1.Preliminary Instructions on Guilt and Capital Sentencing

THE COURT: Good morning, everyone. We are continuing the process of selecting a jury for the case of the 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, 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 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 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 the laws of Massachusetts.

If the jury convicts Mr. Tsarnaev of any one 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'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 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 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 in shorthand -- 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 that: first, 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, make the crimes particularly serious or blameworthy and, therefore, under the law, may justify imposing a more severe sentence on Mr. Tsarnaev compared with 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 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 imprisonment 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 a mitigating factor to have been 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 a 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 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 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 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 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, I will then 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 before you filled out your questionnaires in this case, there are no right or wrong answers to any of the questions you have been asked or that you will be asked today. We ask them because both the defendant and the government 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 possibility of release.

So today we're going to question each of you individually about issues relevant to the selection process. In a moment, we're going to ask you to return to the jury room where you've just been assembling, and we'll call you into the courtroom one by one to ask you some questions.

There will be a few people in addition to the lawyers and their staffs present here in the courtroom during the process, and the proceedings are being simultaneously transmitted by video and audio to other courtrooms where there are people observing.

We will not identify you by name but rather by number, and you will 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 the other courtrooms so that people observing there will not hear your 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 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 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, friends, each other, or any other person until either you have been excused or, if selected as a juror, until the case concludes. And, of course, you're not to conduct any independent research about the case online or otherwise and are to avoid reading, watching or listening to any reports in the media about the case.

When you signed your questionnaires after you completed them, you signed under an affirmation or oath that you had made the statements -- that they were true and you were making them under the pains and penalties. There's a similar oath or affirmation that will be administered to you now for the questioning that will occur hereafter. And the clerk will ask you to rise so that he may administer that oath.