2.Jury Selection — Afternoon Orientation and Questionnaire Instructions

THE COURT: You may be seated.

Good afternoon, ladies and gentlemen.

THE COURT: My name is Judge George O'Toole. I'm going to preside over this matter. I want to welcome you to this proceeding of the United States District Court for the District of Massachusetts, and especially to thank you for your presence here today. You are here because you have been summoned to be available for service as a trial juror in this court.

The resolution of legal controversies, both civil and criminal, by trial of the matter before a jury of citizens drawn from the community is one of the most fundamental principles of our entire system of justice. You may recall from your study of American history that among the grievances against King George set the forth in the Declaration of Independence were that he has "obstructed the administration of justice" and "has made judges dependent on his will alone."

Because of their experience in this respect, the founders were determined that the Constitution of the new nation would guarantee the right to trial by jury, and they wrote that guarantee into the Sixth Amendment and Seventh amendments as part of the Bill of Rights. In doing so, they assured that the outcome of legal cases would ultimately be entrusted not to officers of the government alone, but rather, to the public: ordinary citizens convened and acting as trial jurors.

We're about to begin the process of selecting a jury for a criminal case. The name of the case is United States v. Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with events that occurred near the finish line of the Boston Marathon on April 15, 2013, and that resulted in the deaths of three people. Mr. Tsarnaev is also charged with the death of an MIT police officer and other crimes that occurred on April 18 and 19, 2013.

In a criminal prosecution, the burden is always on the government to prove by factual evidence that the defendant is guilty of any crime he is accused of. And accordingly, any defendant is presumed to be not guilty until the government has proven otherwise at trial. The government bears the burden of proof, proving the defendant's guilt, beyond a reasonable doubt.

The jury we're about to start selecting today and in the next several days will have the task of considering the evidence produced during the trial, and deciding on the basis of that evidence whether the government has proven the defendant's guilt of the charges against him beyond a reasonable doubt or not.

This case differs from many other criminal cases, however, in a significant way. Usually after a jury has convicted a defendant of a crime, the presiding judge decides what the punishment should be. In this case, however, Mr. Tsarnaev is accused of crimes that are potentially punishable by a sentence of death. If, after trial, he's convicted of any of these crimes, under the law it is the responsibility of the jury, rather than the judge, to decide whether Mr. Tsarnaev should be sentenced to death, or instead, to life imprisonment without possibility of release, the only other possible sentence for such a crime.

In essence, in our democracy we have committed these solemn and important decisions not to judges answerable to the sovereign alone, not to the press or to public opinion, and certainly not to the mob. We have committed this important duty to ourselves collectively as the people, the people who established our constitutional order in the first place, and we the people therefore ask some of our fellow citizens to assume the high duty of convening as a trial jury and to resolve the issues presented with a firm disposition and commitment to do justice fairly and impartially.

Accordingly, it is the civic responsibility of every citizen to appear and serve as a juror when called unless seriously unable to do so. Such service is both an obligation of citizenship and an opportunity to perform a vital public and civic function. Juries are composed of citizens from all walks of life each of whom brings his or her own individual perspective and life experience to the task. You do not need any particular education or experience to be a juror, what you do need is a commitment to do justice.

Acknowledging the importance of jury service is not to ignore the obvious point, that your appearance here is at the very least inconvenient. We ask jurors to set aside their usual routines for a time to perform an important and necessary public service. Certainly, serving on a jury if you're chosen to serve will require you to make some adjustments in your life. You should not however think of jury service if you're chosen to sit on the jury as an annoying burden. Jurors regularly report to me and my colleagues that they have found their service as jurors to be one of the most interesting and memorable experiences of their lives. After most trials, I meet briefly with jurors to thank them for their service. Uniformly, during the course of those discussions, jurors tell me that the experience was worthwhile, interesting and fundamentally important.

Jurors who seem to me to be nervous and unsure at the beginning of a case after a verdict have a calm and solemn sense of a duty responsibly performed. If you're chosen to serve in this case, I fully expect you'll find that experience to be the same.

Let me explain how we will proceed with the selection process. When I finish these rudimentary remarks, a questionnaire will be distributed to you. You'll fill out the questionnaire before leaving today. As you fill it out, please do not discuss the questions or your answers with anyone else in the room, including the court staff who have been instructed not to help you with the questionnaires. The information on the questionnaire must come from you and you alone. Also please understand that there are no right or wrong answers to the questions in the form. All we ask is that you answer each question truthfully and completely to the best of your ability. Questionnaires are not intended to pry into personal matters unnecessarily but there are some personal things that we need to know in order to ensure both sides in this case that the trial will be conducted before a jury that is in truth fair and impartial.

In addition, as a practical matter, using questionnaires makes the process less time-consuming and inconvenient for everyone including you.

When you've filled out the questionnaire, you will give it to a member of the court staff, and you will then be free to leave. During the coming week, the questionnaires will be copied and then reviewed by the attorneys working on the case and by me. The completed questionnaire will initially be reviewed only by participants in this case and by the Court. The filled out questionnaires will not become part of the public record unless and until I determine whether they include any sensitive information that should be kept confidential permanently. And if they do, I intend to keep that information and any possible further questioning concerning it from being available to the public.

When you leave, a court staff will give you a telephone number to call next week so that you may listen to a prerecorded message that will tell you about your personal possible service in this case. Some jurors will be told then that they have been excused permanently, some jurors will be told then that they should come to court again on a given day to participate further in the selection process, and some jurors will be called and told to call back again on another date for further instructions.

