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Full Opinion
(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. TSARNAEV
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 20â443. Argued October 13, 2021âDecided March 4, 2022
On April 15, 2013, brothers Dzhokhar and Tamerlan Tsarnaev planted
and detonated two homemade pressure-cooker bombs near the finish
line of the Boston Marathon, killing three and wounding hundreds.
Three days later, as investigators began to close in, the brothers fled.
In the process, they murdered a Massachusetts Institute of Technology
campus police officer, carjacked a graduate student, and fought a
street battle with police during which Dzhokhar inadvertently ran
over and killed Tamerlan. Dzhokhar eventually abandoned the vehicle
and hid in a covered boat being stored in a nearby backyard. He was
arrested the following day.
Dzhokhar was indicted for 30 crimes, including 17 capital offenses.
To prepare for jury selection, the parties proposed a 100-question
screening form, which included several questions regarding whether
media coverage may have biased prospective jurors. The District
Court declined to include a proposed question that asked each prospec-
tive juror to list the facts he had learned about the case from the media
and other sources. According to the District Court, the question was
too âunfocusedâ and âunguided.â Following three weeks of in-person
questioning, a jury was seated. The jury found Dzhokhar guilty on all
counts, and the Government sought the death penalty.
At sentencing, Dzhokhar sought mitigation based on the theory that
Tamerlan had masterminded the bombing and pressured Dzhokhar to
participate. In an attempt to show Tamerlanâs domineering nature,
Dzhokhar sought to introduce the statements of Ibragim Todashev,
who had alleged during an FBI interview that, years earlier, Tamerlan
had participated in a triple homicide in Waltham, Massachusetts. The
Government asked the trial court to exclude any reference to the Wal-
2 UNITED STATES v. TSARNAEV
Syllabus
tham murders on the grounds that the evidence either lacked rele-
vance or, alternatively, lacked probative value and was likely to con-
fuse the issues. The Government also pointed out that, because FBI
agents had killed Todashev in self-defense after he attacked them dur-
ing the interview, there were no living witnesses to the Waltham mur-
ders. The District Court excluded the evidence, and the jury concluded
that 6 of Dzhokharâs crimes warranted the death penalty.
The Court of Appeals vacated Dzhokharâs capital sentences on two
grounds. First, the court held that the District Court abused its dis-
cretion during jury selection by declining to ask about the kind and
degree of each prospective jurorâs media exposure, as required by that
courtâs decision in Patriarca v. United States, 402 F. 2d 314. Second,
the court held that the District Court abused its discretion during sen-
tencing when it excluded evidence concerning Tamerlanâs possible in-
volvement in the Waltham murders.
Held: The Court of Appeals improperly vacated Dzhokharâs capital sen-
tences. Pp. 8â20.
(a) The District Court did not abuse its discretion by declining to ask
about the content and extent of each jurorâs media consumption re-
garding the bombings. Jury selection falls âparticularly within the
province of the trial judge,â Skilling v. United States, 561 U. S. 358,
386, whose broad discretion in this area includes deciding what ques-
tions to ask prospective jurors, see MuâMin v. Virginia, 500 U. S. 415,
427. Here, the District Court did not abuse that discretion when, rec-
ognizing the significant pretrial publicity concerning the bombings, the
court refused to allow the question at issue because it wrongly empha-
sized what a juror knew before coming to court, rather than potential
bias. That decision was reasonable and well within the courtâs discre-
tion.
The rest of the jury-selection process in this case dispels any remain-
ing doubt. The District Court used the 100-question juror formâwhich
asked prospective jurors what media sources they followed and
whether any of that information had caused them to form an opinion
about Dzhokharâs guilt or punishmentâto cull down the number of
prospective jurors. The District Court then subjected those remaining
prospective jurors to three weeks of individualized voir dire, including
questions that probed for bias. Finally, the court instructed the pro-
spective jurors during voir dire, and the seated jurors during trial, that
their decisions must be based on the evidence presented at trial and
not any other source.
The Court of Appeals erred when it concluded that the District Court
abused its discretion by failing to put Dzhokharâs proposed media-con-
tent question to the jury. Following its decision in Patriarca, the court
concluded that it had âsupervisory authorityâ to require the District
Cite as: 595 U. S. ____ (2022) 3
Syllabus
Court, as a matter of law, to ask the jurors that specific question. The
supervisory power of federal courts, however, does not extend to the
creation of prophylactic supervisory rules that circumvent or supple-
ment legal standards set out in decisions of this Court. See United
States v. Payner, 447 U. S. 727, 733â737. Pp. 8â13.
(b) Nor did the District Court abuse its discretion in excluding from
the sentencing proceedings evidence of the Waltham murders. The
Federal Death Penalty Act provides that, at the sentencing phase of a
capital trial, âinformation may be presented as to any matter relevant
to the sentence, including any mitigating or aggravating factor.â 18
U. S. C. §3593(c). But the district court may exclude information âif
its probative value is outweighed by the danger of creating unfair prej-
udice, confusing the issues, or misleading the jury.â Ibid. Such evi-
dentiary decisions are reviewed for abuse of discretion. See United
States v. Abel, 469 U. S. 45, 54. Here, Dzhokhar sought to introduce
evidence linking Tamerlan to the unsolved Waltham murders to sup-
port his mitigation defense that Tamerlan was the ringleader of the
bombing. That evidence, however, did not allow the jury to confirm or
assess Tamerlanâs alleged role in the Waltham murders. The District
Court did not abuse its discretion when it reasonably excluded the ev-
idence for its lack of probative value and potential to confuse the jury.
Dzhokharâs counterarguments are unconvincing. First, §3593(c) does
not violate the Eighth Amendment. That provision falls well within
the the Federal Governmentâs â âtraditional authorityâ â âto decide that
certain types of evidence may have insufficient probative value to jus-
tify their admission,â Skipper v. South Carolina, 476 U. S. 1, 11, 15
(Powell, J., concurring in judgment), and âto set reasonable limits upon
the evidence a [capital] defendant can submit, and control the manner
in which it is submitted,â Oregon v. Guzek, 546 U. S. 517, 526. Section
3593(c) sets up a highly permissive regime that allows criminal de-
fendants to introduce a wide range of normally inadmissible evidence
and channels that evidence through an individualized balancing test
that affords a capital defendant every reasonable opportunity to place
relevant mitigation evidence before the penalty-phase jury. Here, the
bare inclusion of the Waltham-murders evidence risked producing a
confusing mini-trial where the only witnesses who knew the truth
were dead. That the evidence excluded by the District Court was con-
sidered reliable enough to include in a search warrant has no bearing
here, where the District Court was free to evaluate the information
independently when deciding whether to admit it under §3593(c).
The dissent recognizes that the District Court enjoyed significant
discretion over its evidentiary decisions. But because this is a death
penalty case, the dissent scrutinizes those decisions with particular
care to find that the District Court abused its discretion. In doing so,
4 UNITED STATES v. TSARNAEV
Syllabus
the dissent ignores the traditional abuse-of-discretion standard, which
calls for a reviewing court to defer to the sound judgment of a district
court unless the decision was âmanifestly erroneous.â General Elec.
Co. v. Joiner, 522 U. S. 136, 142. More specifically, the dissent sug-
gests that a district court presiding over death-penalty proceedings
should be more hesitant to find that evidence risked confusing the jury.
But nothing in §3593(c) suggests that Congress intended for any such
hesitancy. Ultimately, the District Court reasonably decided to ex-
clude the evidence under §3593(c)âs balancing test. Pp. 13â20.
968 F. 3d 24, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. BARRETT,
J., filed a concurring opinion, in which GORSUCH, J., joined. BREYER, J.,
filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined
except as to Part IIâC.
Cite as: 595 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20â443
_________________
UNITED STATES, PETITIONER v.
DZHOKHAR A. TSARNAEV
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[March 4, 2022]
JUSTICE THOMAS delivered the opinion of the Court.
On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev
planted and detonated two homemade pressure-cooker
bombs near the finish line of the Boston Marathon. The
blasts hurled nails and metal debris into the assembled
crowd, killing three while maiming and wounding hun-
dreds. Three days later, the brothers murdered a campus
police officer, carjacked a graduate student, and fired on po-
lice who had located them in the stolen vehicle. Dzhokhar
attempted to flee in the vehicle but inadvertently killed
Tamerlan by running him over. Dzhokhar was soon ar-
rested and indicted.
A jury found Dzhokhar guilty of 30 federal crimes and
recommended the death penalty for 6 of them. The District
Court accordingly sentenced Dzhokhar to death. The Court
of Appeals vacated the death sentence. We now reverse.
I
A
The Tsarnaev brothers immigrated to the United States
in the early 2000s and lived in Massachusetts. Little more
than a decade later, they were actively contemplating how
2 UNITED STATES v. TSARNAEV
Opinion of the Court
to wage radical jihad. They downloaded and read al Qaeda
propaganda, and, by December of 2012, began studying an
al Qaeda guide to bomb making.
On April 15, 2013, the brothers went to the Boston Mar-
athon finish line on Boylston Street. They each brought a
backpack containing a homemade pressure-cooker bomb
packed with explosives inside a layer of nails, BBs, and
other metal scraps. Tamerlan left his backpack in a crowd
of spectators and walked away. Dzhokhar stood with his
backpack outside the Forum, a nearby restaurant where
spectators watched the runners from the sidewalk and din-
ing patio. For four minutes, Dzhokhar surveyed the crowd.
After speaking with Tamerlan by phone, Dzhokhar left his
backpack among the spectators. Tamerlan then detonated
his bomb. While the crowd at the Forum looked toward the
explosion, Dzhokhar walked the other way. After a few sec-
onds, he detonated his bomb.
Each detonation sent fire and shrapnel in all directions.
The blast from Tamerlanâs bomb shattered Krystle Camp-
bellâs left femur and mutilated her legs. Though bystanders
tried to save her, she bled to death on the sidewalk. Dzho-
kharâs bomb ripped open the legs of Boston University stu-
dent Lingzi Lu. Rescuers tried to stem the bleeding by us-
ing a belt as a makeshift tourniquet. She too bled to death.
