A lawyer defending a criminal case may zealously advocate
for the acquittal of his client using any evidentiary argument for which
he has a reasonable good faith basis. Current legal standards strongly
disfavor jury nullification and prohibit express exhortations that a
jury nullify the law. Accordingly, a lawyer may not, consistent with
the rules of professional conduct, expressly urge a jury to disregard
the law. Nor may a lawyer disregard a ruling of the tribunal limiting
the scope of permissible argument. The legal system continues, however,
to permit juries to exercise the power to nullify. A lawyer may, therefore,
within the bounds of zealous advocacy, advance arguments that have a
good faith evidentiary basis even though those same arguments may also
heighten the jury’s awareness of its capacity to nullify.
The Committee has received an inquiry on a matter of criminal law
advocacy: Do the District of Columbia Rules of Professional Conduct
prohibit an attorney for a criminal defendant from pursuing a “jury
nullification” argument? The inquirer notes that the limited
authority on the subject seems in conflict. Some judges appear to believe
that pursuit of a jury nullification argument may subject an attorney
to sanction under the rules. See, e.g., People v. Williams, 25 Cal. 4th
441, 448, 21 P.3d 1209, 1212, 106 Cal. Rptr. 2d 295, 298 (2001) (characterizing
a jury nullification argument in closing as “a violation of the
Rules of Professional Conduct”). However, in dicta in an unpublished
decision, one court has suggested that such arguments may constitute
effective advocacy that satisfies the constitutional requirement that
a defendant receive the effective assistance of counsel. See
United States v. Sams, 104 F.3d 1407, 1996 WL 739013 at *2 (D.C. Cir. 1996)
(unpublished opinion) (it “may be possible” for counsel
to satisfy effectiveness standard through “reasonable strategy
of seeking jury nullification when no valid or practicable defense
exists”). We are asked to address this question.
The power of a jury to nullify a prosecution—by which we mean
the jury’s decision to acquit the defendant despite its conclusion
that he committed the offense, because of its disavowal of the law
or circumstances under which the defendant is charged, see Horning
v. District of Columbia, 254 U.S. 135, 138 (1920) (characterizing
jury nullification as acquittal of defendant despite the weight
of the evidence)—has
a long and storied history in American law. It can be traced back
at least as far as the seditious libel trial of John Peter Zenger
who was “obviously guilty” of the crime of publishing
an item that held up public officials to ridicule but was acquitted
to the wide approval of the public. See J. Alexander, A Brief Narrative
of the Case and Trial of John Peter Zenger (S. Katz, ed., 1963).
Or consider the 1851 case of several abolitionists who stormed into
Boston federal court and took by force a slave who was being held
for return to Virginia under the Fugitive Slave Law, spiriting him
They, too, were acquitted of the federal criminal charge of aiding
and abetting the escape, after their lawyer urged the jurors to
find the fugitive slave laws unconstitutional. See United States
26 F. Cas. 1323 (C.C.D. Mass. 1851).
In these early periods of American
history, the power of the jury to nullify the law was explicit and
affirmatively approved. With
of the 20th century, however, the law has developed a more strict
separation between the domain of the court (to say what the law
is) and the domain
of the jury (to determine the facts). Jurors today are routinely
instructed that they must accept the law as given to them by the
court in its
instructions. E.g., Sparf & Hanson v. United States,
156 U.S. 51 (1895).1 Thus, under contemporary substantive legal
by a lawyer to a jury that it should ignore the law as stated by
the judge may be tantamount to an explicit invitation to the jury
the judge’s instructions. The question is when, if ever, do
such invitations by criminal defense lawyers violate the Rules of
Our discussion is necessarily general in nature.
