1.Jury Selection — Prospective Juror Orientation and Questionnaires

THE COURT: My name is Judge George O'Toole. I'm going to be presiding over this matter. I am happy to welcome you to this proceeding of the United States District Court for the District of Massachusetts, and especially to thank you for coming today. You are here because you have been summoned to be available for service as a trial juror in this court.

The resolution of legal controversies, both civil and criminal, by trial of the matter before a jury of citizens drawn from the community is one of the most fundamental principles at the core of our entire system of justice. You may recall from your study of American history that among the grievances against King George that was set forth in the Declaration of Independence were that he "had obstructed the administration of justice" and "made judges dependent upon his will alone."

Because of their experience in this respect, the founders were determined that the Constitution of the new nation would guarantee the right to trial by jury, and they wrote that guarantee into the Sixth and Seventh amendments in the Bill of Rights. In doing so they assured that the outcome of legal cases will ultimately depend and be entrusted to not officers of the government alone, but rather, to the public: ordinary citizens convened and acting as trial jurors.

We're in the process of selecting a jury for the trial of a criminal case. The case is United Stated v. Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with events that occurred near the finish line of the Boston Marathon on April 15, 2013, 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.

In a criminal prosecution, the burden is always upon the government to prove by factual evidence that the defendant is guilty of any crime he is accused of. And accordingly, every defendant is presumed to be not guilty until the government has proved otherwise at trial. The government bears the burden of proving a defendant guilty beyond a reasonable doubt.

The jury that we are selecting will have the task of considering the evidence that will be produced during the trial and deciding on the basis of that evidence whether the government has proven the defendant's guilt of the charges against him beyond a reasonable doubt or not.

This case differs from many other criminal cases, however, in a significant way. Usually after a jury has convicted a defendant of a crime, the presiding judge decides what the punishment should be. In this case, however, Mr. Tsarnaev is accused of crimes that are potentially punishable by a sentence of death. If, after trial, he's convicted of any of these crimes, under the law it is the responsibility of the jury rather than the judge to decide whether Mr. Tsarnaev should be sentenced to death, or instead, be sentenced to life imprisonment without the possibility of release, which is the only other possible sentence for such crimes.

In essence, in our democracy we have committed these solemn and important decisions not to judges answerable only to the sovereign, not to the press or public opinion, and certainly not to the mob. We have committed this important duty to ourselves collectively as the people, the people who established our constitutional order in the first place. And we the people, therefore, ask some of our fellow citizens to assume the high duty of convening as a trial jury to consider and evaluate and decide the issues presented with a firm disposition and commitment to do justice fairly and impartially.

Accordingly, it is the duty and civic responsibility of every citizen to appear and serve as a juror when called unless seriously unable to do so. Such service is both an obligation of citizenship and an opportunity to perform a vital public and civic function.

Juries are composed of citizens from all walks of life, each of whom brings his or her own individual perspective and life perspective to the task. You do not need to have any particular education or experience to serve as a juror. What you do need is a commitment to do justice. Acknowledging the importance of jury service is not to ignore the obvious point, that your appearance here is, at the very least, inconvenient. We ask jurors to set aside their usual routines for a time to perform an important and necessary public service. Certainly serving on a jury, if you're selected to serve, will require you to make some adjustments in your life.

You should not, however, think of your jury service as an annoying burden. Jurors regularly report to me and my colleagues that they have found their service as jurors to be one of the most interesting and memorable experiences of their life. After most trials, I meet briefly with juries afterwards and thank them for their service. Uniformly during those conversations, jurors tell me that the experience for them was worthwhile, interesting, and fundamentally important to them.

Jurors who seem to me to be nervous and unsure at the beginning of a case, after a verdict have a calm and solemn sense of a duty responsibly performed. If you are chosen to serve in this case, I fully expect you'll find the experience to be similar.

Let me explain how we are going to proceed in the selection process. Today when I've finished these preliminary remarks, a questionnaire will be distributed to you. You'll fill out the questionnaire before leaving today. As you fill it out, please do not discuss either the questions or your answers with anyone else in the room, including the court staff who have been instructed not to help you. The information on the questionnaires must come from you and you alone.

Please understand that there are no right or wrong answers to the questions in the questionnaire. All we ask is that you answer each question truthfully and completely to the best of your ability. The questionnaires are not intended to pry into personal matters unnecessarily, but there are some personal things we must know in order to assure both sides in this case that the trial will be conducted before a jury that is in truth fair and impartial.

