concurring in part and dissenting in part.
The Court in this case sustains defendant’s claim that in the trial on the charge of possession of a weapon by a convicted felon, the trial court, by referring the jury to its prior finding of possession, in effect directed the return of a guilty verdict, thereby denying defendant’s right to a jury trial through what amounts to an improper use of collateral estoppel. As a result, there must be a reversal of defendant’s conviction. I agree. In *214addition, as noted by the Court, the trial judge instructed the jury that “it must find [the defendant] guilty” if it determined beyond a reasonable doubt that the essential elements of the charged crime had been established. I am of the opinion that this “must-charge” is improper and contributed to the reversible error in this case. This view is at odds with the position taken by a majority of the Court. I therefore dissent.
I.
Defendant’s claims in this case relating to impermissible aspects of the trial court’s charge invite our examination of the propriety of the bifurcated or sequential trial that was undertaken in this prosecution. As noted by the majority, in State v. Ingenito, 87 N.J. 204 (1981), on facts similar to this case, the defendant was first convicted of the unlicensed transfer of weapons. Thereafter, the previously severed charge of possession of a weapon by a convicted felon was tried before a different jury. The only evidence offered at this second trial to prove the possession element was the aforementioned conviction on the unlicensed transfer charge that had been returned by another jury in the first trial. The Court found this to be an unacceptable use of collateral estoppel, concluding that the right to a jury trial requires that “the same trier of the fact decide all of the elements of the charged offense.” State v. Ingenito, supra, 87 N.J. at 217 (emphasis in original). However, the Court specifically reserved judgment on the validity of the procedure that was followed in this case involving a bifurcated trial by the same jury.
In addressing the validity of this procedure, which is now directly before the Court, we accept as sound the Appellate Division’s determination that the proceedings at the trial level constitute a single trial conducted in two phases, rather than two distinct trials. Of critical importance is that this procedure empowers the same jury to consider all of the evidence and determine each of the essential elements that must be proven *215to reach a final determination of guilt or innocence on every charge. Because this procedure contemplates independent fact-finding relating to each charge, the impermissible effect of collateral estoppel can be avoided. The bifurcated or sequential trial procedure, properly invoked, fully meets and overcomes the objection underscored in Ingénito that the jury responsible for determining guilt or innocence must not be precluded from considering all evidence relevant to the crimes charged and from making independent findings of fact with respect to such crimes.
II.
As pointed out by the Court, defendant additionally contends that notwithstanding the propriety of the bifurcated trial procedure, the trial court improperly focused the jurors’ attention in the second part of the trial upon their earlier finding of possession. Defendant asserts that this amounted to the direction by the court regarding a particular fact-finding on the element of possession that was tantamount to the direction of a guilty verdict. This error was compounded, according to the defendant, by the court’s further instruction that the jury, upon finding the elements of the crime, “must find [the defendant] guilty” of the crime charged. I believe defendant’s claim has merit. Accordingly, I would regard the use of such language in criminal trial instructions as improper.
The assertion in this case that the trial court’s charge to the jury had the effect of directing the return of a guilty verdict implicates the right to a trial by jury in criminal cases guaranteed by both federal and state constitutions. U.S. Const. amend. VI; N.J. Const. (1947) Art. I, para. 9. This constitutional right imports the participation of a jury that is independent and impartial. We have previously gone to significant lengths, in a variety of contexts, to safeguard the integrity of the jury in the administration of criminal justice, particularly as that bears upon the final determination of ultimate criminal guilt or innocence. See, e.g., State v. Collier, 90 N.J. 117 (1982); State v. *216Ingenito, supra, 87 N.J. 204; State v. Simon, 79 N.J. 191 (1979).
In this type of sequential trial involving the same jury, as long as the jury is given the opportunity to consider all relevant evidence and is not prevented or inhibited from making independent fact-findings with respect to each criminal charge, the State should be free to rely on evidence introduced in the course of the entire trial proceedings. In particular, the jury should be able to consider in the subsequent or second phase of the trial proceedings any evidence that is relevant to the remaining charge then being tried even though it was introduced in the earlier phase of the trial. If in the second phase of a bifurcated trial the State seeks to rely on such earlier-introduced evidence, the court in its charge may refer to that evidence but should not otherwise induce the jury to make a particular finding or to reach a particular verdict based upon that evidence.
