The testimony at the penalty phase for Boston Marathon bomb Dzhokhar Tsarnaev could not be more damning in terms of the pain and suffering that he and his brother caused. Survivors detailed their suffering from injuries as well as lost loved ones with pictures that left many in tears. Such evidence is entirely appropriate as the jury debates whether to impose the death penalty on the 21-year-old defendant. One piece of evidence, however, is more controversial: the court allowed the prosecutors to show the jury a videotape of Tsarnaev flipping the bird at a camera shortly before his arraignment to show that he was not repentant after his arrest. The question is whether such a videotape is clearly probative or too prejudicial for the jury. It is a demonstration of how far the prosecutor is willing to go (even in the creation of an appellate issue) to secure a death sentence in the case.

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