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Dzhokhar Tsarnaev— Case Archive
2015 Federal Trialtrial-daytrial-daysidebarjury_instructionsvoir_direjury_selectionDay 5 - January 16, 2015Individual voir dire addressed impartiality, hardship, and capital sentencing views alongside disputes over questioning and public access. The court excused Jurors 42 and 43 for cause over defense opposition and deferred decisions on Jurors 38 and 54 for transcript review.
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Day 5 - January 16, 2015

Voir Dire, Public Access, and For-Cause Rulings

Judge George A. O'Toole Jr.
11Proceedings
10Pages
0Witnesses
1,430Lines
6Sidebars
Day 5 of 67

Individual voir dire addressed impartiality, hardship, and capital sentencing views alongside disputes over questioning and public access. The court excused Jurors 42 and 43 for cause over defense opposition and deferred decisions on Jurors 38 and 54 for transcript review.

Full day summary

Individual voir dire examined prospective jurors' impartiality, personal connections to the bombings, ability to serve, and willingness to consider either capital sentencing outcome. The court also addressed public access and competing requests about the scope of questioning. The court said no public-trial waiver was necessary because limited public attendance remained available. It committed to recessing immediately upon notification of an audiovisual transmission failure. Both sides supported exploring limited press pool access. The defense requested broader questioning about publicity, bias, and sentencing views while maintaining that questionnaire negotiations had not waived its objections. The court emphasized individualized inquiry and agreed that counsel could request pauses for discussion outside a prospective juror's presence. Judge O'Toole instructed the venire that a penalty phase would occur only after a capital conviction, that a death sentence required unanimity, and that death was never mandatory. During individual questioning, Juror 33 said her husband's police work and the killing of an officer prevented her from being impartial. Counsel agreed to excuse Juror 40 after disclosure of a personal connection to the Richard family. Other questioning addressed medical limitations, financial hardship, English comprehension, existing opinions about guilt, and differing degrees of opposition to capital punishment. The court limited some questions and directed both sides to seek information rather than argue. At the closing qualification discussion, the court granted the government's for-cause challenges to Jurors 42 and 43 over defense opposition, finding their death-penalty views substantially impaired their ability to perform their duties. Decisions on Jurors 38 and 54 were deferred for transcript review; the defense's challenge to Juror 38 included financial hardship. Jurors 35 and 41 remained qualified without challenge, and Juror 49 was excused without defense opposition. The court also agreed to listen to a radio-show recording offered to support proposed juror questions, without resolving whether it would become part of the record.

1. Public-Trial Status and Transmission Safeguards

The court addressed public access to voir dire, agreed to recess if the transmission failed, and said no public-trial waiver was necessary because limited public attendance remained available.

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Procedural
Morning Session Opening
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sidebar
Public Access and Voir Dire Transmission Safeguards
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Counsel discussed press access during voir dire, transmission failures, and the government's request to renew a public-trial waiver each morning.

Highlights

Public-Trial Status and Transmission Safeguardsprocedural actionThe court committed to recessing immediately when notified of an audio or video transmission failure and agreed to inform the press of that safeguard.Public-Trial Status and Transmission SafeguardsrulingResponding to the government's request for daily renewal of a public-trial waiver, the court said no waiver was necessary because limited public attendance remained available.

2. Defense Requests for Expanded Voir Dire

The defense sought broader, less leading jury-selection questions. The court favored individualized inquiry and possible modest changes, while counsel agreed on a procedure for seeking follow-up questions outside prospective jurors’ presence.

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Procedural
Defense Requests for Expanded Voir Dire
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The defense pressed for expanded voir dire and preserved its objections. The court anticipated modest changes, explored press pool access, and requested juror criminal records.

Highlights

Defense Requests for Expanded Voir Direprocedural actionThe court found the previous day's questioning largely satisfactory, anticipated possible modest amendments, and proposed that counsel request a pause when discussion outside a prospective juror's presence was needed. Bruck and Clarke agreed to that procedure.

3. Preliminary Venire Instructions on Capital Trial Procedure

Judge O'Toole gives prospective jurors preliminary instructions on the capital trial's two-stage process, sentencing requirements, and conduct before they are sworn and withdraw for individual questioning.

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Jury Instruction
Preliminary Venire Instructions on Capital Trial Procedure
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Judge O'Toole explains conditional capital sentencing, differing proof requirements, juror independence, and safeguards for individual questioning and impartiality.

Highlights

Preliminary Venire Instructions on Capital Trial Procedure“You should understand that a jury is never required to find that a sentence of death is justified.”— George A. O'Toole Jr.Emphasizes that death is not a mandatory sentencing determination.

4. Individual Voir Dire — Juror 33

Juror 33 expressed doubts about her impartiality because her husband was a state trooper. Counsel agreed they had sufficient information, and the court proposed ending questioning.

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Voir Dire
Individual Voir Dire - Juror 33
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Juror 33 expressed an inability to remain impartial. Counsel agreed to end questioning, and the court confirmed audio safeguards.

