1.FBI Interview Reports — Admissibility and Reliability; Daughter Video Objection
114 linesP R O C E E D I N G S
(LOBBY CONFERENCE AS FOLLOWS:
THE COURT: So I have a couple of things. I'd like to know who the witnesses will be.
MS. CLARKE: We gave the government the list, did we not? Is that the most recent one? Sorry, Judge. You're not on our service list. We've taken Abu Turshaev off.
THE COURT: Let me just concentrate on today and tomorrow.
MS. CLARKE: DaSilva may be delayed. Is he on the top?
MR. WEINREB: Yes. He's number -- the fifth witness.
MS. CLARKE: He may be delayed.
MR. WEINREB: Sixth on the list. Delayed past today?
MS. CLARKE: Either afternoon or -- yeah.
THE COURT: So from the number that I see you have on today, they will be relatively brief? Is that --
MS. CLARKE: That's what we expect.
THE COURT: Okay. So the first -- I'm just trying to locate the expert. You have Mark Spencer tomorrow that you expect --
MR. WEINREB: Jerry Grant, who's No. 10 on the list. He's an expert.
MR. WATKINS: I can speak on that behalf. I don't --
THE COURT: Who's Spencer?
MR. WATKINS: That's going to be cell phone extraction. I don't think there's any controversy so far as I know. I think really he's going to be somewhat of a reader or at least someone who can click on some of the links that are in those and talk about where links and emails go.
MR. CHAKRAVARTY: Your Honor, there's one file that he's trying to introduce substantively from one of Tamerlan's phones, which is a video of their daughter Zahira playing in the playground. It doesn't seem to connect with the defendant. It seems to be a distraction to humanize both Zahira and potentially the defendant's relationship with her.
THE COURT: Well, I don't know. That raises a more general question, that is, for the exhibit objections, I'm going to have to obviously see the exhibits, which I haven't seen yet either. So if you can work on what you think are the controversial ones so I can get a head start on some of that.
MS. CLARKE: The exhibits are listed.
THE COURT: Right. Do we have a thumb drive or anything with them?
MS. CLARKE: You should. New ones got added, I think, this morning to Paul's list.
MR. WATKINS: I think we sent over a JERS disk with them, so they're in the system.
THE COURT: JERS disk, okay.
MR. WATKINS: Did you also want them separately for chambers?
THE COURT: I don't know the technology, frankly, how I tap into JERS at this point. It goes into that system. It would be convenient to have a thumb drive or a disk to stick in my desktop.
MS. CONRAD: The JERS disk is just a PDF.
MS. CLARKE: Does Paul need to keep the thumb drive once we give it to him?
THE COURT: That's the JERS one? I don't know. That's what I don't know the answer to.
MS. CLARKE: If you don't know, you know I don't know.
THE COURT: Anyway, okay. But I'd just like to have a head start on this so I could have seen the controversial items. I gather from the defendant's response to the government's extensive exhibit motion, a good bit of that is not going to be offered and not in controversy.
MS. CONRAD: Well, not discussed in the opening, but certainly a good bit of that is going to be offered.
MR. BRUCK: Well, for example, they have objection to numerous photographs from our Russia expert, Reynolds, but we are only going to use a few of them. We're not going to use the photographs that are not taken from the defendant's computer, which the government is objecting to. We're going to use very non-controversial ones such as maps and so forth. Generally speaking, I think the burden of the government's objections are not actually going to have to be ruled on.
THE COURT: Okay.
MS. CLARKE: If I can grab my list, I can make sure you guys have the numbers. You guys have all of the exhibits.
MS. CONRAD: May I speak to Mr. Bruck for a second?
MS. CLARKE: Judge, can I --
THE COURT: Yeah, go ahead. Is Paul out there to let you back in?
MS. CONRAD: Judge, did you want to go through all the objections in the government's motion in limine?
THE COURT: Not if I don't have to.
MS. CONRAD: We only address the ones that were germane to the opening statement, but many of these objections are still live.
THE COURT: I guess my point is it will help me to understand the argument if I have had a chance to look at the objected-to materials. So that's what I'd rather do.
MS. CONRAD: We can get those to you. We've also done some further redactions, for example, on some of the objections on the 302s. We've adopted a lot of the government's proposed redactions, but not all of them, and I have them all catalogued.
THE COURT: As they come up on the horizon, then --
MS. CONRAD: Can I just email -- I can do that from my computer now, or would you prefer just getting them on one disk or something? Some of those are going to come up today if we get that far.
THE COURT: I guess I'd prefer one disk that had the whole roster.
