1.Preliminary Venire Instructions on the Capital Trial

THE COURT: Welcome back to the United States District Court for the District of Massachusetts. We thank you for being here and being part of this process.

We're continuing the process of selecting a jury for the case of United States versus Dzhokhar Tsarnaev. As you know, Mr. Tsarnaev is charged with some criminal charges in connection with the bombing that occurred near the finish line of the Boston Marathon in April of 2013 that resulted in the deaths of three people. He's also charged in the death of an MIT police officer and other offenses occurring 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'll recall from my prior instructions when you filled out the questionnaires that the jury will first consider and decide whether the government has proved Mr. Tsarnaev's guilt of any or all of the charges made 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 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 the 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 the law. The reason is that this is a federal case involving alleged violations of the laws of the United States rather than a state case involving violations of Massachusetts law.

If the jury convicts Mr. Tsarnaev of any one of the capital crimes charged in the indictment, the same jury will then proceed to hear additional evidence and decide whether to sentence him to death or to life imprisonment without the possibility of release. Because the jury that is selected to decide, first, the question of guilt or innocence will also decide the punishment if he is convicted, it is necessary to question potential jurors such as yourselves about your feelings and beliefs about the death penalty as part of the process of picking the jury.

So 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 of any crime for which the death penalty may lawfully be imposed, then there will be the second phase of the trial, sometimes referred, 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 to be subject to the death penalty; and, second, that aggravating factors about the events or the killings of the people who were killed or about the defendant -- aggravating factors 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 compared to the sentence for people convicted -- other people who are also convicted of intentional killing or murder. As I say, the government will bear the burden of proving 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.

Unlike the proof of aggravating factors, a mitigating factor must be proven only by a greater weight of the evidence. That is a less demanding standard than proof beyond a reasonable doubt. Again, unlike the proof of aggravating factors, mitigating factors also do not have to be proven to the satisfaction of all 12 jurors. Any juror who finds or determines a mitigating factor to be 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 in 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 certain threshold 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 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 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 the 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.

What I've just described is only an overview of the law applicable to a 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 punishable by death, I will give you very detailed instructions concerning your duties in deciding whether to impose the death penalty or a penalty of life imprisonment without the possibility of release and the law that must be followed in making those decisions.

When you filled out your questionnaires, we told you there are no right or wrong answers to the questions you have been asked or will be asked in the process. We ask them because both the government and the defendant 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 Mr. Tsarnaev is guilty or not guilty of the specific crimes charged in the indictment, and if he's convicted of a capital crime, whether he should be sentenced to death or to life in prison without possibility of release.

So today we're going to follow up on the questionnaire and individually ask you questions one by one. We'll shortly ask you to go back into the room where you were assembled and we'll call you into the courtroom one by one to ask the questions. There will be a few people here in the courtroom in addition to the lawyers and their staffs. And the proceedings are being simultaneously transmitted by video and audio to overflow courtrooms where there are people viewing.

We will not identify you by name but rather by number, and you'll be seated so that the video camera will be behind you. Your answers will be generally public, but if you believe a truthful answer would require you to reveal sensitive personal information, we will temporarily stop the audio transmission to the other courtrooms so that people there will not hear your answer.

Again, we do not 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 you are asked, and if you do that, you'll be doing your duty as a citizen as a juror no matter what the answers might be.

I do want to take a moment to remind you of some of my prior instructions. As I told you earlier, the jury's verdict must be based on the evidence produced at trial and must be free of outside influence; therefore, I remind you again it is extremely important that you do not discuss the case, including the jury selection process, with family or friends or each other and any other person until either you have been excused from service or, if you're selected, until the case has concluded. And, again, of course you're not to conduct any independent research online or otherwise, and to avoid reading or watching or listening to any reports about the case in the media for the same duration. When you executed the -- signed the questionnaires, you did so under an affirmation that your statements were true and you were making the affirmation under the penalty of perjury. Similarly, we'll ask you to take an oath now that the answers you'll give in the oral examination will be true, complete to the best of your ability.

So the clerk will now ask you to rise to take that oath.