Eight-year-old Martin Richard absorbed the full blast of
Dzhokharâs bomb. BBs, nails, and other metal fragments
shot through his abdomen, cutting through his aorta, spinal
cord, spleen, liver, pancreas, left kidney, and large intes-
tines. The blast propelled shrapnel with such force that it
exited his back. Other shrapnel nearly severed his left
hand. The explosion also caused third-degree burns. Mar-
tin ultimately died from blood loss.
Dzhokharâs and Tamerlanâs bombs maimed and wounded
hundreds of other victims. Many people lost limbs, includ-
ing Martinâs 6-year-old sister, Jane. Many more would
Cite as: 595 U. S. ____ (2022) 3
Opinion of the Court
have died if not for the swift action of citizens and first re-
sponders.
After fleeing the scene, the brothers returned to their nor-
mal lives. Dzhokhar attended his college classes the next
day. He went to the gym with friends. He posted online
that he was âa stress free kind of guy.â App. 145. Several
days later, on April 18, after the Federal Bureau of Investi-
gation (FBI) released images of the suspected bombers, a
friend saw the images and texted Dzhokhar. Dzhokhar re-
sponded: âBetter not text me my friend. Lol.â Id., at 146.
Recognizing that investigators were closing in on them,
Dzhokhar met up with Tamerlan that evening. The broth-
ers collected more homemade bombs and a handgun and
loaded them into Tamerlanâs car. While driving past the
Massachusetts Institute of Technology, they saw 27-year-
old campus police officer Sean Collier sitting in his patrol
car. They approached his car and shot him five times at
close range, including once between the eyes. With Collier
dead, the brothers tried to steal his service pistol but were
unable to remove it from the holster. They then carjacked
and robbed another man, Dun Meng, who was driving his
SUV home from work. When the brothers forced Meng to
stop at a gas station for fuel and snacks, he fled on foot. The
brothers briefly chased him but gave up and made off with
Mengâs SUV.
Meng contacted the police, who used the SUVâs GPS de-
vice to track the Tsarnaevs. When officers found the broth-
ers in Watertown a few hours later, a street battle ensued.
Tamerlan fired on the officers with a handgun, while Dzho-
khar threw homemade bombs. When Tamerlanâs handgun
ran out of ammunition, officers subdued him. As they tried
to handcuff Tamerlan, Dzhokhar returned to the SUV and
sped towards the officers. They evaded the SUV. Tamerlan
did not. Dzhokhar ran over Tamerlan and dragged him
roughly 30 feet down the road. Tamerlan disentangled
from the undercarriage when Dzhokhar rammed a police
4 UNITED STATES v. TSARNAEV
Opinion of the Court
cruiser before escaping. Tamerlan died soon after from his
injuries.
Dzhokhar abandoned the SUV a few blocks away. He
found a covered boat in a nearby backyard. Taking shelter
inside, he carved the words âstop killing our innocent peo-
ple, and we will stopâ into the planking. Id., at 151. He also
wrote a manifesto in pencil on the bulkhead of the boatâs
cockpit justifying his actions and welcoming his expected
martyrdom. The next day, the boatâs owner found him. Po-
lice eventually forced Dzhokhar out of the boat and arrested
him.
B
A federal grand jury indicted Dzhokhar for 30 crimes, 17
of which were capital offenses. In preparation for jury se-
lection, the parties jointly proposed a 100-question form to
screen the prospective jurors. The District Court adopted
almost all of them, including many that probed for bias. For
example, some of the District Courtâs questions asked
whether a prospective juror had a close association with law
enforcement. Others asked whether a prospective juror had
strong feelings about Islam, Chechens, or the several Cen-
tral Asian regions with which the Tsarnaevs were con-
nected. Still others asked whether the prospective juror
had a personal connection to the bombing.
Several questions also probed whether media coverage
might have biased a prospective juror. One question asked
if the prospective juror had âformed an opinionâ about the
case because of what he had âseen or read in the news me-
dia.â App. to Pet. for Cert. 373a. Others asked about the
source, amount, and timing of the personâs media consump-
tion. Still another asked whether the prospective juror had
commented or posted online about the bombings.
The District Court did reject one media-related question.
The proposed questionnaire had asked each prospective ju-
ror to list the facts he had learned about the case from the
Cite as: 595 U. S. ____ (2022) 5
Opinion of the Court
media and other sources. Concerned that such a broad, âun-
focusedâ question would âcause troubleâ by producing âun-
manageable dataâ of minimal value that would come to
dominate the entire voir dire, the District Court declined to
include it in the questionnaire. App. 480â481. After Dzho-
khar objected to the removal, the District Court further ex-
plained that the question was âtoo unguided.â Id., at 486.
Recognizing the intense public interest in the case, the
District Court summoned an expanded jury pool. In early
January 2015, the court called 1,373 prospective jurors for
the first round of jury selection. After reviewing their an-
swers to the questionnaire, the court reduced the pool to
256. As jury selection began in earnest, Dzhokhar renewed
his request that the court ask each juror about the content
of the media he had consumed. The District Court again
refused Dzhokharâs blanket request and instead permitted
counsel to ask appropriate followup questions about a pro-
spective jurorâs media consumption based on the answers to
questions in the questionnaire or at voir dire. Several
times, the court permitted Dzhokharâs attorneys to follow
up on a prospective jurorâs earlier answers with specific
questions about what the juror had seen or heard in the
news. Over the course of three weeks of in-person question-
ing, the District Court and the parties reduced the 256 pro-
spective jurors down to 12 seated jurors.
After the District Court seated the jury, the case went to
trial. Dzhokhar did not contest his guilt and the jury thus
returned a guilty verdict on all counts. During the sentenc-
ing phase, the Government argued that Dzhokharâs crimes
warranted the death penalty. Dzhokharâs mitigation the-
ory centered on the idea that Tamerlan masterminded the
bombing. According to Dzhokhar, he was not sufficiently
culpable to warrant the death penalty because his older
brother had pressured him to participate.
To prove Tamerlanâs domineering nature, Dzhokhar
sought to introduce hearsay evidence of a crime Tamerlan
6 UNITED STATES v. TSARNAEV
Opinion of the Court
allegedly had committed years earlier. Specifically, FBI
agents investigating the bombings had come to suspect that
Tamerlanâs friend, Ibragim Todashev, possessed infor-
mation about an unsolved triple homicide in Waltham,
Massachusetts, where a non-Muslim acquaintance of Tam-
erlanâs and two others were found bound, robbed, and mur-
dered with a knife. When agents went to interview
Todashev about a month after the bombings, Todashev ini-
tially denied any involvement. Yet, when pressed, he told
the agents that Tamerlan had hatched a plan to rob the
three Waltham victims of drug proceeds on the night of Sep-
tember 11, 2011. According to Todashev, he and Tamerlan
traveled to Waltham, held the men at gunpoint, and duct-
taped their hands, feet, and mouths. After taking the
money, Tamerlan insisted on killing the three men. Accord-
ing to Todashev, after he disagreed, Tamerlan told him to
wait outside while Tamerlan cut their throats with a knife.
The agents offered Todashev a pen and paper to write out
his confession. Todashev instead attacked the agents, who
killed him in self-defense. The FBI later used Todashevâs
statement to obtain a search warrant for a follow-on search
of Tamerlanâs car.
In the lead-up to trial, the prosecution told Dzhokharâs
counsel what Todashev had said but did not turn over the
recording of the interview or the FBI reports. The prosecu-
tion also disclosed that Dias Kadyrbayev, a friend of Dzho-
kharâs facing federal obstruction charges in connection with
the bombing, told the investigators that Dzhokhar knew
about Tamerlanâs involvement in the murders. Meanwhile,
Government analysts found evidence that someone had
searched for information about the Waltham murders from
Tamerlanâs wifeâs computer a week after they took place.
Government investigators also found jihadi propaganda ad-
vocating theft from non-Muslim âinfidels.â Id., at 639.
Before trial, Dzhokhar filed a motion to compel produc-
Cite as: 595 U. S. ____ (2022) 7
Opinion of the Court
tion of the evidence, which the court denied. The Govern-
ment filed a motion in limine to exclude any reference to
the Waltham murders, contending that the evidence was
irrelevant, or at least so lacking in probative value and so
likely to confuse the issues that the court should exclude it.
The District Court granted the Governmentâs motion in
limine. As the District Court saw things, the evidence did
not show what Tamerlanâs role was and, with Todashev
dead, no further line of inquiry remained. The available
information was âwithout any probative valueâ and âwould
be confusing to the jury and a waste of time.â Id., at 650.
When the sentencing proceedings finished, the jury con-
cluded that Dzhokhar warranted the death penalty for 6 of
the 17 death-penalty-eligible crimes, despite Dzhokharâs ar-
gument that Tamerlan was more culpable. The District
Court accordingly sentenced Dzhokhar to death.
C
The Court of Appeals vacated Dzhokharâs capital sen-
tence on two grounds. See 968 F. 3d 24, 35 (CA1 2020).
First, the Court of Appeals held that the District Court
abused its discretion during jury selection by declining to
ask every prospective juror what he learned from the media
about the case. Id., at 54â62. According to the panel, such
questions were required by that courtâs 1968 decision in Pa-
triarca v. United States, 402 F. 2d 314 (CA1), which had
mandated this voir dire rule âin the exercise of [the court of
appealsâ] discretionary supervisory powers, not as a matter
of constitutional law.â 968 F. 3d, at 60. The Court of Ap-
peals ruled that the District Courtâs failure to comply with
Patriarca was âan error of law and so an abuse of discre-
tion.â 968 F. 3d, at 59. Second, the panel held that the
District Court abused its discretion when it excluded from
sentencing the evidence concerning Tamerlanâs possible in-
volvement in the Waltham murders. Id., at 63â73. The
panel believed that the evidence was sufficiently probative
8 UNITED STATES v. TSARNAEV
Opinion of the Court
of Tamerlanâs ability to influence Dzhokhar. Id., at 69â70.
We granted certiorari, 592 U. S. ___ (2021).
II
The Government argues that the Court of Appeals im-
properly vacated Dzhokharâs capital sentences based on the
juror questionnaire and the Waltham evidence. We agree.
A
The Sixth Amendment guarantees âthe accusedâ the
right to a trial âby an impartial jury.â The right to an âim-
partialâ jury âdoes not require ignorance.â Skilling v.
