1.Preliminary Instructions to the Venire and Oath

THE COURT: We are continuing the process of selecting a jury for the case of the United States versus Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged in connection with the bombing that occurred near the finish line of the Boston Marathon on April 15, 2013, and that resulted in the deaths of three people. He's 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, then the jury will 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 laws do not provide the death penalty for murder, or for any other violation of Massachusetts law. The answer is that this is a federal case involving alleged violations of the laws of the United States rather than a state case involving violation of Massachusetts law.

If the jury convicts Mr. Tsarnaev of any of the capital crimes charged in the indictment, the same jury then 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's convicted of a capital crime, it is necessary to question 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 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 a 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 this defendant than on other persons convicted of intentional murder or killing. The government bears the burden of proving any alleged aggravating factors to every juror beyond a reasonable doubt.

The defense will have the 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 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 proved to the satisfaction of all 12 jurors. Any juror who finds or determines that a mitigating factor has been proved 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 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 proved 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 proved that a defendant should be sentenced to death ultimately must 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 has been convicted of a capital crime will live or die.

What I've just described is only an overview of the law applicable to the jury's consideration of the death penalty. If you're 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 about 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 filled out your questionnaires, there are no right or wrong answers to any of the questions that you've been asked or that you will be asked. 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 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's convicted of a capital crime, whether he should be sentenced to death or to life in prison without the possibility of release.

So today we're going to question each of you individually about some issues that are relevant to the selection process. In a moment we're going to ask you to return to the jury room and await your turn. We'll have you come in one by one and we'll ask you some questions.

In addition to the lawyers and their staff, there will be a few other people present in the courtroom during the process. The proceedings are being simultaneously transmitted by video and audio to other courtrooms where there are other people who may be watching and listening.

We will not identify you by name but by 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 a truthful answer would require you to reveal sensitive personal information, we will temporarily stop the audio transmission to those other courtrooms so that people observing there will not hear your answer.

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

I want to remind you about something I told you before. Of course 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 jury selection process, with your family, friends, each other, or any other person until you've been excused or, if you're selected, until the case concludes. And again, of course, you're not to conduct any independent research into the issues, either online or otherwise, and we ask you to avoid reading, watching or listening to any reports about the case in the media. When you completed the questionnaires, we asked you and you did sign the questionnaires under the statement you were making truthful answers under the pains and penalties of perjury. For this purpose we will now administer a similar oath or affirmation, and the clerk will do that by asking you to rise.