In addition, as a practical matter, the use of questionnaires such as this makes the process less time-consuming and inconvenient for you.

When you've filled out the questionnaire completely, you'll give it to a member of the court staff and after that you'll be free to leave. During the coming week, the questionnaires will be copied, reviewed by the attorneys working on the case and by me. Initially, the completed questionnaire will be reviewed only by participants in the case and by the Court. The questionnaires will not become part of the public record unless and until I determine whether they include sensitive information which should be kept confidential permanently. And if they do, I intend to keep that information and any possible questioning about it from being available to the public.

When you leave today, the court staff will give you a telephone number to call next week so that you may listen to a prerecorded message that will tell you about your possible future service in the case. Some jurors will be told then that they have been excused permanently, some jurors will be told to come to court again on a particular day to participate further in the selection process, and some jurors will be told to call in again in a few days for further instructions.

If you are selected to serve on this jury, the trial proper is expected to start on or about January 26th and is expected to last perhaps three to four months. The trial will generally be conducted from Monday through Thursday of each week, from about 9 a.m. to about 4 p.m., with obviously time for breaks and lunch. The jury will not ordinarily sit on Fridays except in a week where a legal holiday falls on the Monday. The trial will continue through any school vacation week.

If you are concerned that your service as a juror in this case would be an unusually difficult hardship for you, you will have a chance to describe that hardship in the questionnaire. If you are not excused on the basis of what you've written, which may happen, I will discuss the request in person when you come back to court. Any request to be excused for that reason will be seriously considered; however, I cannot guarantee that you will be excused because you think service will be a hardship because finding a jury that represents a fair cross-section of the community will always pose some degree of hardship for those citizens who are chosen to serve. It is important that the men and women who are selected as jurors in this case be able to listen to the evidence presented in the court and to decide the issues in the case fairly and impartially. I will be using the terms "fairly" and "impartially" again at times during the selection process. Let me explain briefly what I mean by that. To serve fairly and impartially means to base a decision on the evidence presented in court during the trial, applying the principles of law as I will describe them for you, and not based on any possible bias or prejudice or anything that you've seen, heard or read or experienced outside the courtroom, including anything you think you may have previously learned from, say, reports in the media.

There has been a great deal of publicity about this case and there will continue to be. The mere fact that prior to this you may have read or heard something about the case does not automatically mean you cannot be a juror, but you must be able to decide the issues in the case based on the information or evidence that is presented in the course of the trial and not on information from any other source.

The purpose of this jury selection process is to ensure that each person selected is an appropriate juror for the case, that the jury will as a whole represent the community fairly, and that the jury will assure that the parties get what they are entitled to: a trial before a fair and impartial jury.

I want to now introduce some of the people who are here who will be involved in the trial of the case. The government is represented at this trial by Assistant United States Attorneys Aloke Chakravarty.

THE COURT: Thank you.

Although you've only heard briefly about the case this morning and indeed, of course, have heard no evidence about the matter as yet, it is extremely important that until further notice you do not discuss the case among yourselves or with anyone else while this process goes forward. That is because, as I've said, a jury's verdict must, in the end, be based on evidence produced at the trial, and must be free from outside influence. Therefore, I now order each of you not to discuss the case with your family, friends or any other person until either I excuse you, or if you're selected as a juror, until the case concludes. This is a court order, the willful violation of which may be punishable as a contempt of court or otherwise.

You may tell others that you possibly could be a juror in the case, and you may discuss the schedule with your family and employer, because obviously those people are entitled to know where you'll be and what you might be involved in; however, you're not to discuss anything else, any substance, or allow anybody to discuss the matter with you, again, until you're excused, or if you're picked for the jury, until the case is over.

This means in particular, among other things, that you may not speak to any member of the news media about the case. There is legitimate public interest in this matter and the news media play a vital role in informing the public about it. It would, however, be improper for you to discuss this case or your role in it with them.

If anyone should ask to speak to you about the case, you should politely decline. If anyone persists, please inform the jury clerk or other court staff promptly.

I also instruct you not to read, watch or listen to any reports about the case in the media or elsewhere, again, until you're excused, or if you're selected for service as the juror, until the case is over. If you should have a chance encounter with a news story in a newspaper or TV or radio or perhaps on the internet, please just turn the page, change the channel or close the screen, move to other things. Do not read, listen to or watch anything related to the case. And do not under any circumstances do your own independent research about the case including online research or anything else, including anyone involved in the case. This includes Googling or otherwise researching the defendant, any of the witnesses, any of the events, any of the trial participants such as the lawyers or even myself.

