2.Supplemental Instructions on Gateway Factors and Personal Culpability

THE COURT: All right, jurors. We have two questions now that I'm going to respond to. I'm going to respond to the second version of the question that I asked you to rephrase, and that reads: "Should gateway factors be considered as an individual act by the defendant solely or should aiding and abetting that is stated in a count be considered when answering, in particular, with Factor 1?"

And I think the way to answer that is to tell you what I told you in my instructions, that any finding that a gateway factor has been proven as to a particular count must be based on Mr. Tsarnaev's personal actions and intent and not on the actions and intent of anyone else.

Intent and knowledge may be proven like anything else: You may consider any statements made or abilities done by Mr. Tsarnaev and all the facts and circumstances in evidence which may aid in a determination of his knowledge or intent. You may, but are not required, to infer that a person intends the natural and probable consequences of his -- of acts knowingly done or knowingly omitted. In short, what actions or intentions or intent the defendant had is a question of fact to be determined by you from all the evidence you think bears on that issue.

Let me turn to the other question. It's actually a two-part question, I think. This asks now not about the gateway factors but about the first aggravating factor. "On Question 1 for Section 3, if we all agree to either Part A or B or A and B, do we then check off the first line that we unanimously all agree to the applicable capital counts?"

The short answer to that question is yes; that is, if you are all in agreement that Part A has been proved or you're all in agreement that Part B has been proved, or you're all in agreement that parts A and B have been proved, and that applies to all of the counts, then the first option would be the correct option. I emphasize that when there are alternatives like A and B, and that's important to your decision, you must be unanimous as to whether it is A or B or both. Half of you can't think it's A and half B. That would not be a unanimous answer.

Let me turn to the second part of the question. "If it is specific to just be for some," I interpret that to mean some counts, "do we have to only list the counts?" Again, assuming you are unanimous as to why the condition is satisfied, because you are unanimous as to A or unanimous as to B or unanimous as to both A and B, as to some counts but not all, then it would be the third option under the -- and you would check that, and then you would list each of those counts where you found that to be the case, and you would omit listing any count as to which you did not find that, all right?

Okay. Thank you. We'll ask you to resume your deliberations.

THE COURT: All right, jurors. You've had a long day of work. We're going to suspend for the day and resume tomorrow. Again, I, of course, remind you of my instructions regarding discussions and contact with outside information. I'm sure you'll find it pleasant to think of other things this evening than the case. So we ask you to put it out of your mind, and we'll resume again in the morning.

We're actually going to begin at 8:30 in the morning so that you're not sitting around excessively waiting for us to signal you can resume deliberations. So we'll assemble here at 8:30 in the morning, as we did this morning.

Madam Foreman, we've given you an envelope to put the verdict slip in. And I would just suggest in addition to sealing it, that you also sign your name across the flap, so, as an extra security measure that you can be sure it hasn't been opened by anyone. And you'll be given that in the morning, and can open it and resume your deliberations, all right?

So have a pleasant evening and we'll see you tomorrow morning.