1.Preliminary Venire Instructions — Capital Trial and Sentencing

THE COURT: Good morning, everyone. Thank you for being here. Welcome back.

We are continuing the process of selecting a jury for the case of United States vs. Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged in connection with a bombing that occurred at the finish line of the Boston Marathon on April 15, 2013, and that resulted in the deaths of three people there. He's also charged in the death of an MIT police officer and other crimes that occurred 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, then the jury will consider and decide whether he will be sentenced to death or will be sentenced to life in prison without the possibility of release for any such crime.

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 as a 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 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, first, the defendant's guilt or innocence will also decide his punishment if he is convicted, it is necessary to question you about your feelings or attitudes towards the death penalty as part of the jury selection process.

So let me briefly explain the procedures that must be followed in a case in which the death penalty is or may be an 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, 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 himself 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 are convicted of intentional killing or murder. The government will bear the burden of proving alleged -- any alleged aggravating factors to every juror beyond a reasonable doubt.

The defense will have an opportunity 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 proved by a greater weight of the evidence. That is a less demanding standard 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 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 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 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 verdict. 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 this 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.

When you were here last and filled out the questionnaires, we told you that there were no right or wrong answers to any of the questions that you've 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 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 have some questions for each of you individually on matters that are pertinent to the process of selecting a jury. In a moment we're going to ask you to go back into the room you just assembled in, and one by one we'll have you come back into the courtroom to ask those questions. There will be a few people in the courtroom in addition to the lawyers and their staffs, and these proceedings are also being simultaneously transmitted by video and audio to overflow courtrooms where there are other people who are watching and listening. We will not identify you by name but rather by juror 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 that a truthful answer would require you to reveal sensitive personal information, we will temporarily stop the audio transmission so that -- 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 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 want to remind you about some of my prior instructions. As I told you earlier, a jury's verdict must be based on the evidence produced at trial and must be free from outside influence. Therefore, I remind you that it is extremely important that you do not discuss the case, including the jury selection process, with your family or friends or each other or any other person until either you have been excused or, if you serve as a jury, until the case has concluded. Again, of course, you're to avoid any independent research, online or otherwise, about the case, and you're to avoid reading, watching, or listening to any media reports about the case. When you completed your questionnaires, we asked you to sign at the bottom of the last page under a statement that you're making the true answers and that you're doing so under the pains and penalties of perjury. We ask now that you make a similar -- take a similar oath or affirmation, and the clerk will administer that to you now. If you'd rise, please.