would have been.]
<Alternative B—Invalid Exercise of Privilege>
[
<Insert name of witness> did not have the right to refuse to
answer questions in this case. You may consider that refusal during your
deliberations.]
New January 2006; Revised August 2014
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on the exercise of privilege
by witnesses; however, it must be given on request. (Evid. Code, § 913(b); see also
People v. Mincey (1992) 2 Cal.4th 408, 440–441 [6 Cal.Rptr.2d 822, 827 P.2d 388].)
Give Alternative A when the court has sustained the exercise of privilege. Give
Alternative B when the witness’s exercise of privilege is invalid. If the witness was
not justified in refusing to answer a question, the jury may draw reasonable
inferences regarding why the witness refused to testify. (People.v. Morgain (2009)
177 Cal.App.4th 454, 468 [99 Cal.Rptr.3d 301]; People v. Lopez (1999) 71
Cal.App.4th 1550, 1554 [84 Cal.Rptr.2d 655].)
Related Instructions
See CALCRIM No. 355, Defendant’s Right Not to Testify.
AUTHORITY
•
Instructional Requirements. Evid. Code, § 913(b); People v. Mincey (1992) 2
Cal.4th 408, 440–441 [6 Cal.Rptr.2d 822, 827 P.2d 388].
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.06, Ch. 83, Evidence, § 83.09[2], [17], Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
321–329.
Reserved for Future Use
95