1.Preliminary Instructions on Capital Trial and Jury Selection

THE COURT: Good morning, everyone. Good morning, ladies and gentlemen. Thank you for being here on such a terrible travel morning. We appreciate the effort that you've made to be here.

We're continuing with the process of selecting a jury for the case of United States vs. Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged in connection with the 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 with the death of an MIT police officer and other offenses occurring 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 Mr. Tsarnaev'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 jury will then consider and decide whether he will be sentenced to death for any such crime or to life in prison without possibility of release.

Some of you may have wondered why the death penalty could be a possibility in this case in 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 violations of the laws of Massachusetts.

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 decide on all the evidence whether to sentence him to death or to life in prison without the possibility of release. So because the jury that is selected to first decide whether the defendant is guilty or not will also decide his punishment if he is convicted, it is necessary to question you about your beliefs or feelings about the death penalty as part of the selection process.

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 I said, as in any criminal trial, initially, the government has the burden of proving that the defendant is, in fact, guilty of any crime with which he is charged. If he is convicted of a crime for which the death penalty may lawfully be imposed, there will be a second phase of the trial. It's sometimes referred in shorthand as the penalty phase.

In that 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 under the law; and, second, that aggravating factors about the killings or about the defendant 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 more severe sentence on this defendant compared with other persons who are convicted of intentional killing or murder. The government will bear the burden of proving 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 in the case. Mitigating factors are usually circumstances about the crimes 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 as punishment for the offenses.

Unlike the proof of aggravating factors, a mitigating factor must be proved only by a greater weight of the evidence. That is a 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 that a mitigating factor has 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 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 of certain threshold factors that make the defendant potentially subject to the death penalty. They would have to be persuaded those factors have been proven beyond a reasonable doubt, as I said. 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 so that a sentence of death is justified.

Even if the jury does not find any mitigating factors, it would still have to be unanimously persuaded that any proven aggravating factors were sufficient to justify a death sentence. You should understand that a jury is never required to find that a sentence of death is justified.

A decision whether the government has proved 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 trial 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 a jury's consideration of the death penalty. If you are selected to serve on this jury and if you find the defendant guilty of a crime or crimes punishable by death, I will give you very detailed instructions concerning your duties in deciding whether to impose the death penalty or life imprisonment without possibility of release and the law that must be followed in making that decision.

As I mentioned when you filled out your questionnaires a while ago, there are no right or wrong answers to any of the questions that you have been asked or that you will be asked today. We're asking them 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 whether the defendant is guilty or not guilty of the specific crimes charged in the Indictment and, if he is convicted of a capital crime, whether he should be sentenced to death or to life in prison without possibility of release.

So today I'm going to follow up on the questionnaires by questioning each of you individually regarding issues that may be pertinent to the process of selecting a jury. What we're going to do is excuse you back to the room where you've just been and ask you to come into the courtroom one by one to ask those questions. There will be some people in addition to the lawyers and their staffs present in the courtroom during the process, and these proceedings will also be simultaneously transmitted by video and audio to overflow courtrooms where there are other people watching and listening.

We will not identify you by name but rather by a number, and you will be seated so that the video camera will be behind you. Your answers will generally be public, but if you believe that a truthful answer would require you to reveal sensitive personal information, we will temporarily stop the audio feed to those courtrooms so that people observing there will not be able to hear your answers.

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

Let me remind you about some of the prior instructions. As I told you before and emphasize again, 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, friends, each other, or any other person until you've been excused or, if selected as a juror, until the case concludes.

Again, of course, you're not to conduct any independent research online or otherwise or to read, watch or listen to reports about the case in the media that you are able to avoid. When you signed -- when you completed the questionnaires, you signed after a statement that you were making true answers to the questions in the questionnaire, you made that affirmation under the pains and penalties of perjury. You may recall that statement that preceded your signature. Similarly, your answers here must be made under an oath or affirmation that you will be answering truthfully, completely, and to the best of your ability.

The clerk will now administer that oath to you so if you'd all rise.

THE COURT: All set? I guess we're on.

Good morning, everybody. We had a slow start for obvious reasons, I'm afraid. Let's forge ahead.