1.Preliminary Instructions on Guilt and Capital Sentencing

THE COURT: I'm glad to see you all made it here safely.

We are 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 a bombing that occurred near the finish of the Boston Marathon on April 15, 2013, that resulted in the death 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 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 could be a possibility in this case in view of the fact that Massachusetts does 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 federal law rather than a state case involving violations of Massachusetts law.

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 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 a jury.

Let me explain briefly the procedures that must be followed in a case in which the death penalty is or may be an 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 of the trial, referred to in shorthand generally 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, would 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 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 crimes or about the defendant's background or character that would suggest that the death penalty is not an 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 need 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 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 a mitigating factor to have been proved by a greater weight of the evidence may consider that factor in deciding an appropriate sentence in the case regardless of whether any or all of the other jurors agree that the mitigating factor has been proved. 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 the defendant 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 in the case, 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 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 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 that is applicable to the 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 possibility of release and the law that must be followed in making that decision.

As I told you when 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 ask 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 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.

So today I'm going to question each of you individually about some issues that are relevant to the process of selecting a jury. In a moment we're going to excuse you back to the room you were just assembled in, and one by one you'll come into the courtroom and we'll follow up with some questions.

There will be some people in the room in addition to the lawyers and their staff, a few people, and the proceedings are being transmitted simultaneously by video and audio to overflow courtrooms where there may be other people watching. 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 courtrooms so that people observing there will not hear your answer. We'll also excuse people not affiliated with the case from the room for the duration of that answer.

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

I want to remind you about something I instructed you on before. As I told you before, 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 that it is extremely important that you do not discuss the case, including the jury selection process, with your family and friends, each other, or any other person until you've been excused or, if selected as a juror, until the case has concluded. And again, of course, you're not to do any independent research online or otherwise, or otherwise read, watch or listen to any reports about the case in the media. When you finished your questionnaires, you signed at the last page where the statement above -- affirming that your answers were true under the pains and penalty of perjury. Similarly, your answers today must be given under a similar affirmation or oath, and the clerk would now ask you to rise and he will administer that to you.