Whether a particular jury nullification argument contravenes the Rules of
Conduct is, of course, case-specific and outside the scope of this
inquiry. Counsel contemplating a jury nullification argument should
be guided, however, by the following general principles:
defense lawyers representing an accused play a unique role in our
legal system. They, perhaps more than any other attorneys,
have a duty to “represent a client zealously and diligently
within the bounds of the law.” See D.C. Rule 1.3. Indeed, lawyers
defending a criminal case are authorized to engage in conduct that,
contexts, might seem inconsistent with the spirit of the Rules.
counsel are not only permitted but also required, for example, to
defend an adversarial proceeding and “require the government
to carry its burden of proof” whenever the client elects to
contest the proceeding. See D.C. Rule 3.1; see also id. Comment ;
of the Law Governing Lawyers § 110(2) (2002) (same). They must
do so even if convinced that their client’s guilt of the offense
charged can be proven beyond a reasonable doubt. See Restatement
of the Law Governing Lawyers, § 110, Comment f. Accordingly
a defense lawyer may always oblige the government to prove its case,
violating the Rules of Professional Conduct. See United States
v. Cavin, 39 F.3d 1299 (5th Cir. 1994). In this regard, the Rules act
to assure that criminal defense lawyers will do their utmost in zealously
representing a client.
Similarly, while most lawyers operate under
an absolute obligation of candor to the tribunal, in this jurisdiction
defense counsel who
are unable to dissuade their clients from presenting false evidence
and cannot withdraw from the representation without harming the
client may put their client on the stand to testify in a narrative fashion.
See D.C. Rule 3.3(b); see also id. Comments -.
Although counsel may not argue this false evidence to the jury they
participate indirectly in its presentation. Cf. Nix v. Whiteside,
475 U.S. 157, 166-71 (1986) (Sixth Amendment not violated when attorney
refuses to cooperate with defendant in presenting perjured testimony).
This D.C. provision, which reflects solicitousness to a defendant’s
right to testify, seeks to assure that a criminal defense lawyer’s
ethical obligations do not abridge a defendant’s right to
present a defense.2
Notwithstanding the somewhat greater latitude
afforded the counsel for a criminal defendant, the lawyer remains subject to
contained in the Rules of Professional Conduct. United States
v. Young, 470 U.S. 1 (1984); see also State v. Bennefield,
567 A.2d 863 (Del.
1989) (defense counsel characterization of State witnesses as “scum,” “liars,” and “snakes” deemed
Thus, at a minimum defense counsel must necessarily conform
their conduct to the substantive law of the jurisdiction in which the lawyer
See D.C. Rule 8.5(a); see also Restatement of the Law Governing Lawyers § 105
(2000) (“a lawyer must comply with applicable law, including
rules of procedure and evidence and specific tribunal rulings”).
In this jurisdiction, such substantive law appears to preclude express
advocacy of the jury nullification power.
The District of Columbia has no rule or statute
authorizing jury nullification. Both the local courts and the federal courts
that juries are entitled to an instruction apprising them of their “right” to
nullify the law. See United States v. Washington, 705 F.2d 489 (D.C.
Cir. 1983) (fact that juries can abuse their power and return verdicts
contrary to the law does not mean that courts must give such instruction);
Reale v. United States, 573 A.2d 13 (D.C. 1990) (trial court not
required to instruct jurors about their power of jury nullification).
both federal and local courts in this jurisdiction have endorsed
jury instructions that are designed to discourage jury nullification.
e.g., United States v. Pierre, 974 F.2d 1355 (D.C. Cir. 1992) (approving
jury instruction that jury “should” return a guilty verdict
if the government has proven its case beyond a reasonable doubt);
United States v. Braxton, 926 F.2d 1180 (D.C. Cir. 1991) (same);
United States, 362 A.2d 706 (D.C. 1976) (en banc) (jury instruction
may discourage nullification).
Moreover, the standard jury instruction
given in District of Columbia courts contains this express admonition
to the jury: “You may
not ignore any instruction, or question the wisdom of any rule of
Jury Instructions for the District of Columbia, Instr. 2.01 (Bar
Assn. of D.C. 4th ed. 1993). Within this jurisdiction express exhortations
to ignore the law are, therefore, likely to be deemed prohibited
law and may, therefore, result in violations of the D.C. Rules of
Professional Conduct by lawyers who advocate such a course. See D.C.