United States, 561 U. S. 358, 381 (2010). Notorious crimes
are âalmost, as a matter of necessity, brought to the atten-
tionâ of those informed citizens who are âbest fittedâ for jury
duty. Reynolds v. United States, 98 U. S. 145, 155â156
(1879). A trial court protects the defendantâs Sixth Amend-
ment right by ensuring that jurors have âno bias or preju-
dice that would prevent them from returning a verdict ac-
cording to the law and evidence.â Connors v. United States,
158 U. S. 408, 413 (1895).
We have repeatedly said that jury selection falls â âpartic-
ularly within the province of the trial judge.â â Skilling, 561
U. S., at 386 (quoting Ristaino v. Ross, 424 U. S. 589, 595
(1976)); see also, e.g., MuâMin v. Virginia, 500 U. S. 415, 424
(1991); Connors, 158 U. S., at 413. That is so because a trial
âjudgeâs appraisal is ordinarily influenced by a host of fac-
tors impossible to capture fully in the record,â such as a
âprospective jurorâs inflection, sincerity, demeanor, candor,
body language, and apprehension of duty.â Skilling, 561
U. S., at 386. A trial courtâs broad discretion in this area
includes deciding what questions to ask prospective jurors.
See Muâmin, 500 U. S., at 427 (âour own cases have stressed
the wide discretion granted to the trial court in conducting
voir dire in the area of pretrial publicityâ).
A court of appeals reviews the district courtâs questioning
Cite as: 595 U. S. ____ (2022) 9
Opinion of the Court
of prospective jurors only for abuse of discretion. See, e.g.,
Skilling, 561 U. S., at 387, n. 20; MuâMin, 500 U. S., at 427;
Rosales-Lopez v. United States, 451 U. S. 182, 189 (1981)
(plurality opinion); Ristaino, 424 U. S., at 594; Ham v.
South Carolina, 409 U. S. 524, 527 (1973); Connors, 158
U. S., at 413. That discretion does not vanish when a case
garners public attention. Indeed, â[w]hen pretrial publicity
is at issue, âprimary reliance on the judgment of the trial
court makes [especially] good sense.â â Skilling, 561 U. S.,
at 386 (quoting MuâMin, 500 U. S, at 427; alteration in Skil-
ling). After all, âthe judge âsits in the locale where the pub-
licity is said to have had its effectâ and may base her evalu-
ation on her âown perception of the depth and extent of news
stories that might influence a juror.â â Ibid. (quoting
MuâMin, 500 U. S., at 427). Because conducting voir dire is
committed to the district courtâs sound discretion, there is
no blanket constitutional requirement that it must ask each
prospective juror what he heard, read, or saw about a case
in the media. MuâMin, 500 U. S., at 417. Instead, as in any
case, the district courtâs duty is to conduct a thorough jury-
selection process that allows the judge to evaluate whether
each prospective juror is âto be believed when he says he
has not formed an opinion about the case.â Id., at 425.
The District Court did not abuse its broad discretion by
declining to ask about the content and extent of each jurorâs
media consumption regarding the bombings. The court rec-
ognized the significant pretrial publicity concerning the
bombings, and reasonably concluded that the proposed
media-content question was âunfocused,â risked producing
âunmanageable data,â and would at best shed light on âpre-
conceptionsâ that other questions already probed. App.
480â481. At voir dire, the court further explained that it
did not want to be âtoo tied to a scriptâ because â[e]very ju-
ror is differentâ and had to be âquestioned in a way that
[was] appropriateâ to the jurorâs earlier answers. Id., at
10 UNITED STATES v. TSARNAEV
Opinion of the Court
498. The court was concerned that a media-content ques-
tion had âthe wrong emphasis,â focusing on what a juror
knew before coming to court, rather than on potential bias.
Id., at 502. Based on âyearsâ of trial experience, the court
concluded that jurors who came in with some prior
knowledge would still be able to act impartially and âhold
the government to its proof.â Id., at 502â503. The District
Courtâs decision was reasonable and well within its discre-
tion, as our precedents make clear. See MuâMin, 500 U. S.,
at 427.
If any doubt remained, the rest of the jury-selection pro-
cess dispels it. The District Court summoned an expanded
jury pool of 1,373 prospective jurors and used the 100-
question juror form to cull that down to 256. The question-
naire asked prospective jurors what media sources they fol-
lowed, how much they consumed, whether they had ever
commented on the bombings in letters, calls, or online
posts, and, most pointedly, whether any of that information
had caused the prospective juror to form an opinion about
Dzhokharâs guilt or punishment. The court then subjected
those 256 prospective jurors to three weeks of individual-
ized voir dire in which the court and both parties had the
opportunity to ask additional questions and probe for bias.
Dzhokharâs attorneys asked several prospective jurors what
they had heard, read, or seen about the case in the media.
The District Court also provided â âemphatic and clear in-
structions on the sworn duty of each juror to decide the is-
sues only on evidence presented in open court.â â Skilling,
561 U. S., at 388, n. 21 (quoting Nebraska Press Assn. v.
Stuart, 427 U. S. 539, 564 (1976)). The court reminded the
prospective jurors that they âmust be able to decide the is-
sues in the case based on the information or evidence that
is presented in the course of the trial, not on information
from any other sources,â App. 283, an instruction the court
gave during voir dire and repeated during the trial. In sum,
Cite as: 595 U. S. ____ (2022) 11
Opinion of the Court
the courtâs jury selection process was both eminently rea-
sonable and wholly consistent with this Courtâs precedents.
The Court of Appeals erred in holding otherwise. As it
saw things, its decision nearly 50 years prior in Patriarca
had, pursuant to its âsupervisory authority,â required dis-
trict courts presiding over high-profile cases to ask about
the â âkind and degree of [the prospective jurorâs] exposure
to the case or the parties.â â 968 F. 3d, at 57 (quoting Patri-
arca, 402 F. 2d, at 318; emphasis deleted). And because Pa-
triarca purportedly set forth a ârule,â the District Courtâs
failure to follow it was âan error of law and so an abuse of
discretion.â 968 F. 3d, at 59.
It is true that some of our precedents describe a âsupervi-
sory authorityâ that inheres in federal courts. See, e.g.,
McNabb v. United States, 318 U. S. 332, 343â345 (1943);
Cupp v. Naughten, 414 U. S. 141, 146 (1973).1 But the
Courtâs precedents have also identified clear limits when
lower courts have purported to invoke that authority. For
example, supervisory rules cannot conflict with or circum-
vent a constitutional provision or federal statute. Thomas
v. Arn, 474 U. S. 140, 148 (1985). Nor can they conflict with
or circumvent a Federal Rule. Carlisle v. United States, 517
U. S. 416, 426 (1996). Finally, and most relevant here,
lower courts cannot create prophylactic supervisory rules
that circumvent or supplement legal standards set out in
ââââââ
1 Some jurists have questioned this Courtâs supervisory authority over
lower courts. See, e.g., Western Pacific R. Corp. v. Western Pacific R. Co.,
345 U. S. 247, 273 (1953) (Jackson, J., dissenting) (questioning âthis
Courtâs exercise of its vague supervisory powers over federal courtsâ);
Bank of Nova Scotia v. United States, 487 U. S. 250, 264 (1988) (Scalia,
J., concurring) (âI do not see the basis for any direct authority to super-
vise lower courtsâ). Others have questioned whether the courts of appeals
enjoy the same power. See, e.g., United States v. Strothers, 77 F. 3d 1389,
1397â1399 (CADC 1996) (Sentelle, J., concurring). The Government
does not challenge the general existence of the Court of Appealsâ super-
visory power. See Tr. of Oral Arg. 11. Hence, we need not address that
issue here.
12 UNITED STATES v. TSARNAEV
Opinion of the Court
decisions of this Court. United States v. Payner, 447 U. S.
727, 733â737 (1980).
Payner exemplifies this last limit. There, a Federal Dis-
trict Court asserted supervisory power to suppress illegally
seized evidence even when the seizure violated a third
partyâs Fourth Amendment rights, and the Court of Appeals
affirmed the decision. Id., at 733. This Court reversed, ex-
plaining that its Fourth Amendment jurisprudence had âes-
tablished beyond any doubtâ that a defendant could not as-
sert a third partyâs Fourth Amendment injury in order to
suppress evidence. Id., at 735. âWere we to accept this use
of the supervisory power,â the Court reasoned, âwe would
confer on the judiciary discretionary power to disregard the
considered limitations of the law it is charged with enforc-
ing.â Id., at 737. Simply put, âthe supervisory power does
not extend so far.â Ibid.
Nor does any supervisory power extend as the Court of
Appeals appears to suggest in this case. This Court has
held many times that a district court enjoys broad discre-
tion to manage jury selection, including what questions to
ask prospective jurors. See, e.g., Skilling, 561 U. S., at 387,
n. 20; MuâMin, 500 U. S., at 427; Ristaino, 424 U. S., at 594;
Ham, 409 U. S., at 527; Connors, 158 U. S., at 413. As the
Court of Appeals acknowledged, our cases establish that a
reviewing court may set aside a district courtâs questioning
only for an abuse of discretion. See 968 F. 3d, at 56. The
Court of Appeals declined to apply that settled standard of
review. Rather than ask whether media-content questions
were necessary in light of the District Courtâs exhaustive
voir dire, the Court of Appeals resurrected Patriarca,
handed down a purported legal rule that media-content
questions are required in all high-profile cases, and then
concluded that the District Court committed a legal error
when it failed to comply with that rule. See 968 F. 3d, at
57â59. But a court of appeals cannot supplant the district
courtâs broad discretion to manage voir dire by prescribing
Cite as: 595 U. S. ____ (2022) 13
Opinion of the Court
specific lines of questioning, and thereby circumvent a well-
established standard of review. Whatever the âsupervisory
powerâ entails, it does not countenance the Court of Ap-
pealsâ use of it.
B
The Court of Appealsâ second reason for vacating Dzho-
kharâs capital sentencesâthat the District Court erred in
excluding from the sentencing proceedings evidence of the
Waltham murdersâfares no better.
The Federal Death Penalty Act (FDPA) sets out a com-
prehensive scheme by which federal district courts adjudi-
cate, review, and impose death sentences. See 18 U. S. C.
