Ethics Opinion 320: Jury Nullification Arguments by Criminal Defense Counsel

Inquiry
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 However, in dicta in an unpublished decision, one court has suggested that such arguments may constitute effective advocacy that satisfies the constitutional requirement that a defendant receive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 See United States v. Sams, 104 F.3d 1407, 1996 WL 739013 at *2 (D.C. Cir. 1996) (unpublished opinion) (it “may be possible” for counsel to satisfy effectiveness standard through “reasonable strategy of seeking jury nullification when no valid or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.

Discussion
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 in 1735, who was “obviously guilty” of the crime of publishing an item that held up public officials to ridicule but was acquitted nonetheless, 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 a Boston federal court and took by force a slave who was being held for return to Virginia under the Fugitive Slave Law, spiriting him to Canada. 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 v. Morris, 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 the turn 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 standards, a suggestion 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 to ignore the judge’s instructions. The question is when, if ever, do such invitations by criminal defense lawyers violate the Rules of Professional Conduct.
     Our discussion is necessarily general in nature. Whether a particular jury nullification argument contravenes the Rules of Professional Conduct is, of course, case-specific and outside the scope of this Committee’s inquiry. Counsel contemplating a jury nullification argument should be guided, however, by the following general principles:
     Criminal 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, in other contexts, might seem inconsistent with the spirit of the Rules.
     Defense 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 [3]; Restatement 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, without violating the Rules of Professional Conduct. See United States v. Cavin, 39 F.3d 1299 (5th Cir. 1994). In this regard, the Rules act uniquely 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 [4]-[8]. Although counsel may not argue this false evidence to the jury they nonetheless can 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 ethical restrictions 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 improper conduct).3

Thus, at a minimum defense counsel must necessarily conform their conduct to the substantive law of the jurisdiction in which the lawyer is appearing. 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 have rejected assertions 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). Indeed, both federal and local courts in this jurisdiction have endorsed jury instructions that are designed to discourage jury nullification. See, 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); Watts v. 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 law.” Criminal 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 by 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. Rule 8.4.
     The Committee recognizes, however, that there are many variant forms that a jury nullification argument made by a zealous advocate can take—forms 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 evidence—officers with political bias might, indeed, fabricate evidence. At another level, however, the same argument may also be characterized as a call for 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 the Rules?
     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 the jury 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 evidence.

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. See Restatement (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 faith basis exists, provided that the lawyer exercises his ability to do so within the constraints of existing law. See id. § 105 Comment c (2000); id. § 110, Comment d (same).
     This is consistent with the treatment of other areas where the line between permissible and impermissible advocacy is difficult to 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 in doubtful cases, subject to the superintending power of the presiding officer to prevent improper or misleading argument.” Id. § 107, Comment b.5
     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.
     Indeed, 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.
     Thus, 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 that a 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 a message 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 for questioning the credibility of their testimony and the evidence gathered as a result of such violations. Although the distinction between the two arguments is, perhaps, a fine one, it is a distinction with substantial significance under the Rules.

Conclusion
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 indirectly 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 violations of the Rules of Professional Conduct, even if those same arguments also have the potential for enhancing the jury’s exercise of its power of nullification.

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 governing jurisdiction.
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 crossed 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 [4]; 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”).