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Boston Bomber’s Death Sentence Should Not Have Been Vacated Based on Insufficient Voir Dire [United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020).]

Mackenzie K. McCoy | May 5, 2021 | PDF Version (212 KB)

Summary: In July 2020, the United States Court of Appeals for the First Circuit vacated the death sentence imposed by the United States District Court for the District of Massachusetts against Boston Marathon bomber, Dzhokhar Tsarnaev. The court of appeals stated that the voir dire process was inadequate due to prejudicial pretrial publicity. Voir dire is a process in which potential juror impartiality or bias is assessed through an attorney or judge asking prospective jurors specific questions. Judges have broad discretion during voir dire, and it does not have to follow an exact formula. The district judge in this case gave over one thousand potential jurors a 100-item questionnaire that covered their backgrounds, social media habits, views on the death penalty, and exposure to pretrial publicity. Given the magnitude and severity of the case, the district judge conducted voir dire in an appropriate and efficient manner and, therefore, the court of appeals should not have vacated the death sentence based on an insufficient voir dire process.

Preferred Citation: Mackenzie K. McCoy, Boston Bomber’s Death Sentence Should Not Have Been Vacated Based on Insufficient Voir Dire, 60 Washburn L.J. Online 103 (2021),

I. Introduction

This Comment analyzes the decision of the United States Court of Appeals for the First Circuit[1] to vacate the death sentence of Boston Marathon bomber, Dzhokhar Tsarnaev, based on inadequate voir dire.[2] The First Circuit determined that the trial judge’s voir dire process was insufficient to eliminate potentially biased jurors.[3] However, trial judges are typically given wide latitude when it comes to conducting voir dire,[4] and in this specific case, the district judge did everything in his power to protect the defendant’s constitutional rights. This is especially true considering the expansive media coverage and the sensitive nature of the trial.

II. Background

A. Summary of United States v. Tsarnaev

Many people remember the horrific Boston Marathon bombing that took place on April 15, 2013.[5] Two bombs detonated at the finish line, killing three people and injuring hundreds more.[6] After a manhunt involving a lockdown of the entire Boston area, a murdered campus security officer, a hostage situation, and a firefight with police, the police captured two suspects.[7] The two suspects were brothers, Tamerlan and Dzhokhar Tsarnaev.[8] Tamerlan died as a result of his injuries from the firefight; however, the police found Dzhokhar hiding and took him into custody.[9]

The trial of Dzhokhar Tsarnaev began in July 2013 after a Boston-based grand jury indicted him on over thirty federal charges, including the use of a weapon of mass destruction resulting in death.[10] Tsarnaev pled not guilty to all counts.[11] During the trial, Tsarnaev’s counsel did not dispute that Tsarnaev committed the crimes, but instead tried to shift the blame by arguing that Tsarnaev only participated at the instruction of his older brother.[12] Despite this attempt to shift blame, the jury convicted Tsarnaev on all counts after hearing from nearly one hundred witnesses and receiving over one thousand exhibits.[13]

The jury members were a focus of the appeal. Prior to trial, the case received extensive media coverage because the bombing occurred in Boston and the trial was scheduled to take place in Boston.[14] At the start of the trial phase, Tsarnaev filed a Motion to Change Venue due to the extensive pretrial publicity and potential bias in the Boston area.[15] The trial judge denied the motion, asserting that finding twelve impartial jurors would be possible due to the large pool of potential jurors.[16] The defense then filed a second Motion to Change Venue, which the trial judge also denied.[17] The judge stated that voir dire should be sufficient to weed out any potential biases, but if not, he would reconsider the venue change.[18] Prior to voir dire, the parties agreed to excuse many of the 1,373 potential jurors and only called back 256 potential jurors for individual voir dire, which lasted for twenty-one days.[19]

During individual voir dire, Tsarnaev’s attorneys repeatedly requested to ask the potential jurors case-specific questions regarding weapons of mass destruction and their exposure to media coverage of the case.[20] However, the trial judge prevented Tsarnaev’s counsel from asking potential jurors these types of questions, precluding questions such as “What did you know about the facts of this case before you came to court today (if anything)?” and “What stands out in your mind from everything you have heard, read[,] or seen about the Boston Marathon bombing and the events that followed it?”[21] Instead of allowing these questions, the judge instructed the potential jurors to complete a 100-item questionnaire which covered their “backgrounds, social-media habits, exposure to pretrial publicity (the amount they had seen, whether they had ‘formed an opinion’ about the guilt or punishment, etc.), and thoughts on the death penalty.”[22] The judge also instructed the potential jurors not to discuss the case in any way.[23]

