(dissenting) — The majority errs in concluding victim impact statements in the penalty phase of a capital case are admissible under Washington law. It effectively has created a sentencing proceeding in which the adversaries are not the defendant and the State, but rather the defendant and the victim. The majority relies on this characterization to extend the Victims’ Rights Amendment beyond its explicit and historical meaning, and in unwarranted contravention of article 1, sections 3 and 14 of the Washington Constitution, to apply to special sentencing proceedings in death penalty cases.
The argument that a criminal prosecution requires an evenhanded balance between the State and the defendant *672fundamentally misconceives the nature and purpose of state and federal constitutional criminal protections. One purpose of affording constitutional rights to accused individuals and imposing limits on the State is to protect accused individuals from overreaching by the disproportionately powerful State. Payne v. Tennessee, 501 U.S. 808, 860, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991) (Stevens, J., dissenting). See also Pulley v. Harris, 465 U.S. 37, 45, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984) (constitutional review of death penalty statutes is to avoid "wholly arbitrary, capricious, or freakish sentences”); State v. Cater’s Motor Freight Sys., Inc., 27 Wn.2d 661, 667, 179 P.2d 496 (1947) (due process guaranty protects individuals from arbitrary exercise of powers of government).
I therefore dissent as to issue 12.
I
The decision is left to the states whether to admit victim impact statements in the sentencing phase of death penalty cases. Payne, 501 U.S. at 827. In Washington, capital punishment proceedings are regulated by statute, subject to specific constitutional limits. The special sentencing proceeding held determines whether the death penalty should be imposed or whether there are sufficient mitigating circumstances to merit leniency. RCW 10.95.030-.060. RCW 10.95.070 contains a list of factors the jury may consider, all of which relate specifically to the defendant’s culpability for the capital offense. Victim impact statements are not mentioned.
Our case law has further defined limits on admissible evidence. In State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I), State’s cert. granted and remanded, 463 U.S. 1203, defendant’s cert. denied, 463 U.S. 1212 (1983), reaff'd on remand, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II), we found portions of RCW 10.95.060(3) and RCW 10.95.070 to be unconstitutional. In the special sentencing proceeding, the jury may consider mitigating factors only and the prosecution may introduce *673only the defendant’s criminal record,148 evidence of the facts and circumstances of the murder for which the defendant is being sentenced (if the sentencing jury is not the jury that convicted the defendant), and evidence of "additional nonstatutory aggravating factors” insofar as its rebuttal value outweighs its prejudicial effect. Bartholomew I, 98 Wn.2d at 197-99; Bartholomew II, 101 Wn.2d at 642-43.
The United States Supreme Court accepted certiorari in Bartholomew I and remanded the case for reconsideration in light of Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (statutory procedure for determining eligibility for death penalty adequately confines the class of persons eligible to a narrow category in which there is special justification for the imposition of a death sentence compared to others found guilty of murder). On remand, we reaffirmed Bartholomew I, concluding different criteria apply to aggravating factors than to mitigating factors, thereby imposing a more stringent standard upon the prosecution than the defendant at the sentencing phase of a capital case. Bartholomew II, 101 Wn.2d at 637-38. We identified two primary federal and state constitutional limits on the admission of aggravating factors at a special sentencing proceeding, both of which are necessary to afford the defendant a fair trial: (1) evidence prejudicial to the defendant cannot be admitted at the sentencing phase; and (2) evidence admitted during the sentencing phase of capital cases, just as in all other criminal cases, must be accurate and reliable. Bartholomew II, 101 Wn.2d at 636-38.
In Bartholomew II, we also noted that the Washington Constitution, article 1, sections 3 and 14, provides broader protection than the Supreme Court’s interpretation of the Eighth and Fourteenth Amendments. Bartholomew II, 101 Wn.2d at *674639. See also State v. Chrisman, 100 Wn.2d 814, 817-18, 676 P.2d 419 (1984) (federal constitution provides only "minimal rights” and decisions of federal courts do not limit the right of state courts to accord greater rights). Accordingly, while we rested our decision on an interpretation of both the state and federal constitutions, we explicitly held the Washington Constitution to compel our result:
[T]he independent state constitutional grounds we have articulated are adequate, in and of themselves, to compel the result we have reached. . . . Therefore, any decision by the Supreme Court limiting federal constitutional guaranties in a manner inconsistent with our interpretation of Const, art. 1, §§ 3 and 14 will have no bearing on our decision in this case.