In this case, the trial court did not, in the second phase of the trial, merely refer to the earlier-introduced evidence relating to possession. Rather, it specifically focused the jury’s attention upon its previous fact-finding of possession. In doing so, the court failed to make it clear to the jury that it was required to make a new and independent finding regarding this element of the charge then being tried. See State v. Ingenito, supra, 87 N.J. 204. Thus, as pointed out by the majority, the trial court’s instruction could have been interpreted by the jury as a direction or strong suggestion that it not simply consider and weigh the evidence of possession, but also that it need only adopt its prior fact-finding or make a finding that would be consistent with its prior determination of the element of possession. In this posture, the potential harm is reminiscent of that considered in State v. Collier, supra, 90 N.J. 117.
Thus, I agree with the Court that to avoid this kind of error, the trial judge in this case should have clearly instructed the jury in the second phase of the trial that it must determine whether the evidence, including that evidence previously ad*217duced in the first phase of the trial, established beyond a reasonable doubt the element of possession as it relates to the charge then being tried, namely, the possession of a weapon by a convicted felon. The trial judge, however, should not have referred the jury to its earlier finding of fact or determination of this essential element. Adherence to these guidelines would have secured the economies of the successive-phase trial, avoided the pitfall of collateral estoppel, vindicated the ultimate independence of the jury, and preserved the defendant’s right to a fair and full jury trial on all charges.
As noted, the prejudicial effect of the trial court’s charge was aggravated by another related aspect of the court’s instructions. In the course of instructing the jury as to the consequences of a determination of the elements of the crime, the trial court reminded the jury of its previous determination of possession, charging the jury that upon finding the elements of the offense, it “must find [the defendant] guilty.” In my opinion, this so-called must-charge implicated not simply the jury’s independent role in making findings of fact, but its singular responsibility for determining ultimate criminal guilt or innocence.
We have generally accorded the jury a unique assignment in the trial of criminal cases, reflecting our acceptance of the jury as society’s surrogate in the effectuation of its criminal laws. The jury acts as “the conscience of the community and the embodiment of the common sense and feelings reflective of society as a whole,” State v. Ingenito, supra, 87 N.J. at 212. This reserved freedom of conscience in a jury has not generally been considered either mysterious or mischievous (cf. supra at 204-207). The ultimate discretion accorded to a jury in a criminal case is deeply embedded in our jurisprudence and has served society well. See Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury: 1200-1800 (Univ. of Chicago, 1985) (ability of jury to express its conscience is the distinguishing historical characteristic of the jury system in the administration of criminal jus*218tice). Hence, the jury in a criminal case may return “a verdict of innocence in the face of overwhelming evidence of guilt.” State v. Cristanos (Arriagas), 102 N.J. 265, 272 (1986) (quoting State v. Ingenito, supra, 87 N.J. at 212); see State v. Champa, — R.I. -, -, 494 A.2d 102, 106 (1985). “A jury may acquit or convict on a lesser charge even though the greater charge is satisfactorily proven beyond a reasonable doubt ... [and] may return illogical or inconsistent verdicts that would not be tolerated in civil trials.” State v. Cristanos (Arriagas), supra, 102 N.J. at 272 (citations omitted). As Justice Holmes observed, “the jury has the power to bring in a verdict in the teeth of both law and fact.” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 65 L.Ed. 185, 186-87 (1920). Thus, a court cannot by a mandatory instruction require the jury to bring in a verdict of guilty in a criminal case no matter how compelling the evidence. State v. Collier, supra, 90 N.J. at 122; see Sandstrom v. Montana, 442 U.S. 510, 516 n. 5, 99 S.Ct. 2450, 2455 n. 5, 61 L.Ed.2d 39, 46 n. 5 (1979); United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355-56, 51 L.Ed.2d 642, 652 (1977).
I believe that, in the context of the entire charge, the language that commanded the jury, “you must find [the defendant] guilty,” had the potential to be construed, or misconstrued, as a direction or order to return a verdict of criminal guilt; if so understood, it would impermissibly preempt the jury from its sole and exclusive responsibility of determining ultimate criminal guilt or innocence. This language, particularly when coupled with any other errors touching upon the evidence in the case or the jury’s fact-finding function, generates a risk that it will be understood and applied by a jury as a judicial direction for the return of a verdict of criminal guilt.