On appeal, the defense argued that the trial judge violated Tsarnaev’s constitutional right to an impartial jury because the trial judge denied the defense’s motion to strike two potential jurors who the defense claimed lied under oath and because the trial judge dismissed a potential juror who opposed the death penalty.[24]

Specifically, during the pretrial voir dire, potential jurors #138 and #286 had acknowledged that they used social media occasionally, but stated that they had not commented on the case and had not known anyone personally affected by the bombings.[25] However, before the trial began, Tsarnaev’s defense counsel claimed they had newly discovered information relating to #138 and #286 and, accordingly, filed motions to strike for cause.[26] The trial judge denied these motions.[27] Tsarnaev’s specific arguments relating to each potential juror are outlined in the following subsections.

1. Potential Juror #138

In the motion to strike #138, Tsarnaev’s counsel argued before the trial court judge that #138 was dishonest about his social media posts and failed to follow instructions.[28] On the day of completing the voir dire questionnaire, #138 had posted on Facebook that he was on jury duty, and several of his friends commented on the post stating that Tsarnaev had “ no shot in hell.”[29] Several days later, #138 commented on the Facebook thread stating “Shud [sic] be crazy [Tsarnaev] was legit like ten feet infront [sic] of me today with his 5 or 6 team of lawyers...can’t say much else about it tho...[sic] that’s against the rules.”[30] The defense asserted that the actions of #138 demonstrated an unwillingness to follow the rules and, accordingly, asked the judge to excuse him.[31]

2. Potential Juror #286

Regarding #286, in the motion to strike, the defense argued that after they had questioned her during voir dire, they discovered new, relevant information on her social media.[32] Potential juror #286 tweeted several heartwarming stories about survivors on the day of the bombing.[33] After Tsarnaev’s capture, she retweeted celebratory tweets that used the hashtag “#BostonStrong” and tweets that congratulated and thanked law enforcement officers for their hard work [34] She also retweeted tweets about several of the bombing victims throughout the following months. [35] The defense argued that these tweets and retweets demonstrated a “community allegiance” that showed a bias that could not be overcome.[36]

The trial judge denied the defense’s motions to strike #138 and #286 for cause, noting that the social media posts predated voir dire by over a year.[37] The judge also stated that none of the actions by the jurors demonstrated a level of bias that would impact their ability to be impartial and that all of the concerning statements were made by other people.[38]

3. Potential Juror #355

Tsarnaev’s counsel argued that the trial judge wrongly excused #355 because he disagreed with the death penalty.[39] The defense asserted that dismissing this potential juror “stacked the deck against [Tsarnaev].”[40] On his questionnaire, #355 stated that he was an attorney and that he did not personally believe in the death penalty. [41] He stated that “the only time...he could think that he could impose the death penalty would be in a case of genocide.”[42] However, he indicated that he would vote for the death penalty if the facts warranted it.[43] Potential juror #355 was dismissed despite his statements, and ultimately, he did not serve on the final twelve-person jury.[44]

B. Legal Background

Voir dire is the stage in a jury trial when the judge or the attorneys for the parties ask potential jurors questions to determine if they are impartial and unbiased.[45] If the judge is questioning the potential jurors, the judge must allow the attorneys an opportunity to ask follow-up questions, as long as the judge considers the questions proper.[46] Moreover, the judge must consider several factors when conducting voir dire.[47] The judge must balance, first, the need for counsel to analyze each potential juror and exclude anyone who may not have impartial viewpoints against, second, the need to avoid turning voir dire into a mini trial that causes unnecessary delays.[48]

Trial judges have broad discretion when it comes to the scope of voir dire.[49] Accordingly, the test to determine whether the trial judge abused his discretion, as established in Ross v. United States,[50] is whether voir dire met the essential demands of fairness.[51] In Ross, the court of appeals found that the voir dire process met the essential demands of fairness because the trial judge completed a comprehensive investigation of the jury panel.[52]