MS. CONRAD: Sure.
THE COURT: And then I just have it and -- 3207, I can go and look at it.
MS. CONRAD: Okay. We can probably get somebody to burn that and bring that over.
MR. WEINREB: Your Honor, we'd request a copy of that same disk just to make sure we're all on the same page.
MS. CONRAD: Sure. I thought that's what we gave the government yesterday.
MR. WEINREB: We've been getting a lot of exhibits from the defense piecemeal over time which we've been combining. It's not clear -- sometimes we have an exhibit, and then it gets broken out into A and B and other such things indicating only a subset is going to be offered. This way we'll know which one is going to be offered.
COURT CLERK: I did get the most recent thumb drive from defense about ten minutes ago, which has everything on it for JERS. That's the initial list last week to what's coming on. I haven't loaded it on my JERS. Do you want to see it?
MS. CONRAD: Once it's loaded, then can the judge have that, or should we produce a new thumb drive?
COURT CLERK: No.
MS. CLARKE: Then can we get Paul Bruemmer to make a copy of that thumb drive, too?
MS. CONRAD: For the government.
COURT CLERK: That's fine. As long as I get it on JERS, you can do what you want with the thumb drive.
MS. CLARKE: I don't mean exactly but --
THE COURT: Okay. Well, are there particular -- let's just look at today, which goes down through 14, I guess. Are there -- with respect to the identified exhibits in the right-hand column, are there issues that we know of that we'll have to deal with?
MR. BRUCK: Maybe we should start with opening unless -- which we would not --
THE COURT: I just want to prioritize my look at the exhibits. That's all. If you say, Yeah, with respect to Gina Crawford's photos or whatever, I would look at those before I'd look at the other things. That's all.
MS. CONRAD: So with respect to the documents that are going to be read by Sonya Petri, Exhibit 14 -- Witness No. 14 on this list -- actually, it's really 13 because one is the heading. So the three Dolakov 302s -- I believe one of them, the portions the government objected to, have all been redacted, 3271A, I think it is. Give me a minute. I can tell you.
3270A, there probably are still some remaining issues. We redacted some of what the government objected to and not others.
3271A, none of the objected-to portions are being presented to the jury or read to the jury. We're just putting in this one paragraph about Jahar Tsarnaev.
And 3269, which was a late-added exhibit, I don't believe the government has indicated whether they have any issues with the proposed exhibit, and that may be because they haven't had a chance to review it.
Exhibit 3274A, again, we've redacted some portions the government objected to and not others.
THE COURT: Okay. So there may be some minor or lesser --
MS. CONRAD: A sentence here and a sentence there. Just to give you an example of one of the more minor ones, there's one portion where the government -- I think it's 3270 where there's a follow-up interview. We've redacted all of it except for the line that they met again with the witness at a Starbucks. We just left that in to set the timing of that interview. And the government had redacted that out. So I don't think that should be controversial.
MR. WEINREB: So, your Honor, with respect to 302s, the government objects generally to the introduction of 302s, which are FBI interviews, basically an agent's notes of unsworn, uncross-examined statements by a witness sometimes given years ago.
The jury, as the judge of the facts, has to determine whether what's said by a witness is true and also how much weight to assign it. In general, that's simply impossible to do based on merely a 302. It's not sworn. The agents are simply asking questions. They're not cross-examining. They're not necessarily challenging the witness. Certainly, they're not challenging their ability to perceive, their ability to recollect, their ability to narrate, whether they have biases, all the things the jurors need to know in order to assess whether to assign weight to evidence. So it puts the jurors in the position of having to -- no basis whatsoever on which to accept or reject it. And the information -- it's like speculation on their part.
With respect to particular 302s that the defense has asked us to allow them to put before the jury, we have essentially agreed that we will waive our objection with respect to certain of them, in particular, the ones associated with Mr. Kartashov or Mr. Dolakov. Our understanding is those two witnesses are particularly important to the defense because they tell a narrative of Tamerlan Tsarnaev's radicalization, and they date it to a point earlier than when they believe Dzhokhar Tsarnaev was radicalized, and that's very important to their theory of the case. And so taking that into account and other factors, we've agreed to waive our objections.
But we do not waive the objection with respect to Mr. Vakhabov. Up until Saturday at 8:30, we have been under the understanding that Mr. Vakhabov was going to take the stand and testify.
THE COURT: Who is he?
MR. WEINREB: He is essentially a friend of Tamerlan Tsarnaev's who lives in this country and knew him. There was a group of friends -- Mr. Vakhabov, Mr. Turshaev, Sebastian Freddura, others -- who were contemporaries of Tamerlan Tsarnaev's and were friends of his.
