THE RECORD - New York City Bar Association

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Report on Jury Nullification Committee on Professional Responsibility R ecent cases and academic articles have raised public awareness of the issue of “jury nullification,” usually thought of as a jury reaching a verdict which ignores, or “nullifies” overwhelming evidence that compels a contrary result. The issue arises most frequently in criminal cases, where the court lacks the power to direct a verdict for the prosecution, and where a jury’s not guilty verdict is unreviewable. Although “nullification” has been a part of the American legal tradition for centuries, these recent cases and articles highlight the conflicting issues faced by lawyers in their advocacy to a trier of fact. This report addresses ethical issues for lawyers raised by the issue of jury nullification: are there ethical constraints which do, or should, prohibit a lawyer from arguing to a jury that it should acquit, regardless of what the evidence is? May the lawyer ethically advocate jury nullification so long as the Court does not prohibit it? As set forth below, the Committee concludes that the rules of ethics do not categorically prohibit lawyers from arguing for nullification, and that—notwithstanding decreasing tolerance of jury nullification by the Courts—no rule of attorney ethics should be propounded to bar an attorney from making such arguments. WHAT IS “JURY NULLIFICATION” Jury nullification is commonly thought of as a deliberate decision by a jury to ignore evidence proving beyond a reasonable doubt every ele- T H E R E C O R D 198
P R O F E S S I O N A L R E S P O N S I B I L I T Y ment of a crime charged, and to return a not guilty verdict notwithstanding that evidence. As a controversial recent law review article explained: “Jury nullification occurs when a jury acquits a defendant who it believes is guilty of the crime with which he is charged. In finding the defendant not guilty, the jury refuses to be bound by the facts of the case or the judge’s instructions regarding the law. Instead, the jury votes its conscience.” Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 700 (1995). Accordingly, jury nullification does not involve a situation where a jury finds that a defendant committed all but one element of a crime and therefore acquits. For example, there are cases in which lawyers argue, and juries perhaps find, that while a defendant did the physical acts charged, he lacked the requisite intent and is therefore not guilty. This report therefore does not address a lawyer’s well-accepted right to urge a jury to acquit because, although the defendant may have performed the acts in question, there is insufficient proof that he acted with the necessary degree of criminal intent. Nor does jury nullification arise when a lawyer argues that a jury should acquit because a witness against the defendant lacks credibility. Accordingly, this report does not address a lawyer’s traditional role to argue against the credibility of opposition witnesses. Rather, jury nullification arises in the relatively rare circumstance when a jury finds that the prosecution proved beyond a reasonable doubt each element of the crime charged, but still returns a not guilty verdict because, for example, the jury feels sympathy for the defendant. Sympathetic examples are easy to imagine, from acquittals in 19th century cases charging defendants with harboring fugitive slaves, to contemporary cases charging aliens with unlawful entry into the United States where the defendant shows a legitimate fear of persecution and torture in his native country. Equally unsympathetic examples are also easy to imagine, such as when racism leads a jury to acquit a white defendant charged with lynching a black man. <strong>THE</strong> ROOTS OF JURY NULLIFICATION The doctrine of jury nullification has its roots in “the common law idea that the function of a jury was, broadly, to decide justice, which included judging the law as well as the facts.” Butler, 105 Yale L.J. at 700. As early as Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670), the Court of Common Pleas held that jurors in criminal cases could not be punished M A R C H / A P R I L 1 9 9 9 ◆ V O L. 5 4, N O. 2 199
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