2.Preliminary Instructions to the Venire on the Capital Trial

THE COURT: Welcome back to the United States District Court for the District of Massachusetts. Thank you for being here. We're continuing the process of selecting a jury for the case of the United States vs. Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged in connection with the bombing that occurred near the finish line of the Boston Marathon on April 15, 2013, and that resulted in the deaths of three people. He's also charged in the death of an MIT police officer and other crimes that occurred on April 18 and 19, 2013. Some, but not all, of the crimes charged are, by statute, 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.

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 any other violation of Massachusetts law. 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.

If the jury convicts Mr. Tsarnaev of any of the capital crimes charged in the Indictment, the same jury will hear additional evidence and decide whether to sentence him to death or to life in prison without possibility of release. So because the jury that is selected first to decide the question of guilt or innocence will also decide the punishment if the defendant is convicted, it is necessary to question you then in this process about your feelings and beliefs about the death penalty as part of the process.

So let me explain briefly the procedures that are 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 that Mr. Tsarnaev is, in fact, guilty of any of the crimes with which he is charged. If he is convicted of a crime for which the death penalty may be imposed, then we will proceed to the second phase of the trial, sometimes referred to in shorthand as the penalty phase.

In that phase, the government will introduce -- that seeks to prove beyond a reasonable doubt, first, that Mr. Tsarnaev acted with the required intent or sufficient intent to be subject to the death penalty; and, second, 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 this defendant compared to other persons convicted of intentional killing or murder. The government bears the burden of proving any alleged aggravating factors to every juror beyond a reasonable doubt.

The defense will also have the opportunity to present evidence of what it will argue are mitigating factors in the case. Mitigating factors are usually circumstances about the crime or about the defendant's background or character that would suggest the death penalty is not the appropriate sentence for the case or that life imprisonment without possibility of release is adequate to punish the defendant. Unlike the proof of aggravating factors, a mitigating factor need only be proven by the greater weight of the evidence. That 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 proven to the satisfaction of all 12 jurors. Any juror who find 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 of whether any or all of the other jurors agree that the mitigating factor has been proven. After the parties have made their presentations 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 that make the defendant potentially subject to the death penalty have been proven beyond a reasonable doubt. In addition, 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 cannot 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 an overview of the law applicable to the jury's 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 the death penalty or life imprisonment without possibility of release, and the law that pertains to the making of that decision.

As I told you when you were filling 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 today in furtherance of the process. We're 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 another before hearing the evidence and a detailed explanation of the law. That applies both to whether the defendant is guilty or not guilty of the specific crimes charged in the Indictment and, if he is convicted of a capital crime, whether he should be sentenced to death or to life imprisonment without possibility of release.

So today I'm going to question each of you individually about some issues that are relevant to the process of selecting a jury. We're going to call you into the courtroom one by one to ask you some questions. You'll see there are other people here in addition, mostly the lawyers and their staff, but there will be perhaps others in the back. The proceedings are also being simultaneously transmitted by audio and video to overflow courtrooms. We will not identify you by name but rather by number. And you will be seated so that the video camera will be behind you, shooting over your head basically. Your answers will generally be public, but if you believe a truthful answer would require you to reveal some sensitive personal information, we will temporarily stop the audio transmission to those courtrooms so that people observing there will not hear your answer.

Again, we do not expect or want any particular answer to any of the questions. All we want and what the law expects is that you provide accurate and truthful answers to the questions you are asked. If you do that, you will be doing your duty as a citizen and as a juror no matter what the answers may be.

I want 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 must be free of outside influence. Therefore, I remind you again that it is extremely important that you do not discuss the case, including this selection process, with your family, friends, each other, or any other person, until you have been excused or, if selected as a juror, until the case has been concluded. Again, you are to refrain from any online research or otherwise reading, watching or listening to any reports about the case that may appear in the media. When you signed your questionnaires, you signed under the penalties of perjury. It's a solemn occasion. And we now will ask each of you to take an oath to tell the truth when you answer my questions. And so we will ask the clerk -- the clerk will ask you to rise and administer that oath to you.