1.Photograph Rulings and Renewed Challenge to Survivor Injury Testimony
28 linesP R O C E E D I N G S
COURT CLERK: All rise.
(The Court enters the courtroom at 9:12 a.m.)
COURT CLERK: For a continuation of the Tsarnaev trial. Be seated.
THE COURT: Good morning. There are, I think, a couple of issues regarding potential exhibits that I wanted to address before we brought the jury out. I don't know if you've talked about them. Generally, I think the objections are overruled. I did think that the -- a number of the -- I guess they're Forum still photographs, are cumulative, duplicative, so I would suggest some subset of those. That's 24, 25, 26, 27, 31, 32, 33, 34. Some of them looked almost identical.
MS. PELLEGRINI: Your Honor, actually, we have decided to try to narrow that down a little bit and use fewer of those. You said "Forum," but they're regular Boston street photos? Photo stills? I'm sorry.
THE COURT: They're stills -- I'm looking at the email that I guess everybody got a copy of.
MS. CONRAD: The exhibits your Honor is referencing are not Forum stills.
THE COURT: Oh, they're not?
MS. CONRAD: I have copies of them here if your Honor wants to look at them.
THE COURT: I've looked at them.
MS. CONRAD: Okay.
THE COURT: I read the email to indicate that they were Forum, so -- they are Boylston Street photographs and they seem cumulative, and I'm interested more in the moving-things-along aspect than the prejudicial aspect, frankly.
MS. PELLEGRINI: We will not be using some of them because they are very similar to one another, and we have talked about that; however, with respect to the Forum stills, which I believe is also in the email, that we feel is not repetitive. As the Court can see from yesterday, it's difficult as they play a video, to stop the video at a specific point. We would be entitled to take a screen shot once we got there and had it printed out for the record. So we just have done that ahead of time.
THE COURT: Okay. The only limitation I think is that the number of similar photographs should be reduced, all right? Okay. Let's proceed.
MR. BRUCK: We have two other matters, your Honor, before the jury comes in. If I could confer with Ms. Clarke for just a moment?
(Counsel confer off the record.)
MR. BRUCK: There's concerns on the question of what we've described as victim impact evidence from surviving -- survivors of the Boston Marathon bombing. We have today filed under seal, because it is in connection with a sealed series of pleadings, a motion to renew a renewed motion. And as the Court will recall, this issue was raised by a motion we filed back in January, the government responded at the end of February and represented that the sequelae of the -- of the bombing injuries suffered by survivors would only be offered to the extent they were necessary to show either what the victim -- why the victim remembers particular parts of the testimony or as it bears on the witness's ability to perceive the events, which is a proper and very narrow justification.
However, during the extremely moving and poised and articulate testimony of three of the survivors yesterday, we realize that the government is not actually abiding by that restriction, and so we have filed a motion to reassert the reasonable and legal limitations that exist in a proceeding like this.
We want to emphasize that the defense in absolutely no way, shape or form wishes to limit the right of survivors of the marathon bombing to have their day in court and to speak fully about every aspect of the impact of these crimes on them and on their lives and on their families, the only issue is at which proceeding the law provides for this testimony to occur.
The law is well settled and the Federal Death Penalty Act makes quite clear that non-homicide victim impact testimony is not admissible at the penalty phase of a capital sentencing -- of a capital trial, and it seems as though given this restriction, the government is, in effect, attempting to introduce that type of evidence at the guilt phase where it is even less admissible, would not be admissible in any trial, let alone a capital trial.
The evidence is being offered at the wrong proceeding. And for that reason, and particularly in light of the testimony that is scheduled for this morning, we have reasserted the motion and we ask that the Court order the government to abide by the very restrictions that it said it would be guided by when it responded to our motion and caused us to withdraw the motion because we thought there was no dispute.
MR. MELLIN: Your Honor, in no way have we not abided by that. We are not asking about victim impact, we are not asking one witness about how has this affected the future of your life, how is this affecting whether or not you can get a job, how has this affected others around you? That is what victim impact testimony is. That is something that we will elicit at the appropriate time.
It's ironic, I think, that Mr. Bruck just stood up and said that he's not trying to limit these witnesses' ability to talk about victim impact, yet then he turns around and says, Well, actually, if they're not a decedent, then the government is not allowed to talk about victim impact. And that is, in fact, the law. The government is not talking about victim impact.
We're asking these jurors -- or excuse me -- these witnesses about their pre-blast activities to put them on the scene, to explain how it is they were there, how they were able to observe the things they observed, and then what happened after the explosion and the extent of their injuries. Specifically in the indictment we have alleged that individuals were maimed or burned during these explosions. That is what we are eliciting, the extent of the injuries that occurred.
THE COURT: All right. I think the testimony yesterday did not go out of bounds.
MR. BRUCK: Well, if I could just, for the record, be specific. One example of where we think -- the reason for our reasserting the motion was testimony concerning surgical procedures that extended for nearly -- until a few weeks ago, close to two years after the bombing. We think that is an example of where --
THE COURT: All right. I disagree. I disagree with that.
MS. CONRAD: I have two matters, your Honor. Just to go back to the issue regarding the photographs. I just want to be clear because it was done by email that the exhibit numbers that we are objecting to -- if I can find my email. I just want to put those on the record and inquire, first of all, whether the government -- okay. So those were Exhibits 24, 25, 26, 27, 31, 32, 33, 34, 35, 20, 39, 40, 30 and 634.
And so if the government now says it's going to limit those, if the government would be so kind to show us the exhibits before, or put them up on the screen but not for the jury before offering them -- yesterday they just asked, "Have you seen exhibits such and such and such"; and also, I would just ask if the -- our rights -- our objection is preserved with respect to those so we don't have to renew them in front of the jury.
THE COURT: Yes to the last question.
MS. CONRAD: Right.
THE COURT: What I had in mind was the range -- it's not every number between these -- but between 24 and 35. That's what I was addressing. I think those should be limited. I'll leave it to the government to offer a subset of those. I don't think we have to go through them now.
As to the others, the objections's overruled.
MS. CONRAD: And 20 is overruled?
THE COURT: Yes.