Can the defense ask the jury not to nullfy?

Let’s say there’s a law widely recognized as bad. Someone deliberately violates it, such that they can continue to challenge it in the appeals process and, with luck, get it overturned in a higher court.

However, there’s been rumblings on social media, murmurings around town, and general tension whenever the prosecution is presenting the government’s case. It’s obviously impossible to say “nullify” if you’re in the jury box, but there’s a feeling.

Now, the defense wants to lose, in that if there’s a mistrial or an acquittal, the case dies and the law remains unchallenged. So, would it hurt the defense’s long-term strategy to hint at how jury nullification is contrary to the spirit of justice, and that it’s important to follow the law as written? Or would that be seen as a less-than-vigorous defense, and thus a problem?

(I’m assuming the prosecution didn’t plan to have a mistrial in order to preserve a law. That Would Be Wrong.)

IANA criminal lawyer, but I suspect that it’s unethical for a defense attorney to deliberately tank at trial for any reason.

The defendant could always testify in his own defence, declare his guilt and demand to be convicted.

Is it possible to appeal a conviction on the grounds that the law is unconstitutional if you plead guilty at the trial stage?

If yes, that might be a better alternative.

It’s also bad for business. Every loss makes your stats look worse, which might scare away potential clients, forcing you to lower your fee, and so forth on down until you’re a public defender doing it flat-rate (who have been known to just not give a fuck, but there’s some form of censure in place even for them if they’re REALLY bad). Deliberately tanking a trial would be career suicide.

I don’t have a cite handy, but I’m pretty sure that’s a fairly common appeal that has gotten at least a few laws overturned. The recent legalization of gay marriage may have stemmed from a law being thrown out from such an appeal, I forget.

This scenario reminds me of the Scopes trial - Scopes was convicted and fined, and his attorneys took the case to the State Supreme court, which upheld the law he was convicted of, but set aside the conviction anyway, because the fine he was assessed was larger than legally allowed; this had the result of removing Scopes ability to take the case to the Supreme Court.

I can’t find it now, but I read recently that there is a case expected to go to the Supreme Court that involves a man who, if I remember correctly, was arrested for carrying a gun on the grounds of the U.S. Capitol. He pleaded guilty at trial, where he acted as his own lawyer. He was warned that his pleading guilty would have significant impacts on his ability to appeal his guilt and sentence. He accepted that warning, but after his conviction, he sought to challenge the constitutionality of being arrested for carrying a gun on government property. As I understand it, the case is mostly about his ability to appeal after pleading guilty, as opposed to the constitutionality of banning guns on government property.

I’m pretty sure I’m in the ballpark on my description of the case, but I can’t find any articles about the case now.

ETA: I kept trying and found this:

To add to Andy L’s post, in the Monkey Trial, Clarence Darrow asked Judge Ralston to direct the jury to find his client guilty. He did it because he didn’t want it revealed that Scopes never actually taught that lesson on evolution.

Ravenman, the problem in that case is not that he pled guilty, but that he did so unreservedly. The correct procedure would have been to plead nolo contedere.

It didn’t. The six consolidated cases in Obergefell all stemmed from declaratory actions or requests for injunctive relief filed against the government. No criminal cases.

You may be thinking of Lawrence v. Texas (which effectively established the right to consensual sodomy), in which the defendants pled no contest and later asked the trial court to increase their fines so they would meet the threshold for appeal as a matter of right.

I remember reading about the standards of journalism in NYC - one mob boss pled “nolo contedere” and the reporter not really understanding the concept, the paper’s healine read that X “Pleads Guilty in Italian!”

IIRC, in previous discussions here - the defense is not even allowed to mention jury nullification; similarly, IIRC, neither defense nor prosecution can discuss the penalties or consequences of conviction - the question is AFAIK strictly “innocent or guilty?”

(IIRC in the Robert Latimer case in Canada, several jurors later said if they’d known there was a 10-year minimum they would not have voted guilty.)

Don’t know about other states, but in Illinois, the method for short-cutting a fait accompli conviction while still being able to appeal* is to take a stipulated bench trial. The defendant pleads not guilty, waives his right to a jury, the parties stipulate to the trial evidence, and the judge finds the defendant guilty. That would avoid the prospect of nullification.

*I’ve seen it done most commonly not to preserve purely legal/constitutional claims for appeal – most defendants don’t want a test case but an acquittal :slight_smile: – but to have the appeals court review an unsuccessful pre-trial motion to quash or suppress.

Isn’t jury nullification something that neither side is allowed to mention in court? Like no one is supposed to mention the effects of “joint and several” liabilities.

Is the defense not allowed to say in its closing argument:

"Ladies and gentlemen of the jury, in a few minutes the judge will give you instructions about the law in this case. I urge you to listen carefully and to review the written instructions the judge will give you to take into the jury room.

"I ask you to set aside whatever reservations or disagreements that you might have with the law and to follow the judge’s instructions carefully. If the law, as presented by the judge, requires you to return a verdict of guilty, I urge you to uphold your oaths as jurors and to return a verdict of guilty without hesitation.

“Thank-you for your time and attention.”

Are the judge’s instructions likely to include nullification. I know they won’t explain “joint and several”.

Absolutely not. The judge’s instructions outline the law. Nullification, whether one thinks it’s justified or not, by definition is defiance of the law.

At least one state (New Hampshire?) allows jury instructions on nullification.

And there are a number of jurisdictions where the effect of joint and several liability may be explained to the jury. Luna v. Shockey Sheet Metal, 743 P.2d 61 (Idaho 1987) is a classic law school hornbook case in which the court allowed jury instruction on the effect of joint and several liability.