In reviewing voir dire, the appellate court is not permitted to determine which method of voir dire is best, but rather the court should only determine whether the process created a reasonable assurance that prejudice could be discovered, if present.[53] When counsel requests an inquiry into an important aspect of the litigation that has been subject to high levels of publicity and scrutiny, the trial court “should adequately inquire into the subject on voir dire.”[54] In order to justify dismissing a potential juror for lack of impartiality, “there must be solid evidence of distinct bias.”[55]

Furthermore, when significant pretrial publicity occurs, appellate courts should follow the test established in Patriarca v. United States[56] in analyzing whether trial judges abused their discretion in conducting voir dire. Patriarca also involved nationwide publicity and potential juror prejudice.[57] In this case, the court of appeals stated that, in order to alleviate the potential for bias, the trial court should have inquired into each prospective juror to determine what kind of pretrial exposure he could have encountered and whether his current state of mind prevented him from being impartial.[58] In United States v. Medina,[59] the court held that trial judges meet the Patriarca standard when they simply ask what the jurors have seen or heard in the media about the case.[60]

III. Court’s Decision

On appeal, Tsarnaev’s defense counsel focused on jury selection pertaining to potentials jurors #138, #286, and #355.[61] Tsarnaev’s counsel argued that the trial judge violated his right to due process and an impartial jury because the trial judge failed to dismiss #138 and #286.[62] As a result, they served on the twelve-person jury, which not only found Tsarnaev guilty, but also recommended the death penalty.[63] Specifically, Tsarnaev argued that #138 lied about his comments on social media use, demonstrated a lack of maturity, and defied instructions.[64] The defense also argued that #286’s social media posts demonstrated a “community allegiance that [was] certain to color her view of the case.”[65] With regard to #355, the defense stated that he should not have been dismissed due to his opposition to the death penalty and his occupation as a criminal defense attorney, demonstrating how the judge “stacked the deck against [Tsarnaev].”[66]

The United States Court of Appeals for the First Circuit concluded that the trial judge had failed to meet the Patriarca standard, and therefore, the death sentence was vacated.[67] Specifically, the court of appeals stated that the impartiality of jurors must be determined by the judge, not by the jurors themselves.[68] The court of appeals stated that only asking the potential jurors whether or not they had seen or heard anything in the news that might alter their opinion is not enough.[69] However, the court of appeals also cited Medina, which stated that a simple inquiry into whether or not potential jurors had seen or heard anything that could alter their judgment was enough to satisfy Patriarca.[70]

Ultimately, the court of appeals agreed with Tsarnaev and, accordingly, vacated his death sentence.[71] Despite this, the court of appeals found that, although the trial judge had fulfilled the first Patriarca requirement of inquiring about potential pretrial publicity, the trial judge had failed to ascertain the “kind” of “exposure to the case or the parties” to which the prospective jurors had been exposed, and therefore, did not entirely meet the Patriarca standard.[72]

IV. Commentary

The court of appeals improperly concluded that the trial judge did not meet the Patriarca standard; the trial judge completed extensive examination of potential jurors, particularly in light of the circumstances surrounding the case. The court of appeals concluded that the trial judge did not meet the Patriarca standard because he did not ascertain the specific kind of publicity that the prospective jurors observed prior to trial.[73] However, contrary to the appellate court’s conclusion, the trial judge not only met the standard articulated in the Patriarca case, but also went above and beyond what the standard required—that a judge question each potential juror in cases involving intense pretrial publicity.[74]