§§3591 et seq. Section 3593 provides that, at the sentencing
phase of a capital trial, âinformation may be presented as
to any matter relevant to the sentence, including any miti-
gating or aggravating factor.â §3593(c). âInformation is
admissible regardless of its admissibility under the rules
governing admission of evidence at criminal trials.â Ibid.
That said, FDPA proceedings are not evidentiary free-for-
alls. The district court may exclude information under the
FDPA âif its probative value is outweighed by the danger of
creating unfair prejudice, confusing the issues, or mislead-
ing the jury.â Ibid. We review these evidentiary exclusions
for abuse of discretion. See, e.g., United States v. Abel, 469
U. S. 45, 54 (1984); Sprint/United Management Co. v. Men-
delsohn, 552 U. S. 379, 384 (2008); 1 R. Mosteller et al.,
McCormick on Evidence §185, p. 1125 (8th ed. 2020).
Here, during sentencing, Dzhokhar sought to introduce
evidence linking Tamerlan to the unsolved Waltham mur-
ders. He argued that the evidence supported his mitigation
defense that Tamerlan was the ringleader. The District
Court acknowledged Dzhokharâs rationale but excluded the
evidence because it was âwithout any probative valueâ and
âwould be confusing to the jury.â App. 650. See 18 U. S. C.
§3593(c).
14 UNITED STATES v. TSARNAEV
Opinion of the Court
That conclusion was reasonable and not an abuse of the
District Courtâs discretion. Dzhokhar sought to divert the
sentencing juryâs attention to a triple homicide that Tamer-
lan allegedly committed years prior, though there was no
allegation that Dzhokhar had any role in that crime. Nor
was there any way to confirm or verify the relevant facts,
since all of the parties involved were dead. As the District
Court explained, âthere simply [was] insufficient evidence
to describe [any] participation Tamerlan may have hadâ or
âtel[l] who played what role, if they played roles.â App. 650.
The District Court did not abuse its discretion when finding
that the evidence lacked probative value, would confuse the
jury, and ultimately would be nothing more than âa waste
of time.â Ibid.
Dzhokhar and the dissent offer several counterargu-
ments, none of which is convincing. First, Dzhokhar sug-
gests that §3593(c) violates the Eighth Amendment if its
balancing test operates to exclude any relevant mitigating
evidence. See Brief for Respondent 17, 31; Tr. of Oral Arg.
85â88. His argument depends on a line of cases rooted in
Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Okla-
homa, 455 U. S. 104 (1982),2 which ârequir[e] the sentencer
to consider mitigating circumstances when deciding
whether to impose the death penalty.â Jones v. Mississippi,
593 U. S. ___, ___ (2021) (slip op., at 17). Dzhokhar sug-
gests that a district court violates the Eighth Amendment
under these precedents if it excludes any marginally rele-
vant mitigating evidence that fails the §3593(c) balancing
test. See Tr. of Oral Arg. 85â88.
ââââââ
2 Some have argued that these cases and their progeny do not reflect
the original meaning of the Eighth Amendment, whose prohibition âre-
lates to the character of the punishment, and not the process by which it
is imposed.â Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist,
J., dissenting); see also, e.g., Miller v. Alabama, 567 U. S. 460, 505â506,
and n. 3 (2012) (THOMAS, J., dissenting). Neither party here asks us to
revisit that question and we decline to do so.
Cite as: 595 U. S. ____ (2022) 15
Opinion of the Court
Our cases do not support Dzhokharâs extreme position.
â âLockett and its progeny stand only for the proposition that
a State may not cut off in an absolute manner the presen-
tation of mitigating evidence, either by statute or judicial
instruction, or by limiting the inquiries to which it is rele-
vant so severely that the evidence could never be part of the
sentencing decision at all.â â Johnson v. Texas, 509 U. S.
350, 361 (1993) (quoting McKoy v. North Carolina, 494 U. S.
433, 456 (1990) (Kennedy, J., concurring in judgment)). We
read that principle to coexist with the overarching goal
âthat, above all, capital sentencing must be reliable, accu-
rate, and nonarbitrary.â Saffle v. Parks, 494 U. S. 484, 493
(1990); accord, California v. Brown, 479 U. S. 538, 541
(1987). Thus, â[o]ur capital sentencing jurisprudence seeks
to reconcile [these] two competing . . . principlesâââto allow
mitigating evidence to be considered and to guide the dis-
cretion of the sentencer.â Johnson, 509 U. S., at 373. To
effectively reconcile these objectives, â[w]e need only con-
clude that it is consistent with the Eighth Amendment for
[the Federal Government] to channel the sentencerâs con-
sideration of a defendantâs arguably mitigating evidence so
as to limit the relevance of that evidence in any reasonable
manner, so long as the [Federal Government] does not deny
the defendant a full and fair opportunity to apprise the sen-
tencer of all constitutionally relevant circumstances.â Gra-
ham v. Collins, 506 U. S. 461, 498â499 (1993) (THOMAS, J.,
concurring).
Because the States and the Federal Government âretain
âthe traditional authorityâ â âto decide that certain types of
evidence may have insufficient probative value to justify
their admission,â they may enact reasonable rules govern-
ing whether specific pieces of evidence are admissible.
Skipper v. South Carolina, 476 U. S. 1, 11, 15 (1986) (Pow-
ell, J., concurring in judgment) (quoting Lockett, 438 U. S.,
at 604, n. 12). Moreover, we have expressly held that âthe
16 UNITED STATES v. TSARNAEV
Opinion of the Court
Eighth Amendment does not depriveâ a sovereign âof its au-
thority to set reasonable limits upon the evidence a [capital]
defendant can submit, and control the manner in which it
is submitted.â Oregon v. Guzek, 546 U. S. 517, 526 (2006).
Congressâ passage of §3593(c) falls well within that tradi-
tional authority. Section 3593(c) sets up a highly permis-
sive regime that allows criminal defendants to introduce a
wide range of normally inadmissible evidence. The statute
channels that evidence through an individualized balanc-
ing test that affords a capital defendant every reasonable
opportunity to place relevant mitigating evidence before the
penalty-phase jury. Unlike the statute challenged in Lock-
ett or the sentencerâs decision challenged in Eddings,
§3593(c) does not put any category of mitigating evidence
beyond the sentencerâs purview. Rather, §3593(c) preserves
the traditional gatekeeping function of district court judges
to consider and assess specific pieces of relevant evidence
in light of its probative value and the risks it poses to the
juryâs truth-seeking function. The court weighs all prof-
fered evidence to determine whether it will assist the jury
in considering any grounds for mitigation.
Put simply, §3593(c) âdoes not deny the defendant a full
and fair opportunity to apprise the sentencer of all consti-
tutionally relevant circumstances.â Graham, 506 U. S. at
498â499 (THOMAS, J., concurring). It therefore does not of-
fend the Eighth Amendment.
Dzhokhar alternatively disagrees with the balance that
the District Court struck here under §3593(c), arguing that
the Waltham evidence was âhighly probativeâ to his mitiga-
tion defense. Brief for Respondent 17. On his telling, the
evidence showed that Tamerlan was a leader who pres-
sured others to commit violence. But the District Court con-
sidered that argument and rejected it after reasonably ex-
plaining that â[t]hereâs just no way of telling who played
what role, if they played roles,â from the sparse and unreli-
able information before the court. App. 650. It was âas
Cite as: 595 U. S. ____ (2022) 17
Opinion of the Court
plausible . . . that Todashev was the bad guy and Tamerlan
was the minor actor.â Ibid. In other words, the evidence
did not tend to show that Tamerlan acted as the leader who
pressured Todashev into committing the crime. And it cer-
tainly did not show that, almost two years later, Tamerlan
led and dominated Dzhokhar in a manner that would miti-
gate Dzhokharâs guilt.
Dzhokhar further opines that he might have reduced ju-
ror confusion by putting the information before the jury in
a âstreamlinedâ manner. Brief for Respondent 32. But â[i]t
is important that a reviewing court evaluate the trial
courtâs decision from its perspective when it had to ruleâ ra-
ther than âindulge in review by hindsight.â Old Chief v.
United States, 519 U. S. 172, 182, n. 6 (1997). Here, Dzho-
khar did not alert the District Court to any possible
âstreamlinedâ approach, instead suggesting that, if the
court admitted the Waltham evidence, he would submit ad-
ditional evidence and possibly seek third-party discovery.
Moreover, Dzhokhar could not have unilaterally dictated
how the proceeding would progress because the Govern-
ment would have been âpermitted to rebut any information
received at the hearingâ with evidence of its own. 18
U. S. C. §3593(c). So no matter how Dzhokhar presented
the evidence, its bare inclusion risked producing a confus-
ing mini-trial where the only witnesses who knew the truth
were dead. The District Court did not abuse its discretion
by declining to lead the jury into this evidentiary detour.
Finally, Dzhokhar argues that since the Government ap-
parently considered Todashevâs statement to the FBI
agents reliable enough to justify its reference in a search
warrant affidavit, Todashevâs statements were necessarily
reliable enough to be presented to the jury as mitigating
evidence. See Brief for Respondent 27â28; see also post, at
8 (BREYER, J., dissenting) (contending that the warrant
âstrongly suggestsâ the District Court abused its discre-
tion). We fail to see why. The District Court here did not
18 UNITED STATES v. TSARNAEV
Opinion of the Court
sign the warrant or the affidavit. Whatever probable-cause
assessment the FBI agent and the Magistrate Judge made,
the District Court was free to evaluate the information in-
dependently when deciding whether to admit it under
§3593(c). As explained, that evaluation was not an abuse
of discretion.
For its part, the dissent subjects the District Courtâs de-
cision to exclude the Waltham evidence to a more stringent
standard of review and, based on its independent review of
the record, would reverse. Post, at 5â16. While the dissent
acknowledges that district courts enjoy âsignificant discre-
tionâ when making evidentiary decisions, post, at 5, it nev-
ertheless argues that the death penalty context here re-
quires us to scrutinize the District Courtâs decision with
âparticular judicial care,â post, at 15.
