dissenting.
Richard Biegenwald was convicted of murder and sentenced to death. He challenges the constitutionality of the capital murder-death penalty statute, L. 1983, c. Ill, under which he was prosecuted. He claims that other errors occurred in the course of his prosecution and trial that require a reversal of his conviction and sentence. The majority sustains the murder *73conviction but reverses defendant’s death sentence. I would reverse defendant’s conviction as well as his sentence, and therefore dissent.
The Court, essentially for the reasons expressed in the companion case of State v. Ramseur, 106 N.J. 123 (1987), also decided today, upholds the constitutionality of the capital murder-death penalty statute. It also concludes that there was no reversible error occasioned by adverse pretrial publicity that was aggravated by the conduct of the prosecutor, or by the denial of a change of venue, or by the manner in which the voir dire examination of petit jurors was conducted. It further determines that there was no reversible error with respect to the trial court’s charge on “reasonable doubt” or the denial of defendant’s request to waive a jury in the sentencing phase of the trial. With respect to the trial on sentence, however, the Court finds that the trial court failed to give a correct instruction concerning the meaning and application of an aggravating factor critical to the determination of capital murder and did not properly instruct the jury as to the establishment and weighing of aggravating and mitigating factors, which errors created sufficient prejudice to require reversal of the death sentence and a remand for a resentencing trial at which defendant will face again the prospect of the death penalty.
I differ from the Court as to the constitutionality of the capital murder-death penalty statute. I expressed the opinion in Ramseur that the Court must examine the constitutional issues in terms of both the federal and State Constitutions. Particularly, the Court must analyze and apply state constitutional principles because federal constitutional doctrine relating to capital punishment is seriously flawed and because state sovereign concerns relating to the death penalty markedly outweigh any national interest in capital punishment or other concerns of federalism. I reasoned that state constitutional principles place the highest value on individual life and require the greatest protections when life itself is at stake; these principles, enhanced by considerations of fundamental fairness, *74impel the conclusion that the capital murder-death penalty statute is violative of state constitutional standards prohibiting cruel and unusual punishment and mandating due process. Because these major constitutional issues were fully considered by the majority and dissenting opinions in the Ramseur case, and are not further treated by the Court in this case, I have not here again addressed the constitutionality of the capital murder-death penalty statute.
In addition to differing sharply from the Court on constitutional grounds, I cannot agree with its determination that defendant’s murder conviction was not severely prejudiced by intense adverse pretrial and trial publicity, which was materially exacerbated by prosecutorial misconduct and was not cured by a change of venue or corrected by an adequate voir dire examination of jurors. I agree with the reasoning of the majority that reversible error occurred with respect to the trial court’s instructions on sentencing. However, because of the evidentiary insufficiency and incorrect charge relating to a material element of capital murder, namely, the aggravating factor of c(4)(c), I believe that the reversal of defendant’s death penalty sentence should be deemed an acquittal on the death sentence and constitute a bar to another trial seeking the death penalty.
These issues are the subject of this dissenting opinion. I address first the nature and extent of the adverse pretrial publicity, noting particularly its impact upon the selection of jurors. I then consider whether defendant was entitled to a change of venue, emphasizing the heightened standards governing the right to a fair and impartial jury in a prosecution for capital murder. This concern requires consideration of whether the voir dire examination was adequate to overcome the effects of prejudicial pretrial publicity and to assure defendant’s right to a fair and impartial jury in light of the fact that the trial court refused to change the venue of the trial. Finally, I review the grounds for reversing defendant’s death sentence and consider whether defendant, under state constitutional prin*75ciples of double jeopardy and fundamental fairness, can again be tried for the purpose of imposing the death penalty.
I.
Defendant claims that he was denied a fair trial before an impartial jury due to massive prejudicial pretrial and trial publicity, which was materially aggravated by the prosecutor’s needless and unjustifiable publicizing of the case prior to trial. Defendant contends that it was error to deny his motion to change venue in the face of such prejudicial publicity. He further contends that this prejudice was not otherwise overcome, particularly in that the trial court failed to conduct an adequate voir dire examination of jurors. Moreover, the court’s refusal in the voir dire to excuse several jurors for cause or to allow the attorneys to question prospective jurors or to permit defense counsel to challenge jurors for cause at side bar compounded the inadequacies of the voir dire.
These errors, defendant contends, violated his right to a fair trial under the due process guarantee of the fifth and fourteenth amendments and the sixth amendment right to an impartial jury under the federal Constitution, as well as Article I, paragraphs 1 and 12 of the State Constitution. A proper understanding of these issues and their resolution entails first a detailed exposition of the facts relating to the publicity surrounding the investigation and prosecution of the crime and its impact on prospective and selected jurors when the trial commenced.
A.
