(dissenting) — Errors at the penalty phase of a capital case are subject to heightened judicial scrutiny. State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 121 L. Ed. 2d 112 (1992). Applying this heightened scrutiny, I believe the errors made during the penalty phase denied Lord a fundamentally fair sentencing proceeding.
The trial court erred in sending the State’s evidentiary chart into the jury room, in permitting the State to introduce evidence about the circumstances surrounding Lord’s prior convictions, in cross-examining him after allocution, and in instructing the jury it needed to be unanimous before answering "yes” or "no” to the question whether the death penalty should be imposed. I have already discussed these issues at length in my dissent in Lord’s direct appeal, see Lord, 117 Wn.2d at 918-46, and only briefly reiterate my concerns here. Finally, I disagree with the majority that death by hanging is permissible in Washington.
Summary Chart
The majority finds the defendant’s argument that the summary chart should not have been introduced at the penalty phase frivolous. As grounds for this characterization of the argument, the majority notes that in Lord’s direct appeal this court held the chart’s introduction was not reversible error at the guilt phase. The majority also cites the general rule that exhibits which are introduced at the guilt phase may be introduced at the penalty phase. Majority, at 322 (citing State v. Bartholomew, 101 Wn.2d 631, 643, 683 P.2d 1079 (1984)); State v. Mak, 105 Wn.2d 692, 720-21, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. *334Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff’d, 970 F.2d 614 (9th Cir. 1992), cert. denied, 113 S. Ct. 1363 (1993).
The majority’s citations do not support the conclusion that Lord’s argument is "patently frivolous”. It is true a majority of this court held it was not reversible error to send the chart into the jury room at the guilt phase. See State v. Lord, 117 Wn.2d 829, 861-62, 822 P.2d 177 (1991), cert. denied, 121 L. Ed. 2d 112 (1992). The majority did however recognize that generally charts should not be sent into the jury room. See Lord, 117 Wn.2d at 861. Concluding the chart’s presence in the jury room at the guilt phase was not reversible error does not dispose of the question whether sending the chart into the jury room in the penalty phase is reversible.
Even assuming the majority is correct as to the guilt phase, I believe the effect of the chart’s admission at the penalty phase must be independently evaluated. Such separate analysis is appropriate because we examine the penalty phase of a capital case with heightened scrutiny. See Lord, 117 Wn.2d at 888 (citing Johnson v. Mississippi, 486 U.S. 578, 584, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988)); State v. Bartholomew, 101 Wn.2d at 638 (citing Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977)); Caldwell v. Mississippi, 472 U.S. 320, 329, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985).
It is true that evidence admissible in the guilt phase is generally admissible in the penalty phase. See, e.g., Bartholomew, 101 Wn.2d at 643. Nevertheless, matters that are highly prejudicial and of questionable relevance that should be excluded in criminal trials under ER 403 should not be admitted in the penalty phase of a capital case. See Bartholomew, 101 Wn.2d at 641.
A court examining a due process challenge to the admissibility of evidence should evaluate whether the probative value of the evidence outweighs its prejudice to the accused: *335United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 171 (7th Cir. 1984) (quoting United States v. Pate, 426 F.2d 1083, 1086 (7th Cir. 1970), cert. denied sub nom. Durso v. Pate, 400 U.S. 995, 27 L. Ed. 2d 445, 91 S. Ct. 469 (1971)).
*334When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then the use of such evidence by a state may rise to the posture of the denial of fundamental fairness and due process of law.
*335The State’s chart was not relevant to the jury’s deliberations in the penalty phase. There, the relevant inquiry is whether there are sufficient mitigating circumstances to merit leniency. See RCW 10.95.070. Moreover, the chart’s potential for prejudice should not he lightly discounted at a stage in which the defendant is subject to the harshest penalty available under our sentencing scheme. See Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978); Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976); Beck v. Alabama, 447 U.S. 625, 638, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980); Gardner v. Florida, 430 U.S. at 357. At the very least, the chart distracted the jury from properly focusing on the question whether Lord had shown sufficient mitigating circumstances to warrant leniency.
Under these circumstances, the erroneous admission of the State’s summary chart, which consisted of irrelevant and prejudicial matters, denied Lord a fundamentally fair proceeding and therefore denied him due process of law.
Scope of Evidence of Prior Convictions
The trial court also erred in permitting the State to introduce before the jury evidence about the circumstances of Lord’s prior murder and unlawful imprisonment convictions.
In the penalty phase, the State elicited testimony that the victim in Lord’s juvenile adjudication for murder was a close family friend, was shot with two guns, and was shot in the stomach while she was using the telephone to summon help. Report of Proceedings, at 7731-32, 7780-81, 7863. The State also elicited testimony that the victim of Lord’s unlawful imprisonment conviction was his 13- or 14-year-old sister-in-law, that he assaulted her in his automobile, and that she sustained injury at his hands. See Report of Proceedings, at 7736-38.