Likewise, you must not communicate about the case or allow anybody to communicate with you about it by phone, text message, Skype, email, various social media such as Twitter or Facebook. Please do not discuss the case or anything I've said about it with other potential jurors here or anyone else.

So I'm about wrapping up.

With respect to the questionnaire, take the time necessary to respond to the question thoughtfully, honestly and completely. Again, there are no right or wrong answers to any of the questions. We want your true answer. Please write or print clearly. Do not fill out that section on the form that you'll see where it says "Juror No.___." That will be filled out by the court staff after you've left.

If you cannot answer a question because you do not understand it, write: "Do not understand." If you cannot answer a question because you don't know the answer, write: "Do not know." If you want to explain your answer, there's usually some space provided in the questionnaire for you to do that, and if it's not enough space at the end of the questionnaire, there is ample extra space in the last question for you to amplify on any previous question. If you use that space, please be sure to write the number of the previous question that you're answering there.

Please fill out the entire questionnaire; that is, answer all the questions. If you would prefer to answer a sensitive question orally rather than in writing on the questionnaire, you may write "private" in response to that question. You'll receive two attachments to the questionnaire, Attachment A and Attachment B. These are lists of potential witnesses in the case. As you will read when you complete the questionnaire, you should treat them slightly differently. If you believe you know someone on Attachment A, you should write the number of that person -- it will be a numbered list. Write the number of that person in response to the appropriate question on the questionnaire; in other words, don't write on Attachment A. You fill in the number of the person you recognize on the questionnaire. On the other hand, if you see somebody that you know on Attachment B, which is a much shorter list than Attachment A, just circle the person's name on Attachment B; don't write it into the questionnaire.

Again, your answers, because of their importance to this process, must be truthful, and you must sign the questionnaire when you've completed it under the penalty of perjury.

So when you've completed and signed it, you may give it to the court staff. Before that you may not leave the room with either the questionnaire or its attachments.

So let me conclude as I began, by thanking you for being here this morning and for taking part in this important process. We need your help and we need your honest performance of this important duty of citizenship.

We'll now recess this session of the Court and distribute the questionnaires.

THE COURT: My name is Judge George O'Toole. I'm the presiding judge for this matter. I want to welcome you all to the United States District Court for the District of Massachusetts, and to thank you for being here today. You are here because you have been summoned to be available for service as a trial juror in this court.

The resolution of legal controversies, civil or criminal, by trial of a matter before a jury of citizens drawn from the community is one of the most fundamental principles at the core of our entire system of justice. You may recall from your study of American history that among the grievances against King George that were set forth in the Declaration of Independence were that he "had obstructed the administration of justice" and "has made judges dependent upon his will alone."

Because of their experience in that respect, the founders were determined that the Constitution of the new nation would guarantee the right to trial by jury, and they wrote that guarantee into the Sixth and Seventh amendments in the Bill of Rights. In doing so, they assured that the outcome of legal cases would ultimately be entrusted not to just the officers of the government alone, but rather to the public, ordinary citizens convened and acting as trial jurors.

We are in the processes of selecting a jury for the trial of a criminal case. The case is the United States v. Dzhokhar Tsarnaev. Mr. Tsarnaev is charged in connection with events that occurred near the finish line of the Boston Marathon on April 15th, 2013, and that resulted in the death of three people. He's also charged with the death of an MIT police officer, and other crimes that occurred on April 18 and 19, 2013.

In a criminal prosecution the burden is always upon the government to prove by factual evidence that the defendant is guilty of any crime he is accused of. And accordingly, every defendant is presumed to be not guilty until the government has proved otherwise at trial. The government bears the burden of proving a defendant's guilt beyond a reasonable doubt.

The jury that we are in the process of selecting will have the task of considering the evidence produced at the trial of this matter and deciding on the basis of that evidence whether the government has proven the defendant's guilt of the charges against him beyond a reasonable doubt or not.

This case differs from many other criminal cases, however, in a significant way. Usually, after a jury has convicted a defendant of a crime, the presiding judge decides what the punishment should be. In this case, however, Mr. Tsarnaev is accused of crimes that are potentially punishable by a sentence of death. If, after trial, he is convicted of any of these crimes, under the laws it is the responsibility of the jury rather than the judge to decide whether Mr. Tsarnaev should be sentenced to death, or instead sentenced to life imprisonment without the possibility of release, which is the only other penalty appropriate for such crimes.