Media coverage of defendant’s crime was extensive, graphic, and sensational. During a three to four month period in the spring and early summer of 1983, there was widespread publicity about the defendant in newspapers distributed throughout Monmouth County, the vicinage in which the prosecution was brought. Newspaper articles linked the defendant to as many *76as seven murders in the area; they also disclosed the fact that defendant had a prior murder conviction. Front-page articles in the widely read Asbury Park Press during this period contained pictures of police efforts to find and recover buried bodies and maps to grave sites where bodies were found, as well as pictures of the shackled defendant; they also related interviews of persons who knew defendant and interviews of families of the victims. There were also news stories that focused on how forensic medical personnel identified unknown bodies through dental charts.
The sensationalism of this publicity was fed by the prosecutor himself. The prosecutor established a telephone “hot-line” number to receive calls from anyone with information about the murders or defendant and gave this significant publicity. Moreover, the press was specifically invited by the prosecutor to witness and report on investigations involving defendant. By the prosecutor’s own admission, some 200 reporters went to defendant’s mother’s house on Staten Island to observe and report on digging operations for bodies at that site. The prosecutor also held several press conferences. During one press conference a victim’s clothes, jewelry and dental charts were brought and were photographed and reported by the media. In another press conference the prosecutor clearly indicated that he believed that defendant was guilty. He also made numerous publicized comments concerning defendant’s motive for the murders and the events leading to the murders, giving the impression that these matters were factually true. One article, headlined “[Prosecutor] hoping stab victim adds to Biegenwald profile,” quoted the prosecutor as saying that investigators were concentrating on identifying a body “believed to be the fifth of [the defendant’s] victims.” (See Asbury Park Press, April 24, 1983 at 1, col. 1.) Among the prosecutor’s oft-repeated statements to the press were that defendant murdered his victim “for the sheer pleasure of seeing her die” (Asbury Park Press, May 5, 1983 at 1, col. 4); “because he wanted to see someone die that night” (Star Ledger, May 21, 1983 at 1, *779); “I guess she wouldn’t die til [sic] he shot her twice or more”; that four of his victims died because Biegenwald enjoyed killing people; and that he was a “perverted, sick individual” (Asbury Park Press, May 5, 1983 at 1, col. 4). As a result of such characterizations, defendant was referred to in headlines of the Trenton Times and Daily News as the “Thrill Killer.” News coverage relating to defendant’s involvement in these crimes was also presented on the radio and television.
In the wake of this adverse publicity, defendant brought a motion for a change of venue. The assignment judge denied this motion on July 29, 1983. However, the court did issue an order enjoining the prosecutor from making further comments to the press regarding non-indicted matters and from making inflammatory remarks of any kind. Nevertheless, the publicity again flared up on Sunday, November 13, 1983, the day before the trial began. On that day, the Asbury Park Press carried a front-page article on the upcoming trial, featuring a picture of the defendant, revealing his prior conviction, repeating the prosecutor’s statements on lack of motive, and linking the defendant to five other murders in the area. It is undisputed that some jurors read newspaper accounts of the trial in the jury assembly room before they were empaneled. Thereafter, press coverage remained constant, continuing on a daily basis and relating the details of the jury voir dire examination and the trial itself. The entire trial was televised.
There was a tangible impact from this publicity on the jury-selection process. Defense counsel objected to empaneling the jury and sought a change of venue on the ground that the prejudice from this adverse pretrial publicity could not be overcome and, further, that the voir dire examination of jurors would itself be insufficient to establish a basis for a change of venue.1 The trial court denied the motion, stating at one point *78that if fifty jurors said their deliberations would be affected by the publicity, the defendant would have “an argument” for a change of venue. At another time, the court stated that it would not entertain the motion to change venue until after the voir dire and that it would not grant the motion unless 250 prospective jurors said they could not be impartial.
The voir dire procedure was undertaken by the trial court between November 14 and 18, 1983. The examination purported to address the problems created by the pretrial publicity.* 2 The trial court instructed the prospective jurors not to discuss the case among themselves. The jurors were asked about the publicity to which they were exposed and whether such publicity would affect their determination of guilt. However, the trial court initially refused, over defendant’s objection, to question jurors about the details they recalled from the pretrial press accounts they had read; the court indicated it would consider asking the jurors only whether they were thinking about all the indictments, since the press reported them together. Defense counsel then moved unsuccessfully for a mistrial on the grounds that jurors were being seated who would give consideration to other crimes and because the court refused to allow *79the attorneys to state their cause objections at side bar, outside the juror’s hearing.
Before any peremptory challenges were exercised, sixteen jurors, who were not otherwise excused for cause, were seated. Throughout the voir dire, the court asked most jurors what they recalled; it sought to determine from their answers whether they knew about more than one murder or about defendant’s prior conviction. Nevertheless, the court ruled that it would not excuse anyone for cause unless the juror expressly stated that he or she could not be impartial. Defense counsel again moved for a mistrial, claiming that the voir dire conducted by the trial court was an insufficient basis on which to exercise challenges in a capital case.