Bartholomew II, 101 Wn.2d at 644.149
The result in Bartholomew II therefore is unaffected by the Supreme Court’s constriction of Eighth Amendment protection in Payne. The Eighth Amendment imposes a minimum threshold below which the death penalty cannot be imposed and it prohibits the states from limiting the sentencer’s consideration of any relevant circumstance that could cause the sentencer to decline to impose the death penalty. Romano v. Oklahoma, 512 U.S. 1, 129 L. Ed. 2d 1, 10, 114 S. Ct. 2004 (1994); Payne, 501 U.S. at 824; McCleskey v. Kemp, 481 U.S. 279, 306, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987); Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Beyond these limitations, the State may choose which substantive factors are relevant to death penalty determinations; the Supreme Court explicitly left to the states the decision whether to allow victim impact statements in death, penalty sentencing. Payne, 501 U.S. at 824-25.
*675II
The majority concludes correctly that the victims’ rights amendment, article 1, section 35,150 does not specifically repeal any provision of the Washington Constitution or this court’s construction of any constitutional provision, nor is the amendment in unavoidable conflict with another provision. Majority, at 625. The majority also concludes correctly that the due process and cruel punishment provisions of the state constitution, Const, art. 1, §§ 3 and 14,151 as construed by this court in Bartholomew II, require evidence proffered in special sentencing proceedings to conform to the Rules of Evidence. Majority, at 622. As we wrote in Bartholomew II,
It makes no sense to afford these protections to one charged with a lesser crime but then suspend them in a capital case. We will not do so, for this would place a defendant facing the death penalty in the perilous position of having to rebut potentially unreliable or unreasonably prejudicial evidence before a jury that has already convicted him of aggravated murder. To suspend these protections which are afforded all other criminally charged defendants at such a critical phase of a capital case is contrary to the reliability of evidence standard embodied in the due process clause of our state constitution. Const, art. 1, § 3.
(Italics mine.) Bartholomew II, 101 Wn.2d at 640-41.
The death penalty differs qualitatively from all other punishments because of its severity and finality; therefore, it is *676critical that the determination to impose the death penalty be reliable. State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991) (citing Johnson v. Mississippi, 486 U.S. 578, 584, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988); Bartholomew II, 101 Wn.2d at 638), cert. denied, 506 U.S. 856, 121 L. Ed. 2d 112, 113 S. Ct. 164 (1992), clarified in In re Lord, 123 Wn. 2d 737, 870 P.2d 964, cert. denied,-U.S-, 130 L. Ed. 2d 86, 115 S. Ct. 146 (1994). See also Murray v. Giarratano, 492 U.S. 1, 8, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (1989) (United States Constitution places special constraints on procedures used to convict an accused of a capital oifense and to sentence him or her to death, in order to ensure the existence of a greater degree of reliability); Lockett, 438 U.S. at 604 (finality of death penalty requires a greater degree of reliability when it is imposed). The need for greater reliability is reflected in the statutorily mandated procedure for requesting the death penalty and the required special sentencing proceedings to determine whether the death penalty should be imposed once guilt has been established. RCW 10.95; State v. Rice, 110 Wn.2d 577, 607, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989). Hence, notwithstanding the Victims’ Rights Amendment, Washington Constitution, article 1, sections 3 and 14, continues to require that evidence admitted in special sentencing proceedings in capital cases conform to the Rules of Evidence.
The Rules of Evidence provide the "stringent procedural safeguards” necessary to ensure sentencing proceedings are fundamentally fair, as required by article 1, sections 3 and 14. Bartholomew,II, 101 Wn.2d at 640; ER 102. Under the Rules of Evidence, courts may admit only evidence that is relevant, trustworthy, reliable, and not unreasonably prejudicial. Bartholomew II, 101 Wn.2d at 640-41; ER 401-403. In allowing victim impact statements to be introduced in the sentencing phase of death penalty proceedings, the majority disregards the Rules of Evidence by allowing the admission of irrelevant, untrustworthy, unreliable, and unreasonably prejudicial evidence.