In doing so, the dissent ignores our traditional standard
for appellate review of evidentiary determinations.3 Defer-
ence is the âhallmark of [the] abuse-of-discretion reviewâ
applicable to such decisions. General Elec. Co. v. Joiner,
ââââââ
3 None of the dissentâs cases, see post, at 16, supports applying height-
ened scrutiny to evidentiary decisions in death-penalty cases. The lan-
guage the dissent cites from Kyles v. Whitley, 514 U. S. 419, 422 (1995),
about our â âduty to search for constitutional error,â â post, at 14, in capital
cases is inapposite; it concerned our decision to grant review to engage
in fact-bound error correction, not the applicable standard for deciding
whether an error had in fact occurred. See 514 U. S., at 422, n. 1. Mean-
while, the language from Zant v. Stephens, 462 U. S. 862, 885 (1983),
about âcareful scrutinyâ concerned our review of the juryâs âdeliberative
processâ leading to the imposition of a capital sentence, not the consid-
ered evidentiary decisions of a District Court. Finally, Gregg v. Georgia,
428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell, Stevens, JJ.),
scrutinized whether procedural âsafeguard[s]â were honored, not
whether the District Courtâs evidentiary rulings were substantively rea-
sonable. All told, not one of these cases addressed, let alone altered, the
abuse-of-discretion standard traditionally applicable to a district courtâs
evidentiary decisions. See General Elec. Co. v. Joiner, 522 U. S. 136, 141
(1997) (âWe have held that abuse of discretion is the proper standard of
review of a district courtâs evidentiary rulingsâ).
Cite as: 595 U. S. ____ (2022) 19
Opinion of the Court
522 U. S. 136, 143 (1997). A âreviewing courtâ applying that
standard âmust not substitute its judgment for that of the
district court.â Horne v. Flores, 557 U. S. 433, 493 (2009)
(BREYER, J., dissenting). Rather, an appellate court must
defer to the lower courtâs âsound judgment,â so long as its
decision falls within its âwide discretion,â Abel, 469 U. S., at
54, and is not â âmanifestly erroneous,â â Joiner, 522 U. S., at
142 (quoting Spring Co. v. Edgar, 99 U. S. 645, 658 (1879)).
Even in the death penalty context, this traditional abuse-
of-discretion standard applies.
Yet here, the dissent proposes to independently reevalu-
ate the District Courtâs decision to exclude the Waltham ev-
idence under §3593(c). In particular, the dissent joins
Dzhokhar in critiquing the District Courtâs conclusion that
the risk of confusing the jury outweighed the probative
value of that evidence. See post, at 10â15. The dissent
thinks it was the âDistrict Courtâs strongest reasonâ for ex-
cluding the evidence, post, at 10, but it discounts the Dis-
trict Courtâs conclusion for two reasons. Neither is compel-
ling, especially under the deferential abuse-of-discretion
standard.
First, the dissent suggests that because âdeath penalty
proceedings are special,â district courts should be more hes-
itant to find a risk of confusion in this context than in oth-
ers. Post, at 11. But the dissent identifies nothing in the
text of the FDPA to support its position. Congress defined
what considerations district courts must balance when
making admissibility determinations under §3593(c), and it
chose to define one using a term familiar in the law of evi-
denceââconfusing the issues.â Compare §3593(c) with Fed-
eral Rule of Evidence 403; see also Mosteller, McCormick
on Evidence §185, at 1119 (noting âcommon law power of
the judge to exclude relevant evidenceâ to forestall â âconfu-
sion of the issuesâ â). Nothing suggests that Congress in-
tended district courts to evaluate that concern differently
under the FDPA.
20 UNITED STATES v. TSARNAEV
Opinion of the Court
Second, the dissent points out that district courts some-
times allow the Government to present evidence of a capital
defendantâs past bad acts during sentencing proceedings,
despite the risk of evidentiary minitrials. See post, at 13â
15. But many of those cases focused on the defendantâs own
conduct, not someone elseâs. See ibid. In such cases, the
Government need only put on evidence tending to show that
the defendant committed the past bad act. See, e.g., United
States v. UmaĂąa, 750 F. 3d 320, 348â349 (CA4 2014). Here,
the evidentiary showing would be substantially more com-
plex and confusing. No one alleges that Dzhokhar partici-
pated in the Waltham murders, and, as the District Court
reasonably concluded, the evidence available sheds little
light on what role (if any) Tamerlan actually played. See
App. 650. To make his point at sentencing, then, Dzhokhar
would first have to show, without any surviving witnesses,
what role Tamerlan actually played. Then, he would have
to establish that he learned of the Waltham crimes before
planning the bombings. Finally, he would have to explain
how his knowledge of Tamerlanâs role in a nearly 2-year-old
violent robbery affected his own role in the bombings.
Whatever other courts might think about an inquiry into a
defendantâs own prior bad acts, this District Court reason-
ably thought that the Waltham murder inquiry risked con-
fusing the jury in these proceedings. We see no basis to
disturb that conclusion.
III
Dzhokhar Tsarnaev committed heinous crimes. The
Sixth Amendment nonetheless guaranteed him a fair trial
before an impartial jury. He received one. The judgment
of the United States Court of Appeals for the First Circuit
is reversed.
It is so ordered.
Cite as: 595 U. S. ____ (2022) 1
B ARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20â443
_________________
UNITED STATES, PETITIONER v.
DZHOKHAR A. TSARNAEV
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[March 4, 2022]
JUSTICE BARRETT, with whom JUSTICE GORSUCH joins,
concurring.
In this case, the First Circuit asserted âsupervisory
powerâ to impose a procedural rule on the District Court.
Because that rule (which required a district court to ask
media-content questions on request in high-profile prosecu-
tions) conflicts with our cases (which hold that a district
court has broad discretion to manage jury selection), I agree
with the Court that the First Circuit erred.
I write separately to note my skepticism that the courts
of appeals possess such supervisory power in the first place.
Article IIIâs grant of â[t]he judicial Powerâ imbues each fed-
eral court with the inherent authority to regulate its own
proceedings. U. S. Const., Art. III, §1; Chambers v.
NASCO, Inc., 501 U. S. 32, 43 (1991) (âIt has long been un-
derstood that â[c]ertain implied powers must necessarily re-
sult to our Courts of justice from the nature of their institu-
tion,â powers âwhich cannot be dispensed with in a Court,
because they are necessary to the exercise of all othersâ â
(quoting United States v. Hudson, 7 Cranch 32, 34 (1812))).
This authority permits federal courts to handle a range of
matters, big and small, that fall in the gaps of governing
statutes and formally adopted procedural rules. See, e.g.,
Link v. Wabash R. Co., 370 U. S. 626 (1962) (a district court
can dismiss a case sua sponte for failure to prosecute);
2 UNITED STATES v. TSARNAEV
B ARRETT, J., concurring
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238
(1944) (a court of appeals can vacate its judgment upon dis-
covering fraud). But here, the First Circuit did not adopt a
rule regulating its own proceedingsâit adopted a blanket
rule that all district courts in its jurisdiction must follow on
pain of reversal.
In fairness to the First Circuit, we have suggested that
the courts of appeals possess authority to dictate procedural
rules for district courts. See, e.g., Cuyler v. Sullivan, 446
U. S. 335, 346, n. 10 (1980) (citing Courts of Appeals deci-
sions requiring district courts to inquire into potential con-
flicts of interest and referring to this as âa desirable prac-
ticeâ); Cupp v. Naughten, 414 U. S. 141, 146 (1973)
(suggesting in dicta that a court of appeals may require a
district court âto follow procedures deemed desirable from
the viewpoint of sound judicial practice although in nowise
commanded by statute or by the Constitutionâ).* Under-
standably, then, the First Circuit followed our lead. But
before we go further down this road, we should reexamine
the map. Not only have we failed to identify a source for
ââââââ
*In dissent, JUSTICE BREYER asserts that âour precedents clearly rec-
ognize the existence of â the courts of appealsâ supervisory power. Post,
at 17. But the cases cited by J USTICE BREYER reflect our sometimes im-
precise use of the term âsupervisory power.â Rather than using the term
to refer to a court of appealsâ authority to impose procedures on an infe-
rior court, two of the cited cases use it to refer to a courtâs power to âsu-
perviseâ its own proceedings. See Ortega-Rodriguez v. United States, 507
U. S. 234, 249â250 (1993) (addressing a court of appealsâ ability to dis-
miss an appeal of a former fugitive); Thomas v. Arn, 474 U. S. 140, 142
(1985) (a court of appeals may âestablish a rule that the failure to file
objections to the magistrateâs report waives the right to appeal the dis-
trict courtâs judgmentâ). And in the third case, United States v. Hasting,
461 U. S. 499 (1983), the Court operated on the assumption that the
Court of Appeals had exercised âits supervisory powers to discipline the
prosecutors of its jurisdiction,â not to regulate district courts. Id., at 505
(emphasis added). The bottom line is that these cases do not address,
much less endorse, the kind of supervisory authority that the First Cir-
cuit asserted here.
Cite as: 595 U. S. ____ (2022) 3
B ARRETT, J., concurring
this supposed authority, it is unclear that any exists.
To be sure, this Court has squarely asserted supervisory
power to regulate procedure in lower federal courts. See
McNabb v. United States, 318 U. S. 332 (1943). While we
have not justified this power either, it has an at least argu-
able basis: the Constitutionâs establishment of this Court as
âsupreme,â as distinct from the âinferior Courtsâ that Con-
gress has discretion to create. Art. III, §1. Much like the
grant of â[t]he judicial Powerâ carries with it inherent au-
thority over local procedure, this Courtâs designation as âsu-
premeâ might carry with it some inherent authority to pre-
scribe procedural rules for inferior federal courts. But see
ante, at 11, n. 1. In the end, this argument might be unsup-
ported by the Constitutionâs structure and history. Still,
the text of Article III makes it plausible.
Yet whatever the status of this Courtâs supervisory au-
thority, it is difficult, if not impossible, to find any compa-
rable constitutional hook for such power in the courts of ap-
peals. Nor does any statute grant them this general
authority. And while it is tempting to roll supervisory au-
thority into the power of appellate review, the two are ana-
lytically distinct. A court engaged in appellate review in
this context determines whether a lower court exceeded its
inherent authority to make a procedural choice. A court as-
serting supervisory authority imposes its own procedural
choice on the lower court. In other words, supervisory au-
thority is not necessarily a lesser included power of appel-
late review.