About half of each panel was excused at the outset because persons could not serve for the four to six weeks that the trial court estimated the case would last. Ninety-five prospective jurors were questioned before the final sixteen-member jury was seated.3 Seven of these prospective jurors were excused, due to personal conflicts, before the court questioned the remaining jurors about what they read or heard about the case. Of the remaining eighty-eight who were questioned, forty-seven were exposed to significant pretrial publicity4 and recalled *80specific details—usually that there were several murders, that bodies were found buried in Staten Island or Monmouth County or that the defendant had a prior conviction. Thirty-five of the forty-seven were excused by the court because they said they could not render an impartial judgment in light of what they knew. Four of the remaining twelve were seated over defendant’s challenges for cause based on their exposure to publicity. Every challenge for cause made by the defendant was denied.
On the fourth day of voir dire, Ellen Pisnoy, a prospective juror, said that prior to the trial court’s instructions to the panel, potential jurors had discussed the fact that defendant was accused of several murders and the role of Mr. Fitzgerald, one of the State’s main witnesses. Fifty jurors had been questioned prior to this revelation but none had mentioned discussions among potential jurors. The trial court’s attempt to identify the jurors involved in these discussions consisted only of the same random questioning of prospective jurors on voir dire and general questioning of each juror about what was said, and by whom, among the waiting jurors. The fifty-fourth prospective juror, Michelle Hugo, confirmed during voir dire that even after the prospective jurors were seated, jurors were comparing recollections of newspaper accounts about how the defendant lured young women to go with him, how he had murdered them, and how he had been turned in by his friend.
Three potential jurors, Ruth Cooper, Elizabeth Megill, and Anne Ennis, revealed that they had given other prospective jurors details of defendant’s other alleged crimes. Ms. Cooper was specially called for questioning immediately after Ms. Hugo identified her, but Ms. Megill and Ms. Ennis were called as their numbers were randomly drawn from the box. These jurors were asked to identify those to whom they spoke, but the *81court’s questioning did not reveal all jurors who were thus exposed to the extra-judicial publicity.5
In all, nine persons who were exposed to significant pretrial publicity were seated with some members of the final jury before they were excused peremptorily by the defendant or State. That publicity was discussed extensively among prospective jurors, not all of whom were identified. One juror, Ms. Hugo, who knew nothing of the defendant before being called for jury duty but learned about several murders of young girls in courthouse discussions, served on defendant’s jury. Before the last juror was seated, defense counsel exhausted all twenty peremptory challenges.
B.
The primary issue generated by the extensive adverse pretrial publicity is whether this publicity was such that it jeopardized defendant’s constitutional right to trial by a fair and impartial jury. In dealing with this kind of issue in the context of a capital murder prosecution, we have stressed the need, under our State Constitution, for a strict standard that would be fully protective of a defendant’s significant jury rights in light of the importance of the interest at stake. State v. Williams, 93 N.J. 39 (1983).
*82The majority asserts that our review in this case is circumscribed because defendant, on this appeal, makes no complaint about the voir dire or about the trial court’s rulings on his challenges for cause, and because defense counsel failed to renew his motion for change of venue at the conclusion of the voir dire. I would not find any bar to our consideration of this important issue because defendant may not have made a clear or continuing objection to the trial court’s rulings. After all, “a life is at stake” and we will not pause “in the interest of justice to invoke the plain error rule ... and to reverse where the trial errors were impregnated with the likelihood of having harmed the substantial rights of the defendant.” State v. Mount, 30 N.J. 195, 213 (1959).
The Supreme Court has recognized that the denial of the right to a fair trial by an impartial jury can involve two kinds of cases. One consists of situations in which the defendant must demonstrate actual prejudice in the jury. See, e.g., Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952). The other involves cases in which the community or trial atmosphere is so corrupted by detrimental publicity that prejudice is inferred. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L.Ed.2d 424 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).
Our own test does not require a showing of actual prejudicial taint. This test is reflected in State v. Williams, supra, 93 N.J. 39, in which we ruled that the publicity must be such as to create the “realistic likelihood” that the defendant cannot obtain a fair trial before impartial jurors. The Court in Williams *83considered the right of the press to attend the pretrial bail and probable cause hearing of the defendants charged with capital murder, as against the defendants’ rights to a fair trial and impartial jury. The issue posed was whether the adverse publicity that would result from press access to such pretrial proceedings would irreparably impair the defendants’ right to be tried by an impartial jury. We ruled that the standard for this determination is whether “the trial court is clearly satisfied that there is a realistic likelihood that the defendant’s right to an impartial jury will be threatened by adverse publicity emanating from an open pretrial proceeding.” Id. at 63.
