concurring in part and dissenting in part.
Because Baze admitted that he shot and killed Officers Bennett and Briscoe, his constitutional right to present a defense at trial pertaining to his mental state and mitigating evidence at sentencing were of the utmost importance. Although I agree with many of the majority’s conclusions, I respectfully dissent as to my colleagues’ conclusions on the EED defense at trial and the presentation of mitigating evidence at sentencing.
A. Due Process Right to Present a Defense
At trial, Baze asserted that he, believed Briscoe showed up at his residence to arrest him falsely and at the behest of the Highleys, who Baze claimed had repeatedly harassed him and previously used the police do so. In rejecting Briscoe’s arrival as a possible trigger of EED, the majority asserts — without authority — that “[a] triggering event is shocking and dramatic, such as the paradigmatic discovery of a spouse in bed with a lover.” This assertion, however, misapprehends Kentucky law at the time of the shootings. Although a discrete event must trigger the EED, that event need not be as shocking and dramatic as the majority suggests, it may overcome the defendant gradually, and it must be measured from the perspective of the defendant.
*331First, although Briscoe’s actions did not constitute provocation in the textbook sense of the word, Kentucky law imposes no categorical limitation on the types of events that may trigger EED. As held by the Kentucky Supreme Court long before the shootings in our case, “a reasonable explanation of extreme emotional disturbance is not limited to specific acts of provocation by the victim but may relate to any circumstance that could reasonably cause an extreme emotional disturbance.” McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky.1986) (emphasis added). Indeed, the EED defense “is not restricted to circumstances which would constitute provocation in the ordinary meaning of the term ... it is possible for any event, or even words, to arouse extreme mental or emotional disturbance.” Gall v. Commonwealth, 607 S.W.2d 97, 108 — 09 (Ky.1980), overruled on other grounds, Payne v. Commonwealth, 623 S.W.2d 867 (Ky.1981).
Second, although the shootings did not instantaneously follow Briscoe’s arrival, EED’s “onset may be more gradual than the “flash point” normally associated with sudden heat of passion.” McClellan, 715 S.W.2d at 468. So long as nothing interrupted the triggering event, Kentucky law recognizes that the EED remains viable.
Third — and most importantly in our case — Kentucky EED law measures whether the source of the defendant’s alleged EED “is reasonable under the circumstances as he believed them to be.” McClellan, 715 S.W.2d at 468 (emphasis added). That we (or most people, for that matter) would have perceived certain events differently does not mean that Baze’s defense fails as a matter of law. To the contrary, the defense calls upon the jurors to “place themselves in the actor’s position as he believed it to be at the time of the act.” Gall, 607 S.W.2d at 108. In other words, the jury must have a chance to view Briscoe’s arrival through Baze’s eyes.
Evaluated through this time-honored legal framework, the availability of the EED defense to Baze becomes apparent, and the denial of it a clear violation of Baze’s constitutional right to present a complete defense. The trial judge’s unconstitutional denial of Baze’s EED defense is based upon the: (1) improper restrictions on his right to present evidence; and (2) erroneous instructions to the jury.
Had he been allowed to present the relevant evidence available to him, Baze would have illustrated to the jury his perception of the events on the day of the shooting — a perception that was critical to understanding the source of his claimed EED. Baze asserted that he saw Briscoe’s arrival as the work of the Highleys, who had repeatedly harassed him in the months leading up to the shootings, including providing the police false accusations of criminal wrongdoing by Baze. But the trial judge limited evidence of the family feud to only to a general affirmation that it existed. Any time he asked a feud-related question, defense counsel was required by the court to instruct the witness to answer “[wjithout going into any details.... ” Even when he did allow feud-related evidence — such as Baze’s motivation for building a trap-door in his home — the trial judge admonished the defense to omit any discussion of the specific events that underlay the dispute.