1 sidebar inside this proceeding
  1. Sidebar Access and Recess Audio PrivacyCounsel discussed ending further questioning, public access to sidebar proceedings, and concerns that sensitive microphones could broadcast private or privileged conversations.

5. Individual Voir Dire — Jurors 35, 37, 38 and 40

Individual jury questioning on Day 5 addresses hardship, sentencing views, and personal connections. Counsel agree to excuse Juror 40 after the juror discloses ties to the Richard family.

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Voir Dire
Individual Voir Dire - Jurors 35, 37, 38 and 40
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Individual voir dire explored hardship and sentencing bias; a contested presumption-of-innocence exchange preceded Juror 40's agreed excusal.

1 sidebar inside this proceeding
  1. Agreed Juror Strike and Reporter ProcedureCounsel discussed an agreed juror strike, defense counsel’s observation that the juror had been crying, and handling future agreed strikes without sending reporters out.

Highlights

Individual Voir Dire - Jurors 35, 37, 38 and 40jury eventJuror 40 described knowing the Richard family and meeting Martin, along with concerns for the organization's Marathon runners and their families. Questioning stopped, and the subsequent sidebar recorded an agreed excusal and Bruck's observation that the juror had been crying.

6. Individual Voir Dire — Jurors 41–43

Jurors 41–43 were questioned about impartiality and capital sentencing. The court limited some questioning; no express qualification or removal ruling was recorded.

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Voir Dire
Individual Voir Dire - Jurors 41–43
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Jurors 41–43 discussed capital sentencing and impartiality; the court limited argumentative questioning and directed both sides to gather information.

1 sidebar inside this proceeding
  1. Avoiding Argumentative Juror QuestionsThe judge raised concerns about somewhat argumentative juror questioning on both sides.

Highlights

Individual Voir Dire - Jurors 41–43procedural actionAt sidebar, the court said it had detected argumentative questioning on both sides and directed counsel to obtain information rather than make arguments.

7. Individual Voir Dire — Jurors 46, 47 and 49

Individual juror questioning addressed health concerns, English comprehension, and opposition to the death penalty. At sidebar, Bruck requested broader questions about the effect of Paris coverage on jurors.

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Voir Dire
Individual Voir Dire - Jurors 46, 47 and 49
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Individual questioning explored health, English comprehension, and death-penalty views; the defense requested broader screening for Paris-related media influence.

1 sidebar inside this proceeding
  1. Request to Broaden Paris-Related Juror QuestionsBruck requested broader juror questioning about whether Paris-related coverage affected views of the case or defendant, beyond feelings about Muslims.

8. Individual Voir Dire — Jurors 51 and 54

Jurors 51 and 54 were questioned about impartiality and capital punishment. The court rejected three defense objections during Juror 54’s questioning, but stated no final qualification ruling for either juror.

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Voir Dire
Individual Voir Dire - Jurors 51 and 54
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Jurors 51 and 54 discussed capital sentencing and impartiality; the court permitted prosecution questions over repeated defense objections.

9. Individual Voir Dire — Juror 57

Juror 57 affirmed that she could apply the presumption of innocence but said she could not vote to impose the death penalty under any circumstances.

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Voir Dire
Individual Voir Dire - Juror 57
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Juror 57 affirmed she could assess guilt fairly but could not vote for the death penalty under any circumstances.

1 sidebar inside this proceeding
  1. Report Compared With Questionnaire AnswersThe judge tentatively viewed a report as consistent with the questionnaire answers to Question 40 rather than indicating a failure to report, and both sides agreed.

10. Juror Qualification and For-Cause Rulings

The court granted for-cause challenges to Jurors 42 and 43 based on their death-penalty views, while deferring decisions on Jurors 38 and 54 for transcript review.

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jury selection
Juror Qualification and For-Cause Rulings
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The court excused Jurors 42 and 43 over defense opposition, deferred challenges to Jurors 38 and 54, and agreed to review a radio-show recording.

Highlights

Juror Qualification and For-Cause RulingsrulingThe defense sought Juror 38's disqualification, arguing financial hardship. The government opposed excusal, and the court deferred the challenge for transcript review and further argument.Juror Qualification and For-Cause RulingsrulingThe court granted the government's challenge to Juror 42 over defense opposition, finding his death-penalty views would substantially impair his practical ability to perform his duties. The court noted, but expressly did not rely on, concern about his interest in the case.Juror Qualification and For-Cause Rulings“It seems to me that the standard, whether anti-death penalty views prevent or substantially impair the performance of the duty, has to be understood in practical terms rather than theoretical or hypothetical terms.”— George A. O'Toole Jr.The court explained the distinction underlying its decision to excuse Juror 42.Juror Qualification and For-Cause RulingsrulingThe court granted the government's challenge to Juror 43 over defense opposition, distinguishing a merely hypothetical willingness to impose death from practical openness to doing so.Juror Qualification and For-Cause RulingsrulingAfter competing arguments about Juror 54's sentencing views and answers, the court deferred its decision to review the transcript. The defense also objected that inability to supply death-penalty hypotheticals should not count against him when comparable defense questioning had been restricted.
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