2.Preliminary Instructions on the Capital Trial and Jury Selection

THE COURT: Thank you for your patience. We want to welcome you back to the United States District Court for the District of Massachusetts and thank you for being here.

We're continuing the process of selecting a jury for the case of the United States versus Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged in connection with the bombing that occurred near the finish line of the Boston Marathon in April 2013 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 in the indictment are, by statute, potentially punishable by death. You will recall from my prior instructions when you filled out your questionnaires that the jury will first consider and decide whether the government has proved that Mr. Tsarnaev is guilty of any of the charges -- any or all of the charges against him. If he is convicted of any of the capital crimes -- that is, crimes for which the death penalty is a potential punishment -- then the jury will consider and decide whether he will be sentenced to death for any such crime or to life in prison without the 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 as a punishment for murder or any other violation of Massachusetts law. The reason is that this is a federal case involving the alleged violations of the laws of the United States rather than a state case involving the violations of the laws of Massachusetts.

If the jury convicts the defendant of any of the capital crimes charged in the indictment, the same jury will then hear additional evidence and decide whether to sentence him to death or to life in prison without the possibility of release. Because the jury that is selected first to consider whether he's guilty or not of the crimes charged will also decide the punishment if he is convicted, it is necessary to question prospective jurors about your feelings and beliefs about the death penalty as part of the process of jury selection.

So let me briefly explain the procedures that must be followed in a case in which the death penalty is or may be an issue. As in any criminal case, initially the government has the burden of proving the defendant is guilty of any crime with which he is charged. And as I say, if he's convicted by the jury of a crime for which the death penalty may lawfully be imposed, then there will be a second phase in the trial, and the second phase is usually referred to, in shorthand, as the penalty phase.

In that phase the government will introduce evidence that seeks to prove beyond a reasonable doubt: first, that Mr. Tsarnaev acted with sufficient intent or intention to be subject to the death penalty; and if, so, second, that certain aggravated -- aggravating factors about the events, the crimes or the defendant himself justify sentencing him to death.

Aggravating circumstances -- aggravating factors are circumstances that if proven would tend to make the crimes particularly serious or blameworthy and, therefore, under the law may justify imposing a more severe sentence on Mr. Tsarnaev compared to other persons who have been convicted of intentional killing or murder.

The government will bear the burden of proving any alleged aggravating factors to every juror beyond a reasonable doubt. The defense will have an opportunity to present evidence of what it will argue are mitigating factors in the case. Mitigating factors are usually circumstances about the crimes or events or about Mr. Tsarnaev's background or character that would suggest that the death penalty is not the appropriate sentence in the case or that life imprisonment without possibility of release is adequate to punish the defendant.

Unlike the proof of aggravating factors by the government, a mitigating factor must be proven by the defendant only by the greater weight of the evidence. That is a less demanding standard of proof than proof beyond a reasonable doubt, which applies to the aggravating factors. Again, unlike the proof of aggravating factors, mitigating factors do not have to be proven to the satisfaction of all the jurors. Any juror who finds or determines a mitigating factor to have been proved 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 concerning aggravating and mitigating factors, 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 factors that make the defendant 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 convinced beyond a reasonable doubt that any proven aggravating factors sufficiently -- they would have to find the aggravating factors beyond a reasonable doubt, and they would have to be persuaded that the 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 trial 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 who is convicted of a capital crime will live or die.

I've just given you an overview of the applicable law pertaining to the jury's consideration of the death penalty. If you are selected to serve on the jury and if you have found 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 I will instruct you in the law that must be followed in making that decision.

Now, when you filled out your questionnaires we told you there were no right or wrong answers to any of the questions that you have been asked, and that's true of any questions you'll be asked in this voir dire process. We ask 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 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 also, if he is convicted of a capital crime, whether he should be sentenced to death or life in prison without the possibility of release.

So we're going to question each of you about some issues that are relevant to the selection of a jury. We're going to have you in the room you've been sitting in, and call you into the courtroom one by one to ask you some questions. There will be a few people in the room besides the lawyers and their staffs, and the proceedings will be simultaneously and are being now transmitted by video and audio to overflow courtrooms. We will not identify you by name, but rather by number, and you'll be seated so that the video camera will be generally behind you.

Your answers will generally be public in the way -- because they're being made in a way that is available to the public, but if you believe that a truthful answer would require you to reveal sensitive personal information, we'll temporarily stop the audio transmission to those courtrooms so that people observing there will not hear your answer.

Again, we don't expect any particular answer to 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 my prior instructions. As I've told you before, the jury's verdict must ultimately be based on the evidence produced at trial. It must be free of outside influence. So, again, I remind you it is extremely important that you do not discuss the case, including this jury selection process, in detail with your family, friends, each other or other persons until either you have been excused or, if selected as a juror, until the case concludes. And again, of course, you're not to conduct any online or -- research or otherwise read, watch or listen to reports about the case in the media or elsewhere.

When you prepared your questionnaires, you were asked at the end to sign affirming that the answers were true under the pains and penalties of perjury. Similarly, the oral examination, the questioning that we'll conduct today, must be done under oath, and this means that you will swear to answer the questions truthfully, completely and to the best of your ability.

The clerk will now administer the oath.