4.Jury Oath and Preliminary Guilt-Phase Instructions

THE COURT: Thank you.

We'll now formally begin proceedings by administering the oath of office to the jurors. If you would rise again, please.

THE COURT: Jurors, with the administration of the oath of office you are now an official jury and the trial is officially underway. I'm going to give you a bit of a brief overview of how we're going to proceed as this trial unfolds and then we'll begin the actual presentation.

As I'm sure you can appreciate, this is a very important occasion for both sides in this case. They have been looking forward to it, preparing for it for some time, and they need and expect and will get, I'm sure, your full attention and serious consideration.

As you know, this is a criminal prosecution. The government, by means of the indictment, which is the document that presents the charges, outlines the scope of what will be in issue. As you've heard before, this is a federal court and the issues arise under federal law, not state law. The federal criminal law is statutory law; that is, it is the result of enactments of the Congress that describe certain conduct as criminal and provide for its punishment. And so when the time comes, you will be instructed as to the details of each of the charges and what must be proved to prove an offense under the relevant statute.

Criminal liability can arise in different ways. A person may directly personally commit the acts that constitute the offense. To take a simple example, it is a federal crime to rob a federally insured bank, so a person may walk into the bank, hand the teller a note demanding money, take the money and leave the bank. The person will have directly committed the offense of bank robbery. And when a person has himself performed the deeds that constitute the crime, the person is said to have committed a substantive offense.

In addition, a person may be guilty of a substantive crime if he intentionally helps or assists another person to commit the crime. The law refers to the act of assisting another to commit a crime in legal language as aiding and abetting the crime. Again, in our bank robbery example, a person might assist the actual robber by agreeing to stand lookout or perhaps waiting in a car to drive the robber away from the bank after the robbery had occurred.

It is also a crime for persons to conspire together to commit a crime. In brief, a criminal conspiracy is an agreement of two or more persons to work cooperatively to commit a substantive crime. So to use our bank robbery example again, if two or more persons agree to work together to rob a bank, they would be guilty of the crime of conspiracy. Joining in a criminal conspiracy is a separate or distinct offense from the crime which is the object of the conspiracy.

Now, as I say, the charges made against this defendant as set forth in the indictment, which is a rather lengthy document -- you'll have it ultimately for your review when your deliberations begin. But for the time being, I will give you a brief summary of what the indictment charges.

First, it charges the defendant with participating in three separate conspiracies that began in or about February 2013 and ended on or about April 19, 2013. The indictment alleges the defendant conspired with his brother, Tamerlan Tsarnaev, to use a weapon of mass destruction to bomb a place of public use and to destroy property. The indictment further alleges that these conspiracies resulted in the deaths of Krystle Marie Campbell, Lingzi Lu, Martin Richard and Officer Sean Collier.

The indictment also charges the defendant with multiple counts of using a weapon of mass destruction, bombing a place of public use and destroying public property, and it alleges that some of those counts -- some of the crimes alleged in those counts resulted in the deaths of Krystle Marie Campbell, Officer Collier, Lingzi Lu and Martin Richard.

The indictment also charges the defendant with multiple counts of the possession and use of a firearm during and in relation to a crime of violence, and it alleges that some of those counts also resulted in the deaths of Krystle Marie Campbell, Officer Sean Collier, Lingzi Lu and Martin Richard. Finally, the indictment alleges that the defendant carjacked and robbed an individual who was identified in the indictment. As you've heard during our selection process, the defendant is presumed innocent of all of these charges unless and until the government proves otherwise by the proof at trial. The indictment is no proof that a defendant has committed the acts alleged; it is simply a way of proposing the question for the jury to consider based on the evidence that is produced here in the course of the trial. The burden of proof rests always with the government and never shifts to the defendant to prove that he is innocent.

You know from what has preceded that the defendant is charged with certain capital crimes that carry the potential of a sentence of death. We are now not at that phase; we are in a phase which we refer to as the guilt phase, whether or not the defendant is guilty of the offenses charged, and that will be the focus. You should not consider during this portion of the trial any punishment that should be determined to be appropriate. The question of punishment is entirely separate and is not part of this first stage of the trial.

Let me repeat my cautions. During this, it is very, very important that you do not talk among yourselves or with other people about the substance of the evidence as it is coming in. There will be a time for you all to do that but it is not now. Of course you must avoid any discussion of the matter with anyone else outside the court. People at home, again, of course you can tell them that you're leaving to go to jury duty, but you can't get into any of the details.

It's extremely important you avoid any contact with other sources of information. As we've repeatedly emphasized, no independent investigation, no Googling or looking at things. The evidence that you will consider must be the same evidence. You must all be focused on exactly the same evidence, and the way to control that is to limit your consideration of anything to do with the facts of the case to what is presented here in the courtroom to you all sitting here as a jury.

So let me outline for you the way the trial will proceed. As I'm sure you appreciate, there are longstanding rules and traditions about how a trial moves forward and the evidence is presented, and it breaks into some segments. In a moment when I've concluded these introductory remarks, the lawyers will have an opportunity to make what we call their opening statements.

An opening statement is an opportunity to prepare you for what you may hear in the evidence as it unfolds. It's a summary of what the lawyers expect the evidence will include. It's not necessarily an exhaustive summary of the evidence but it will give you the gist of what the parties expect the evidence to be.

