1.01 Duties of the Jury

Ladies and gentlemen: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial I will give you more detailed instructions. Those instructions will control your deliberations.

It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. The evidence will consist of the testimony of witnesses, documents and other things received into evidence as exhibits, and any facts on which the lawyers agree or which I may instruct you to accept.

You should not take anything I may say or do during the trial as indicating what I think of the believability or significance of the evidence or what your verdict should be.

Comment(s)

(1) This instruction is derived from Ninth Circuit Instruction 1.01.

(2) “[J]urors may have the power to ignore the law, but their duty is to apply the law as interpreted by the court, and they should be so instructed.” United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969) (citing Sparf & Hansen v. United States, 156 U.S. 51 (1895)). Thus, while a jury may acquit an accused for any reason or no reason, see Horning v. District of Columbia, 254 U.S. 135, 138 (1920) (“[T]he jury has the power to bring in a verdict in the teeth of both law and facts.”), trial judges may not instruct the jurors about this power of nullification. United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996); United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (citing United States v. Desmarais, 938 F.2d 347, 350 (1st Cir. 1991) (collecting cases)); see also United States v. Garcia-Rosa, 876 F.2d 209, 226 (1st Cir. 1989) (this position “is consistent with that of every other federal appellate court that has addressed this issue”), vacated on other grounds, 498 U.S. 954 (1990); United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983) (collecting cases). Furthermore, “[t]his proscription is invariant; it makes no difference that the jury inquired, or that an aggressive lawyer managed to pique a particular jury’s curiosity by mentioning the subject in closing argument, or that a napping prosecutor failed to raise a timely objection to that allusion.” Sepulveda, 15 F.3d at 1190.

During the closing arguments in Sepulveda one of the defendants’ attorneys invited the jury to “send out a question” concerning jury nullification; the jury did so, requesting the trial judge to “[c]larify the law on jury nullification.” Id. at 1189. The judge responded with the following, which was affirmed by the First Circuit:

Federal trial judges are forbidden to instruct on jury nullification, because they are required to instruct only on the law which applies to a case. As I have indicated to you, the burden in each instance which is here placed upon the Government is to prove each element of the offenses . . . beyond a reasonable doubt, and in the event the Government fails to sustain its burden of proof beyond a reasonable doubt as to any essential element of any offense charged against each defendant, it has then failed in its burden of proof as to such defendant and that defendant is to be acquitted. In short, if the Government proves its case against any defendant, you should convict that defendant. If it fails to prove its case against any defendant you must acquit that defendant.

Id. at 1189-90 (emphases added). Judge Selya explained that the “contrast in directives” in the last two sentences, “together with the court’s refusal to instruct in any detail about the doctrine of jury nullification, left pregnant the possibility that the jury could ignore the law if it so chose.” Id. at 1190.