6.Preliminary Jury Instructions — Penalty Phase

THE COURT: Anybody have anything they want to mention to me privately at all that arose? No? Okay.

Well, jurors, as you know, you have unanimously found the defendant guilty of all the counts contained in the indictment. Seventeen of those counts are capital counts, by which I mean that the death penalty is a possible punishment for those offenses. Those counts are Counts 1 through 10 and Counts 12 through 18.

Substantively, those counts are, in summary, conspiracy to use a weapon of mass destruction resulting in death, use of a weapon of mass destruction resulting in death, conspiracy to bomb a place of public use resulting in death, bombing a place of public use resulting in death, malicious destruction of property resulting in injury and death, and possession and use of a firearm during and in relation to a crime of violence resulting in death.

We're now about to begin the penalty phase of the trial where you must consider separately with regard to each of the capital counts whether imposition of a sentence of death is the appropriate sentence for that conviction or whether the defendant, Dzhokhar Tsarnaev, should be sentenced to life imprisonment without the possibility of release.

As I have previously told you, the law leaves this sentencing decision exclusively to you, the jury. If you determine that the defendant should be sentenced to death or that he should be sentenced to life imprisonment without the possibility of release, the Court is required to impose that sentence. You should understand that there is no parole in the federal system.

The penalty phase is essentially a second trial, and in many ways is like the trial you have just completed on the issue of guilt, although now the sole issue for your consideration is punishment. You should understand that in making all the determinations you're required to make in this phase of the trial, you may consider any and all evidence that was presented during the guilt phase of the trial as well as the additional information that will be presented in this penalty phase.

Just as in the first trial, during the course of the penalty phase I'll anticipate that you will again see the attorneys sometimes make objections to the introduction of certain evidence, and I will rule on those objections as they arise. Please remember, as before, that when I sustain an objection, meaning that I agree the evidence called for should not be given, the witness won't answer the question.

If that's the case, then don't try to answer it yourselves. Don't try to guess what the answer might have been if it were given. Just take it that for whatever reason there's no answer to that question, and the question itself is now irrelevant. Wait for the next question and the answer to that because it's the witness's answers that supply the evidence, not the lawyers' questions. Unanswered questions produce no evidence for your consideration no matter how much they may suggest some.

Similarly, if I overrule the objection, the witness will go ahead and answer the question. That answer becomes part of the evidence. It is -- along with all the other evidence that you'll have to evaluate, it doesn't have any special meaning or significance because there was an answer given after an objection had been made.

The structure will be similar to the form we followed. We'll begin when I'm finished with these preliminary remarks with the government's opening statement. A defendant in a case like this always has the opportunity to make an opening statement but may elect whether to make it immediately following the government's opening, or later on at the commencement of the defense presentation of evidence, and in this case the defendant has elected the second course, so that the defendant's opening statement will actually be made just prior to the beginning of the defendant's presentation of evidence, which will be next week. Next Monday is when we'll begin that part.

So after the government makes its opening statement, then the witnesses will again be called and examined and cross-examined. Exhibits will be shown and admitted. And then when it's all done, after the defendant's case has been presented and you've been instructed again and had another round of closing arguments, you'll begin to deliberate on the issues presented in this phase of the case. The final instructions I will give will be more complete than these that I give you now, but I want to give you some guidance as to how we'll proceed in the next several days and weeks, perhaps.

Now, obviously it is impossible for me to overstate the importance of the decision before you or the careful and thorough consideration you should give to this matter. I remind you that at the time you were selected as jurors, each of you assured me that if this case required a capital punishment hearing, you would be open-minded as to the possible punishment. When you took your oath as jurors, you swore that you would give a true verdict according to the law and the evidence. It is imperative that you keep that promise.

Congress has assigned to juries the decision whether a defendant convicted of a capital crime should be sentenced to death or to life imprisonment; however, before the death penalty can be considered by you for any capital count of conviction, you must first make three important findings unanimously and beyond a reasonable doubt.

A sentence of death on a particular capital count may be considered if, and only if, you made the following three findings unanimously and beyond a reasonable doubt with respect to that count: First, you must find unanimously and beyond a reasonable doubt that the defendant was 18 years of age or older at the time of the offense charged in that count; second, for each of the capital counts, you must find unanimously and beyond a reasonable doubt that one or more of the following four propositions has been proven. I may sometimes refer to these propositions as "gateway elements" or "factors."

