Juror Nullification: OK for Jurors, but not for Attorneys

 There was an interesting item in The Volokh Conspiracy on the concept of “juror nullification” in which a jury decides to vote against the requirements of the law when it feels the law is not doing substantial justice. See http://volokh.com/2010/02/02/judge-jack-weinstein-again-sings-the-praises-of-the-jurys-nullification-power/

The Volokh Conspiracy piece largely quotes a recent Second Circuit Opinion, United States v. Polouizzi, which I also quote in pertinent part here:

In those decisions reducing the constitutional role of the jury and arrogating to courts themselves greater control of jurors than the Constitution permits, modern federal judges have assigned the ugly name “nullification” to the jury’s exercise of discretion-a word having negative connotations dating back to some juries’ post-Civil War harsh treatment of minorities. A more apt word for modern juries’ exercise of their constitutional power to soften the application of overly harsh laws in specific cases would be “rectification.” Exercise of this corrective power relies on the jury’

The argument that the jury will abuse its rectification powers, as it has in some instances in the past to enforce racist local social prejudice, is no longer persuasive in our more tolerant America. …

Federal judges who deal with these cases and diverse defendants are increasingly disenchanted with strict and unnecessarily punitive minimum sentencing requirements in child pornography cases that treat with the same harshness those requiring control and medical help outside of prison and those requiring long incarcerations to incapacitate. This view reflects the same dynamics as the increased flexibility in Guideline Sentencing ultimately approved by the Supreme Court following strong judicial opposition to the harsh rigidity originally required. …

Although the concept is typically discussed in the criminal law arena, it also is applicable to civil cases and we have all seen lawyers at least walk the line in closing arguments of asking for a jury verdict which is contrary to the instructions the judge is about to give them. This issue is a balance between a lawyer’s obligation of zealous advocacy on behalf of a client and the obligation to represent a client within the bounds of the law.

In the end, under Rule 3.4(e) of the Illinois Rules of Professional Conduct (eff. January 1, 2010), a lawyer cannot “in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused….”

Under Rule 3.3(a), “[a] lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer….”

CONCLUSION: Lawyers cannot tell jurors to ignore the jury instructions and cannot tell them to ignore the evidence. But, they can probably walk right up to these lines and give inferences which have any good faith basis, including public policy bases. Deciding whether one crosses the line from zealous advocacy into false representations must be done on a case by case basis and may be one of those things like obscenity: You know it when you see it.


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