In this case, the trial judge gave potential jurors a 100-item questionnaire that both parties had approved.[75] The questionnaire specifically asked the jurors the amount and kind of exposure they had to pretrial publicity and whether they had formed an opinion on the case.[76] As supported by Medina, the Patriarca standard was met when the court asked the potential jurors about the “extent” of their knowledge of the case and whether they had “formed an opinion of the guilt or innocence of the defendant.”[77] Given the nature of the case, the trial judge could not have been expected to perform a full investigation into each potential juror and what specific news they had seen regarding the trial. Not only would this process have taken much longer than the twenty-one days already devoted to voir dire, but also, such an investigation is not necessary. As mentioned previously, the only requirements of voir dire are that the trial judge ask specific questions of the potential jurors and that voir dire not take the form of a mini trial with unnecessary delays.[78] Additionally, the trial took place two years after the incident, so the likelihood was low that any juror would have remembered the details of what they had seen or heard when the incident first took place. When the court of appeals vacated Tsarnaev’s death sentence based on insufficient voir dire, it established a new standard. This standard requires trial judges to individually question potentially hundreds of jurors about each piece of news they could have seen or heard. This places an undue burden on trial court judges when, especially in cases like this, they have so much to attend to already.

Similarly, in Mu’Min v. Virginia,[79] the U.S. Supreme Court rejected the argument that the trial judge had to question the potential jurors about the specific contents of the pretrial publicity to which they had been exposed.[80] There, the Court indicated that, although potentially helpful, such questions are not constitutionally required.[81] Thus, unless the failure to ask questions about the specific content would render the trial fundamentally unfair, the questions are not necessary.[82]

Additionally, judges are given wide discretion when conducting voir dire, and no set formula exists regarding the questions that must be asked.[83] The trial judge in this case did not abuse his discretion because the judge asked potential jurors questions regarding their exposure to pretrial publicity when both parties were present and permitted the defense to ask a potential juror whether anything stood out from what she had seen or heard.[84] Similarly, the judge took great care to avoid emphasizing any detail that could create the wrong impression during voir dire.[85]

V. Conclusion

The Boston Marathon bombing was a tragedy on which the media widely reported across the country. It is impractical to expect Boston residents not to have seen or heard anything about it. The trial judge did not abuse his discretion when he refused to dismiss two jurors based on the fact that their social media posts from two years before the trial indicated they had been exposed to pretrial publicity. Contrary to Tsarnaev’s arguments and the conclusion of the court of appeals, the trial judge performed an extensive inquiry into the amount and kind of publicity exposure the jurors experienced and properly determined that it was not enough to disqualify them.[86] Because district judges are to be given wide discretion when it comes to conducting voir dire, the court of appeals should not have vacated Tsarnaev’s death sentence on the grounds of insufficient voir dire.


1. United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020). [Return to Text]

2. Although the court of appeals vacated the death sentence on the grounds of inadequate voir dire, that is not the sole reason it vacated the death sentence.  The court of appeals also found, among other reasons, that evidence of involvement by the defendant’s older brother in a triple homicide should have been admitted at sentencing.  Id. at 64.  However, this Comment will only focus on the inadequate voir dire reasoning by the court. [Return to Text]

3. Id. at 56–62. [Return to Text]

4. See 1 Stephen E. Arthur & Robert S. Hunter, Federal Trial Handbook: Criminal § 15:13 (4th ed. 2020). [Return to Text]

5. Boston Marathon Bombing, Hist. (June 7, 2019), []. [Return to Text]

6. Id. [Return to Text]

7. Id. [Return to Text]

8. Id. [Return to Text]

9. Id. [Return to Text]

10. Id.  The remainder of this Comment refers to Dzhokhar Tsarnaev as “Tsarnaev.” [Return to Text]

11. Id. [Return to Text]

12. United States v. Tsarnaev, 968 F.3d 24, 41 (1st Cir. 2020). [Return to Text]

13. Id. [Return to Text]

14. Id. [Return to Text]

15. Id. [Return to Text]

16. Id. at 44.  Regarding the availability of an impartial jury pool, the trial judge stated that there are “‘five million people,’ with many of them living outside of Boston.”  See id. [Return to Text]

17. Id. [Return to Text]

18. Id. at 44–45. [Return to Text]

19. Id. at 41. [Return to Text]

20. Id. at 48. [Return to Text]

21. Id. at 41 (alteration in original). [Return to Text]

22. Id. at 46.  The trial court judge denied Tsarnaev’s request for case-specific questions, stating that the questionnaire had already asked potential jurors similar questions, and the questions did not need to be repeated during individual voir dire.  Id. at 48. [Return to Text]