*677When a defendant has been found guilty of aggravated first degree murder and the prosecuting attorney has complied with RCW 10.95.040, a special sentencing proceeding is conducted to determine whether the death penalty should be imposed. At this proceeding, the jury is to answer a single question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” RCW 10.95.060(4). Only evidence of mitigating circumstances and evidence "concerning the facts and circumstances of the murder” may be introduced. RCW 10.95.060(3). RCW 10.95.070 sets forth factors the jury may consider in deciding whether the defendant merits leniency. Significantly, while the list of factors is not exclusive, all factors listed relate to the defendant’s personal responsibility and moral guilt, not to victim characteristics or impacts on the victim’s friends and family. Accordingly, in deciding whether there are sufficient mitigating circumstances to merit leniency, the entire focus of the jury’s inquiry is to be sharply limited to a balancing of the evidence of mitigating circumstances against the evidence of the facts and circumstances of the murder. See Rice, 110 Wn.2d at 607, 624.
Underlying this limitation is the notion, residing at the core of our criminal jurisprudence, that appropriate punishment should be imposed consistent with each defendant’s personal responsibility and moral guilt, rather than in an arbitrary or unfair manner. Tuilaepa v. California,-U.S.-, 129 L. Ed. 2d 750, 760, 114 S. Ct. 2630 (1994) (penalty phase of capital case requires "individualized sentencing and must be expansive enough to accommodate relevant mitigating evidence so as to assure an assessment of the defendant’s culpability”); Zant, 462 U.S. at 879 (penalty phase of capital case requires "individualized determination on the basis of the character of the individual and the circumstances of the crime”); Enmund v. Florida, 458 U.S. 782, 801, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982) (decision *678whether to impose death penalty must turn on defendant’s "personal responsibility and moral guilt”); State v. Mak, 105 Wn.2d 692, 723, 718 P.2d 407 (penalty phase of capital case must include individualized determination based on defendant’s character and record and on circumstances of the crime), cert. denied, 479 U.S. 995 (1986); RCW 9.94A.010 (setting forth purpose of Washington’s Sentencing Reform Act of 1981). Victim impact statements, which typically present the ripple effect of the victim’s death on both the victim’s family and the victim’s community, are irrelevant to a determination of the defendant’s blameworthiness. Unless the impact on the victim’s friends and family were known to the defendant at the time of the murder and have some probative bearing on an element of the crime of which the defendant was convicted, admission of victim impact statements infuses the sentencing proceeding with arbitrary factors that are wholly unrelated to an individualized determination of the defendant’s personal responsibility and moral guilt. See Bartholomew II, 101 Wn.2d at 642-43.
Because of its inherent capacity to draw the jury’s attention away from the character of the defendant and the circumstances of the crime, any probative value of victim impact statements is outweighed by its prejudicial effect. See Payne, 501 U.S. at 864 (Stevens, J., dissenting). Introduction of such statements invites the jury to determine the sentence based on emotional factors, the status of the victim in the community (i.e., "victim worth”), or the eloquence of the victim’s friends and family, rather than through rational consideration of the defendant’s individual culpability. Prosecutors use victim impact statements in an attempt to show the victim’s similarity to the jurors, thereby generating empathy or fear in place of reason and careful consideration. Such statements may unnecessarily supply jurors with information on the victim’s race, religion, and social class, factors which ordinarily may not be considered in the sentencing decision. See McCleskey, 481 U.S. at 291 n.8 (violation of equal protection to base enforcement of criminal laws on unjustifiable standard such as race, religion, or other arbi*679trary classification); Zant, 462 U.S. at 885 (irrelevant or constitutionally impermissible factors such as race, religion, or political affiliation cannot be considered aggravating factors in capital sentencing proceedings). Admitting victim impact statements creates two classes of victims: those whose lives were so worthwhile that their killer should be put to death, and those whose lives were not so worthwhile as to require the death of the killer. No longer is sentencing based on an individualized determination of the defendant’s blameworthiness, but on the jury’s post hoc determination, in an emotional and prejudicial context, whether the defendant killed a "worthy” member of society or a less "worthy” citizen. Admission of victim impact statements thereby increases the risk that the jury will act in an arbitrary and capricious manner or make invidious distinctions as to the relative worth of the victim.
