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Take 5: What to watch for in the Tsarnaev trial

Opening statements in the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev will begin on Wednesday. Daniel Medwed, a law professor at Northeastern University and a nationally known criminal law expert, is particularly interested in five things, including jury composition, how the prosecutors will structure their presentation, and whether the defense will call any witnesses.

Two Phases

It is important to keep in mind that death penalty trials have two phases—guilt and sentencing—and that the jury plays the decisive role in each. To many observers, this case is more about sentencing—will he receive the death penalty?—than guilt or innocence. But it is important to withhold judgment and abide by the presumption of innocence as the guilt phase unfolds in the days ahead, despite what we have all heard in the media.

Composition of the Jury

Daniel Medwed

Law professor Daniel Medwed Photo by Brooks Canaday/Northeastern University

I am eager to learn about the racial and gender composition of the jury after the peremptory challenge stage early in the week. Many observers, including me, have raised concerns about whether Tsarnaev can receive a fair trial here in Boston; part of those concerns relate to whether finding a “death qualified” jury in a state with strong opposition to the death penalty will skew the demographics. Studies indicate that people of color and women tend to oppose capital punishment at a greater rate than white men. Will the jury ultimately be overrepresented by white men and, if so, what will that suggest about whether it reflects a fair cross-section of the community?

Framing the Government’s Narrative

It is often said that opening statements are like previews of coming attractions in a movie theater; the parties’ openings typically set forth what will occur in the feature presentation, and the rest of the case, ideally, proceeds from that outline. I am particularly curious to see how the prosecutors intend to structure and sequence their presentation. Will they lead with eyewitnesses and victims from the scene of the Marathon that day? Or will they lead with police and other law enforcement officials to describe the investigation and apprehension of the defendant?

Duress

Likewise, I am interested in learning more about the defense strategy. Will the defense focus primarily on undermining the prosecution’s case and arguing that the government is unable to meet its burden of proving guilt beyond a reasonable doubt? Or will the defense largely concede that the defendant was involved but contend that he was effectively coerced by a domineering older brother? These defenses are not necessarily incompatible—the defense could argue that the prosecution cannot bear its burden and that, even if it does, the defendant should be excused because he acted under duress at the hands of his brother. But it will be interesting to see the defense’s points of emphasis during the opening statement. One benefit of the duress defense is that, even if it fails in the guilt phase of the case, it might carry over well to the sentencing phase.

Defense Witnesses

As noted above, the prosecution bears the burden of proof in a criminal case; it must prove each element of the case beyond a reasonable doubt. That means the defense has no obligation to put on any witnesses or evidence of its own. It will be fascinating to see what, if any, case the defense puts on during the guilt phase.

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