Other courts have sensed the infirmity of an instruction that conveys such a command. This language weakens the prerogative of a jury to “disbelieve any fact testimony or reject any factual results, uncontradicted or not.” People v. Gillespie, 54 Mich.App. 419, 221 N.W.2d 246, 247 (1974); see United States *219v. Moylan, 417 F.2d 1002, 1006 (4th Cir.1969), cert, denied, 397 U.S. 910, 90 S.Ct 908, 25 L.Ed.2d 91 (1970). Additionally, an instruction that mandates a particular legal consequence stemming directly from specific fact-findings is inherently flawed. See United States v. Hayward, 420 F.2d 142,144 (D.C.Cir.1969) (“By instructing the jurors that they must find the defendant guilty if they determined that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function”) (emphasis in original); Brascomb v. State, 261 Ark. 614, 617, 550 S.W.2d 450, 452 (1977) (binding instructions should be avoided whenever possible “ ‘because of the impracticability of stating all the various propositions of law involved in one instruction’ ”), quoting Moore v. State, 252 Ark. 526, 479 S.W.2d 857, 859 (1972);
I readily acknowledge that the actual impact upon a jury of this controverted language is not demonstrable. Concededly, this commanding charge will not always or necessarily result in the judicial direction of a guilty verdict. E.g., State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980); State v. Devoe, 301 A.2d 541 (Me.1973); Straughter v. State, 247 A.2d 202 (Del.1968). Compare Watts v. United States, 328 A.2d 770, 773 (D.C.1974) (“use of the phrase ‘must find the defendant guilty’ could have been erroneously construed by the jury as denying its prerogative of finding the defendant not guilty, notwithstanding the evidence”) with Watts v. United States, 362 A.2d 706 (D.C. 1976) rehearing (en banc) (an instruction to a jury that if it found the government had proven the existence of each element of the offense beyond a reasonable doubt, “then you must find the defendant guilty as charged” was not equivalent to a directed verdict of guilty). Additionally, as emphasized by the majority, this vigorous instruction, though not uniform or consistent either in our jurisdiction or elsewhere, is fairly common, thereby suggesting that its use may comport with conventional wisdom.
Nevertheless, I am satisfied that the sounder and more accurate assessment of this language will recognize its poten*220tial for going beyond simply exhorting jurors to perform their expected duties or to be faithful to their oaths.1 See Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 399 (1950) (“must” charge “is not the law. The law is that if the jury believes beyond a reasonable doubt that the defendant has committed the offense it should find a verdict of guilty, but if there be a reasonable doubt in the minds of the jurors they must acquit.”) (emphasis in original). An instruction possessing this compulsive connotation stands at variance with the fine discretion that a jury must exercise when considering the myriad factors, definable and indefinable, obvious and subliminal, that bear upon the ultimate determination of criminal guilt or innocence. Against this risk of subtle but real prejudice, I do not see any actual benefit to be derived from the use of this language. Accordingly, I think it advisable that such language be discontinued because of its potential to be interpreted in a manner that compromises jury independence and blurs the accepted dichotomy between judge and jury.
This language, moreover, is not essential in describing to a jury its crucial responsibility — the final determination of ultimate criminal guilt or innocence. Trial judges in all criminal cases should charge the jury generally in a manner that conveys to the jury an understanding of its essential and exclusive role. This entails determining the facts based solely on evidence presented at trial, making such fact-findings with respect *221to each essential element of the charged crime beyond a reasonable doubt, and accepting and applying to its particular factual determinations the law as it has been explained by the court. The jury should be made to understand that the honest and conscientious performance of these functions in fulfillment of its special role will enable it to reach a verdict of criminal guilt or innocence that will be considered valid and proper under the law.
