1.Preliminary Capital-Case Instructions and Venire Oath

THE COURT: Thank you for being here. We're continuing the process of selecting a jury for the case of United States versus 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, and 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 will 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 the possibility of release.

Some of you may wonder why the death penalty could be 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 any other violation of Massachusetts law. The reason is that this is a federal case involving violations -- 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 the defendant of any of the capital crimes charged in the indictment, the same jury will hear additional evidence and then decide whether to sentence him to death or to life imprisonment without the possibility of release. Because the jury that is selected to decide the defendant's guilt or innocence will also decide his punishment if he is convicted, it is necessary to question prospective jurors about your feelings and beliefs about the death penalty as part of the process of selecting the jury.

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 lawfully be imposed, there will be a second phase to the trial, usually referred to, in shorthand, as the penalty phase.

In the penalty phase, if there is one, 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 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 to other persons who are convicted of intentional killing or murder. The government will bear the burden of proving any 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 in the case, or that life imprisonment without possibility of release is adequate to punish the defendant for the crimes.

Unlike the proof of aggravating factors, a mitigating factor need 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 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 on an 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 then 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 have 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 the 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 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 the jury's consideration of the death penalty. If you are selected to serve on the jury and 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.

When you filled out the questionnaires, we told you that there were no right or wrong answers to any of the questions that you were being asked in the questionnaire, and that is true of the questions being asked today. We are asking these questions because both the government and the defendant are entitled to a jury that does not have its mind firmly made up one way or another before hearing evidence and a detailed explanation of the law. That applies both to whether the defendant is guilty or not guilty of the specific crimes that are alleged in the indictment, and if he's convicted of a capital crime, whether he should be sentenced to death or to life in prison without the possibility of release.

So today we're going to follow up on some of the answers you gave in your questionnaires by questioning each of you individually about issues that are pertinent to the selection of the jury. We will call you into the courtroom one by one. You'll go back to the room that you've just been in and you'll come back into the courtroom one by one and we'll ask you some questions. There will be a few people in the room in addition to the lawyers and their staffs. And the proceedings are being simultaneously transmitted by video and audio to overflow courtrooms.

We will not identify you by name, but rather by number, and you'll be seated so that the video camera will be behind you. Your answers will generally be 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 other courtrooms so that people observing there will not hear your answer.

Again, we do not expect any particular answer to any of 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 the answers may be.

I want to take a moment to remind you about some of the prior instructions. As I told you before, the jury's verdict must ultimately 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, your friends, each other or any other person until either you have been excused or, if selected as a juror, until the case has concluded. And, of course, you're not to conduct any independent research about the case either online or otherwise, and to avoid reading, watching or listening to news reports about the case through the media. When you signed the questionnaires, you may recall that you signed under the statement that the answers were true, you were affirming that under the penalties of perjury. It's a solemn undertaking to assure the truthfulness of the answers. Similarly, with respect to the questions today, the law requires that you take an oath to be truthful in your answers, and the clerk will now administer that oath to you.