In Williams, the Court was not required to determine the actual effect of adverse pretrial publicity. It was the potential or anticipated prejudice from adverse publicity—that would result from press coverage of pretrial proceedings—that was the focus of the Court’s determination. In State v. Bey, 96 N.J. 625 (1984), a capital murder prosecution, the Court concluded that there was sufficient adverse pretrial publicity to jeopardize defendant’s constitutional right to a fair and impartial jury. We ruled that the trial court erred in not conducting a hearing to determine, under the Williams standard, whether there was a “realistic likelihood” of prejudice from this publicity that would require a change of venue or other extraordinary corrective measures.
Courts have considered several factors in determining whether the prejudicial effects of pretrial publicity are sufficient to undermine the right to a fair jury trial. These are: (1) the nature and extent of publicity—whether factual, inflammatory or referring to matters which are prejudicial and inadmissible at trial; (2) the length of time between the dissemination of the publicity and the trial; (3) the care exercised and the difficulty encountered in selecting a jury; (4) the prospective and final jurors’ familiarity with prejudicial, inadmissible information; (5) the resultant effect on the prospective and final jurors’ ability to deliberate impartially; (6) the defendant’s use of peremptory challenges to correct for publicity; (7) the prosecution’s respon*84sibility for the publicity; (8) the nature of the crime; (9) the population from which the venire is drawn; (10) the efficacy of a change of venue; and (11) precautionary or curative measures taken by the trial court to alleviate the effects of publicity. See Annotation, Pretrial Publicity in Criminal Cases As Ground For Change of Venue, 33 A.L.R.3d 17, 33, 38-78 (1970) (Supp. 1986) (collecting cases); Ranney, Remedies for Prejudicial Publicity: A Brief Review, 21 Villa.L.Rev. 819, 829, 32 (1976); Note, Community Hostility and the Right to An Impartial Jury, 60 Colum.L.Rev. 349, 361-65 (1960). Such factors are illustrative of the circumstances that are relevant in determining whether the prejudicial effects of pretrial and trial publicity in a given case create the “realistic likelihood” that defendant could not otherwise obtain a trial by a fair and impartial jury. Consideration of the undisputed facts in this case, informed by such factors, leads to the conclusion that defendant’s constitutional jury-trial right was undermined by this publicity.
As recounted, there was extensive prejudicial publicity about the defendant in newspapers distributed in Monmouth County during the spring and summer of 1983. When trial commenced in November, the publicity resumed and continued thereafter on a daily basis, while the jury remained unsequestered. The publicity was inflammatory and sensational rather than factual and objective. Particular prejudice inhered in newspaper articles that discussed several murders, in addition to the one for which defendant was being tried, and contained highly damaging and inadmissible information, such as the names, ages and locations of bodies of other murder victims. Further, the publicity was widespread and extensive; the same population that was exposed to the pretrial publicity constituted the source from which prospective jurors were drawn.6
*85This publicity was fueled by the prosecutor’s widely publicized personal comments regarding critical matters bearing not only on criminal guilt but on culpability as well; such as defendant’s absence of motive. As a result, the crime charged appeared especially shocking and the impact upon the public highly sensational. The actions of the prosecutor were intentional, not inadvertent, and surpassed any professional needs arising from the investigation and prosecution of the case itself. Indeed, this conduct violated the New Jersey Rules of Professional Conduct, 3.6. In Matter of Rachmiel, 90 N.J. 646 (1982), this Court construed the predecessor of this professional rule, Disciplinary Rule 7-107(B)(6), and concluded that it “prohibits an attorney involved in an ongoing criminal trial from making extra-judicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or merits of the case when such remarks are reasonably likely to interfere with a fair trial.” Id. at 657. In my view, the comments about defendant’s implication in other murders and his lack of motive for the murders and the prosecutor’s production of physical evidence at the press conference cannot be condoned in light of this ethics stricture. See In re Hinds, 90 N.J. 604, 622-23 (1982).
Although this case is not an ethics proceeding, it is nonetheless clear that the prosecutor’s conduct was not professionally justifiable or defensible; it was undoubtedly an added factor that contributed to the violation of defendant’s constitutional rights. This form of prosecutorial misconduct must be weighed *86heavily against the State in assessing defendant’s claim to a denial of constitutional rights and, more important, in determining what relief defendant is entitled to receive in order to repair the constitutional damage. See State v. Sugar, 84 N.J. 1 (1980).
The trial court did take some precautionary or curative measures, such as its imposition of a “gag order” and a short continuance of the trial. That the effect of the publicity was not overcome by these steps is evidenced by the news articles appearing the day before trial, repeating damaging and inadmissible information, including the prosecutor’s inflammatory comments. In addition, as evidenced by the voir dire examination, see supra at 75-81, the publicity had a tangible impact on prospective and selected jurors.