To communicate this basic understanding to the jury it would, in my view, be appropriate to instruct the jury in relevant measure as follows: if the jury has independently determined that each essential element of the crime charged has been established beyond a reasonable doubt by the evidence presented in the course of the trial, then, under the law, (1) it has the responsibility to return a guilty verdict, or alternatively, (2) it should return a guilty verdict, or alternatively, (3) the State is entitled to the return of a guilty verdict. Although there may be other comparable formulations, I believe these proffered instructions achieve the objectives of conveying to the jury the essence of its responsibility to determine ultimate criminal guilt or innocence, providing the jury with firm guidance, vindicating the administration of criminal justice under law, and preserving jury independence.
While my views on the use of the so-called must-charge are different from the majority’s, I agree with the Court that a defendant is not entitled to an instruction advising the jury in a criminal prosecution of its unreviewable prerogative to acquit a defendant even though guilty-in-fact. Although we recognize that a judge is powerless in a criminal case to review and overturn a verdict of not guilty, we do not endorse the proposition that recognition of a jury’s prerogative to acquit in any case compels acknowledgement of a cognizable right or legally enforceable power in a jury to return verdicts contrary to the law as applied to proffered evidence. See United States v. Dougherty, 473 F.2d 1113, 1133-34 (D.C.Cir.1972); State v. Perkins, 353 N.W.2d 557, 561 (Minn.1984); State v. Collier, *222supra, 90 N.J. 117; People v. St. Cyr, 129 Mich.App. 471, 472, 341 N.W.2d 533, 534 (1983); Tavris, “The Law Of An Unwritten Law: A Common Sense View of Jury Nullification,” 11 W. State Univ.L.Rev. 97, 104 (1983). An explicit instruction that would require jurors affirmatively to consider such a prerogative possesses the countervailing potential of encouraging jurors to disregard their basic responsibilities of accepting the law as explained by the court, finding the facts beyond a reasonable doubt based solely upon evidence presented in the course of trial, and determining ultimate guilt or innocence in accordance with its fact-findings and the applicable law. See United States v. Dougherty, supra, 473 F.2d at 1136-37; United States v. Simpson, 460 F.2d 515 (9th Cir.1972); United States v. Moylan, supra, 417 F.2d at 1009; State v. Champa, supra, — R.I. at-, 494 A.2d at 106; Arshack v. United States, 321 A.2d 845, 851 (D.C.1974). However, it simply does not follow, from the absence of a right to an instruction that the jury may nullify the law, that no compulsion results from an instruction that the jury must convict. Even the leading judicial repudiation of a right to a nullification instruction, United States v. Dougherty, supra, 473 F.2d at 1138, concluded by noting that “[t]he jury were not told they must bring in a guilty verdict....” (Emphasis added.) Hence, while I disagree with the majority as to the effect of the must-charge, I am comfortable with the prevailing view, which recognizes that “tacit toleration of jury verdicts of innocence, in apparent contradiction to clear proof of guilt, affords adequate protection” of a defendant’s entitlement to a trial by an impartial and independent jury. United States v. Anderson, 716 F.2d 446, 450 (7th Cir.1983); United States v. Dougherty, supra, 473 F.2d at 1135; United States v. Simpson, supra, 460 F.2d at 519-20 n. 12; Watts v. United States, supra, 362 A.2d at 710 n. 5.
For these reasons, I dissent in part from the Court’s opinion, concurring in the balance of its opinion and its judgment reversing the conviction.
*223Justices POLLOCK and O’HERN join in this opinion.
HANDLER, POLLOCK and O’HERN, JJ., concurring in result.
For reversal —Chief Justice WILENTZ, and Justices CLIFFORD, GARIBALDI, STEIN, HANDLER, POLLOCK and O’HERN — 7.
For affirmance —none.
it is clear that a juror’s oath does not include any vow to return a guilty verdict when requisite evidence demonstrates guilt or a pledge not to acquit when confronted by such evidence of guilt. The general juror’s oath requires a juror only to uphold the federal and state constitutions and to swear that he or she does not advocate the violent overthrow of the government nor belong to any organization that so advocates. N.J.S.A. 2A:69-1.1. The oath administered to jurors selected enjoins the juror to give "a true verdict ... according to the evidence." N.J.S.A. 2A:74-6. This oath has survived virtually unchanged from the early common law, 3 W. Blackstone, Commentaries 365, and has coexisted with the accepted understanding of the juror's freedom of conscience in terms of determining ultimate guilt or innocence. See discussion, supra, at 217.