1.Preliminary Instructions on Guilt and Capital Sentencing

THE COURT: Good morning, everyone. Thank you for being here. We are continuing the process of selecting a jury for the case of United States v. Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged in connection with a 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 charged in the death of an MIT police officer and other crimes 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.

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 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 that are charged in the Indictment, the same jury will hear additional evidence and then decide whether to sentence him to death or to life in prison 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 jurors about -- prospective jurors about your feelings and beliefs about the death penalty as part of the process of selecting a 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 for a crime for which the death penalty may lawfully be imposed, then there will be a second phase of the trial, usually referred to in shorthand as "a 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 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 have been 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 crime 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.

Unlike the proof of aggravating factors, a mitigating factor must only be proven by the 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 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 that mitigating factor has been proven. After the parties have made their presentations during the penalty phase of aggravating and mitigating factors, 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 the defendant 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 proven mitigating factors found by any juror or jurors to justify a sentence of death. Even if the jury did not find any mitigating factors in the case, it would still have to unanimously be persuaded that any proven aggravating factors were themselves sufficient do 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 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 the 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 the possibility of release and the law that you must follow in making that decision.

As we told you when you filled out your questionnaires, there are no right and wrong answers to the questions you have been asked or that you will be asked in the process. We ask them because both the government and the defendant 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 the defendant is guilty or not guilty of the specific crimes charged in the Indictment and, if he's convicted of a capital crime, whether he should be sentenced to death or to life imprisonment without possibility of release.

So today we're going to follow up on your questionnaire answers by questioning each of you individually about matters that are relevant to the selection of a jury. When I've finished these brief remarks, you will go back into the room you have been in and one by one come into the courtroom to answer some questions.

There will be a few people here in the courtroom 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 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 that people observing there will not hear your answer.

Again, we do not want or expect any particular answer to the questions. All we want and what the law expects is that you 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 are.

I want to remind you of something I told you in my prior instructions. 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 this jury selection process, with your family, friends, each other or any other person until either you have been excused or, if you're selected, until the case concludes. Again, of course, you're not to conduct any independent research online or otherwise or read or watch or listen to reports about the case in the media. When you finished filling out the questionnaire, you signed it, and you signed under a statement that indicated that the answers were true and accurate and that you were making them -- affirming them under the pains and penalties of perjury. For this process, we ask you to similarly take an oath or affirmation that your answers will be true, and the clerk will now administer that to you.