Can a criminal defense lawyer in D.C. argue for jury nullification, or do the ethics rules prohibit urging a jury to acquit against the law?

Plain-English summary

Opinion 320 (adopted May 2003) addresses whether the D.C. Rules of Professional Conduct prohibit a criminal defense lawyer from pursuing a "jury nullification" argument, meaning an argument that invites the jury to acquit despite the evidence because it disapproves of the law or the prosecution. The opinion notes the authority is in conflict (some courts treat such argument as a rules violation, while one unpublished D.C. Circuit decision suggested seeking nullification can be reasonable strategy) and answers in general terms, because whether a particular argument crosses the line is case-specific.

The opinion situates criminal defense counsel's special role: under Rule 1.3 the defense lawyer must zealously and diligently represent the client, under Rule 3.1 must put the government to its proof even when convinced of the client's guilt, and under D.C.'s comparatively permissive Rule 3.3(b) may in narrow circumstances allow a client to testify in narrative form. But that latitude does not exempt counsel from the Rules. The lawyer must conform to the jurisdiction's substantive law (Rule 8.5(a)), and in D.C. that law disfavors nullification: courts reject any "right to nullify" instruction, approve instructions discouraging it, and the standard criminal instruction tells jurors they "may not ignore any instruction, or question the wisdom of any rule of law." So express exhortations to ignore the law are likely prohibited and may produce a Rule 8.4 violation.

The harder problem is the argument that has a legitimate evidentiary basis but also heightens the jury's awareness of its nullification power (for example, arguing police testimony is not credible because of political bias). Drawing on the ABA Criminal Justice Standards (Standard 4-7.7) and the Restatement, the opinion concludes that in criminal advocacy the inherent tension should be resolved in favor of permitting any evidentiary argument for which a reasonable good-faith basis exists, so long as counsel stays within existing law and any tribunal ruling. Because the law still permits juries to acquit against the evidence and such acquittals are unreviewable, the opinion concludes that good-faith arguments with incidental nullification effects do not violate the Rules; what is prohibited is expressly urging nullification or persisting in a line of argument after the presiding officer has forbidden it.

In practice

Under the D.C. rules as they stood at the time of the opinion, the opinion concludes a criminal defense lawyer may not expressly ask a jury to disregard the law and may not continue an argument a tribunal has ruled out of bounds; doing so risks a Rule 8.4 violation. At the same time, the opinion concludes the lawyer may, consistent with Rule 1.3's duty of zealous advocacy and Rule 3.1, advance any argument supported by a reasonable good-faith evidentiary basis.

The opinion frames the dividing line as between expressly urging the jury to acquit against the law (prohibited) and making a legitimate evidentiary argument that happens to heighten the jury's awareness of its nullification power (permitted), with the presiding officer policing the line case by case. Because the opinion predates later rule developments, verify the current D.C. rules and any controlling case law before relying on specific requirements.

Common questions

Q: Can a D.C. criminal defense lawyer argue for jury nullification?

A: The opinion concludes the lawyer may not expressly urge the jury to disregard the law, because D.C. substantive law disfavors nullification and the standard instruction forbids ignoring the law; an express exhortation may violate Rule 8.4.

Q: Can the lawyer make arguments that might lead a jury to nullify anyway?

A: The opinion concludes yes, if the argument has a reasonable good-faith evidentiary basis. Good-faith evidentiary arguments do not violate the Rules even if they incidentally heighten the jury's awareness of its power to acquit against the evidence.

Q: What happens if the judge tells counsel to stop a line of argument?

A: The opinion concludes counsel must comply. Persisting in a line of argument after the presiding officer has deemed it impermissible can itself violate the Rules, because failing to obey a court ruling is sanctionable under Rule 8.4.

Background and rules framework

The opinion interprets D.C. Rule 1.3 (diligence and zeal), Rule 3.1 (meritorious claims and contentions; putting the government to its proof), Rule 3.3 (candor toward the tribunal, including D.C.'s narrative-testimony provision), and Rule 8.4 (misconduct, including failing to obey a tribunal's ruling), together with Rule 8.5(a)'s requirement that counsel conform to the jurisdiction's substantive law. It draws on the ABA Standards for Criminal Justice (Standard 4-7.7) and the Restatement of the Law Governing Lawyers for the limits of permissible closing argument.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.3 / Model Rule 1.3 (diligence and zeal)
• D.C. RPC 3.1 / Model Rule 3.1 (meritorious claims; requiring the government to carry its burden)
• D.C. RPC 3.3 / Model Rule 3.3 (candor toward the tribunal)
• D.C. RPC 8.4 / Model Rule 8.4 (misconduct; obeying tribunal rulings)

Cases:

• Watts v. United States, 362 A.2d 706 (D.C. 1976) (en banc) (the law permits a jury to acquit against the evidence; such acquittals are unreviewable)
• Sparf & Hanson v. United States, 156 U.S. 51 (1895) (jurors take the law from the court)
• United States v. Sams, 104 F.3d 1407 (D.C. Cir. 1996) (unpublished) (seeking nullification may be reasonable strategy)

Other authorities cited:

• ABA Standards for Criminal Justice, Defense Function, Standard 4-7.7 (3d ed. 1993)
• Restatement (Third) of the Law Governing Lawyers sections 105, 107, 110

See also

• ABA Formal Op. 508: The Ethics of Witness Preparation
• Alaska Ethics Op. 2022-2: Client False Statements to the Court
• DC Ethics Op. 373: Court-Ordered Counsel in Criminal DV and Parallel CPO Cases

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-320