In essence, in our democracy we have committed these solemn and important decisions not to judges answerable to the sovereign alone, not to the press or the public opinion, and certainly not to the mob. We have committed this important duty to ourselves collectively as the people, the people who established our constitutional order in the first place. And so we the people therefore ask some of our fellow citizens to assume the high duty of convening as a trial jury to consider and resolve the issues presented with a firm disposition and commitment to do justice fairly and impartially. Accordingly, it is the civic responsibility of every citizen to appear and serve as a juror when called unless seriously unable to do so.

Such service is both an obligation of citizenship and an opportunity to perform a vital and public and civic function. Juries are composed of citizens from all walks of life, each of whom brings his or her own individual perspective and life experience to the task. You do not need any particular education or experience to be a juror; what you do need is a commitment to do justice.

Acknowledging the importance of jury service is not to ignore the obvious point, that your appearance here is at the least inconvenient. We ask jurors to set aside their usual routines for a time to perform an important and necessary public service. Certainly, serving on a jury, if you're chosen to serve, will require you to make some adjustments in your daily routines. You should not, however, think of your jury service, you're chosen to serve, as an annoying burden. Jurors regularly report to my colleagues and to me after they've served that they have found their service to be one of the most interesting and memorable experiences of their lives. After most trials, I meet briefly with the jurors and thank them for their service. Uniformly, during those conversations, the jurors tell me that their experience was worthwhile, interesting and fundamentally important to them.

Jurors who seemed to me to be nervous and unsure at the beginning of a case after a verdict have a calm and solemn sense of a duty responsibly performed. If you're chosen to serve on this case, I fully expect you will find the experience to be the same.

Let me explain how we will proceed with the process of selecting the jury. When I've finished with these preliminary remarks, we will distribute a questionnaire to you. You'll fill out the questionnaire before leaving today. As you fill it out, please do not discuss the questions or the answers with anyone else, including the court staff who have been instructed not to help you fill out the questionnaire. The information on the questionnaire, your questionnaire, must come from you and from you alone.

Please understand there are no right or wrong answers to the questions. All we ask is that you answer each question truthfully and completely to the best of your ability. The questionnaires are not intended to pry into personal matters unnecessarily, but there are some personal things we need to know in order to assure both sides in this case that the trial will be conducted before a jury that is in truth fair and impartial.

Additionally, as a practical matter, the using of the questionnaires makes the process a bit less time-consuming and inconvenient for you.

When you've filled out the questionnaire, you'll give it to one of the court staff, and after that you'll be free to leave. During the coming week, the questionnaires will be copied and reviewed by the lawyers in the case as well as by me. The completed questionnaire will initially be reviewed only by the participants in the case and by the Court, and the filled-out questionnaires will not become part of the public record unless and until I've determined whether they include sensitive information that should be kept confidential permanently. And if they do, I intend to keep that information and any follow-up questioning about it from being available in the public record.

When you leave, the court staff will give you a telephone number to call next week so that you may listen to a prerecorded message that will tell you about your possible future service in the case. Some jurors will be told then that they have been excused permanently, some jurors will be told to come to court again on a particular day to participate further in the selection process, and some jurors will be told to call in again later on another date for further instructions.

If you are selected to serve on this jury, the trial is expected to start on or about January 26th and expected to last three to four months. The trial will generally be conducted Monday through Thursday of each week, from about 9 a.m. to about 4 p.m. with time for breaks and lunch, of course. The jury will not ordinarily sit on Fridays except in a week where a legal holiday occurs on a Monday. The trial will continue through any school vacation week.

If you are concerned that service as a juror in this case would be an unusually difficult hardship for you, you'll have a chance to describe that hardship on the questionnaire. If you're not excused based on what you have written in the questionnaire, which may happen, I will discuss the request in person with you when you come back to court.

Any request to be excused will be seriously considered; however, I cannot guarantee that you necessarily will be excused if you think jury service in this case would be a hardship, because finding a jury that represents a fair cross-section of the community will always pose some degree of hardship for those citizens who are called to serve. It is important that the men and women who are selected as jurors in this case be able to listen to the evidence presented in court and decide the issues in the case fairly and impartially. I'll be using those terms "fairly" and "impartially" again at times during the selection process. Let me explain briefly what I mean by them. To serve fairly and impartially means to base a decision on the evidence presented in court during the trial, applying the law as I will describe it for you as necessary, and not based on any possible bias or prejudice or anything you have seen, heard, read or experienced outside the courtroom including anything you may think you have previously learned from, say, reports in the media.