No matter how many defense witnesses were able to utter the words “family feud,” the most relevant and dramatic details' — ■ those involving the Highleys bringing the police into the fray to put Baze in danger of physical harm — were nowhere to be found. The jury was prevented from hearing evidence — including the testimony of a police officer — that on a prior occasion, the Highleys falsely told the police that Baze *332was driving drunk, had nearly run someone off the road, was armed and dangerous, and was a fugitive with out-of-state warrants. According to the excluded testimony, this false information from the Highleys led police officers to stop Baze’s car, aim their guns at him, and threaten to shoot him if he moved. Further, both Baze and the police officer would have expressed their beliefs that it was the Highleys’ allegations that instigated the stop. This testimony, in concrete terms, would have illustrated the link Baze perceived between the police and the High-leys, and why he therefore might have perceived Briscoe as an agent of the High-leys who could put Baze’s life in danger. Instead, Baze was allowed to testify only in general terms to his suspicion that the Highleys had provoked this latest encounter with the police. Yet it is only when placed in the context of this prior showdown with the police that Baze’s perception of the events could become credible and its effect on his emotions reasonable.
Baze’s prior experience with the police was relevant not only to show the general link in his mind between the Highleys harassment and police action, but also because one of the prior fabrications by the Highleys involved out-of-state warrants— the initial basis for Baze’s arrest on the day of the shootings. During the previous Highley-instigated traffic stop, the officers had checked for out-of-state warrants and had told Baze that the law-enforcement computer disclosed no outstanding charges. This-information would certainly have made Baze more likely to believe that his impending arrest on outstanding charges was a lawless act of familial score-settling rather than a legitimate exercise of police authority, and thereby contributed to the inflammation of his passions upon Briscoe’s arrival. To the contrary, Baze was allowed to testify only to his general belief that there were no out-of-state warrants against him. Again, evidence that this information came from the same police department now seeking to arrest him would have bolstered the believability of Baze’s perception and the reasonableness of the resulting distress.
The relationship in Baze’s mind between the Highleys, the police, the impending arrest, and the threat of violence also interacted with another important contextual clue kept away from the jury: Baze’s growing paranoia. Although a mere ongoing mental disturbance does not suffice to set forth a defense of EED, it was well-established by the Kentucky Supreme Court that “an underlying mental disease may be considered by a jury in making its determination of whether a defendant’s explanation or excuse for his alleged ‘extreme emotional disturbance’ is reasonable under the circumstances as he believed them to be.” McClellan, 715 S.W.2d at 468. The trial judge, however, prohibited the defense’s psychiatric expert from testifying that the ongoing feud “was just feeding his paranoia. As it continued, [Baze] became more and more paranoid and more concerned about the safety of himself and his family.” This context would have further allowed the jury to assess how Baze might have interpreted the events on the day of the shooting and how these events produced a genuine fear for his well-being that produced severe distress.
The trial judge’s rationale for the exclusion of this evidence — that the feud did not involve the murder victims — was expressly contradicted by the Kentucky Supreme Court well before Baze’s trial took place. As noted above, in McClellan, 715 S.W.2d at 468, the court held that “a reasonable explanation of extreme emotional disturbance is not limited to specific acts of provocation by the victim but may relate to any circumstance that could reasonably cause an extreme emotional disturbance.” *333Baze’s EED defense depended on placing the officers’ arrival in the context of the ongoing family feud and his relatives’ prior use of the police to harass him. The proper question was whether the events, as Baze perceived them, reasonably placed him under severe emotional distress — not whether the victim “asked for it.”
Finally, the trial judge excluded evidence that Baze might have understood Briscoe’s presence at his home as a threat to his physical safety. Baze was prohibited from testifying about reading a newspaper article which reported that while making an arrest, Briscoe shot out the tires of the arrestee’s car, pointed his weapon at the suspect, and asked him if he “want[ed] to meet [his] maker.” Baze’s testimony would have emphasized the danger that he felt during Briscoe’s attempt to arrest him, and also would have provided the lens through which he interpreted Briscoe’s subsequent actions.
