3.Preliminary Venire Instructions on Capital Trial Procedure

THE COURT: Good morning, ladies and gentlemen. Thank you for your patience. We had some business we were attending to and now we'll proceed.

I want to welcome you back to the District Court for the District of Massachusetts. As you know, we're in the process of selecting a jury for the case of United States v. Dzhokhar Tsarnaev. As you also know, Mr. Tsarnaev is charged in connection with the bombing that occurred near the finish line of the Boston Marathon on April 15, 2013, that resulted in the deaths of three people, and he's also charged in the death of an MIT police officer and other crimes occurring on April 18 and 19, 2013. Some, but not all, of the crimes charged by statute are potentially punishable by death.

You will recall from my prior instructions that the 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, which is the only alternative sentence permitted.

Some of you may have wondered why the death penalty could 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 for any other violation of Massachusetts law. And the reason is that this is a federal case involving violations of the laws of the United States rather than a state case involving violations of the laws of Massachusetts.

So as I think I indicated before, but tell you again, if the jury were to convict Mr. Tsarnaev of any of the capital crimes charged in the Indictment, then 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 first decide whether the defendant is guilty or not of the crimes charged, because that same jury will also decide punishment if he should be convicted, then it is necessary to pursue with you and question you about your feelings and beliefs about the death penalty as part of the process of choosing a 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. As in any criminal trial, initially, the government will have the burden of proving Mr. Tsarnaev is, in fact, guilty of any of the crimes with which he is charged. If he is convicted by the jury of a crime for which the death penalty may lawfully be imposed, then there will be a second phase to the trial.

The second phase is sometimes referred to in shorthand as the penalty phase. In that phase, the government will introduce evidence that seeks to prove again beyond a reasonable doubt, which is the government's burden, first, that the defendant acted with an intent that is sufficient to make him subject to the death penalty; and, secondly, if that's true, then the government will seek to present evidence of what are called aggravating factors about the crimes or about the defendant that would justify sentencing him to death.

Aggravating factors are circumstances that, if proven, would make the crimes particularly serious or blameworthy and, therefore, under the law may justify imposing a more severe sentence on this defendant compared to other persons who have been convicted of intentional killing or murder. And as I say, the government will bear the burden of proving alleged aggravating factors to every juror beyond a reasonable doubt.

The defense will have the opportunity to present evidence of what it will argue are mitigating factors. Mitigating factors are usually circumstances about the crime or about Mr. Tsarnaev and his background or character that would suggest that the death penalty is not the appropriate sentence in this case or that life imprisonment without possibility of release is adequate to punish the defendant for the crimes. Unlike the government's burden in proving aggravating factors, a mitigating factor must be proven only by the greater weight of the evidence. This is a less demanding standard of proof than proof beyond a reasonable doubt. Again, unlike the proof of aggravating factors, mitigating factors do not have to be proved 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 the appropriate sentence in the case regardless or whether any or all of the other jurors agree that that mitigating factor has been proven and should be considered.

After the parties have made their presentations during the penalty phase, the jury will then weigh all the evidence. Before a jury could vote to impose the death penalty, every juror would have to be persuaded that the threshold factors that make him -- make Mr. Tsarnaev potentially subject to the death penalty 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 so that a sentence of death is justified. Even if the jury did not find any mitigating factors, it would still have to be unanimously persuaded that any proven aggravating factors were themselves sufficient to justify a sentence of death.

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 convicted of a capital crime will live or die.

What I have just described to you is only an overview of the law applicable to the jury's consideration of the death penalty. If you are selected to serve and do serve on the jury and if you find the defendant guilty of a crime punishable by death, I will give you very detailed instructions concerning your duties in deciding whether to impose the death penalty or life imprisonment without possibility of release. And you will, in making that decision, be guided by that detailed outline of the law that applies.

As I told you when you filled out your questionnaires, there are no right or wrong answers to any of the questions that you have been asked or that you will be asked in this process. We are asking them because both the government and Mr. Tsarnaev are entitled to a jury that does not have its mind firmly made up one way or the other before hearing the evidence and the detailed explanation of the law. That applies both to whether Mr. Tsarnaev is guilty of the crimes charged in the Indictment and also, if he is convicted of a capital crime, whether he should be sentenced to death or to life in prison without possibility of release.

So today I'm going to question each of you individually about issues that are relevant to the process of selecting a jury. We're going to call you into the courtroom one by one after this introduction and ask you each some questions. As you see, there are some people here, lawyers, and their staff, and some others in the courtroom. In addition, these 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 seated so generally the video camera will be behind you as it broadcasts the proceedings. Your answers will be generally public in this way, but if you believe a truthful answer to any of the questions would require you to reveal sensitive personal information, we will temporarily stop the audio transmission to the other courtrooms so that people observing there will not hear your answer. We will also excuse from the courtroom anyone who is not part of the prosecution or the defense team. Again, we don't 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. And if you do that, you will be doing your duty as a citizen and as a juror no matter what your answers may be.

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

You originally signed the questionnaires under the penalties of perjury to make sure that you solemnly were affirming that the answers were true. You will -- now, for this process, we will ask you to take a similar oath or affirmation to answer the questions truthfully, completely, and to the best of your ability. And the clerk will ask you now to stand and administer that oath to you.