2.13 Witness (Not the Defendant) Who Takes the Fifth Amendment

You heard [witness] refuse to answer certain questions on the ground that it might violate [his/her] right not to incriminate [himself/herself]. You may, if you choose, draw adverse inferences from this refusal to answer and may take the refusal into account in assessing this witnessís credibility and motives, but you are not required to draw that inference.

Comment(s)

(1) This instruction is based upon United States v. Berrio-Londono, 946 F.2d 158, 160-62 (1st Cir. 1991), and United States v. Kaplan, 832 F.2d 676, 683-85 (1st Cir. 1987). The First Circuit seems to stand alone in explicitly permitting this type of instruction. Other circuits seem to disagree. See, e.g., United States v. Lizza Indus., Inc., 775 F.2d 492, 496-97 & n.2 (2d Cir. 1985); United States v. Nunez, 668 F.2d 1116, 1123 (10th Cir. 1981).

(2) It is within the discretion of the court to refuse to allow a witness to take the stand where it appears that the witness intends to claim the privilege as to essentially all questions. United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973); accord United States v. Gary, 74 F.3d 304, 311-12 (1st Cir. 1996); Kaplan, 832 F.2d at 684.