23. Id. at 47. [Return to Text]

24. Id. at 53. [Return to Text]

25. Id. [Return to Text]

26. Id. at 50. [Return to Text]

27. Id. at 52. [Return to Text]

28. Id. at 50. [Return to Text]

29. Id. [Return to Text]

30. Id. at 50–51 (ellipses in original). [Return to Text]

31. Id. [Return to Text]

32. Id. [Return to Text]

33. Id. at 51. [Return to Text]

34. Id. [Return to Text]

35. Id. [Return to Text]

36. Id. [Return to Text]

37. Id. at 52.  As a result of the trial judge dismissing Tsarnaev’s motion to strike, #138 and #286 served on the twelve-person jury, which not only found Tsarnaev guilty, but also recommended the death penalty.  Id. at 52.  Potential juror #286 also became the jury’s foreperson.  Id.  As a result, Tsarnaev filed this appeal.  Id. at 42. [Return to Text]

38. Id. at 52.  The statements that defense cited as problematic were tweets that #286 had retweeted from other accounts on Twitter; thus, the statements were not her own.  Id.  However, not all of the social media posts by #138 were made by other people, as shown by his Facebook post described in-text.  Id. at 51. [Return to Text]

39. Id. at 62. [Return to Text]

40. Id. at 53. [Return to Text]

41. Id.  Shortly after #355 filled out the lengthy questionnaire, he was individually questioned.  Id. at 49.  When asked by the trial court judge, #355 stated that he did not believe that his work as a criminal defense attorney would preclude his ability to be an impartial juror.  Id.  However, the government moved to strike him as a juror due to his “bias.”  Id. at 49.  The defense opposed this motion and stated that the juror had not provided the trial court any reason to doubt his impartiality.  See id.  The judge granted the government’s motion to dismiss #355, noting that the juror was not stricken due to his profession, but instead due to the judge’s “sense of him.”  Id. at 49–50. [Return to Text]

42. Id. at 49 (omission in original). [Return to Text]

43. Id. at 50. [Return to Text]

44. Id. [Return to Text]

45. 1 Arthur & Hunter, supra note 4, at § 15:12. [Return to Text]

46. Id. [Return to Text]

47. Id. [Return to Text]

48. Id. [Return to Text]

49. Id. (“The scope of voir dire examination and the procedures to be used are matters within the sound discretion of the trial judge and will not be disturbed on appeal unless the procedures used or the questions propounded are so unreasonable or devoid of the constitutional purpose as to constitute an abuse of that discretion.” (emphasis added)). [Return to Text]

50. Ross v. United States, 374 F.2d 97, 104 (8th Cir. 1967). [Return to Text]

51. Id. at 104. [Return to Text]

52. See id.  Ross v. United States is a particularly noteworthy case because it lays out the framework for determining whether or not the voir dire process is sufficient to ensure the defendant’s constitutional rights are still protected.  See generally id. [Return to Text]

53. 1 Arthur & Hunter, supra note 4, at § 15:12. [Return to Text]

54. Id. (emphasis added). [Return to Text]

55. United States v. Angiulo, 897 F.2d 1169, 1183 (1st Cir. 1990).  Jurors can be dismissed for many reasons; however, “[i]f either lawyer believes there is information that suggests a juror is prejudiced about the case, he or she can ask the judge to dismiss that juror for cause.”  How Courts Work, ABA (Sept. 9, 2019), [].  Attorneys also have a number of peremptory challenges.  See id.  “These challenges permit a lawyer to excuse a potential juror without stating a cause.”  Id. [Return to Text]

56. Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968). [Return to Text]

57. Id. at 316.  This case involved an investigation into a “Mafia” man and involved a three-year investigation into his operation.  See id.  This investigation included bugging his office and having one of his employees as a confidential informant.  See id.  Newspapers released the informant’s name and published stories stating that he was “singing” to the government.  See id.  The defendant was also named in several news stories throughout 1967, along with incriminating pieces of information relating to the investigation.  Id. at 316–17. [Return to Text]