The majority justifies the exclusion of this evidence by dwelling on details of Briscoe’s prior incident that were unlikely to have been known to Baze. It first points out that “the Commonwealth explained that Briscoe shot out the tires to stop the suspect from fleeing at 100 mph in a stolen car.” That may have been the case, but the majority does not explain how Baze would have learned of this. Similarly, the majority interprets “do you want to meet your maker?” as “an expression of admonition, along the lines of ‘are you crazy.’ ” Again, that may be one way of understanding such an interrogatory, but it is hardly the only one. The jury reasonably could have found that Baze was less prone than the majority to interpret Briscoe’s question in this manner.
If the jury credited the above evidence, it could have concluded that when Briscoe arrived at his residence to arrest him, Baze believed: (1) that he was being falsely arrested; (2) because Briscoe was using his authority as a police officer to torment Baze at the Highleys behest; and (3) that the police generally, and Briscoe in particular, might turn violent when executing the arrest. A reasonable jury certainly could have determined that Baze reasonably felt extreme distress when confronted with these circumstances.
Even if the trial judge had admitted every piece of evidence that Baze proffered, the jury instructions themselves would have clearly trampled on Baze’s constitutional right to present a complete defense. Following Baze’s testimony, the trial judge told the jury that Baze’s belief in the lawfulness of the attempted arrest was legally irrelevant. Yet this instruction misunderstood the EED defense, which requires the jury to measure the defendant’s emotions as the defendant himself reasonably felt them. Baze’s belief that there were no such charges would contribute to the “circumstances as he believed them to be,” namely that Briscoe’s arrival at his residence to arrest him was another instance of the police doing the Highleys bidding.
The trial judge instructed the jury that it could find that Baze acted under EED only if it found that Briscoe fired the first shot. In so doing, the trial judge prevented the jury from considering Baze’s reaction — in light of his understanding of the circumstances — to Briscoe’s arrival. The instruction also kept the jury from considering whether, Baze may have believed that Briscoe had fired or was about to fire.
Granted, under the common law “heat of passion” standard, the passage of several minutes between Briscoe’s arrival and Baze’s turn to violence would have exhausted any claims of EED. But because the Kentucky Supreme Court expressly contemplates that EED may percolate more gradually, a reasonable jury could *334have concluded that Briscoe’s arrival — and all of the conclusions that Baze drew from it, given the circumstances as he understood them — was enough to inflame Baze’s passion, even if it did not produce a split-second reaction. To use the majority’s analogy, Briscoe’s arrival may not have been analogous to Baze catching his wife in bed with a lover, but probably was analogous to, say, Baze observing his wife and another man check into a motel.
The majority argues that because Baze had previously been harassed by the police at the behest of the Highleys, “Briscoe’s appearance at Baze’s cabin therefore cannot be described as sudden or dramatic from Baze’s point of view; if anything, it was routine and annoying.” Under this logic, the majority would consider a husband’s beating his wife for the second time to be merely “routine and annoying” because the victim should be used to it by now. Of course, the opposite is true: the first beating, or in this case the second instance of police harassment would reasonably make someone even more upset than the first instance. The second time, the victim knows that the first incident was not isolated. In any event, Briscoe’s arrival would have been more disturbing to Baze than the prior incident of harassment, because this time his arrest was assured.
Even if Briscoe’s arrival itself was not a triggering event under Kentucky law, an even more sudden and dramatic stimulus awaited Baze. Becky Baze testified that when her husband walked away from Briscoe, she saw Briscoe putting his hand near his holster. Believing that Briscoe was going to shoot her husband, Becky hollered and grabbed Briscoe’s arm. Baze similarly testified that after he turned away from Briscoe, “everyone started hollering, ‘Run!’ ” Again, given Baze’s view of the circumstances — including both the pri- or tense police incident initiated by the Highleys and the article he had read about Briscoe — Baze might have perceived his wife’s outcry as a warning that Briscoe was about to turn violent towards him, and Baze in fact testified that he believed that Briscoe had tried to shoot him in the back. A reasonable jury could have found that a perceived imminent threat of violence at the hands of the police — which Baze believed was the product solely of the Highleys’ vendetta against him — could reasonably and severely disturb an average person, let alone a paranoid one.
