1.Preliminary Capital-Case Instructions to the Venire

THE COURT: Thank you for being here.

As you know, we are continuing the process of selecting a jury for the case of United States versus Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with bombing that occurred near the finish line of the Boston Marathon on April 15, 2013, that resulted in the death of three people. He is also charged with the death of an MIT police officer and other crimes 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 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 imprisonment without the possibility of release. You may wonder why the death penalty could be a possibility in this case in view of the fact of the laws of Massachusetts do not provide 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 the violation 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 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 decided 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 picking a jury.

Let me explain briefly the procedures that must be followed in a case in which the death penalty is or may be at issue.

As in any criminal case, initially the government will have the burden of proving that Mr. Tsarnaev is 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, then there will be a second phase of the trial, usually 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 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 Mr. Tsarnaev than on 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 an opportunity in the penalty phase 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 the possibility of release is adequate to punish the defendant.

Unlike the proof of aggravating factors, a mitigating factor must be only 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 also do not have to be proved 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 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 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 must be followed in making that decision.

As I told you when you, before you filled out your questionnaires, there are no right or wrong answers to any of the questions that you have been asked or that you will be asked in this process. We are asking 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 another 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 that are 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 the possibility of release.

We're going to follow up on your questionnaire answers by questioning each of you individually about some issues that are relevant to the selection process. In just a moment we're going to ask you to go back to the room where you were assembling this morning and one by one we'll call you into the courtroom and interview you, ask you some additional questions. There will be people in the room in addition to the lawyers and their staffs and the proceedings will be simultaneously transmitted by video and audio to overflow courtrooms.

We will not identify you by name but rather than juror number. And you will be seated so 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 courtrooms so that people observing there will not hear your answer. Again, we do not want or expect any particular answers 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 answers may be.

I'm going to take a moment to remind you of my prior instructions about being free of outside influence. A jury's verdict must be based on the evidence produced at trial and not by -- based on matters outside the evidence, and I therefore remind you again it's extremely important to avoid any discussion of the case, including the selection process, with your family, friends, each other, or any other person until you've been excused, or if you serve as a juror, until the case has concluded. Again, of course, you're not to conduct any independent research online or otherwise, or read or watch or listen to media reports about the case. When you filled out the questionnaire, at the end you signed under a statement that your answers were true and you were making an affirmation that they were made under the penalty of perjury. Similarly for this process, we will administer an oath or affirmation to you that your answers will be true, and the clerk will now do that.