The extent and nature of the publicity, as measured by the relevant factors, created the realistic likelihood that a fair and impartial jury could not be obtained. Absent effective corrective measures, defendánt should have obtained a change of venue. The question, therefore, is whether the trial court’s voir dire examination served to neutralize the effects of the prejudicial publicity and secure an impartial jury.
C.
Courts have considerable flexibility in coping with the prejudicial effects of adverse publicity. The trial court may order an adjournment of the trial, a change of venue, or the empaneling of a foreign jury; they may also engage in a particularly thorough voir dire examination of prospective jurors. See State v. Williams, supra, 93 N.J. 39; State v. Allen, 73 N.J. 132, 161 (1977) (Pashman, J., concurring); State v. Trantino, 45 N.J. 37, 39-40 (1965). In State v. Williams, supra, 93 N.J. at 60-63, 67-68 n. 13, the premise of the discussion regarding juror taint and change of venue motions was that in cases preceded by extensive publicity, an “exhaustive and searching voir dire” is the linchpin necessary to empaneling impartial *87jurors, particularly where pretrial motions to change venue and sequester the jury have been denied. Id. at 68-69, 71 n. 18. In this case, the trial court refused to sequester the jury or to order a change of venue, or to require a foreign jury. Moreover, its short continuance of the trial and its imposition of a gag order after several months of adverse publicity were ineffective and did not prevent the resumption of adverse publicity. We turn then to the question whether the voir dire examination was itself sufficient to overcome the severe prejudice generated by the adverse pretrial and trial publicity.
Our own appellate role must be understood. This Court has recognized the need for the independent and scrupulous evaluation of the voir dire examination by the appellate court to resolve the claims raised by adverse pretrial publicity. See State v. Van Duyne, 43 N.J. 369, 386 (1964). In Sheppard v. Maxwell, supra, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, the Supreme Court has also considered the standard of appellate review where defendant complains that the community from which the jury was drawn was so tainted by publicity that due process and the sixth amendment were transgressed. The reviewing court must, in that situation, make an independent evaluation of the facts and circumstances regarding publicity and of the jury voir dire examination to determine whether the publicity was so pervasive and prejudicial or the jurors’ professions of impartiality sufficiently doubtful that a new trial is required.
A corollary of this Court’s ruling in State v. Williams, supra, is that if a defendant makes a showing of a realistic likelihood of prejudice from adverse publicity, he should be entitled to a change of venue. For that reason, we also considered in Williams the burden of proof necessary in order to secure a change of venue. In adopting the new standard of the “realistic likelihood” of jury taint, we specifically overruled the former test for a change of venue announced in State v. Wise, 19 N.J. 59, 73 (1955). That was “whether an impartial jury could be obtained from among the citizens of the county or *88whether they are so aroused that they would not be qualified to sit as a jury to try the case.” The operative standard now governing judicial review of a trial court determination that a defendant’s right to an impartial jury was not violated and a change of venue was not required is the substantive test of Williams and the procedural test of Van Duyne. Our standard in this kind of case is the Van Duyne requirement of an independent appellate evaluation of the record, applying the Williams “realistic likelihood” test for determining whether the jury right has been violated and a change of venue is required.
In my opinion, an independent evaluation of the facts relating to the nature and extent of the adverse pretrial publicity makes it abundantly clear that there was a realistic likelihood that defendant could not receive a trial by a fair and impartial jury, and that, in the face of this adverse publicity, the voir dire efforts of the trial court were ineffective to neutralize the effects of the resultant prejudice. Thus, it is reversible error for the trial court not to have granted a change of venue.
In denying defendant’s motion for a change of venue, the trial court obviously believed that the voir dire could be an effective antidote to the prejudicial publicity. The court relied simply on its own experience that every prospective juror would not have read every article or would forget what he or she read by the time the trial began. However, the prejudicial impact of adverse publicity on the jury became immediately evident. Both prospective and final jurors had become familiar with the case through the publicity, learning of both prejudicial and inadmissible information. As noted, more than half of the prospective jurors questioned about publicity recalled specific prejudicial, inadmissible information concerning defendant. The overwhelming majority of these jurors volunteered that they could not render an impartial decision. One juror who was finally seated knew that the defendant was accused of murdering several girls but nevertheless professed to be impartial.
*89Defendant argued at trial that the scope of the voir dire was not sufficiently exhaustive to reveal prospective jurors who knew and might be influenced by prejudicial and inadmissible information; as a result, defendant was unable to develop facts to demonstrate further the realistic likelihood of jury taint or to provide a basis on which to renew his change-of-venue motion after the voir dire examination or even intelligently to exercise challenges for cause during voir dire.