The purpose is to give you some context so that as you hear the evidence, witness by witness, piece by piece, you'll be able to have some understanding of what it might mean. You're not to make any conclusions about it as you draw it in, but it will help you to follow the evidence a little bit if you've got some general idea of what the overall picture is.

I like to suggest to jurors that you can think of the opening as sort of the picture on the outside of the jigsaw puzzle box. This is the way the lawyer thinks it should look when all the pieces have been put together. They will probably have different pictures. That's usually the case. It will be up to the jurors to piece things together in their discussions at the end of all the evidence and decide what is shown and what is not shown. But the openings give you an opportunity to follow the evidence a little bit by having some idea where they may be going with it.

After the openings, the evidence will begin. The openings themselves are not part of the evidence; they're simply the lawyers' summary of what is to come. The evidence will come from the witnesses who appear in the courtroom, swear to tell the truth, and then answer questions that are put to them by the lawyers, each side having an opportunity to ask questions of each witness. That question-and-answer format is an aspect of the formality of a trial. We don't just have witnesses come in and talk to you and say what they think you might like to know about matters; rather, their attention is directed to particular pieces of evidence or testimony by the lawyers. And there are a number of reasons for that. One is simply efficiency, that the lawyers, knowing what is important in the case, can direct the witnesses to that matter, what is important, and to leave out things that need not be said.

In addition, we follow principles of law that we refer to generally as the law of evidence. In addition to procedural rules, there are rules about the kind of evidence that may properly be admitted in a trial such as this. Generally, the law of evidence makes judgments about reliability of evidence as a categorical matter, judging some things to be more reliable, generally speaking, than others, and, therefore, more preferable for consideration by a jury. Conversely, some things are less reliable as a general matter and, therefore, inappropriate for consideration by a jury. And so the law of evidence embodies these principles and rules that govern whether evidence may be admitted or not.

That's part of my responsibility as the presiding judge, to make whatever rulings on legal points including questions of law of evidence as the case proceeds. You'll see it happening, and I'm sure you've seen it, if not in real trials, in fictional ones. If a lawyer thinks that a question calls for an answer that is not proper to be admitted under the law of evidence, the lawyer will make an objection to that question. If that happens, I'll rule.

If I sustain the objection, it means I agree that the answer should not be in evidence and the witness won't answer that question. If that should happen, don't try to answer it yourselves. Don't try to guess what the answer might have been if the witness had been permitted to answer. Just take it that for whatever reason there's no evidence to that point, wait for the next question and the answer to that because it, of course, is the answers to the questions that constitute the evidence; not the questions themselves.

On the other hand, I may overrule the objection and the witness goes ahead and answers the question. That answer then becomes part of the evidence, just like all the other evidence you've had that was given without objection. An objection isn't a signal that this is somehow really important because they're objecting to it. That's not true necessarily at all. And the reason is that the considerations that underlie the rules of evidence have nothing to do with the merits of this case. There's no meaning to be attached to an evidentiary ruling as having some significance for any of the substantive decisions you'll have to make about the issues in the case. So don't look for any, because they're just not there.

Most commonly I will rule immediately on the objection. I'll understand it from the context. Sometimes I'll invite the lawyers to come to the sidebar and we'll discuss it briefly. I'll allow a brief argument about the question and perhaps a proffer of what the answer is expected to be. And we do that out of your hearing because if the answer is ultimately excluded, we don't want you to have heard it. When we do that, we will probably try to distract your attention from hearing anything we say over there by playing some music. So if you hear music start in the middle of the case because we're going over there, don't be surprised; it's part of the process of protecting the integrity of the process.

The presentation of evidence of course will be the lengthiest part of the trial and will take some time, as you've heard. During that we will allow you each to have a notebook, personal notebook, and you may take notes on the evidence as you go along. We provide this as a convenience to you. It's not required that you do it. You assess your own comfort level with it. Some people find it helpful to take notes to jog their memory later on, some people find it a distraction from observing what's going on in the courtroom. And keep in mind that we don't want your noses in the notebook so you're forgetting to observe what's going on in the case. So try it out. See what you find yourself is useful with the note-taking. You don't have to do what your neighbor does. Do what you think is suitable for your own purposes. Every night we'll collect the notebooks and put them under lock and key, and you'll get them again in the morning to resume. At the end of the case your notes will be destroyed.

After the evidence has concluded, we'll proceed to the next stages of the case. The lawyers will again have an opportunity to address you. Now instead of previewing the evidence, they'll be trying to summarize it for you and ask you to evaluate it in a way, obviously, that is consistent with their view of the case. Those are sometimes called the final arguments or the closing statements. I'll have some very detailed instructions in the law -- what the elements of each of the offenses are that need to be found based on the evidence in order to find the defendant guilty or -- and how you'll proceed and consider the evidence and evaluate it. And then you'll begin your deliberations. So those are the -- that's the general format and outline of the proceeding.

I think the clerk has gone to get the notebooks, and when he's back we'll distribute them and begin -- actually, we'll wait for him to come back. You will not take notes during the openings because the openings are not evidence. The notebooks are only for the evidence in the case.

THE COURT: You can distribute them after the openings.

With that, then, we'll proceed to the next stage with the opening statements. The government will begin.