The first is that the defendant intentionally killed the victim or victims of the particular capital offense charged in the respective count of the indictment under consideration;

Or, second, that the defendant intentionally inflicted serious bodily injury that resulted in the death of the victim or victims of the particular capital offense charged in the respective count of the indictment;

Or that the defendant intentionally participated in an act or acts contemplating that the life of a person or persons would be taken, or intending that lethal force would be used in connection with a person or persons other than one of the participants in the offense, and that the victim or victims of the particular capital offense charged in the particular count of the indictment died as a result of the acts;

Or, fourth, that the defendant intentionally and specifically engaged in an act or acts of violence knowing that the acts created a grave risk of death to a person or persons other than one of the participants in the offense such that participation in the acts constituted a reckless disregard for human life, and the victim or victims of the particular capital offense charged in the respective count of the indictment died as a result of those acts.

So the government must prove at least one of those four propositions beyond a reasonable doubt.

Now, before I get to the third thing that must be proved unanimously and beyond a reasonable doubt before the death penalty can be considered, let me pause to define for you two terms that you have heard and will hear throughout the phase of the trial: "aggravating factors" and "mitigating factors." You heard a little bit about these concepts during the process of jury selection.

In general, these factors relate to the circumstances of the crime or the personal traits, character or background of the defendant. The word "aggravate" means to make worse or more offensive, or to intensify; the word "mitigate" means to make less severe or to moderate. An aggravating factor, therefore, is a fact or circumstance that would tend to support imposition of the death penalty.

As I will explain, aggravating factors may be either statutory, meaning they are specified as aggravating factors in the death penalty statute, or non-statutory, meaning they are factors not specified in the statute but alleged by the government to be aggravating factors in this case.

A mitigating factor is any aspect of the defendant's character or background, any circumstances of the offenses, or any other relevant fact or circumstance that would tend to indicate that the defendant should not be sentenced to death. Having said that, now, the third threshold, or gateway finding, that you must make unanimously and beyond a reasonable doubt before you may consider imposition of a death sentence is that the government has proved the existence of at least one statutory aggravating factor. As I say, a statutory aggravating factor is an aggravating factor that is specifically set forth as such in the death penalty statute and which has been identified in this case by the government for your consideration.

The government alleges the following statutory aggravating factors stated in summary form -- alleges that they exist with regard to particular counts and in some cases all of the capital counts. So these are the statutory aggravating factors that the government alleges:

First, the death of the person identified in a particular count under consideration occurred during the defendant's commission of a crime other than the crime charged in that particular count; second, the defendant knowingly created a grave risk of death to one or more persons in addition to the deceased victim of the offense; third, the defendant committed the offense in an especially heinous, cruel and depraved manner; fourth, that the defendant committed the offense after substantial planning and premeditation to cause the death of a person or to commit an act of terrorism; fifth, the defendant intentionally killed or attempted to kill more than one person in a single criminal episode; sixth, the defendant is responsible for the death of a victim who was particularly vulnerable due to youth.

In summary, then, if after fair and impartial consideration of all the evidence in this case you unanimously find the government has proved beyond a reasonable doubt that the defendant was at least 18 years of age and at least one of the gateway factors about intent and at least one of the statutory aggravating factors with regard to that particular capital count, then you will proceed to the next stage of your analysis.

If, however, you find with regard to a particular capital count that the defendant was not at least 18 years old or that no gateway factor had been proved beyond a reasonable doubt or that no statutory aggravating factor had been proved beyond a reasonable doubt, then your deliberations will be over as to that count, and for that count the Court will impose a sentence of life imprisonment without the possibility of release.

If you proceed to the next stage of your analysis, you will consider whether you unanimously find that the government has proven beyond a reasonable doubt the existence of any non-statutory aggravating factor. Those are factors other than those set out in the death penalty statute which have been specifically alleged by the government for consideration in this case. The government alleges several non-statutory aggravating factors. And again, any finding that a non-statutory aggravating factor exists must be unanimous and beyond a reasonable doubt.

After your consideration of the non-statutory aggravating factors, then you will consider and decide whether the defendant has shown the existence of any mitigating factors. There are some important distinctions that I want to highlight for you with respect to the proof of mitigating factors. The defendant has the burden of proving any mitigating factors by the preponderance of the evidence. The defendant is not required to prove the existence of a mitigating factor beyond a reasonable doubt, which is a burden of proof the government has with respect to aggravating factors.

The defendant need only establish the existence of a mitigating factor by a preponderance of the evidence, that is, by the greater weight of the evidence. Put another way, you need only be convinced that it is more likely true than not in order to find that the mitigating factor exists.