The Committee recognizes, however, that there
are many variant forms that a jury nullification argument made by a zealous
that may range from explicit requests to ignore the law to far more
nuanced arguments that arguably have the same effect (and about
which reasonable minds may differ). Consider the following hypothetical:
Counsel wishes to argue that the police investigation of and testimony
about a crime is not credible because it is biased by animus toward
the political viewpoint of the defendant. At one level this is a
straightforward argument based upon reasonable inferences from the
with political bias might, indeed, fabricate evidence. At another
level, however, the same argument may also be characterized as a
the jury to acquit based not on the evidence but on the political
viewpoint of the defendant.
It is in practice often impossible to
distinguish between these two forms of argument. Counsel may often
be able to make good-faith evidentiary
arguments that have the collateral effect of heightening the jury’s
awareness of its capacity to nullify. When do such arguments violate
As guidance to the limits on closing argument that may
be made consistently with the Rules of Professional Conduct, we find
informative the ABA
Standards for Criminal Justice. They provide:
(a) In closing argument to the jury,
defense counsel may argue all reasonable inferences from the evidence
in the record. Defense
counsel should not intentionally misstate the evidence or mislead
as to the inference it may draw.
(b) Defense counsel should not express a personal
belief or opinion in his or her client’s innocence or personal
belief or opinion in the truth or falsity of any testimony or evidence.
(c) Defense counsel should not make arguments calculated
to appeal to the prejudices of the jury.
(d) Defense counsel should refrain from argument
which would divert the jury from its duty to decide the case on the
ABA Standards for Criminal Justice, Prosecution Function and Defense
Function, Standard 4-7.7 (3d ed. 1993). The Restatement, similarly,
precludes a defense counsel from expressing a personal opinion
or alluding to a matter that is not supported by admissible evidence.
(Third) of the Law Governing Lawyers § 107 (2000).4
As we have
already noted, some closing arguments may have a good faith basis
yet nonetheless have the incidental effect of appealing to a jury’s
prejudice or enhancing its awareness of its ability to decide the case
against the evidence.
Thus, there is an obvious tension inherent in application of the ABA standards.
Whatever may be said for the resolution of that tension in other contexts,
in the context of criminal advocacy that tension should be resolved in
favor of permitting any evidentiary argument for which a reasonable good
exists, provided that the lawyer exercises his ability to do so within
the constraints of existing law. See id.
§ 105 Comment c (2000); id.
Comment d (same).
This is consistent with the treatment of other
areas where the line between permissible and impermissible advocacy is difficult
police. As the Restatement
notes in discussing limits on a lawyer’s ability to express a personal
opinion: “It may be difficult in practice to maintain the line between
permissible zealous argument about facts and inferences to be drawn from
them and impermissible personal endorsement. Latitude is left to the advocate
doubtful cases, subject to the superintending power of the presiding officer
to prevent improper or misleading argument.” Id.
We think this analysis strikes the correct balance
in the context of jury nullification arguments as well—unless the advocate
expressly urges nullification (an expression likely prohibited by the substantive
law of this jurisdiction)
or has been prohibited by the presiding officer from making a particular
argument, a criminal defense counsel may zealously represent his client
and may offer
any argument for which he has a good faith evidentiary basis. Such arguments
should not be deemed a violation of the Rules of Professional Conduct.
we can imagine situations in which it “may be possible for a
defense lawyer to satisfy [the effective assistance requirement through]
a reasonable strategy of seeking jury nullification when no valid or practicable
defense exists.” United States v. Sams
, 104 F.3d 1407, 1996 WL 739013
at *2 (D.C. Cir. 1996). Because a “criminal defense lawyer may take
any step required or permitted by the constitutional guarantee of the effective
assistance of counsel,” Restatement of the Law Governing Lawyers, § 110,
comment f, it is unlikely that any such step for which a reasonable evidentiary
basis exists will be deemed to violate the Rules of Professional Conduct.
