2.Preliminary Instructions on the Capital Trial and Jury Service

THE COURT: Good morning, ladies and gentlemen. Welcome 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 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 in April 2013, and that resulted in the deaths of three people there. He's also charged in the death of an MIT police officer that occurred on April 18 and 19 -- and other crimes that occurred on April 18 and 19, 2013. Some, but not all, of the crimes he is charged with 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 for which the death penalty is legally possible, 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.

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 for the death penalty for murder or any other violation of criminal law. The reason is that this is a federal case involving violations -- alleged violations of the laws of the United States rather than a state case involving violations of Massachusetts law. So if the jury convicts Mr. Tsarnaev of any of the capital crimes charged in the Indictment, that 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 now being selected to decide first whether he is guilty or not will also decide his punishment if he is convicted, it is necessary to question you about your feelings or beliefs about the death penalty as part of this process in selecting a jury.

Let me explain briefly the procedures that must be followed in a case in which the death penalty is or may be at issue. As in any criminal trial, initially the government will have the burden of proving that Mr. Tsarnaev is, in fact, guilty of any crime with which he is charged.

If he is convicted by the jury of a crime for which the death penalty may be lawfully imposed, there will be a second phase of the trial. The second phase is commonly 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 the necessary intent to be subject to the death penalty as a matter of law; and, second, that aggravating factors about the killings or the defendant himself 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 who have been convicted of intentional killing or murder. The government will bear the burden of proving alleged aggravating factors to every juror beyond a reasonable doubt.

The defense will have an opportunity in the penalty phase to present evidence of what it will argue are mitigating factors. Mitigating factors are usually circumstances about the crime or the events or about the defendant'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 for his offenses.

Unlike the proof of aggravating factors, a mitigating factor need be proven only by a greater weight of the evidence. This is a less demanding standard of proof than proof beyond a reasonable doubt. Again, unlike proof of aggravating factors, mitigating factors do not have to be proven to the satisfaction of all 12 jurors. Any juror who finds or determines that a mitigating factor has 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 proved. After the parties have completed their presentations during the penalty phase, then 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 make Mr. Tsarnaev potentially subject to the death penalty, and the jurors would have to be persuaded that those threshold factors had 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 to justify a sentence of death. 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 proved 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 who is convicted of a capital crime will live or die.

I've just given you an overview of the law applicable to the consideration of the death penalty. If you are selected to serve on the jury and if you find that the defendant is guilty of a crime punishable by death, then after the penalty phase, I will give you some very detailed instructions concerning your duties in deciding on whether to impose the death penalty or the penalty of life imprisonment without possibility of release. And I will instruct you in the law that pertains to those matters.

You may recall that I told you when you filled out the questionnaires that there are no right or wrong answers to any of the questions you have been asked or to any questions you will be asked today in this 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 on any of the issues before hearing the evidence and a detailed explanation of the law. That applies both to whether Mr. Tsarnaev 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 in prison without possibility of release.

So today I'm going to have some questions of each of you individually about issues that are relevant to the selection process. What we're going to do is have you go back to the room you've just been in. We'll call you into the courtroom one by one to ask you those questions. There will be a few people in the courtroom in addition to the lawyers and their staff who are taking part in the process. These proceedings are being simultaneously transmitted by video and audio 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.

Your answers will generally be 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 do not expect or want any particular answer to any of the questions. All we want and the law expects is that you provide accurate and truthful answers to the questions that you are asked. If you do that, you will be doing your duty as a citizen and as a juror no matter what the answer may be. I also want to take this moment to remind you about some of my prior instructions. As I told you, a jury's verdict must be made based on the evidence produced at trial and must be free from outside influence. Therefore, I remind you again that it is extremely important that you do not discuss the case, including the jury selection process, with your family, friends, or each other or any other person until either you've been excused or, if selected as a juror, until the case has concluded. And, of course, you're not to conduct any independent research online or otherwise or otherwise read, watch or listen to reports about the case while this process is ongoing.

When you signed the questionnaires, you did so under an affirmation that the statements were true and you were making the affirmation under the penalty of perjury. Similarly, for the present purpose, we ask you to swear or affirm that in open court, and the clerk will now ask you to rise as he administers that oath.

THE COURT: Mr. Bruck wanted a sidebar before we begin. I don't think the camera -- it's off because they're going to move the camera.

Okay. Mr. Bruck.