Importantly, a unanimous finding is not required as to the existence of any mitigating factor. Any juror individually or independently may find the existence of a mitigating factor regardless of the number of other jurors who may agree. A juror who so finds may consider that factor in weighing the evidence as a whole. In other words, if any member of the jury finds that a mitigating factor has been proved, that juror may weigh that factor in making up his or her mind whether or not to vote to impose the death sentence as opposed to life in prison as to any of the capital counts. After you've considered and decided what aggravating factors and what mitigating factors have been proved, you will then consider whether any proven aggravating factor or factors, both statutory and non-statutory, outweigh any mitigating factor or factors that you individually, or with other jurors, have found to exist.

After weighing the aggravating and any mitigating factors, the jury must consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death.

In carrying out this weighing and balancing process, jurors are called upon to make a unique, individualized judgment about the appropriateness of sentencing another human being to death. This is not a mechanical process. Neither is the decision determined by the number of aggravating or mitigating factors considered in the balance.

Jurors should consider such factors qualitatively, assessing the weight and significance that should be given to each factor. For example, one aggravating factor, if sufficiently serious, may outweigh several mitigating factors. By the same token, a single mitigating factor may outweigh several aggravating factors. In short, what is called for in weighing the various factors is not arithmetic but an individual juror's careful, considered and reasoned judgment.

Again, whether or not the circumstances in the case justify a sentence of death is a decision the law leaves entirely to you, and you should not take that anything I may say or do during this phase of the trial, or have said or done in the prior phase, as indicating in any way what I think of the evidence or what I think your verdict should be.

As I mentioned, you must deliberate and determine a sentence for each of the capital counts separately. You may conclude the aggravating and mitigating factors should receive different weights in conducting the separate weighing of aggravating and mitigating factors applicable to each of the capital counts. In other words, a decision about one count does not mean you have to make the same decision about any other count. You may or you may not as you determine as appropriate and just.

There are several final points I want to make and emphasize. The first that I mentioned briefly is that you are never required to return a verdict of death. The law provides you with guidance in making a decision, but as stated earlier, your decision on whether this question of life or death is an individual -- your decision on this question of life or death is an individual judgment which the law in the final analysis leaves up to each of you. And as you've heard, in order to impose a sentence of death, all 12 jurors must agree that death is the appropriate sentence.

I also want to draw your attention to a unique aspect of capital cases. At the end of this case, along with the other detailed instructions that you'll have that apply to the sentencing decision, I will include an instruction along the following lines: In your consideration of whether to impose the death sentence or life imprisonment without the possibility of release, you must not consider the race, color, religious beliefs, national origin or sex of either the defendant or the victims. You are not to return a sentence of death unless you would return a sentence of death for the crime in question without regard to the race, color, religious beliefs, national origin or sex of either the defendant or any victim.

When they passed the Federal Death Penalty statute, Congress considered this non-discrimination principle to be so important that it created a special procedure for it. When you have completed your deliberations and have reached a verdict, you will each be asked to sign a certificate swearing that you have followed that instruction, that non-discrimination instruction, in your sentencing determination. You won't get to the form, of course, until the end of the sentencing process, but I wanted you to know about it so you can keep it in mind throughout the hearing while you listen to the evidence. Let me highlight one last aspect of the case before we begin: During the course of the sentencing proceeding the government will be introducing what is known as victim-impact evidence. Victim-impact evidence is evidence about the deceased person's personal characteristics and the impact of their deaths upon their families and on others. The government has provided notice that it intends to present such evidence to show the injury, harm and loss caused by each of the victim's deaths.

You must be careful not to permit this evidence to cause you to sentence the defendant simply out of sympathy with the victims or the family members. Such sympathy may be natural, even unavoidable, but it cannot be the basis for your sentencing decision. Your decision must be a reasoned moral response to the evidence before you concerning all the circumstances of the offenses and the defendant's own background, character and record. Your decision must not be simply an emotional response to the victim-impact evidence or a way to express sympathy with or support for the victim's families.

I also caution you you should not be influenced by speculation concerning what sentence you think anyone else, including the victims's families, might wish to see imposed on the defendant. You have been selected to decide this case because you committed to be fair and impartial in all respects, and you have made your oath or affirmation to that effect. It is for you alone as fair-minded jurors, who have no friends to reward and no enemies to punish, to decide the appropriate sentence in this case.

I will repeat and elaborate on these points after you have heard all the evidence and before you begin your deliberations. As in the prior proceedings, you'll have a special verdict form to assist you and guide you in your deliberations. But because these procedures are unique to capital cases and so fundamentally important to your decision-making, I thought it advisable for you to have this preliminary explanation.

So thank you for your attention. We're now ready for the government's opening statement.

Ms. Pellegrini.