This case does not require us to resolve whether the
courts of appeals have supervisory authority over district
courts. Either way, the First Circuit erred. At some point
in the future, however, it would be worth revisiting our
dicta.
Cite as: 595 U. S. ____ (2022) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20â443
_________________
UNITED STATES, PETITIONER v.
DZHOKHAR A. TSARNAEV
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[March 4, 2022]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join except as to Part IIâC, dissenting.
During the sentencing phase of his murder trial, Boston
Marathon bomber Dzhokhar Tsarnaev argued that he
should not receive the death penalty primarily on the
ground that his older brother Tamerlan took the leading
role and induced Dzhokharâs participation in the bombings.
Dzhokhar argued that Tamerlan was a highly violent man,
that Tamerlan radicalized him, and that Dzhokhar partici-
pated in the bombings because of Tamerlanâs violent influ-
ence and leadership. In support of this argument, Dzho-
khar sought to introduce evidence that Tamerlan
previously committed three brutal, ideologically inspired
murders in Waltham, Massachusetts. The District Court
prohibited Dzhokhar from introducing this evidence. The
Court of Appeals held that the District Court abused its dis-
cretion by doing so. 968 F. 3d 24, 73 (CA1 2020).
This Court now reverses the Court of Appeals. In my
view, the Court of Appeals acted lawfully in holding that
the District Court should have allowed Dzhokhar to intro-
duce this evidence. See Lockett v. Ohio, 438 U. S. 586, 604
(1978) (plurality opinion) (criminal defendant charged with
capital crime has constitutional right to present âany aspect
of [his] character or record and any of the circumstances of
2 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
the offense that the defendant proffers as a basis for a sen-
tence less than deathâ); Eddings v. Oklahoma, 455 U. S.
104, 110 (1982) (adopting Lockettâs plurality rule). Conse-
quently, I dissent.
I
During the guilt phase of Dzhokharâs trial, Dzhokhar
acknowledged that he participated in the Boston Marathon
bombings. He conceded that he and his older brother Tam-
erlan planted bombs along the route of the Patriotâs Day
Marathon and that the bombs killed or injured many inno-
cent people. Given Dzhokharâs concession, his trial focused
almost exclusively on sentencing, in particular whether
Dzhokhar should receive the death penalty. Dzhokhar ar-
gued in mitigation that his conduct was less serious than
Tamerlanâs and that Tamerlanâs radicalizing influence was
a major reason that Dzhokhar participated in the bomb-
ings. See Sears v. Upton, 561 U. S. 945, 950 (2010) (per cu-
riam) (older brotherâs criminal record and introduction of
defendant âto a life of crimeâ supported mitigation theory
that defendant âmay have desired to follow in the footstepsâ
of his older brother); Lockett, 438 U. S., at 608 (âdefendantâs
comparatively minor role in the offenseâ is relevant mitigat-
ing factor).
In support of this theory, the District Court allowed
Dzhokhar to argue that: (1) Dzhokhar âacted under the in-
fluence of his older brotherâ Tamerlan; (2) Dzhokhar âwould
not have committed the crimes but for [his] older brother
Tamerlanâ; (3) Dzhokhar âwas particularly susceptible to
his older brotherâs influence,â â[w]hether because of Tamer-
lanâs age, size, aggressiveness, domineering personality,
privileged status in the family, traditional authority as the
eldest brother, or other reasonsâ; (4) Tamerlan âplanned,
led, and directed the Marathon bombingâ; and (5) Tamerlan
âbecame radicalized first, and then encouraged his younger
brother to follow him.â App. 614, 616 (boldface omitted).
Cite as: 595 U. S. ____ (2022) 3
BREYER, J., dissenting
The District Court also allowed Dzhokhar to introduce cer-
tain evidence in support of this mitigation theory. This in-
cluded evidence that Tamerlan had behaved aggressively in
the past, and that Dzhokhar looked up to Tamerlan. But
the court did not allow Dzhokhar to introduce evidence of
Tamerlanâs participation in the Waltham murders.
The âWaltham murdersâ refers to the killing of three drug
dealers in Waltham, Massachusetts. The murders took
place on September 11, 2011, the 10th anniversary of the
9/11 terrorist attacks, and about a year and a half before
the Boston Marathon bombings. The evidence relating to
the Waltham murders came primarily from FBI agent in-
terviews of Ibragim Todashev, a friend of Tamerlanâs. Dur-
ing the FBI interviews, Todashev (who attacked the agents
and was killed midinterview) initially denied participating
in the murders but later said that he and Tamerlan had
committed them.
In particular, Todashev said that it was Tamerlanâs idea
to rob the drug dealers, one of whom was Tamerlanâs close
friend. Todashev said that they both went to the drug deal-
ersâ house, threatened the drug dealers at gun point, bound
them with duct tape, and searched the house for money.
Tamerlan then beat up the dealers and, in an attempt to
get more money, threatened to stab them. Todashev also
said that Tamerlan insisted on killing the drug dealers
(even though Todashev â âbegged him not toâ â), and that
Todashev, feeling like he had no âway out,â waited outside
the house while Tamerlan slit their throats. Id., at 915,
948. Finally, Todashev said that Tamerlan called him back
inside to help clean up after the drug dealers were dead and
that the two left with about $40,000 of stolen money.
The FBI relied on Todashevâs statements to obtain a
search warrant for Tamerlanâs car, which agents believed
was the car used to drive to and from the drug dealersâ
house. An FBI affidavit attached to the search warrant re-
quest stated that Todashev had
4 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
âconfessed that he and Tamerlan participated in the
Waltham murders. He said that he and Tamerlan had
agreed initially just to rob the victims, whom they
knew to be drug dealers . . . . Todashev said that Tam-
erlan had a gun, which he brandished to enter the res-
idence. Tamerlan decided that they should eliminate
any witnesses to the crime, and then Todashev and
Tamerlan bound the victims, who were ultimately mur-
dered.â Id., at 998.
Based on this and other less significant evidence, the FBI
agent asserted that there was âprobable cause to believe
that Todashev and Tamerlan planned and carried outâ the
Waltham Murders. Id., at 996. A federal judge agreed, and
issued a warrant.
Other evidence uncovered during the FBIâs investigation
of the Boston Marathon bombings also related to the Wal-
tham murders. Dias Kadyrbayev, a friend of Dzhokharâs,
stated that a few months before the bombings Dzhokhar
learned of Tamerlanâs involvement in the Waltham mur-
ders. Kadyrbayev said that Dzhokhar described Tamer-
lanâs participation in the murders as â âcommit[ting] jihad.â â
Id., at 584. Investigators also found al Qaeda propaganda
on Tamerlanâs computer that advocated stealing money
from non-Muslims as a way to support jihadist principles.
Dzhokhar was prohibited from introducing any of this ev-
idence during the sentencing phase of his trial. At the end
of his sentencing proceeding, and without hearing any evi-
dence about the Waltham murders, eight jurors found that
Tamerlan had become radicalized before Dzhokhar and en-
couraged Dzhokhar to follow his example. Id., at 616.
Three found that Tamerlan planned, led, and directed the
bombings. Id., at 614. Three also found that Dzhokhar
acted under Tamerlanâs influence, that he was particularly
susceptible to Tamerlanâs influence, and that he would not
have committed the bombings but for Tamerlan. Ibid. The
Cite as: 595 U. S. ____ (2022) 5
BREYER, J., dissenting
jury nonetheless unanimously recommended the death pen-
alty for Dzhokhar in respect to those counts involving the
bomb that he himselfâand he aloneâhad placed. The Dis-
trict Court then sentenced Dzhokhar to death.
Dzhokhar appealed. As the Court explains, the Court of
Appeals held that the District Court had to conduct a new
sentencing proceeding for two independent reasons. Ante,
at 7. First, the trial court had not adequately questioned
potential jury members about the content of the pretrial
publicity they had seen. Second, the trial court did not per-
mit Dzhokhar to introduce evidence about the Waltham
murders during the sentencing phase of his trial. I disagree
with the Courtâs decision (and I agree with the Court of Ap-
peals) at least as to the second reason.
II
A
The Federal Death Penalty Act sets forth the legal stand-
ards governing the admissibility of mitigating evidence dur-
ing a capital sentencing. See 18 U. S. C. §3591 et seq. The
statute provides an admissibility standard unique to death
penalty cases. It says that in death penalty sentencing pro-
ceedings, âinformation may be presented as to any matter
relevant to the sentence, including any mitigating or aggra-
vating factor.â §3593(c). And that is so whether that âin-
formationâ is or is not admissible âunder the rules govern-
ing admission of evidence at criminal trials.â Ibid. The
statute also provides that a trial court âmayâ exclude evi-
dence âif its probative value is outweighed by the danger of
creating unfair prejudice, confusing the issues, or mislead-
ing the jury.â Ibid.
As the majority points out, district courts have significant
discretion in deciding how to apply and weigh the statuteâs
factors. Ante, at 13â14. But âabuse-of-discretion review is
not toothless; and it is entirely proper for a reviewing court
6 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
to find an abuse of discretion when important fac-
tors . . . are âslighted.â â Gall v. United States, 552 U. S. 38,
72 (2007) (ALITO, J., dissenting) (quoting United States v.
Taylor, 487 U. S. 326, 337 (1988)); see also American Paper
Institute, Inc. v. American Elec. Power Service Corp., 461
U. S. 402, 413 (1983) (to decide whether action was abuse
of discretion, âwe must determine whether the [court] ade-
quately considered the factors relevantâ to the question);
Highmark Inc. v. Allcare Health Management System, Inc.,
572 U. S. 559, 564, n. 2 (2014) (âThe abuse-of-discretion
standard does not preclude an appellate courtâs correction
of a district courtâs . . . clearly erroneous assessment of the
evidenceâ (internal quotation marks omitted)). And here,
we review for abuse of discretion in the context of âa matter
so grave as the determination of whether a human life
should be taken or spared.â Gregg v. Georgia, 428 U. S. 153,
189 (1976) (joint opinion of Stewart, Powell, and Stevens,
JJ.). I therefore apply the standard with care. Cf. id., at
187 (âWhen a defendantâs life is at stake, the Court has been
particularly sensitive to insure that every safeguard is ob-
servedâ); Zant v. Stephens, 462 U. S. 862, 885 (1983) (â[T]he
severity of the [capital] sentence mandates careful scrutiny
in the review of any colorable claim of errorâ).