The admission of victim impact statements has the inevitable effect of putting the victim on trial, shifting the focus of the sentencing proceeding from the defendant and the nature of his or her crime to the value the victim’s friends and family place on the victim’s life. Inviting a detailed narration of the emotional and economic sufferings of the victim’s friends and family and inquiring into their backgrounds and that of their deceased loved one revictimizes the friends and family by forcing them to relive the trauma of the crime. It places a burden on the victim’s friends and family to persuade the jury of the victim’s character and potential, and it pressures friends and family to provide the most graphic or emotionally wrenching statement possible in order to convince the jury of the worth of their loved one. These statements may so inflame jurors to the point where they cannot heed the trial judge’s instructions, effectively preventing them from giving appropriate consideration to evidence of mitigation. These inflammatory factors cannot help but infect the jury’s decisionmaking process, leading to inconsistent imposition of the death penalty, thereby rendering the sentencing proceeding fundamentally unfair and denying the due process of law guaranteed in the Washington Constitution.
*680III
Victim impact statements are not relevant as a purported "balance” to the defendant’s mitigation evidence, necessary to preserve victims’ rights at the special sentencing proceeding. The argument that victim impact statements balance mitigation evidence reflects a flawed vision of criminal proceedings, a vision in which wronged victims may use criminal proceedings to obtain vengeance or retribution against criminal defendants. A criminal proceeding is not a private right of action for the victim’s benefit; it is a proceeding in which a prosecutor, representing all the people of the State, seeks to deter, punish, restrain, and/or rehabilitate those whose actions are so dangerous or offensive that they are an affront to a civilized society. See Bergman v. State, 187 Wash. 622, 625, 60 P.2d 699, 106 A.L.R. 1007 (1936); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.3(b), at 17-20 (1986).152 Cf. David Boerner, Sentencing in Washington § 2.5 (1985) (purposes for which sentences imposed under Sentencing Reform Act of 1981).
Under RCW 10.95.040-.070, the proper counterbalance to evidence of mitigation is evidence of the facts and circumstances of the murder, including evidence of aggravation. See State v. Benn, 120 Wn.2d 631, 677-78, 845 P.2d 289, cert. denied, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 382 (1993); Rice, 110 Wn.2d at 624. However, prosecutors may not use the "circumstances of the crime” as a nonstatutory aggravating factor to embrace the entire spectrum of facts present in virtually every homicide. Maynard v. Cartwright, *681486 U.S. 356, 363,100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); Godfrey v. Georgia, 446 U.S. 420, 428-33, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980); Rice, 110 Wn.2d at 609. Apart from some limited statement based on evidence admissible during the guilt phase or to rebut the defendant’s mitigation evidence, victim impact statements generally are unrelated to the circumstances of the crime, and therefore inadmissible. Bartholomew II, 101 Wn.2d at 642. Such statements are introduced for the purpose of impermissibly inviting the jury to base its decision on sympathy for the victim or the victim’s friends and family, rather than as a moral response to the defendant’s background, character, and crime committed. In re Rupe, 115 Wn.2d 379, 387-88, 798 P.2d 780 (1990). See California v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987) (O’Connor, J., concurring).
A further counterbalance is provided by the prosecutor’s cross examination of defense witnesses and introduction of relevant evidence to rebut the defendant’s evidence, thereby ensuring the jury receives a balanced and complete picture of the crime. Lord, 117 Wn.2d at 890. Even if a proffered victim impact statement were relevant to rebut the defendant’s mitigation evidence, it would be inadmissible unless its rebuttal value outweighs its prejudicial effect. Lord, 117 Wn.2d at 890-91; Bartholomew II, 101 Wn.2d at 643. Because victim impact statements are inherently prejudicial, even as rebuttal evidence, such statements are unlikely to be admissible under the Rules of Evidence for any purpose during a capital sentencing proceeding.
