1.Preliminary Venire Instructions on Guilt and Capital Sentencing

THE COURT: Welcome back to the United States District Court for the District of Massachusetts. Thank you for being here.

As I'm sure you understand, we're continuing the process of selecting a jury for the case of United States versus Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with, in connection with a bombing that occurred near the finish line of the Boston Marathon on April 15, 2013, that resulted in the deaths of three people. He's also charged in the death of an MIT police officer and other offenses that occurred on April 18 and 19, 2013.

Some, but not all of the crimes charged are by statute potentially punishable by death. You'll recall from my prior instructions that the jury will first consider and decide whether the government has proved the defendant's guilt of any or all of the charges against him.

If he is convicted of any of the capital crimes, that is, crimes potentially punishable by death, the same jury will then consider and decide whether he will be sentenced to death for any such crime or to life imprisonment without the possibility of release. Some of you may wonder why the death penalty could be a possibility in this case in the view of the fact that the laws of Massachusetts do not provide the death penalty for murder or any other violation of Massachusetts law.

The reason is that this is a federal case involving alleged violations of the laws of the United States rather than a state case involving violation of Massachusetts law. So if the jury convicts Mr. Tsarnaev of any of the capital crimes charged in the indictment, the same jury will hear additional evidence after that verdict, and then decide whether to sentence him to death or life imprisonment without the possibility of release.

Because the jury that is selected to decide the defendant's guilty will also decide his punishment if he is convicted of a capital crime, it is necessary to question you about your feelings and beliefs about the death penalty as part of the process of selecting a jury.

So let me briefly explain the procedures that must be followed in any case in which the death penalty is or may be an issue. As in any criminal jury, initially the government will have the burden of proving that Mr. Tsarnaev is in fact guilty of any crime with which he is charged. If he is convicted by the jury of a crime for which the death penalty may lawfully be imposed, there will be a second phase of the trial, which is often referred to in shorthand as the penalty phase.

In the penalty phase, the government will introduce evidence that seeks to prove beyond a reasonable doubt first that Mr. Tsarnaev acted with sufficient intent to be subject to the death penalty; and second, that aggravating factors about the killings or about the defendant himself justify sentencing him to death. Aggravating factors are circumstances that if proven make the crimes particularly serious or blameworthy and therefore under the law may justify imposing a sentence, a more severe sentence on Mr. Tsarnaev compared to other persons convicted of intentional killing or murder.

The government will bear the burden of proving any of the alleged aggravating factors to every juror beyond a reasonable doubt.

The defense will have an opportunity to present evidence of what it will argue are mitigating factors. Mitigating factors are usually circumstances about the crime or the events or about the defendant's background or character that would suggest that the death penalty is not the appropriate sentence in the case or that life imprisonment without the possibility of release is adequate to punish the defendant.

Unlike proof of aggravating factors, a mitigating factor must only be proven by the greater weight of the evidence. This is the less demanding standard of proof than proof beyond a reasonable doubt.

Again, unlike the proof of aggravating factors, mitigating factors do not have to be proven to the satisfaction of all 12 jurors. Any juror who finds or determines a mitigating factor to have been proven by a greater weight of the evidence may consider that factor in deciding the appropriate sentence in the case, regardless of whether any or all of the other jurors agree that the mitigating factor has been proven. After the parties have made their respective presentations during the penalty phase, the jury will weigh all the evidence. Before a jury could vote to impose the death penalty, every juror would have to be persuaded that certain threshold factors that make Mr. Tsarnaev potentially subject to the death penalty had been proven beyond a reasonable doubt.

In addition, in order to impose the death penalty, every juror would have to be persuaded that any proven aggravating factors sufficiently outweigh any mitigating factors found by any juror or jurors to justify a sentence of death.

Even if the jury did not find any mitigating factors, it would still have to be unanimously persuaded that any proven aggravating factors were themselves sufficient to justify a death sentence.

You should understand that a jury is never required to find that a sentence of death is justified. The decision whether the government has proven that a defendant should be sentenced to death must ultimately be made by each juror himself or herself. If, however, every juror is persuaded that the death penalty should be imposed, I would be required as the judge to sentence the defendant to death. In other words, I could not change the jury's decision. The jury and not the judge is responsible for determining whether a defendant who is convicted of a capital crime will live or die.

What I've just described is only an overview of the law applicable to the jury's consideration of the death penalty. If you are selected to serve on the jury and if you find the defendant guilty of a capital crime, I will give you very detailed instructions concerning your duties in deciding whether to impose the death penalty or life imprisonment without the possibility of release, and I will give you the law that must be followed in making that decision.

When you filled out the questionnaire, we told you there were no right or wrong answers to the questions. And we are asking the questions that we are because both the government and Mr. Tsarnaev are entitled to a jury that does not have its mind firmly made up one way or another before hearing the evidence and a detailed explanation of the law. That applies both to the question whether Mr. Tsarnaev is guilty or not guilty of the specific crimes charged in the indictment, and also if he is convicted of a capital crime, whether he should be sentenced to death or life imprisonment without the possibility of release.

We're going to follow up on your answers in the questionnaire by questioning each of you individually now in the process of selecting the jury. We're going to excuse you back into the room where you've been assembled and then call you into the courtroom one by one to ask you some questions. There will be a few people in the room in addition to the lawyers and their staffs present here, and the proceedings are also being simultaneously transmitted by video and audio to overflow courtrooms. We will not identify you by name but rather by number, and you will be seated so that the video camera will be behind you.

Your answers will be generally public, but if you believe a truthful answer would require you to reveal sensitive personal information, we will temporarily stop the audio transmission to those courtrooms so people observing there will not be able to hear your answer.

Again, we do not expect any -- expect or want any particular answers to the questions. All we want and what the law expects is that you provide accurate and truthful answers to the questions you are asked. If you do that, you will be doing your duty as a citizen and as a juror, no matter what your answers will be.

I also want to take a moment to remind you about some of my prior instructions. As I told you before, a jury's verdict must be based on the evidence produced at trial and must be free from outside influence. Therefore, I remind you again, it is extremely important that you do not discuss the case, including the jury selection process, with your family and friends, with each other, or any other person until either you have been excused or, if selected as a juror, until your service has concluded. And of course you're not to conduct any independent research, online or otherwise, or read, watch, or listen to reports about the case in the media. When you signed the questionnaires, you may recall that you signed under a statement that the answers were true, and you affirmed that under the pains and penalties of perjury. For this oral questioning now, it is required that you similarly affirm or swear to the truth of your answers, and the clerk will now ask you to stand and he will administer that oath.

THE COURT: All right. Before we begin with the jurors, I thought I would take note of the weather. It seems pretty clear that we're going to have a serious storm tomorrow, and my thought is since we're bringing people in from around the eastern part of Massachusetts, we just skip tomorrow, regardless of what the Court does as a whole, and Judge Saris hasn't made that decision yet, but I think we will prudently just skip tomorrow.

I'm sorry we'll miss a day. We have been moving a little bit more slowly than perhaps we anticipated but I'm not discouraged by that at all. I think we're making real progress and progress isn't necessarily measured by how long it takes to get to a good result. So we'll keep going. I hope we can accelerate in some ways and we're trying to do that by some further advanced screening to take people who are clearly suffering from a hardship or something else out of the picture. But I'll just leave it at that.

Now, with respect to Wednesday, that's still iffy and we'll just a keep an eye on what things look like for Wednesday. Apparently we won't be able to tell that until sometime tomorrow unless we can see what the long term of the storm may be.

Okay. I guess we can begin.