1.Preliminary Instructions — Capital Trial and Death Penalty

THE COURT: As you know, we are continuing the process of selecting a jury for the trial of the case of United States versus Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with a bombing that occurred near the finish line of the Boston Marathon on April 15th, 2013, and that resulted in the deaths of three people. He's also charged in 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'll 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 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 Massachusetts law.

If the jury convicts Mr. Tsarnaev of any one of the capital crimes charged in the indictment, then the same jury will hear additional evidence and 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 their 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 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 of the trial, usually referred to in shorthand as the penalty phase.

In that phase, the government will introduce evidence that seeks to establish and prove beyond a reasonable doubt, first, that the defendant acted with sufficient intent to be subject to the death penalty under the law; 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 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 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 the appropriate sentence in the case or that life in prison without the 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 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 that 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 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 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 an overview of the law applicable to the jury's consideration of the death penalty. If you are selected to serve on this jury and if you find the defendant guilty of a crime or crimes punishable by death, I will then 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.

When you filled out your questionnaires, we told you that there are no right or wrong answers to any of the questions you've been asked or that you will be asked in this further process. We're asking these questions because both the government and Mr. Tsarnaev are entitled to have 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 charged 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 we're going to continue the process today by questioning you each individually about issues that are relevant to selecting a jury. In just a moment we're going to ask you to go back into the room where you were just a few moments ago. We'll call you into the courtroom one by one to ask you some questions.

There will be a few people in the courtroom in addition to the lawyers and their staffs, and these proceedings are being simultaneously transmitted by video and audio to overflow courtrooms. We will not identify you by name but rather by juror number. And you will be seated so that the video camera transmitted to other courtrooms will be behind you.

Your answers will be generally public, but if you believe that 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 be able to hear your answer.

Again, we do not expect or want 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'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 remind you about some of my prior instructions. As I told you, 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 it is extremely important that you do not discuss the case, including the selection process, with your family, friends, each other, or any other person until either you have been excused or, if selected as a juror, until the case concludes. And again, of course, you're not to conduct any independent research, online or otherwise, about the case or to read, watch, listen to reports about the case in the media.

When you signed your juror questionnaire, you did so under a statement that -- affirming that the statements in the -- your answers in the questionnaire were true. That was under the pains and penalties of perjury. Again, we'll ask you to swear or affirm that your answers given today in this voir dire process will be true, and the clerk will now administer that oath or affirmation to you.