Wisconsin Statutes
Wis. Stat. § 905.13 (2026)
Comment upon or inference from claim of privilege; instruction
✓ current as of July 2026
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905.13(1)(1) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
905.13(2)(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
905.13(3)(3) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
905.13(4)(4) Application; self-incrimination. Subsections (1) to (3) do not apply in a civil case with respect to the privilege against self-incrimination.
905.13 AnnotationThe prohibition against allowing comments on or drawing an inference from a third-party witness’s refusal to testify on 5th amendment grounds does not deny a criminal defendant’s constitutional right to equal protection. State v. Heft, 185 Wis. 2d 289, 517 N.W.2d 494 (1994).
Notes of Decisions
Cited in 7
cases (1 in the last 5 years), 1993–2025 · leading case: State v. Heft, 517 N.W.2d 494 (Wis. 1994).
State v. Heft, 517 N.W.2d 494 (Wis. 1994). “Heft also argued that sec. 905.13, Stats., [2] created an unconstitutional distinction between criminal and *292 civil proceedings by prohibiting comment upon or inference from a claim of privilege in her trial for homicide by intoxicated use of a vehicle.”
State v. Doss, 2008 WI 93 (Wis. 2008). “Because we disagree with the analysis and conclusions of the court of appeals on the bank records issues, we must then also address the other arguments made by Doss in this case challenging her conviction, namely: whether denial of a mistrial based on a prosecutor's alleged…”
State v. Heft, 505 N.W.2d 437 (Wis. Ct. App. 1993). “On appeal, Heft argues that her motion should have been granted because her fourteenth amendment rights to due process and equal protection were denied by the application of sec. 905.13, Stats., which prohibits comment upon or inference from a claim of privilege in criminal but…”
State v. Samuel Curtis Johnson, III, 2013 WI 59 (Wis. 2013). “4 Chief Justice Abrahamson and Justice Bradley would not affirm the circuit court's decision to give a curative jury instruction regarding any inferences to be taken from the privilege-holder's invocation of her privilege because Wis. Stat. § 905.13 prohibits such an instruction…”
State v. Samuel Curtis Johnson, III (Wis. 2013). “4 Chief Justice Abrahamson and Justice Bradley would not affirm the circuit court’s decision to give a curative jury instruction regarding any inferences to be taken from the privilege-holder’s invocation of her privilege because Wis. Stat. § 905.13 prohibits such an instruction…”
State v. Samuel Curtis Johnson, III (Wis. 2013). “4 Chief Justice Abrahamson and Justice Bradley would not affirm the circuit court’s decision to give a curative jury instruction regarding any inferences to be taken from the privilege-holder’s invocation of her privilege because Wis. Stat. § 905.13 prohibits such an instruction…”
State v. Edward L. Woodberry (Wis. Ct. App. 2025). “§ 905.13(1). He further contends that, “[o]n the other hand, the circuit court could draw all manner of negative inferences from Woodberry’s response[s] to questions about Laurie’s testimony,” including from “his body language and demeanor,” to find that he was lying about…”
Wis. Stat. § 905.13(1): 1 case
State v. Edward L. Woodberry (Wis. Ct. App. 2025). “§ 905.13(1). He further contends that, “[o]n the other hand, the circuit court could draw all manner of negative inferences from Woodberry’s response[s] to questions about Laurie’s testimony,” including from “his body language and demeanor,” to find that he was lying about…”
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