The District Court here excluded the Waltham evidence
for the following four reasons:
â[T]here simply is [1] insufficient evidence to describe
what participation Tamerlan may have had in those
events. . . . From my review of the evidence, . . . it is as
plausible, which is not very, that Todashev was the bad
guy and Tamerlan was the minor actor. Thereâs just no
way of telling who played what role, if they played
roles. So it simply would be [2] confusing to the jury
and [3] a waste of time, I think, without veryâ[4] with-
out any probative value.â App. 650.
I have reviewed the record keeping in mind the reasons the
Cite as: 595 U. S. ____ (2022) 7
BREYER, J., dissenting
District Court gave: (1) no probative value; (2) insufficient
evidence to corroborate Tamerlanâs role in the murders;
(3) waste of time; and (4) jury confusion. Reading the rec-
ord in light of these factors, I believe that the Court of Ap-
peals was correct that the District Court abused its discre-
tion by excluding the Waltham evidence. The record does
not adequately support exclusion for the District Courtâs
stated reasons.
Consider the factors that the District Court directly and
indirectly took into account.
1. Relevance/Probative Value
The District Court was wrong when it described the Wal-
tham evidence as lacking âany probative value.â The evi-
dence met the âthreshold for relevanceâ applicable here.
Tennard v. Dretke, 542 U. S. 274, 285 (2004); id., at 284
(âRelevant mitigating evidence is evidence which tends log-
ically to prove or disprove some fact or circumstance which
a fact-finder could reasonably deem to have mitigating
valueâ (internal quotation marks omitted)). And it pos-
sessed probative value.
The Waltham evidence tended to show that Tamerlan
was involved in a brutal triple murder, possibly over
Todashevâs objections, a year and a half before the bomb-
ings. The evidence tended to show that Tamerlan commit-
ted these murders for ideological reasons. This is true
(though to a lesser degree) even if Tamerlan played a sec-
ondary, rather than the primary, role in the Waltham kill-
ings. Evidence that Tamerlan participated in (and poten-
tially orchestrated) one set of ideologically motivated
murders in 2011 supports the claim that Tamerlan was the
violent, radicalizing force behind the ideologically moti-
vated bombings a year and a half later.
2. Corroboration/Reliability
The Waltham evidence was corroborated and sufficiently
8 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
reliable to warrant presentation to the jury. Dzhokharâs
friend Kadyrbayev said that Dzhokhar believed Tamerlan
was involved in the Waltham killings. Kadyrbayev also
said that Dzhokhar told him that Tamerlan âhad committed
jihadâ in Waltham. Relatedly, Tamerlan had al Qaeda
propaganda on his computer that advocated stealing money
from non-Muslims as a way to support jihadist principles.
There was also evidence that a week or so after the Wal-
tham killings, someone ran internet searches on Tamer-
lanâs wifeâs computer for â3 men killed in Waltham,â âmen
kill in Waltham,â and âtamerlan tsarnaev.â App. 590. Tam-
erlanâs wife also confirmed that Tamerlan was close friends
with one of the drug dealers, and there was evidence that
Tamerlan did not attend that friendâs funeral, which some
thought strange given their close relationship.
Further, the Waltham evidence was sufficiently reliable
for the Government to conclude (via FBI affidavit) that it
helped to establish probable cause that Tamerlan commit-
ted the Waltham murders. It was reliable enough for a fed-
eral judge to issue a search warrant for Tamerlanâs car to
look for evidence of those murders. It is of course true, as
the majority points out, that the District Court was free to
make an independent assessment of the reliability of the
evidence. Ante, at 17â18. But the fact that both the Gov-
ernment and a federal judge found the evidence sufficiently
reliable to establish probable cause that Tamerlan commit-
ted the murders strongly suggests that the District Court
here abused its discretion in concluding that the same evi-
dence was so unreliable that Dzhokhar could not use it as
mitigating evidence to establish the same proposition. Cf.
Florida v. Harris, 568 U. S. 237, 243 (2013) (probable cause
exists when facts âwould warrant a person of reasonable
caution in the belief that contraband or evidence of a crime
is presentâ (internal quotation marks and brackets omitted;
emphasis added)).
Cite as: 595 U. S. ____ (2022) 9
BREYER, J., dissenting
3. Waste of Time/Need
The Waltham evidence was not simply cumulative of
other mitigation evidence. And it was critically important
to Dzhokharâs mitigation defense. Apart from the Waltham
evidence, the evidence of Tamerlanâs aggressive nature and
violent tendencies consisted of evidence showing (1) that
Tamerlan physically abused his then-girlfriend (later wife);
(2) that he twice became disruptive and shouted at an Imam
during prayers; (3) that he poked someone in the chest dur-
ing an argument; (4) that he punched a man in the street
after the man said something Tamerlan did not like;
(5) that Tamerlan yelled at a local butcher who was selling
halal turkey for Thanksgiving; and (6) that Tamerlan was
disruptive at his boxing gym. Participation in a robbery
and triple murder is much stronger evidence of Tamerlanâs
violent nature than any of these incidents. Cf. Skipper v.
South Carolina, 476 U. S. 1, 8 (1986) (reversible error
where excluded mitigating evidence had âgreater weightâ
than evidence supporting same mitigating factors).
Similarly, the evidence introduced to show Tamerlanâs in-
fluence over Dzhokhar consisted of evidence showing (1)
their age difference (Tamerlan was 26 at the time of the
bombings, Dzhokhar 19); (2) the fact that Dzhokhar looked
up to and followed his older brother; (3) that in the brothersâ
Chechen culture, Tamerlan, as the older sibling, held a po-
sition of authority and superiority vis-Ă -vis Dzhokhar; (4)
that Tamerlan sent Dzhokhar articles containing extremist
propaganda; and (5) that Tamerlan traveled to Russia in
2012 as part of an unsuccessful effort to wage âjihad.â But
the Waltham evidence showed (if the jury believed
Todashevâs account) that Tamerlan had previously exerted
such influence over Todashev as to make him an unwilling
accomplice to a triple murder. This is much stronger evi-
dence of Tamerlanâs capacity to influence than any evidence
that the jury heard.
10 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
Moreover, Dzhokhar had particular need for the Wal-
tham evidence in the context of his sentencing. As both
counsel emphasized during closing argument, the critical
mitigation issue was the two brothersâ comparative respon-
sibility. Dzhokharâs counsel argued, for example, that âif
not for Tamerlan, this wouldnât have happened. Dzhokhar
would never have done this but for Tamerlan.â App. 839â
840. The prosecution similarly told the jury that âthe bulk
of [Dzhokharâs] mitigation case comes down to a single
proposition: âHis brother made him do it.â â Id., at 857. The
prosecution also told the jury that it should reject this prop-
osition because Dzhokharâs mitigation evidence merely
showed that Tamerlan was âloud,â âbossy,â and âsometimes
lost his temper.â Id., at 861, 864. Would the prosecution
have made the same argument had the evidence required it
to add, âand perhaps slit the throats of three peopleâ? Cf.
Clemons v. Mississippi, 494 U. S. 738, 753 (1990) (errone-
ous jury instruction reversible error where ârepeatedly em-
phasized and arguedâ by prosecution); Skipper, 476 U. S.,
at 5, n. 1 (exclusion of evidence reversible error when evi-
dence related to issue âunderscored . . . by the prosecutorâs
closing argumentâ).
The prosecution went on to argue that Tamerlan and
Dzhokhar were âequals,â and that it was only once Dzho-
khar âmade the decision to become a terrorist, that Tamer-
lan was able to go into action.â App. 873â874. Would the
prosecution have made that same claim in the face of evi-
dence that Tamerlan had taken âactionâ a year and a half
before the bombings, on the anniversary of 9/11, and that
Dzhokhar characterized this action as âjihadâ? The ex-
cluded evidence went to the heart of these critical sentenc-
ing issues.
4. Jury Confusion
In my view, the District Courtâs strongest reason for ex-
Cite as: 595 U. S. ____ (2022) 11
BREYER, J., dissenting
cluding the Waltham evidence, and the majorityâs best ar-
gument for reversing the Court of Appeals, is that admit-
ting the evidence might have confused the jurors by
prompting a âminitrialâ about what actually happened in
Waltham and what role Tamerlan played. The Federal
Death Penalty Act says that a court âmayâ exclude relevant
evidence âif its probative value is outweighed by the danger
of . . . confusing the issues, or misleading the jury.â
§3593(c). Given the trial judgeâs discretionary authority to
admit or exclude evidence, could the possibility of juror con-
fusion overcome the pro-admission factors I have so far dis-
cussed? Two reasons convince me that it could not, and
that, concerns about jury confusion notwithstanding, the
District Court abused its discretion by excluding the evi-
dence.
First, death penalty proceedings are special. Unlike evi-
dentiary determinations made in other contexts, a trial
courtâs decision to admit or exclude evidence during a capi-
tal sentencing proceeding is made against the backdrop of
a capital defendantâs constitutional right to argue against
the death penalty. See Tennard, 542 U. S., at 285 (â[T]he
Eighth Amendment requires that the jury be able to con-
sider and give effect to a capital defendantâs mitigating ev-
idenceâ (internal quotation marks omitted)). So, although
the Federal Death Penalty Act incorporates some of the fea-
tures that ordinarily guide a trial judgeâs discretionary de-
cision to admit or exclude evidence, see Fed. Rule Evid. 403,
it also provides a special admissibility standard unique to
the capital sentencing context. Specifically, the statute
says that âinformation may be presented as to any matter
relevant to the sentence, including any mitigating or aggra-
vating factor,â regardless of whether that information
would be admissible under normal evidentiary rules.
