THE RECORD - New York City Bar Association

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
that law. Given the lack of clarity, the Committee believes it is preferable
to leave open the possibility that lawyers may argue for nullification if
they deem it necessary and appropriate, and if not barred by the court in
the particular case.
In this regard, the Committee is influenced by Ethical Consideration
EC 7-3, which provides: “Where the bounds of law are uncertain, the
action of a lawyer may depend on whether he is serving as advocate or
advisor . . .While serving as advocate, a lawyer should resolve in favor of
the client doubts as to the bounds of the law.” Applying this standard,
the Committee concludes that a lawyer may, consistent with ethical rules,
appeal for jury nullification if not prohibited by the Court.
2. A lawyer’s freedom to argue for jury nullification is always subject
to a court’s authority to limit argument, and the Committee does not
mean to suggest that a lawyer may ignore a court order limiting argument.
1 Indeed, there are a number of cases in which courts have ordered
lawyers to stop arguing for nullification. E.g., People v. Weinberg, 83 N.Y.2d
262 (1994), where the New York Court of Appeals held that defense counsel
in a failure to file tax case could not present the concept of jury nullification
to the jury during summation: “While there is nothing to prevent
a petit jury from acquitting although finding that the prosecution
has proven its case, this so-called ‘mercy dispensing power’ is not a legally
sanctioned function and should not be encouraged by the court.’ “ 83
N.Y.2d at 268, citing People v. Goetz, 73 N.Y.2d 751, 752 (1988). A further
example is U.S. v. Renfroe, 634 F.Supp. 1536 (W.D. Pa. 1986), a criminal
contempt proceeding against a lawyer for violating a court order, where
the trial court had ordered defense counsel not to argue that the jury
should return a verdict of not guilty as an expression of its disapproval of
the prosecution’s grants of immunity to its witnesses, the court held that
“while it did not dispute an attorney’s right and duty to be contentious,
fearless, and zealous in representing his client’s interests, ‘a direct order of
the trial judge fixes the limits of proper advocacy; the vigor permissible in
representing a client’s interests has never included the flouting of a judge’s
rulings.’ “ 634 F.Supp. at 1542, quoting Commonwealth of Pennsylvania et
al. v. Local Union 542, International Union of Operating Engineers, et al., 552
F.2d 498, 506 (3rd Cir.), cert. denied, 434 U.S. 822 (1977); Andrews v. State,
473 S.E. 2d 247 (Ga. Ct. App. 1996) (trial court, in its discretion, can preclude
defense counsel from making a nullification argument to the jury).
1. One member of the Committee believes that a lawyer should have to seek the approval of
the trial court in advance before arguing for jury nullification.
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