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Say the prosecution has irrefutablly concrete evidence that the defendant commited the crime of which he is accused. Knowing this, the attorney of the defendant plays on empathy and convincing the jury that, yes, the defendant commited the crime, but with good reason. If a not guilty verdict is returned obviously through jury nullification, and it is also clear that was the defending attorney's aim, could they face any repercussions. I know that jury nullification is legal through the facts that a jury cannot be punished for an incorrect verdict and once acquitted a person cannot be re-tried, but can an attorney be punished for inducing nullification?

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    One does not "nullify the jury" which sounds like you are trying to assassinate them. "Jury nullification" means that the jury is nullifying the law.
    – ohwilleke
    Oct 8, 2023 at 16:08
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    @ohwilleke I understand what jury nullification is, I just struggled for the proper grammar to word the title of the question. Probably better to have said "...inducing jury nullification"
    – Ethan
    Oct 8, 2023 at 16:20
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    You got it by the end. "can an attorney be punished for inducing nullification?" if you put that into google, it excerpts a specific sentence in the wiki page, under the heading : "Judicial opinion - That decision, often cited, has led to a common practice by US judges to penalize anyone who attempts to present a nullification argument to jurors and to declare a mistrial if such argument has been presented to them." en.wikipedia.org/wiki/Jury_nullification
    – Mazura
    Oct 9, 2023 at 0:15
  • I know of at least one case (father killed daughter's convicted rapist/murder in broad daylight in front of cameras), where the prosecutor took the case to a grand jury, who refused to indite the man. That's probably only a useful form of "nullification" in cases where the prosecutor is cool with it happening.
    – T.E.D.
    Oct 9, 2023 at 15:21
  • @T.E.D. presumably the only basis for concluding the prosecutor was "cool" with nullification is "reading between the lines". Had they advocated explicitly for this it would remain an open question on what basis the court allowed them to do so; and indeed why the court was free to make that allowance but the prosecutor wasn't free simply not to bring the case to court.
    – Will
    Oct 9, 2023 at 16:16

2 Answers 2

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Yes

The first suggestion the attorney is angling for this will get a warning from the judge. If they persist, this is contempt- a criminal offense. They will also be referred to the bar association for disciplinary action up to and including disbarment.

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    And depending on whether the judge thinks the lawyer may have successfully influenced the jury, a mistrial may be declared, so it’s not really a “sacrifice your career to save your client” sort of move.
    – Sneftel
    Oct 8, 2023 at 6:57
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    I have seen lawyers try to do this more subtly - in one case, a lawyer spent a significant portion of the argument explaining to the jury just how long of a sentence the defendant would be looking at, and contrasting this with the sentence that one of his alleged co-conspirators would receive for the same conduct (he pleaded guilty and was cooperating). I think the attorney got away with it because it technically qualified as impeaching the witness in question (i.e. the attorney could somewhat colorably argue that she was merely trying to cast doubt on the witness's credibility).
    – Kevin
    Oct 9, 2023 at 21:02
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The trial judge must ensure that the jury is properly instructed on the applicable law. See R. v. Abdullahi, 2023 SCC 19 at para 32.

It is improper for a lawyer to argue that a jury ignore that law. See R. v. Morgentaler, [1988] 1 SCR 30. The Chief Justice of Canada wrote:

I agree with the trial judge and with the Court of Appeal that Mr. Manning was quite simply wrong to say to the jury that if they did not like the law they need not enforce it. He should not have done so.

An acquittal after such a statement to the jury would be overturned and result in a new trial. See e.g. R. v. Morgentaler (1985), 52 OR (2d) 353 (C.A.).

One of the canons of legal ethics is that:

A lawyer should not attempt to deceive a court or tribunal by offering false evidence or by misstating facts or law

To tell the jury that it would be proper to not apply the law as described by the judge would be a breach of that canon and would leave the lawyer at risk of professional discipline.

An improper closing address to the jury, against the instructions of the judge, can be contempt of court. See R. v. Anderson, 2014 SCC 41 at para 58:

[The court's inherent jurisdiction] includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings.

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  • Why would the jury need to care about the law in the first place? They are there to find facts.
    – Greendrake
    Oct 8, 2023 at 9:16
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    @Greendrake because Canada is Canada. They also lack Strict Liability.
    – Trish
    Oct 8, 2023 at 9:31
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    @Greendrake The jury has to take the facts and apply them with the law to reach a verdict. If the jury is poorly instructed by the judge or misled by either counsel on what the law is, they may not reach the correct verdict even if they find the correct facts. For example, if the jury was misled that negligence was sufficient for a crime that actually requires recklessness, they may find negligence, but not recklessness, and return a guilty verdict which would be the wrong verdict. Oct 8, 2023 at 13:29

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