1.Preliminary Instructions — Guilt and Capital Sentencing

THE COURT: Technology really does help in the end, you know.

So, again, good morning, everyone.

THE COURT: And thank you again for returning to the Court for this important process. You know we're continuing the process of selecting a jury in the case of United States versus Dzhokhar Tsarnaev. And as you certainly know, he's charged in connection with the bombing at the Boston Marathon that resulted in three deaths, and is also charged with other crimes, including the death of an MIT officer.

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 possibility of release.

Some of you may have wondered why the death penalty would 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 because this is a federal case involving violation 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 possibility of release. Because the jury that is selected to decide the defendant's guilt or innocence will also decide his punishment if convicted, it is necessary to question each of you about your feelings and beliefs about the death penalty as part of the process of picking the jury.

Let me explain briefly the procedure that must be followed in a case in which the death penalty is or may be an issue. In any criminal trial, initially the government will have the burden of proving a defendant is guilty, in fact, of any crime with which he has been charged. If Mr. Tsarnaev 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. That second phase is generally referred to, in shorthand, as the penalty phase.

In that 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 under the statutes; and, two, 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 to other persons convicted of intentional murder or killing.

The government will bear the burden of proving aggravating factors that it alleges beyond a reasonable doubt to the jury unanimously, that is to say, the jury must unanimously be convinced beyond a reasonable doubt that an aggravating factor exists.

In turn, the defense will have the opportunity to present evidence of what are called mitigating factors. Mitigating factors are circumstances usually about the crime or about the defendant's background or character that would suggest that the death penalty is not an appropriate sentence in the case, or that life imprisonment without possibility of release is adequate to punish the defendant for the crime.

Unlike proof of aggravating factors which must be made beyond a reasonable doubt to a unanimous jury, mitigating factors must be proved only by the greater weight of the evidence. That is a less demanding standard of proof than proof beyond a reasonable doubt.

Mitigating factors also 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 a greater weight of the evidence may consider that factor in deciding on an 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 of evidence 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 make Mr. Tsarnaev potentially subject to the death penalty and that those factors have been proven 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 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 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 only an overview of the law applicable to the 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 give you very detailed instructions concerning your duties in deciding whether to impose a death penalty or penalty of life imprisonment without possibility of release. And the law, as I give it to you at that point, will guide you and must be followed in your decision.

As I told you before when you filled out your questionnaires, this morning as we ask you some additional questions there are no right or wrong answers to those questions. We are asking them because both the government and Mr. Tsarnaev are entitled to a trial before 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 charged in the indictment, and if he's convicted of a capital crime, whether he should be sentenced to death or life in prison without possibility of release.

So today I'm going to question each of you individually about issues that are relevant to this process of selecting a jury. I'm going to call you back into the courtroom -- we're going to excuse you as a group and then call you back into the courtroom one by one to follow up on some questions.

There will be a few people in the room in addition to the lawyers and their staffs, and the proceedings are being simultaneously transmitted by video and audio to overflow courtrooms. We will not identify you by name but rather by your juror number, and you will be seated so that the video camera will generally be behind you.

Your answers will be generally public because they're being sent to the other courtrooms, but if you believe that a truthful answer would require you to reveal sensitive personal information, you will tell us that and we'll temporarily stop the audio transmission to those courtrooms so that people observing there will not hear that 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 that are asked. If do that, you will be doing your duty as a citizen and as a juror no matter what the answers may be.

I also want to take a moment to remind you about some of my prior instructions. As I told you before, a jury's verdict must be based on the evidence produced at trial and be free from outside influence; therefore, I remind you again that it's extremely important that you do not discuss the case, including this jury selection process, with your family, friends or each other or any other person, until I either have excused you or, if you're selected as a juror, until the case has been concluded. And, of course, again, you're not to conduct any online research or otherwise read, watch or listen to reports about the case in the media until either excused or, if you're a juror, your task is completed.

You signed the questionnaires under the pains and penalties of perjury. Now, for this question -- follow-up questions, we're going to ask you again to make it solemnly in that way, and we will ask each of you to take an oath to answer the questions today truthfully, completely, and to the best of your ability. The clerk will ask you to stand to do that now.

THE COURT: Okay. Thank you.

We'll now ask you to leave as a group and we'll begin the process one by one. We ask your patience. For those who may be at the end of the line, it's going to take a little while, but it's something important to be done, and we'll get to you in due course. Thank you.