1.Preliminary Capital-Case Instructions and Venire Oath

THE COURT: Good morning, everyone. Thank you for being here today. We're continuing the process of selecting a jury for the trial of the case of United States vs. 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, that resulted in the deaths of three people. He is also charged in the death of an MIT police officer and other offenses 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 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 or to life in prison without 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 for 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.

So 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 this process of selecting the 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, 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, 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 the defendant 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, therefore, under the law, may justify imposing a more severe sentence on Mr. Tsarnaev 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 to present evidence in the penalty phase 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 the death penalty is not the appropriate sentence in this 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 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 a mitigating factor to be 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 the mitigating factor has been proven. After the parties have made their preparations 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 in the case, he would still have to be unanimously persuaded that any proven aggravating factors were themselves sufficient to justify a death penalty.

You should understand that a jury is never required to sentence a defendant to death. The decision whether the government has proved 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, then 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 your questionnaires, you will recall that we told you that there are no right or wrong answers to the questions you have been asked. That's true of those you will be asked further in this process. We asked them primarily because both the government and Mr. Tsarnaev 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 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.

So today I'm going to question each of you individually about issues relevant to the selection of a jury. We're going to have you go back into the room where you were just awaiting your entry into the courtroom. You'll wait there, and we'll call you in one by one and ask you some questions. There will be a few people in the room in addition to the lawyers and their staffs, and the proceedings will be simultaneously transmitted by audio and video to overflow courtrooms where there are other people attending.

We will not identify you by name but rather by number, and you will seated so that the video camera 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 the 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 for you to 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 want to take a moment to remind you of some of my prior instructions. As I told you before, 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 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 you have been excused or if you are selected as a juror, until the case concludes. Again, you are to avoid any independent research on the case online or otherwise and to avoid reading, watching, listening to media reports about the case. When you finished completing the questionnaires, we asked you to sign the questionnaire under an affirmation that the answers you had given were true. There's a similar process for this oral examination. You are required to swear or affirm that you will give true answers to the questions. And the clerk will now ask you to stand and administer that oath and affirmation.