I find merit in this claim. The questioning of prospective jurors about publicity was, for the most part, too general to have elicited any acknowledgement from jurors that they knew of defendant’s prior conviction or his connection to five murders. Initially, the court’s questions proceeded directly from the juror’s exposure to publicity to whether the juror could render an impartial verdict, without any inquiry as to what the juror had read or heard about the case.7 Later, as a result of defense objections, and throughout the rest of the voir dire, the court asked each prospective juror what details he or she recalled from the publicity in connection with defendant’s name and whether he or she recalled any background information about the defendant. However, if a juror did not mention defendant’s prior conviction or link to other murders, the trial court simply went on to ask the juror only whether he or she would be impartial. There is a strong basis for finding this examination to be seriously deficient.8
*90Related to the inadequacy of the voir dire to elicit traces of bias on the part of jurors is the failure of the trial court to excuse several jurors for cause. Defendant challenged six prospective jurors for cause on the grounds that their exposure to publicity relating to inadmissible information rendered their impartial deliberation highly improbable, if not impossible, regardless of their own belief in their impartiality. Four of these jurors mentioned information that indicated they knew defendant was accused of several other murders or that he had a prior murder conviction. Five other prospective jurors, whose statements indicated they knew the defendant was linked to several murders or that he had a prior murder conviction, were seated without the defendant challenging them for cause. Two were peremptorily excused by the defendant, two were excused by the state and one served on defendant’s jury. The court questioned each of these nine prospective jurors and each juror professed that he or she could put aside the extraneous information and deliberate impartially.* *******9
The general test for excusing a prospective juror for cause is whether there is a strong likelihood or probability, grounded in human experience, that such an individual will be, or will *91appear to be, prejudiced. The criterion is not whether the prospective juror’s experience will necessarily or inevitably be prejudicial. See State v. Jackson, 43 N.J. 148, 157-58 (1964); Wright v. Bernstein, 23 N.J. 284, 295 (1957) (test is not whether irregular matter actually influenced the result, but whether it had the capacity for doing so).
The decision whether to excuse a prospective juror for cause lies within the discretion of the trial court because that determination is heavily dependent on a subjective evaluation of the juror’s credibility. See State v. Singletary, 80 N.J. 55 (1979). Nevertheless, this Court can decide on appeal that particular circumstances present such a strong likelihood of prejudice that, as a matter of law, prospective jurors should have been excused. See State v. Van Duyne, supra, 43 N.J. at 386 (appellate court required to independently determine whether publicity so pervasive and prejudicial, or juror’s protestation of impartiality so doubtful, that new trial is required); State v. Deatore, 70 N.J. 100, 105-06 (1976) (where juror had close relationship with victim, juror should have been excused); State v. Jackson, supra, 43 N.J. 148 (juror who was friend of key state witness should have been excused); Wright v. Bernstein, supra, 23 N.J. 284 (mistrial should have been declared in accident case in which juror’s mother was plaintiff in unrelated personal injury case heard in court that day); Panko v. Flintkote Co., 7 N.J. 55 (1951) (new trial required where juror learned amount of defendant’s liability insurance during trial). A prospective juror’s professions of impartiality, good faith, and fair actions are not necessarily controlling. See Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756 (1961) (jurors who thought defendant was guilty before trial should be excused for cause even though they said they would deliberate impartially).10
*92It cannot be overemphasized that the substantive and procedural protections necessary to assure the vindication of a defendant’s constitutional rights—under the State Constitution, particularly as enhanced by considerations of fundamental fairness—must be maximized in a prosecution for capital murder. See State v. Ramseur, supra, 106 N.J. at 369-382 (dissenting opinion). With respect to the cluster of rights surrounding the need for jury fairness, capital cases require a higher standard than that applied in ordinary cases or by the trial court here. See State v. Williams, supra, 93 N.J. at 61 (requirement of fairness and jury impartiality is heightened in eases in which the defendant faces death) (citing Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392, 403 (1980)); State v. Jackson, supra, 43 N.J. at 156; State v. Mount, supra, 30 N.J. at 213; State v. Wynn, 21 N.J. 264, 271 (1956). With respect to whether, in capital cases involving prejudicial publicity, jurors should reasonably be excused for cause, the Court in Williams, supra, 93 N.J. at 68-68 stated:
The [trial] court could consider whether there should be a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause. Particularly in capital cases, the trial judge should exercise extraordinary care in the voir dire of potential jurors and could excuse for cause any juror who *93has been exposed to sensational prejudicial publicity, especially where such exposure is repeated and involves patently inadmissible evidence. (Footnote omitted.)