B. Mitigating Evidence
The majority also errs in rejecting Baze’s Eighth Amendment claim: that he was deprived of his right to present mitigating evidence by the exclusion of evidence about his pending twenty-year prison term on federal weapons charges. On the question of mitigating evidence, the Supreme Court has been resolute: “the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence.” Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1, (1986) (emphasis added). This includes evidence “that the defendant would not pose a danger if spared (but incarcerated).” Id.
The majority contends that because this conviction was still pending on appeal, “it was not entirely clear whether there was mitigation or not.” But this is precisely the type of inquiry that the Supreme Court has left for the jury, which could have been told about both the sentence and the appeal. And the possibility of an additional twenty-year sentence makes it less likely that Baze would ever return to the streets, and in any event would make him much older and presumably less dangerous if he did. Of course, Baze bore the risk that the jury would conclude that a *335not-yet-final sentence was too flimsy a basis upon which to assume Baze’s additional incarceration. But the jurors also might have factored it into their calculus, given that an assessment of future dangerousness is inherently an uncertain and probabilistic enterprise. Cf. Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (upholding instructions to jury to consider whether there was “a probability that [the defendant] would commit criminal acts of violence that would constitute a continuing threat to society” (emphasis added)).
Recent cases from our sister circuits are particularly instructive in this regard. In Paxton v. Ward, 199 F.3d 1197, 1211 (10th Cir.1999), the court reviewed the constitutionality of the state trial court’s “refusal to admit a court order stating that [the defendant] had been cleared in his wife’s death by a polygraph examination.” The trial court had kept out the results because state law prohibited the admission of polygraph evidence due to concerns about its reliability. The court held that the refusal to admit this evidence constituted a clearly unreasonable application of the Supreme Court’s Eighth Amendment jurisprudence, noting that whatever the reliability concerns that the use of a polygraph test might raise in a normal criminal proceeding “[t]he Supreme Court has been exceedingly cautious to ensure that a person found guilty of a capital offense is given every opportunity to present potentially mitigating evidence that might form the basis for a sentence less than death.” Id. at 1214 (internal quotations omitted). The Ninth Circuit reached the same decision in an identical case — notwithstanding the state’s concerns about the polygraph’s reliability — noting that “under controlling United States Supreme Court authority, relaxed standards govern the admission of mitigating evidence during the penalty phase of a death penalty trial.” Rupe v. Wood, 93 F.3d 1434, 1439 (9th Cir.1996).
Although the trial court retains some discretion to exclude flagrantly unreliable or confusing evidence, this is not a case in which this discretion was called for. In Alley v. Bell, 307 F.3d 380 (6th Cir.2002), we upheld the exclusion from the sentencing phase of a videotape of the defendant answering questions while under hypnosis. There, however, there was evidence in the record that “people can lie under hypnosis, and ... the hypnotic state produces different levels of consciousness that can only be understood from a clinical perspective, not from a lay perspective.” Unlike Alley — in which the evidence might affirmatively confuse all but the most technically informed — the mitigating evidence in this case requires no such expertise to consider. A lay person is perfectly capable of understanding that the conviction would not be final until after the appeal.
That Baze was facing an extra twenty years in prison was particularly relevant because the jury had no way to directly sentence him to life in prison for the tragic killings of the two officers. If the jury spared Baze’s life, its next most restrictive option was to impose a sentence of twenty-five years to life. Finally, the trial judge excluded evidence that Baze might have understood Briscoe’s presence at his home as a threat to his physical safety. Baze was prohibited from testifying about the newspaper article which reported that while making an arrest, Briscoe shot out the tires of the arrestee’s car, pointed his weapon at the suspect, and asked him if he “wante[ed] to meet [his] maker.” Baze’s reading this would have added to the danger that he felt during Briscoe’s attempt to arrest him, and also would have provided the lens through which he interpreted Briscoe’s subsequent actions. The jury’s perception of Baze’s future dangerous*336ness — and the chance that he could be back on the street sooner than it would want — may very well have motivated the jury to sentence him to death.
These shootings were brutal. But constitutional errors infected both Baze’s conviction and sentence of death. Accordingly, I respectfully dissent.