*336The admissibility of prior convictions under RCW 10.95-.070 does not give the State license to expose the jury to the facts and circumstances attending those convictions. See Bartholomew, 101 Wn.2d at 640-41. Cf. Lord, 117 Wn.2d at 889-90. This court has expressly rejected the notion that cross examination may be conducted indiscriminately. Bartholomew, 101 Wn.2d at 643. ("We do not intend . . . that the prosecution be permitted to produce any evidence it cares to so long as it points to some element of rebuttal no matter how slight or incidental.”) (quoting State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170, State’s cert. granted and remanded, 463 U.S. 1203, defendant’s cert. denied, 463 U.S. 1212 (1983)). In deciding whether to admit the prosecutor’s evidence, the trial court is required to apply a balancing test similar to that contemplated by ER 403. Bartholomew, 101 Wn.2d at 643 (citing Bartholomew, 98 Wn.2d at 197-98).
As I already indicated in my dissent in Lord, the State used the statement by Lord’s father that Lord was a "good boy” to introduce evidence of his prior bad acts. Such evidence could not have been properly admitted in a criminal trial under the Rules of Evidence. See ER 405. Lord’s father was not introducing character evidence about his son. He was rather expressing his affection for him, making rebuttal evidence improper. State v. Lord, 117 Wn.2d 829, 927-30, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 121 L. Ed. 2d 112 (1992).
The State’s introduction of statements about Lord’s prior bad acts violated RCW 10.95.070 as construed by State v. Bartholomew, 101 Wn.2d 631, 643, 683 P.2d 1079 (1984). It was also unwarranted under the Rules of Evidence. Finally, some of the information elicited by the State was inadmissible as hearsay. See Report of Proceedings, at 7731-32. The procedural protections attending criminal prosecutions should be conscientiously applied, rather than suspended, in the context of a capital proceeding. See Beck v. Alabama, 447 U.S. 625, 635-38, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980).
*337There can be no doubt the references to the circumstances pertaining to Lord’s juvenile adjudication and his prior criminal convictions were both legally unwarranted and exceedingly prejudicial. Under these circumstances, the majority’s conclusion that Lord has not shown prejudice is unjustified, particularly in the context of a death penalty proceeding. It is critically important to both the defendant and the community that a decision to impose the death sentence be based upon reason rather than caprice or emotion. See Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977).
The trial court also erred in permitting the State to cross-examine Lord after his allocution. For the reasons set forth in my dissent in Lord’s direct appeal, doing so is improper. See Lord, 117 Wn.2d at 936-39 (Utter, J., dissenting).
Jury Unanimity With Respect to Imposing the Death Penalty
Finally, the Ninth Circuit has held that an instruction suggesting the jury must be unanimous before finding insufficient mitigating circumstances to merit leniency constitutes error. See Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992), cert. denied, 113 S. Ct. 1363 (1993). In Mak the instruction was "All twelve of you must agree before you answer a question 'yes’ or 'no.’ ” In this case, the instructional infirmity was similar. The court instructed the jury as follows: "You must answer one question "yes” or "no”. If you do not unanimously agree then answer "unable to unanimously agree”. (Italics mine.) Clerk’s Papers, at 675. In view of the Mak court’s disapproval of this type of instruction, I believe the flaw in the instruction here, combined with the other errors indicated above, denied Lord a fundamentally fair sentencing proceeding. Accordingly, I would reverse his sentence and remand for a new sentencing proceeding consistent with the law as set forth here.
Death By Hanging
I also take exception to the majority’s citation of State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981) for the propo*338sition that hanging is a permissible method of execution. Majority, at 325. A careful reading of Frampton indicates that a majority of the court only held there was insufficient undisputed evidence to warrant holding hanging unconstitutional. See Frampton, 95 Wn.2d at 512, 514.
Frampton is not controlling because its discussion of hanging is dicta. Likewise not binding is the comment in State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984) that Frampton "rejected the argument that death by hanging was unconstitutional”. 101 Wn.2d at 701. Itself dictum, this statement does not alter the fact that the discussion in Frampton is dicta. State v. Campbell, 112 Wn.2d 186, 192, 770 P.2d 620 (1989) is not controlling either. Campbell only refused to reconsider Frampton, which we have already seen did not establish controlling law on the constitutionality of hanging.
It is, moreover, critical to understand that the court’s discussion of hanging in Frampton was in part based on a misapprehension that death was rapid and virtually painless because the spinal cord was severed in the drop, a condition that was thought to produce almost instantaneous loss of consciousness and death shortly thereafter. More recent medical and scientific evidence reveals this assumption to be false. In most cases, the spinal cord is not severed, and death can be relatively slow and agonized. See State v. Dodd, 120 Wn.2d 1, 30, 838 P.2d 86 (1992) (Utter, J., dissenting); see also, e.g., R. James & R. Nasmyth-Jones, The Occurrence of Cervical Fractures in Victims of Judicial Hanging, 54 Forensic Sci. Int’l 81, 90-91 (1992); I. Gray & M. Stanley, A Punishment in Search of a Crime 22-29 (1989); An Unnatural Way To Die, New Scientist, Oct. 27, 1983, at 278.14
*339For the reasons just set forth, the majority’s conclusion that hanging is a constitutionally permissible method of execution is unwarranted.
I note a divided Ninth Circuit of the United States Court of Appeals, sitting en banc, has recently concluded death by hanging is not unconstitutional. See Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994). For the reasons amply set forth in the sources cited above, and in the dissent in Campbell, I disagree.