Mr. Vakhabov, we object in particular -- in addition to our general objection, we object in particular to any 302 of Mr. Vakhabov coming in because he is an unreliable witness. He is someone who refused to testify in the grand jury on the grounds that his testimony might incriminate him. My understanding is he's informed the defense -- or his lawyer has informed the defense that he would do the same if called at this trial.
In addition, he gave several statements to the FBI over time before he was called to the grand jury, in which he gave inconsistent statements and statements about matters of great import. I think it's undisputed that Tamerlan Tsarnaev contacted him on April 18th, I believe, between the time that Officer Collier was murdered and the time that Dun Meng was carjacked. And he has given quite inconsistent statements about what that conversation was about and about what Tamerlan Tsarnaev may have asked him or said to him.
Those are matters that are essential for the jury to hear if they're going to have any idea whether to believe other things that Mr. Vakhabov said. He's not a disinterested third party in this case. On that ground, we believe that this is just putting information before the jury that is much more prejudicial than probative. It creates too much of a chance that they will be misled, confused, and so on.
In addition, a lot of his testimony is cumulative. For example, Mr. Dolakov and Mr. --
THE COURT: Who's Dolakov?
MR. WEINREB: Dolakov is another friend of Tamerlan Tsarnaev's.
THE COURT: U.S. friend?
MR. CHAKRAVARTY: U.S. friend. He was a foreign student. He's from the Caucasus but he's not Chechen. He knew him -- knew Tamerlan somewhat but not very well. Mr. Vakhabov knew him better because he lived here for a little bit longer together. But they did various activities together including, the Friday before the bombing, they went to the gym together. He also went to the mosque.
MR. WEINREB: I think there's a difference between reading potentially a document to a witness that -- I mean, to the jury that's in the essence of, like, a business record and one that is a statement of a witness. I mean, one of the main functions of juries is to observe witnesses on the witness stand and make judgments about whether to believe what they say or not. That's just impossible if a reader is reading a 302. It's really impossible for the government to bring out what it would normally bring out during cross-examination. Even though the Rules of Evidence don't strictly apply at sentencing hearings, it's still important that jurors make quality decisions based on quality evidence, and it's not that when you have these unsworn, uncross-examined notes of an interview.
MS. CONRAD: May I respond, your Honor? So, first of all, everything Mr. Weinreb has said goes to weight. It doesn't go to admissibility. And, clearly, the Rules of Evidence don't apply. Clearly, this witness is unavailable. These were statements taken by an FBI agent who carefully documented them. We are simply recounting what that witness said.
This is an important witness, a very close friend of Tamerlan Tsarnaev's, a witness who talks about Tamerlan's radicalization and the timing of that. He's corroborative of other witnesses. He also talks about Jahar. Mr. Vakhabov's brother was a friend of Jahar's, and he had interactions with Jahar as well and he talks about that.
If the government feels that there is a question of unreliability, it seems to me to the extent -- I don't really see that in the statute as being a threshold, but if there is a threshold, then maybe the Court needs to have a hearing and make a preliminary ruling on the reliability if the Court is going to exclude it based on claimed lack of reliability.
It also seems to me that, at least by analogy, is Federal Rule of Evidence 806. If the government has evidence of inconsistent statements, it can offer them. 806 says, when an out-of-court statement is offered under an exception -- or rather, excuse me, that's characterized as non-hearsay is offered, it can be impeached in the same manner as if the witness were on the stand.
So if the government -- you know, we may have prejudice issues there if they relate to inconsistencies outside of the statements -- substance of the statements that we're offering as far as, for example, what happened on the night of the -- in the days surrounding the bombing, which I don't think we were planning to put in at all.
So -- and to say it should be excluded because he's not a disinterested third party, I'm not aware of any rule of evidence or any ruling under the Death Penalty Act that says that all witnesses have to be disinterested third parties. That just simply is not the case. Family members testify. Friends are going to testify. And it seems to me that the government's threshold for evidence that is relevant to the defendant's case in mitigation is set way too high to try to bar what is clearly relevant evidence.
THE COURT: Well, as Wigmore says, "The great engine for seeking the truth is cross-examination," and so that's always preferred. So I think, as a general proposition, if the witness is available, then a substitute out-of-court statement of any kind, including 302s, would not be preferred. There would have to be some substantial reason to go to that rather than the availability of a witness who would be subject to cross-examination.