We added in Williams, supra, 93 N.J. at 61, that jurors who have formed an opinion as to guilt or innocence must be excused, and that “only if it is demonstrated that ‘the juror can lay aside his impression or opinion and render a verdict based on the evidence’ presented in court will extraneous exposure to the facts of the case not be grounds for automatic disqualification.” Id. (quoting State v. Sugar, supra, 84 N.J. at 23, and Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)).11
In my opinion, error was inherent in the trial court’s refusal to excuse these nine jurors for cause. As already recounted, Ms. Hugo, a juror, knew defendant was implicated in other murders. In addition, the other eight prospective jurors—who shared Ms. Hugo’s knowledge—sat with some of the actual jurors in the jury room for varying periods of time before being excused. Jurors knew about the defendant’s prior murder conviction and that he was connected with or accused of several recent murders other than that for which he was being tried. This strongly suggests that inadmissible information may have come to the attention of the defendant’s jury, serving to consciously or unconsciously influence the prospective jurors toward either the guilty verdict, the death penalty or both. Under these circumstances, there is an extremely strong likelihood, grounded in human experience, that such jurors would be prejudiced despite their sincere belief in their own impartiality. *94See Irvin v. Dowd, supra, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.12
As a result of the trial court’s erroneous failure to excuse jurors for cause, defendant was required to use peremptory challenges to remove jurors. All of defendant’s peremptory challenges were exhausted. By forcing defendant to use his peremptory challenges to excise the effects of prejudicial publicity from the jury, the trial court denied defendant his full complement of peremptory challenges. It is practically axiomatic that the denial of a peremptory challenge is the denial of a substantive right. See State v. Singletary, supra, 80 N.J. at *9562-63. Moreover, in a capital murder prosecution, the loss or diminution of this right is more significant than in an ordinary criminal trial. The Court may suffer the reduced right in an ordinary case, e.g., State v. Singletary, supra; it should not countenance it when a defendant’s life is at stake.
Finally, as related to the deficiencies of the voir dire, defendant contends that the trial court improperly denied his requests to hear challenges for cause, due to exposure to pretrial publicity, out of the hearing of the prospective juror who was being challenged. Defendant asserts that the act of openly challenging a juror’s claim of impartiality prejudiced the juror against the defendant.
I do not consider this a picayune or captious complaint. When the seventh prospective juror, Mr. Cross, was questioned, he said he would be impartial although he had read prejudicial news stories. The court refused to ask defense counsel’s follow-up questions or to allow him to challenge the juror at side-bar. Defense counsel then challenged the juror for cause, in his presence, which challenge was denied. Two more jurors, the fourteenth and fifteenth, Mr. Allocco and Ms. Herron, posed similar problems. Defense counsel requested that he be allowed to state his reasons for challenge on the record at side bar, out of the hearing or presence of the jurors. The requests were denied, as were the subsequent challenges for cause. Defense counsel then moved for a mistrial based on the alleged improper ruling on the cause challenge, as well as the asserted prejudicial effect of challenges made before the jurors. The trial court denied the motion for a mistrial, and defense counsel subsequently excused peremptorily each of these jurors.
Concededly, to the extent the trial court’s rulings were discretionary, the defendant must demonstrate that the court was mistaken in the exercise of this discretion. See State v. Smith, 55 N.J. 476 (1970). Here, it is clear that there was an abuse of *96discretion.13 The defendant took the position consistently in pretrial motions and throughout the voir dire that there were many prospective jurors who knew of defendant’s link to at least four other murders. With respect to the examination of three jurors, defense counsel was required to express, in their presence, his reasons for believing they could not be impartial even though they obviously believed that they could be. In effect, defense counsel was forced to argue before these jurors that he did not find them credible and that they should not be believed. Moreover, defense counsel was curtailed in stating his objections and compelled to present his position elliptically in order not to offend the jurors and to avoid reinforcing what the jurors already suspected or knew about the murders. Finally, defendant had to be guarded in his remarks in order to minimize the risk that they would be publicized in the press.
It is not illogical or imaginary to conclude that the psychological conditioning resulting from a challenge may act subconsciously to impede a juror’s ability to reach a verdict solely upon the evidence before him. See State v. Simon, 79 N.J. 191, 199-202 (1979). Here, the trial court’s decision to hear cause challenges in open court in the presence of the challenged juror adds to this negative influence. The evidence of mistake is *97confirmed by the fact that the State agreed with defendant that such challenges for cause should be heard out of the presence of jurors and the court eventually relented.
In my view defendant’s challenges for cause were erroneously denied; the incremental prejudice attributable to juror challenges for cause in the presence of the challenged juror merely adds to the reasons for reversal attributable to the inadequacy of the voir dire examination.
D.
In sum, it is abundantly clear that there was massive detrimental pretrial and trial publicity that was so prejudicial it created the realistic likelihood that defendant could not obtain a trial by a fair and impartial jury. The violation of defendant’s constitutional rights was more egregious because the State, through the prosecutor, intentionally encouraged and added to the pretrial publicity. This not only underscores the violation of the constitutional right, but also influences the nature of the relief to which defendant is entitled. Defendant was entitled under the circumstances to a change of venue.
