WPI 6.08.01 Excluded Testimony

This oral instruction is designed for use when a claim of privilege is sustained in the presence of the jury. This instruction should not be used in a civil case when the privilege sustained is the privilege against self-incrimination. See Comment. The instruction may also be used, with slight rewording, as a written instruction at the conclusion of the trial.

Use bracketed material as applicable.

A claim of privilege that is sustained is not evidence of anything and the jury is not allowed to draw inferences from it. See Sumpter v. Nat'l Grocery Co., 194 Wash. 598, 78 P.2d 1087 (1938) (physician-patient privilege); Kiehlhoefer v. Wash. Water Power Co., 49 Wash. 646, 96 P. 220 (1908) (physician-patient privilege).

This instruction may be appropriately used when a court upholds an assertion of a testimonial privilege such as the spousal privilege, the physician-patient privilege, the attorney-client privilege, or the like. See generally Tegland, 5 Washington Practice, Evidence Law and Practice § 501.5 (6th ed.).

This instruction may also be used in other circumstances when evidence has been excluded, including for example, pursuant to RCW 5.60.030—the “Deadman's Statute.”

Washington cases have established one exception to this rule. The instruction should not be used when a witness has asserted the privilege against self-incrimination. In a civil case (but not a criminal case), opposing counsel is permitted to invite the jury to draw an adverse inference from the assertion of the privilege. See Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684 (1953); State Farm Fire & Cas. Co. v. Huynh, 92 Wn.App. 454, 962 P.2d 854 (1998).