58. Id. at 318. [Return to Text]

59. United States v. Medina, 761 F.2d 12 (1st Cir. 1985). [Return to Text]

60. Id. at 19.  “A judge in a high-profile case ‘fully complied with’ Patriarca by asking potential jurors if they ‘had read or heard anything about the case in the newspapers, on television[,] or radio.’”  United States v. Tsarnaev, 968 F.3d 24, 58 (1st Cir. 2020) (alteration in original) (quoting Medina, 761 F.2d at 20).  The First Circuit also “held that a judge in yet another high-profile case satisfied Patriarca when he asked potential jurors if they ‘had seen or read anything about the case’ – and then asked those who had about ‘the circumstances under which [they] had been exposed to publicity.’”  Id. (alteration in original) (emphasis in original) (quoting United States v. Orlando-Figueroa, 229 F.3d 33, 43 (1st Cir. 2000) (emphasis added)).  Again, to meet the Patriarca standard, the judge needs to inquire into what type of pretrial publicity the juror may have been exposed to.  Patriarca, 402 F.2d at 318. [Return to Text]

61. Tsarnaev, 968 F.3d at 43. [Return to Text]

62. Id. at 50. [Return to Text]

63. Id. at 52–53.  Potential juror #286 ended up serving as the jury foreperson.  Id. [Return to Text]

64. Id. at 50. [Return to Text]

65. Id. at 51. [Return to Text]

66. Id. at 51, 53. [Return to Text]

67. Id. at 57.  Patriarca was also a high publicity case in which the court of appeals described what the appropriate voir dire process should be when there is a significant risk of pretrial publicity.

In cases where there is, in the opinion of the court, a significant possibility that jurors have been exposed to potentially prejudicial material, and on request of counsel, we think that the court should proceed to examine each prospective juror apart from other jurors and prospective jurors, with a view to eliciting the kind and degree of his exposure to the case or the parties, the effect of such exposure on his present state of mind, and the extent to which such state of mind is immutable or subject to change from evidence.

Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968). [Return to Text]

68. Tsarnaev, 968 F.3d at 57–58.  The court stated that determining juror impartiality cannot be left to the jurors themselves because “jurors ‘may have an interest in concealing [their] own bias.’”  See id. at 58 (alteration in original) (quoting Smith v. Phillips, 455 U.S. 209, 221–22 (1982) (O’Connor, J., concurring)). [Return to Text]

69. Id. at 58. [Return to Text]

70. United States v. Medina, 761 F.2d 12, 20 (1st Cir. 1985). [Return to Text]

71. Tsarnaev, 968 F.3d at 106.  Inadequate voir dire was not the sole reason that this case was overturned on appeal.  Id. at 35.  The court of appeals also found that there was evidence that should have been admitted about the brother’s criminal history and that the defendant had the Fifth Amendment right to undergo interviews with the state’s mental health experts, among other reasons.  See id.  However, these reasons are beyond the scope of this Comment, which specifically analyzes the court of appeal’s decision to vacate Tsarnaev’s death sentence based on inadequate voir dire. [Return to Text]

72. Id. (citing Patriarca, 402 F.2d at 318).  The court of appeals seemed to believe that the trial judge needed to ask each individual juror what news articles they had seen or information they had heard in order to satisfy the Patriarca standard.  See id. [Return to Text]

73. Id. at 58. [Return to Text]

74. See Patriarca, 402 F.2d at 318. [Return to Text]

75. See Tsarnaev, 968 F.3d at 46–47. [Return to Text]

76. Id. at 46. [Return to Text]

77. United States v. Medina, 761 F.2d 12, 20 (1st Cir. 1985). [Return to Text]

78. 1 Arthur & Hunter, supra note 4, at § 15:12. [Return to Text]

79. Mu’Min v. Virginia, 500 U.S. 415 (1991). [Return to Text]

80. Id. at 425. [Return to Text]

81. Id. [Return to Text]

82. Id. [Return to Text]

83. 1 Arthur & Hunter, supra note 4, at § 15:12 (“The scope of voir dire examination and the procedures to be used are matters within the sound discretion of the trial judge and will not be disturbed on appeal unless the procedures used or the questions propounded are so unreasonable or devoid of the constitutional purpose as to constitute an abuse of that discretion.”). [Return to Text]

84. Redacted Brief for the Appellee at 183–84, United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020) (No. 16-6001), 2019 WL 2745045, at *183–84. [Return to Text]

85. Id. [Return to Text]

86. Tsarnaev, 968 F.3d at 59. [Return to Text]