There may be some people who are not available in various -- for various reasons. I've already suggested earlier in the case that the Kartashov's 302 could be used as a substitute because he was not able to be deposed. And so there can be circumstances where the 302 might --
I do think that it may be appropriate at an appropriate time to caution the jury about the considerations they might have in assessing the reliability of the evidence under those circumstances where cross-examination is absent. I think that's something that would be well within the appropriate instructions, at least at the end of the case, on how to evaluate the evidence, if not contemporaneous with the offer.
So some of them we'll have to take one by one and just see what the circumstances are, what the unavailability is and so on. I guess I have a -- well, I'll just leave it at that.
So there may be some that there's no controversy about. There seems not to be a controversy about Kartashov, for example, except for portions of it. But as a principle, the use of the report itself --
MR. WEINREB: We're willing to waive our objections on that one.
THE COURT: So now I know there's one person anyway that you have a serious disagreement about. I'll have to look at that and look at the circumstances.
MS. CONRAD: Just for purposes --
THE COURT: Let me just say --
MS. CONRAD: Sure.
THE COURT: -- in general, I do think there's a reliability standard implicit in the statute and in the project, and so I will prefer better evidence over less good evidence as a general proposition, whether it's in this hearsay context or others. There's kind of a general cloud of best evidence principles over the case. And so if a witness can be subpoenaed and examined and then subjected to cross-examination, that is the first step, and there has to be an excuse for that not occurring in order to get secondary or lesser quality evidence. That's just a general guiding principle.
MS. CLARKE: For the Court's purposes, the only 302s that I believe we are planning to put in are those that are unavailable: Kartashov, Dolakov.
THE COURT: Why is Dolakov unavailable?
MS. CONRAD: Can't find him. Neither can the government.
THE COURT: There's an indicia of reliability.
MS. CONRAD: Maybe he just wants to move on with his life.
MS. CLARKE: Vakhabov is Fifth Amendment. And then we just recently learned on Mirra, No. -- that she's very ill, and her doctor is going to provide a note.
THE COURT: Who's she?
MS. CLARKE: She is a --
THE COURT: Relative?
MS. CLARKE: No, no. She's a disinterested third party.
THE COURT: Okay. All right. So now -- so I'll start to get a head start on some of those issues which you think you might get to today.
MS. CONRAD: Yes, 3269, 3270, 3271, and 3274, although actually I should say "A" because those are the redacted versions as to all of those.
THE COURT: Okay, all right. Are there any others in today's list that you think will be controversial?
MS. CLARKE: Bill, if you look at my updated one --
THE COURT: While they're conferring, where do you think we would be at the break? First of all, how long do you think the opening will be?
MR. BRUCK: Forty-five minutes.
THE COURT: Okay. So we won't get very far into the list then probably before the break, will we?
MS. CLARKE: That's probably correct. Judge, what looks like No. 6 on the list is really No. 5 on the list because they're delayed, DaSilva.
THE COURT: Okay.
MR. MELLIN: Your Honor, may we ask what exhibits Mr. Bruck is going to use in his opening?
THE COURT: We'll come to the opening in a minute.
MR. WEINREB: Your Honor, with respect to today's exhibits, the only other one we have an objection to is this seemingly entirely gratuitous video of Zahira Tsarnaeva, the daughter of Tamerlan and his wife, you know, untethered to any connection to the defendant or to anything else seemingly, just to show that -- you know, it essentially suggests to the jury that they should consider what the effect of a death sentence would be on other people, which is execution impact evidence, which --
THE COURT: What exhibit is that?
MR. WEINREB: That is one of the Bill Fick will email exhibits for Jerry Grant.
MR. CHAKRAVARTY: I think it's 3317, that series.
MS. CLARKE: The digital evidence is on the 3300 series.
THE COURT: Okay. Well, let me look at it.
MR. BRUCK: We need to hear why it's relevant.
MR. WATKINS: As I understand it, it goes to radicalization. It is not an issue of Tamerlan Tsarnaev's particular radicalization. I believe that's true of this one where we're talking about Arabic slogans that he's teaching his young daughter in that period of time.
MR. BRUCK: The video depiction, as I understand it, over and over and over again teaching the child to say Abu Akbar, Abu Akbar, in this sort of compulsive, insistent, weird, inappropriate seeming way, and it is another window into Tamerlan's radicalization and monomania.
THE COURT: How long is it?
MR. WATKINS: Thirty-three seconds, I think somebody just said.
THE COURT: All right. I'll look at it.
I think maybe now we can get to the opening. What exhibits do you propose to use in the opening?