Just as the admission of evidence of nonstatutory aggravating factors "opens too wide a door for the influence of arbitrary factors on the sentencing determination”, Bartholomew I, 98 Wn.2d at 195, so does the admission of victim impact statements also defeat the constitutional mandate of channeled jury discretion at the sentencing phase of a capital case. Arave v. Creech, 507 U.S. 463, 123 L. Ed. 2d 188, 198, 113 S. Ct. 1534 (1993); Bartholomew II, 101 Wn.2d at 639. Admitting victim impact statements impermissibly invites the jury to make an irrational, emotional capital sen*682tencing decision, rather than one that is and appears to be based on reason. In re Rupe, 115 Wn.2d at 388 (citing Booth v. Maryland, 482 U.S. 496, 508, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987)).
Conclusion
To ensure the death penalty is not imposed arbitrarily or invidiously, the jury must find at least one aggravating factor involved in the crime. To ensure the sentence is based on an individualized determination of the defendant’s moral blameworthiness, and not on passion and prejudice, the jury must weigh the aggravating factor(s), including the circumstances of the crime, against the mitigating evidence presented by the defendant. A victim impact statement presenting information about the impacts of the crime on the victim’s family, friends, and community is not relevant to the jury’s task and is inherently prejudicial. Admitting such a statement puts the character of the victim on trial and retraumatizes the victim’s friends and family by forcing them to present emotional and graphic testimony to obtain jury sympathy.
"It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion”. Bartholomew II, 101 Wn.2d at 638 (quoting Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977)). By Allowing the jury in a special sentencing proceeding to consider irrelevant and prejudicial statements as to the victim’s worth and the suffering of the victim’s friends and family, the majority invites emotional and arbitrary sentencing decisions resting on unreliable information, and allows invidious distinctions by juries impermissibly based on their sympathy with the victim, and privatizes the death penalty by permitting the victim’s friends and families to seek vengeance and retaliation through state action.
Utter and Madsen, JJ., concur with Johnson, J.
Evidence of uncharged criminal behavior can be offered to rebut mitigation evidence presented by the defendant. State v. Lord, 117 Wn.2d 829, 889, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 121 L. Ed. 2d 112, 113 S. Ct. 164 (1992), clarified in In re Lord, 123 Wn.2d 737, 870 P.2d 964, cert. dented,-U.S-, 130 L. Ed. 2d 86, 115 S. Ct. 146 (1994).
We repeatedly have followed or acknowledged the holdings of Bartholomew II. See, e.g., State v. Jeffries, 105 Wn.2d 398, 416, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986); State v. Rupe, 108 Wn.2d 734, 755, 762, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); State v. Rice, 110 Wn.2d 577, 609, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989); In re Rupe, 115 Wn.2d 379, 396 n.5, 798 P.2d 780 (1990); Lord, 117 Wn.2d at 889-91; State v. Ortiz, 119 Wn.2d 294, 304, 831 P.2d 1060 (1992); State v. Dodd, 120 Wn.2d 1, 21-22, 838 P.2d 86 (1992).
Article 1, section 35 reads, in relevant part: "To ensure victims a meaningful role in the criminal justice system and to accord them due dignity and respect, victims of crimes are hereby granted the following basic and fundamental rights.
". . . [A] victim of a crime charged as a felony shall have the right to be informed of and, subject to the discretion of the individual presiding over the trial or court proceedings, attend tried and all other court proceedings the defendant has the right to attend, and to make a statement at sentencing and at any proceeding where the defendant’s release is considered, subject to the same rules of procedure which govern the defendant’s rights. In the event the victim is deceased, incompetent, a minor, or otherwise unavailable, the prosecuting attorney may identify a representative to appear to exercise the victim’s rights.” Const, art. 1, § 35 (amend. 84).
Article 1, section 3 provides "[n]o person shall he deprived of life, liberty, or property, without due process of law”. Article 1, section 14 provides "[ejxcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted”.
The prosecution of crimes as an affront to the entire community is a fundamental principle of long standing in Anglo-American jurisprudence, already well established by the time of Blackstone:
The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals: public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.
William Blackstone, Commentaries on Laws of England 5 (adapted by Robert M. Kerr (1962)).