There has been a great deal of publicity about this case and there will continue to be. The mere fact that prior to this you may have read or heard something about the case does not automatically mean you cannot be a juror, but you must be able to decide the issues in the case based on the information or evidence that is presented in the course of the trial and not on information from any other source.

The purpose of the selection process is to ensure that each person selected is an appropriate juror for the case, that the jury as a whole will fairly represent the community, and that the jury selected will assure the parties that they will get what they are entitled to: a trial before a fair and impartial jury.

I now would like to introduce some of the people you see here who will be participating in the trial in the case. The government is represented in this trial by Assistant United States Attorneys Aloke Chakravarty.

THE COURT: Thank you. You may be seated.

Although you have heard only briefly about the case today and, of course, have heard no evidence about it in the sense of trial evidence, it is extremely important that until further notice you do not discuss this case among yourselves or with anyone else; that is, I think it's clear, because as I have said, the jury's verdict must be based on the evidence produced at trial and must be free from outside influence. Therefore, I now order each of you not to discuss the case with your family, friends or any other person until either I excuse you or, if you're selected as a juror, until the case concludes. This is a formal court order, the willful violation of which may be punishable as a contempt of court or otherwise.

You may tell others that you may be a juror in the case and you may discuss the schedule with your family and employer because those people are entitled to know what you might be involved in; however, you're not to discuss anything else or allow anyone to discuss with you anything about the case until either you're excused or, if you're chosen, until the case has been concluded.

This means, of course, among other things, that you may not speak to any member of the news media about the case. There is legitimate public interest in this matter and the news media play a vital role in informing the public about it. It would, however, be improper for you to discuss this case or your role in it with them. If anyone should ask to speak to you about the case, you should politely decline. If anyone persists in that, please notify the jury clerk or any of the court staff promptly.

I also instruct you not to read, watch or listen to any reports about the case in the media until either you're excused or, if selected to serve, until the case concludes. If you should by chance encounter a news story in the newspaper or on the television or radio or perhaps on the internet, then just please turn the page, change the channel, close the screen, do something else.

Do not read, listen or watch anything related to the case that may impair your ability to be a fair juror. And do not under any circumstances do any independent research including online research about the events of the case or anybody connected with it. This includes Googling or otherwise researching the defendant, any of the witnesses, any of the events including other -- as well as other participants in the case such as the lawyers or even myself.

Likewise, do not communicate about the case or allow anyone to communicate with you about it by telephone, text message, Skype, email, various social media such as Twitter or Facebook. Please do not discuss the case or anything that we've talked about here today with any of the other potential jurors or anyone else here today.

So we're just about finished with these preliminary remarks.

Take the time necessary to respond to the questionnaire thoughtfully, honestly and completely. Remember that there are no right or wrong answers. Please write or print clearly. Do not fill out the section that -- you'll see a blank section that says "Juror No.___." The court staff will fill in that blank as they process the questionnaires.

If you cannot answer a question because you do not understand it, write: "Do not understand." If you can't answer a question because you don't know the answer, write: "Do not know." If you want to explain your answer, do so in the space provided with respect to that question, and if you need extra space, you will find it in the final question on the questionnaire at the end where you should have ample space to expand on any prior answer. If you do use that extra space, please be sure to note the precise question by number that you are responding to. Please fill out the entire questionnaire. If you would prefer to answer a sensitive question orally rather than in writing, you may write "private" in response to that question. You'll receive two attachments with the questionnaire, labeled A and B. These are lists of potential witnesses. As you will read as you complete the questionnaire, you should treat them differently. If you believe you know someone who is on the Attachment A witness list, you should write the number of that person. They will be in a numbered list. Write the number of that person in the questionnaire where you're asked about it. If you believe you know someone on Attachment B, however, it's a shorter list, and we ask you simply to circle the name of a person you know or have some connection with on that list, and don't make any reference back to the body of the questionnaire. So with respect to A, write the number in the answer to the questionnaire; with respect to B, you just circle on the exhibit itself, or the attachment.

Now, your answers, of course, are a vital part of this important selection process. I've said, I think more than once, that they must, of course, be truthful. You're required to sign the questionnaire at the end under the pains and penalty of perjury.

When you have completed and signed the questionnaire, then you could give it to a member of the court staff. Prior to that, you may not leave the room with the questionnaire or either of the attachments.

So let me conclude as I began, by thanking you for being here this afternoon and for taking part in this very important process. We need your help, and we need your honest performance of this important duty of citizenship.

We'll now recess this session of the Court and distribute the questionnaires.