If you are selected to serve, the trial proper is expected to start on or about January 26th, and expected to last three to four months. The trial will generally be conducted Monday through Thursday of each week from about 9 a.m. to about 4 p.m. with time for breaks and lunch. The jury will not ordinarily sit on Fridays except in a week where a legal holiday is observed on Monday. The trial will continue through any school vacation week.

If you are concerned that service as a juror in this case would be an unusually difficult hardship for you, you will have a chance to describe that hardship on the questionnaire. If you're not excused based on what you've written, which may happen, I will discuss your hardship in person with you when you come back to court. Any request to be excused will be seriously considered; however, I cannot guarantee that you will necessarily be excused if you think jury service in this case would be a hardship for you because finding a jury that represents a fair cross-section of the community will always pose some degree of hardship for those citizens who are chosen to serve. It is important that the men and women who are selected as jurors in this case be able to listen to the evidence presented in court and decide the issues in the case fairly and impartially. I'll be using the terms "fairly" and "impartially" again at times during the selection process. Let me explain to you what I mean. To serve fairly and impartially means to base a decision on the evidence presented in court during the trial, applying the law as I will describe it for you, and not based on any possible bias or prejudice or anything that you have seen, heard, read or experienced outside the courtroom, including anything you may think you have previously learned from, say, reports in the media.

There has been a great deal of publicity about this case and there will continue to be. The mere fact that prior to this you may have read or heard something about the case does not automatically mean that you cannot be a juror, but you must be able to decide the issues in the case based on the information or evidence that is presented in the course of the trial and not on information from any other source.

The purpose of the jury selection process is to try to ensure that each person selected is an appropriate juror for the case, that the jury as a whole will fairly represent the community, and that the jury will assure that the parties get what they are entitled to: a trial before a fair and impartial jury.

Now I want to introduce some of the people who will be involved in the trial of the case. The government is represented in this trial by Assistant United States Attorneys Aloke Chakravarty.

THE COURT: In addition, an additional lawyer for the government, Steven Mellin is unable to be here today but will join us during the trial.

The defendant, Dzhokhar Tsarnaev, is represented by attorneys David Bruck, Judy Clarke, Miriam Conrad, Bill Fick, and Tim Watkins.

THE COURT: Thank you. You may be seated.

Although you have only heard briefly about this case this morning here -- this afternoon here -- and indeed have heard no evidence yet, it is extremely important that until further notice, now that you've been called here, you do not discuss this case among yourselves or with anyone else. That is because, as I have said, a jury's verdict must be based on the evidence produced at trial and you must be free from outside influence. Therefore, I now order each of you not to discuss this case with your family, friends or any other person, until I either excuse you or, if you're selected as a juror, until the case concludes. This is a court order. A willful violation of it may be punishable as a contempt of court or otherwise.

You may tell others that you may be a juror in this case, and you may discuss the schedule with your family and employer because they are entitled to know when you might not be available; however, you're not to discuss anything else about the case or allow anyone to discuss with you anything about the case until you are either excused, or if you're a juror, until the trial concludes.

This means, among other things, you may not speak to any member of the news media about the case. There's legitimate public interest in this matter, and the news media play a vital role in informing the public about it. It would, however, be improper for you to discuss this case or your role in it with them. If anyone should ask to speak with you about the case, you should politely decline. If anyone persists, please inform the jury clerk or another member of the court staff promptly.

I also instruct you not to read, watch or listen to any reports about this case in the media until you are either excused, or if you're selected, until the case concludes. If you should by chance encounter a news story in the newspaper, on the radio or television or on the internet, please just turn the page, change the channel or close the screen. Do not read, listen to or watch anything related to the case. And do not under any circumstances do any online research on the case or anything about anyone who may be connected with it. This includes Googling or otherwise researching the defendant, any of the witnesses or the events or any of the trial participants including the lawyers.

Likewise, you must not communicate about this case or allow anyone to communicate about it with you by telephone, text message, Skype, email, social media such as Twitter or Facebook. In addition, please do not discuss this case or anything I have just said, or the questionnaire, with any of the other potential jurors or anyone else here today.

I'm just about finished.

Take the time necessary to respond to the questionnaire thoughtfully, honestly and completely. Again, remember, there are no right or wrong answers to any of the questions. Please write or print clearly. Do not fill out the section of the form that you will see marked "Juror No.___." There will be a juror number indication. The court staff will fill that out for you once you have completed your questionnaire.

If you cannot answer a question because you do not understand it, write: "Do not understand." If you cannot answer a question because you do not know the answer, write: "Do not know." If you want to explain your answer, you may do so either in the space that is provided after some of the questions on the questionnaire, or in response to the last question which gives you additional space to write. If you do use that additional space, please write the number of the question you're answering in that space.

Please fill out the entire questionnaire. If you would prefer to answer a sensitive question orally rather than writing, you may write "private" in response to that question.

You will receive two attachments with the questionnaire, A and B. They are lists of potential witnesses in the case. As you will read when you complete the questionnaire, you should treat them differently. If you believe you know someone on Attachment A, you should write the number of that person that's given on that attachment in response to the appropriate question on the questionnaire. You don't have to write the name, just write the number. If, on the other hand, you believe you know somebody on Attachment B, you should only circle a person's name on that attachment and not write the name or anything else in the questionnaire. Answer that directly on Attachment B. Of course, because your answers are a part of this vital jury selection process, they must be truthful and you must sign the questionnaire under the penalty of perjury at the end.

Once you have completed and signed the questionnaire, you should give it to a member of the court staff. You may not leave the room with the questionnaire or the two attachments.

Let me conclude as I began, by thanking you for being here this afternoon and for taking part in this important process. We need your help and we need your honest performance of this important duty of citizenship.

We will now recess this session of the Court and distribute the questionnaire.