§3593(c) (emphasis added). The statute thus tips the bal-
ance in favor of admitting mitigating evidence, even if ad-
12 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
mission means increasing the length of a proceeding by in-
viting some âminitrialsâ over subsidiary issues. Cf. McKoy
v. North Carolina, 494 U. S. 433, 442 (1990) (âThe Consti-
tution requires States to allow consideration of mitigating
evidence in capital casesâ); see also Smith v. Texas, 543
U. S. 37, 44 (2004) (per curiam). This weighted scale makes
sense in the context of capital proceedings, in a way it would
not make sense in run-of-the-mill evidentiary disputes,
â[g]iven that the imposition of death . . . is so profoundly
different from all other penalties.â Lockett, 438 U. S., at 605
(plurality opinion). Indeed, because âthe penalty of death
is qualitatively different fromâ all other punishments,
âthere is a corresponding difference in the need for reliabil-
ity in the determination that death is the appropriate pun-
ishment in a specific case.â Woodson v. North Carolina, 428
U. S. 280, 305 (1976) (plurality opinion). And a juryâs deci-
sion to impose the death penalty is more reliable if it is
made after considering relevant mitigation evidence that
counsels against imposing such a sentence. See Lockett,
438 U. S., at 605 (emphasizing the need in capital cases to
give âindependent mitigating weight to aspects of
the . . . circumstances of the offense proffered in mitiga-
tionâ).
At the same time, a trial judge normally can control the
presentation of evidence to avoid unwarranted detours and
to ensure a trial does not extend beyond reasonable limits.
See, e.g., Fed. Rule Evid. 105 (court can instruct jury that it
may consider evidence for one purpose but not another);
Geders v. United States, 425 U. S. 80, 86â87 (1976) (âWithin
limits, the judge . . . may refuse to allow cumulative, repet-
itive, or irrelevant testimony, and may control the scope of
examination of witnessesâ (citations omitted)). In the con-
text of capital sentencing, then, concerns about juror âwaste
of timeâ or the risk of âconfusionâ are less justifiable bases
on which to exclude an entire category of evidence that may
have significant mitigating value.
Cite as: 595 U. S. ____ (2022) 13
BREYER, J., dissenting
Second, and perhaps of greater importance, a sampling of
other death penalty proceedings indicates that the prosecu-
tion often introduces evidence of a defendantâs prior crimi-
nal behavior in support of the death penalty, including evi-
dence that poses a similar risk of jury confusion. Trial
judges admit this evidence under the same admissibility
standard that governs the admission of mitigating evi-
dence. See §3593(c) (governing admissibility of evidence
supporting âaggravating,â as well as âmitigating,â factors).
And trial courts admit this evidence not because the defend-
antâs past criminal behavior is directly relevant to the crime
at issue but because it supports an âaggravatingâ death-
penalty-related factor such as a defendantâs risk of future
dangerousness. If courts admit evidence of past criminal
behavior, unrelated to the crime at issue, to show aggravat-
ing circumstances, why should they not do the same to show
mitigating circumstances?
Moreover, capital sentencing courts routinely admit this
kind of evidence even if the past criminal behavior did not
result in formal charges or convictions (and thus has not
been proved to a jury or judge). See, e.g., United States v.
Gabrion, 719 F. 3d 511, 518 (CA6 2013) (District Court ad-
mitted evidence of defendantâs âlikely role in the disappear-
ance (and presumably murder) of three other peopleâ);
United States v. Runyon, 707 F. 3d 475, 504â505 (CA4
2013) (District Court did not abuse its discretion in admit-
ting evidence of defendantâs assault charges that were later
dismissed); United States v. Snarr, 704 F. 3d 368, 395 (CA5
2013) (District Court admitted evidence that defendant
âparticipated in a drive-by shooting and allegedly murdered
a manâ); United States v. Lighty, 616 F. 3d 321, 341 (CA4
2010) (District Court admitted evidence that defendant was
involved in driveby shooting for which he was never
charged); United States v. Brown, 441 F. 3d 1330, 1368
(CA11 2006) (District Court admitted evidence that âde-
fendant has committed an array of other criminal acts,
14 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
some but not all of which have resulted in convictionâ).
Further, trial courts admit this evidence despite claims
that the evidence is not reliable (thus risking âminitrialsâ).
See, e.g., United States v. Coonce, 932 F. 3d 623, 641 (CA8
2019); United States v. UmaĂąa, 750 F. 3d 320, 348â349
(CA4 2014); United States v. Hager, 721 F. 3d 167, 201 (CA4
2013); United States v. Higgs, 353 F. 3d 281, 323 (CA4
2003).
The evidentiary showing Dzhokhar attempted to make
here was not, as the majority asserts, any more complex or
confusing than the evidentiary showing the Government
makes in these situations. Cf. ante, at 20. To the contrary,
just as the Government introduces evidence of a defend-
antâs prior unproved bad conduct to show a defendantâs dan-
gerousness, so too did Dzhokhar seek to introduce evidence
of Tamerlanâs prior unproved bad conduct to show Tamer-
lanâs dangerousness. The fact that the evidence was about
Tamerlanâs character instead of Dzhokharâs did not render
the evidence beyond the juryâs ability to comprehend. The
District Court implicitly recognized as much when it al-
lowed Dzhokhar to introduce other evidence of Tamerlanâs
past conductâconduct in which Dzhokhar did not partici-
pate.
Indeed, this Court has rejected concerns that distracting
minitrials should preclude the Government from introduc-
ing evidence about a nondefendant third party to show ag-
gravation. See Payne v. Tennessee, 501 U. S. 808, 823
(1991) (rejecting reasoning that victim impact evidence
should be excluded from sentencing proceeding because it
would âcreat[e] a mini-trial on the victimâs characterâ (in-
ternal quotation marks omitted)). Why then should the
same concern preclude a defendant from introducing simi-
lar evidence in mitigation? After all, the Government, un-
like a defendant, has no constitutional right to present evi-
dence during a capital sentencing proceeding. Cf. Tennard,
542 U. S., at 285 (â[T]he Eighth Amendment requires that
Cite as: 595 U. S. ____ (2022) 15
BREYER, J., dissenting
the jury be able to consider and give effect to a capital de-
fendantâs mitigating evidenceâ (internal quotation marks
omitted)).
I conclude, then, that the reasons the District Court gave
do not justify excluding the Waltham murder evidence, and
it was an abuse of discretion to do so. Nor was the exclusion
harmless. See §3595(c)(2)(C) (death sentence can be va-
cated if Government fails to prove beyond a reasonable
doubt that an error was harmless). Dzhokhar conceded his
guilt. The only issue was whether he deserved to die. Tell-
ingly, the juryâs nuanced verdict reflected close attention to
the relationship between the brothers: The jury did not rec-
ommend the death penalty for the charges related to the
actions Dzhokhar took together with Tamerlan, and only
recommended death for the charges related to the actions
Dzhokhar took alone. The Waltham evidence supported
Dzhokharâs theory that Tamerlanâs violent and radicalizing
influence induced all of the actions Dzhokhar took in con-
nection with the Boston Marathon bombings. This evidence
may have led some jurors to conclude that Tamerlanâs in-
fluence was so pervasive that Dzhokhar did not deserve to
die for any of the actions he took in connection with the
bombings, even those taken outside of Tamerlanâs presence.
And it would have taken only one jurorâs change of mind to
have produced a sentence other than death, even if a severe
one. See §3593(e) (death verdict must be unanimous).
B
Three courts including this Court have now examined
this record with care. Why? Why are appellate courts so
deeply involved in what is, after all, a trial-based eviden-
tiary matter? The reason, in my view, lies in part in the
nature of the underlying proceeding. It is a death penalty
proceeding. And where death is at stake, the courts (and
Congress) believe that particular judicial care is required.
See §3593 (detailing unique procedures applicable to the
16 UNITED STATES v. TSARNAEV
BREYER, J., dissenting
â[s]pecial hearing to determine whether a sentence of death
is justifiedâ (boldface omitted)); Cf. Kyles v. Whitley, 514
U. S. 419, 422 (1995) (â[O]ur duty to search for constitu-
tional error with painstaking care is never more exacting
than it is in a capital caseâ (internal quotation marks omit-
ted)); Zant, 462 U. S., at 885 (â[T]he severity of the [death]
sentence mandates careful scrutiny in the review of any col-
orable claim of errorâ); Gregg, 428 U. S., at 187 (joint opin-
ion) (âWhen a defendantâs life is at stake, the Court has
been particularly sensitive to insure that every safeguard
is observedâ); Glossip v. Gross, 576 U. S. 863, 937 (2015)
(BREYER, J., dissenting) (â[I]t is difficult for judges, as it
would be difficult for anyone, not to apply legal require-
ments punctiliously when the consequences of failing to do
so may well be deathâ). That same care applies on abuse-
of-discretion review, just as it does for any other standard.
The extra time that close examination takes is part of the
procedural price that a judicial system allowing the death
penalty will inevitably exact.
C
I have written elsewhere about the problems inherent in
a system that allows for the imposition of the death penalty.
See, e.g., id., at 909â938. This case provides just one more
example of some of those problems.
III
In my view, the Court of Appeals was correct in its Wal-
tham evidence conclusion. For that reason, the District
Court should conduct a new sentencing proceeding. I need
not, and do not, reach the pretrial publicity question. I note,
however, that when considering that issue, the Court refers
to the power of the federal appeals courts to promulgate su-
pervisory rules. See ante, at 11. Like the Court (and
JUSTICE BARRETT), I recognize that the Government âdoes
not challenge the general existence of the Court of Appealsâ
Cite as: 595 U. S. ____ (2022) 17
BREYER, J., dissenting
supervisory power.â Ibid., n. 1. I would add that our prec-
edents clearly recognize the existence of such a power. See,
e.g., Thomas v. Arn, 474 U. S. 140, 146 (1985) (âIt cannot be
doubted that the courts of appeals have supervisory powers
that permit, at the least, the promulgation of procedural
rules governing the management of litigationâ); United
States v. Hasting, 461 U. S. 499, 505 (1983) (â[I]n the exer-
cise of supervisory powers, federal courts may, within lim-
its, formulate procedural rules not specifically required by
the Constitution or the Congressâ). I would also add that
â[o]ur review of rules adopted by the courts of appealsâ pur-
suant to this power âis limited in scope.â Ortega-Rodriguez
v. United States, 507 U. S. 234, 244 (1993). And I do not
find that surprising. A degree of authority for the courts of
appeals, closer to the fray, to issue at least some supervi-
sory rules facilitates the flexibility needed in our geograph-
ically dispersed multicircuit system.
* * *
For these reasons, with respect, I dissent.