to consider a final hypothetical, imagine a situation in which the court
rejects a defendant’s pre-trial challenge to a police search as a
violation of the Fourth Amendment. Given that definitive ruling it is unlikely
lawyer could argue that the jury should acquit the defendant because the
scope of the search was excessive and that a not guilty verdict would send
to the police to stop using such aggressive, impermissible tactics. Conversely,
if the evidentiary predicate for the argument were laid, it might be appropriate
for the lawyer to argue that the police’s violation of departmental
procedures designed to limit the scope and extent of a search were a basis
the credibility of their testimony and the evidence gathered as a result
of such violations. Although the distinction between the two arguments
a fine one, it is a distinction with substantial significance under the
Good-faith arguments with incidental nullification effects do not
violate the Rules of Professional Conduct. Despite its disfavor, “the
law permits a jury to acquit in disregard of the evidence, and . . . such
an acquittal is unreviewable.” Watts, 362 A.2d at 710. That
power is a necessary consequence inherent in the right to trial
by jury. So long as the power
to acquit in disregard
of the evidence exists, we do not believe that the Rules of Professional
Conduct prohibit zealous advocacy by a criminal defense lawyer that appeals
to that power. Unless prohibited by the presiding officer of a tribunal,
arguments that have a good-faith evidentiary basis ought not to be deemed
of the Rules of Professional Conduct, even if those same arguments also
have the potential for enhancing the jury’s exercise of its power
Inquiry No. 02-10-06
Adopted: May 20, 2003
- Two states, Indiana and Maryland, retain state constitutional provisions that enshrine a jury’s authority to determine the law as well as the facts. See Ind. Const. art. I, § 19; Md. Decl. of Rights, art. 23. But even in those states the jury instructions typically admonish the jury not to arbitrarily and willfully disregard the law or substitute their own judgment for what they think the law should be in a particular case. See.
e.g.. Indiana Jury Instruction (quoted in Kourlis, “Not Jury Nullification; Not a Call for Ethical Reform; But Rather a Case for Judicial Control,” 67 U. Colo. L. Rev. 1109, 1111 (1996)).
- The District’s version of Rule 3.3 is substantially more permissive than that in many other jurisdictions. While its scope does inform our construction of the Rules, our resolution of the underlying question presented would be the same if the District’s Rule were identical to that prevalent in other jurisdictions.
- Though examples of discipline for violations of the rules of professional
conduct by defense counsel are rare, admonitions that they remain bound
by those rules are more common. See, e.g., United States v. Rico, 51 F.3d
495, 511 (5th Cir. 1995) (“current professional standards do not require defense counsel to assert every potential defense, regardless how far-fetched or implausible”); Ethics Comm. of Bd. of Professional Responsibility of Tenn. Sup. Ct., Op. 88-F-117 (1988) (criminal defense lawyer who files motion to suppress without first investigating facts must comply with rules against asserting defenses solely for delay or harassment).
- Notably, the ABA commentary also provides that the defense may argue
for “jury nullification” in jurisdictions permitting such arguments—a
comment presumably meant to refer to Indiana and Maryland. See ABA Standards § 4-7.7
commentary. By negative implication, this suggests that the ABA Standards
counsel against the use of an express jury nullification argument where
the substantive law of the jurisdiction in question precludes making
such an argument. This is consistent with our understanding of counsel’s
obligation to comport their conduct to the prevailing substantive law in
- The presiding officer of a tribunal will, of course, judge
the propriety of any argument in the first instance. When directed
by a tribunal to abandon a line of argument because it is deemed to have
the line into impermissible advocacy of jury nullification, a violation
of the Rules of Professional Conduct may arise from counsel’s persistence
in pursuing the line of argument after the trial court has deemed it
unacceptable. Failure to obey a court order may subject an attorney to
discipline. See D.C. Rule 8.4 & comment ; see also Restatement of the Law Governing
Lawyers § 105 (2000) (“a lawyer must comply with applicable law, including
rules of procedure and evidence and specific tribunal rulings”).