1.Preliminary Instructions on Capital Trial Phases and Jury Selection

THE COURT: Good morning, everyone. Thank you for braving the weather to be here. I appreciate it. It's caused us some time issues, but that's all right, we'll get going.

As you know, we're continuing the process of jury selection for the case of United States v. Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with the bombing that occurred at the finish line of the Boston Marathon on April 15, 2013, that resulted in the deaths of three people. He is also charged in 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 will recall from my prior instructions that the trial 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 the possibility of release.

You may have wondered why the death penalty is a possibility in this case, in view of the fact that the laws of Massachusetts do not provide for the death penalty for murder or for 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 Massachusetts law.

If the jury convicts the defendant of any of the capital crimes charged in the indictment, the same jury will hear evidence and then decide whether to sentence him to death or to life in prison without the possibility of release. And because the jury that is selected to decide, first, the defendant's guilt or innocence will also decide his punishment, if he is convicted, it is necessary to question potential jurors about your feelings and beliefs about the death penalty as part of this process of picking a jury.

So let me briefly explain the procedures that must be followed in a case in which the death penalty is or may be at issue. As in any criminal trial, 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 be lawfully imposed, there will be a second phase of the trial. The second phase is referred to usually in shorthand as the "penalty phase." In that phase, the government will introduce evidence that seeks to prove beyond a reasonable doubt, first, that the defendant acted with sufficient intent to be subject to the death penalty as a matter of law, and, second, that aggravating factors about the killings or events 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 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 the opportunity to present evidence of what it will argue are mitigating factors. Mitigating factors are usually circumstances about the crimes or about the defendant's background or character that would suggest that the death penalty is not the appropriate sentence for the case, or that life imprisonment without possibility of release is adequate to punish the defendant.

Unlike the proof of aggravating factors, a mitigating factor must only be proven 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 twelve jurors. Any juror who finds or determines a mitigating factor to have been proven by the 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 then will weigh all the evidence. Before a jury could vote to impose the death penalty, every juror would have to be convinced that certain threshold factors make the defendant potentially subject to the death penalty and that those factors had been proved 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 so that a sentence of death is justified. 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 the 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 verdict. It is the jury, not the judge, that is responsible for determining whether a defendant who is convicted of a capital crime will live or die.

What I have 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 the jury, and if you find the defendant guilty of a crime or crimes punishable by death, then at an appropriate time 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.

When you filled out your questionnaires, we told you that there were no right and wrong answers to any of the questions you've been asked, and that's true of any that you'll be asked in this further process of interviews. We asked the questions because both the government and Mr. Tsarnaev are entitled to a jury that does not have its mind firmly made up one way or the other before hearing the evidence and a detailed explanation of the law. That applies both to whether Mr. Tsarnaev 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 we're going to question each of you individually about issues that may be important to selecting a jury in the case. We're going to ask you to go back into the room that you've just been in, and we'll call you into the courtroom one by one to ask you some questions. There will be a few people in addition to the lawyers and their staffs present in the courtroom during the process, and the proceedings will be simultaneously transmitted by video and audio to overflow courtrooms where there are members of the public and the media present. 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 generally be public, but if a truthful answer would require you to reveal sensitive personal information, we will temporarily stop the audio transmission to the overflow courtroom so that people observing there will not hear your answer.

Again, we do not expect or want any particular answer to any question. All we want and what the law expects is for you to provide accurate and truthful answers to the questions you will be asked. If you do that, you will be doing your duty as a citizen and as a juror, no matter what your answers may be. I do want to remind you about some of my prior instructions. As you know, a jury's verdict must be based on the evidence produced at trial and must be free of outside influence. Therefore, I remind you again that 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 either you have been excused, or, if you're selected as a juror, until the case concludes. And, of course, you're not to undertake any independent inquiry or research, including online research of any kind, or otherwise read, watch, or listen to reports about the case that may be in the media.

When you signed your questionnaires, you did so under an affirmation that the information provided was true, and you affirmed that that was the case under the penalties of perjury. Similarly, your answers here will be sworn or affirmed, and we ask you now to stand while the Clerk administers the oath to you.