Since the trial court did not order a change of venue, the violation of defendant’s constitutional right to a fair and impartial jury went unrepaired. The procedures leading to the empaneling of the jury were wholly ineffective to overcome the impact of prejudicial publicity or to surmount the realistic likelihood that a jury could not fairly and impartially try the defendant. It further appears that defendant was forced to exercise all peremptory challenges to excuse jurors who should have been removed by the court for cause and that this was a denial of defendant’s full opportunity to secure a fair and impartial jury. The risk of jury bias was further increased by instances in which defense counsel was improperly compelled to argue grounds for the excusal for cause in the presence of jurors.
*98For these reasons, I conclude that defendant did not obtain a trial before a fair and impartial jury. His conviction of murder and death sentence must be reversed.
II.
The Court reverses the defendant’s death sentence. It determines that there were several errors that seriously prejudiced the sentencing proceedings which mandate a reversal of the death penalty. It nevertheless concludes that defendant may be retried as to sentence and that he again may be exposed to the imposition of the death penalty. The Court, in my opinion, neglects to apply constitutional principles of double jeopardy and precepts of fundamental fairness, which under the circumstances presented, bar a retrial for purposes of seeking the imposition of the death penalty.
At the penalty phase of the trial, the prosecutor sought to have the jury consider whether two aggravating factors had been established by the evidence. One aggravating factor was defendant’s prior conviction for murder, section c(4)(a); the other was that the murder was outrageously or wantonly vile, horrible or inhuman, section c(4)(e). With respect to the aggravating factor under c(4)(a), the prosecutor submitted in evidence a certified copy of defendant’s 1959 murder conviction. The prosecutor offered no additional evidence to establish the aggravating factor under c(4)(c), relying upon the evidence that had been adduced at the guilt-phase of the trial. In support of aggravating factor c(4)(c), the prosecutor in summation argued that four bullet wounds to the head constituted an aggravated battery.
At the sentencing phase of the trial, the defense focused entirely on establishing mitigating factors. Defendant presented a forensic psychiatrist who had made a complete evaluation and diagnosis of defendant during three visits in October and November, 1983. He testified that defendant suffered from a severe personality disorder known as anti-social personality *99with paranoid traits. He stated that as a result of this disorder, defendant lacked the capacity to appreciate the wrongfulness of his acts or to conform his conduct to the requirements of the law. On summation, the defense counsel stressed defendant’s mental illness as well as his personal history.
In its charge to the jury, the trial court explained that aggravating factors must be found beyond a reasonable doubt, but that the jury had only to be “satisfied” that a mitigating factor existed. The court further instructed the jury, over the prosecutor’s objection, that all of the mitigating factors had to be weighed against each aggravating factor proved. However, the court did not instruct the jurors that in order for the death penalty to be imposed' they must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. As the majority points out, the trial court’s charge with respect to the burden of proof and the weighing of aggravating and mitigating factors was in error, requiring a reversal of defendant’s death sentence. Ante at 53-67.
The prosecutor, as noted, took the position that defendant was guilty of capital murder deserving the death penalty because he committed an aggravated battery in the course of murdering his victim, thereby satisfying c(4)(c). The trial court instructed the jury that to find this aggravating factor, the jury must conclude that the murder “involved either torture or conduct indicating a depraved mind or ... was so savagely outrageously cruel and violent that the adjectives wantonly, vile or horrible or inhuman are justified.” In other words, the trial court simply reiterated the language of the statute, without further definition or explanation. Moreover, the court did not explain what constitutes aggravated battery.
After deliberating for an hour, the jury requested an additional explanation of aggravating factor c(4)(c). The court replied that in order to satisfy c(4)(c), only one of the three conditions—torture, depravity of mind, or an aggravated battery—had to exist. After several more hours, the jury re*100turned a verdict. The jury found that both of the charged aggravating factors existed beyond a reasonable doubt. As to mitigating factors, it found that the defendant was not under the influence of extreme mental or emotional disturbance, but that his capacity to appreciate the wrongfulness of his act or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect. In addition, the jury found that another factor or factors relating to the defendant’s character or record or to the circumstances of the offense also constituted a mitigating factor. Finally, the jury found that neither aggravating factor was outweighed by the combination of mitigating factors. Consistent with the trial court’s instructions, this verdict led to a sentence of death.
The theory of the prosecution in this case was that the aggravating factor of c(4)(c) was satisfied because the murder was accompanied by an aggravated battery. This Court now rules that “aggravated battery” means serious physical harm or severe pain to the victim by means of an act that precedes death and does not serve to cause death instantaneously. See State v. Ramseur, supra, 106 N.J. at 207-209. The Court concludes that the evidence of an aggravated battery was insufficient. I agree.
Contrary to the State’s contention, under the facts of the present case, evidence of four bullet wounds to the head is insufficient to establish an aggravated battery for purposes of determining capital murder. In Patrick v. Georgia, 449 U.S. 988, 101 S.Ct. 522, 66 L.Ed.2d 285 (1980), the Supreme Court vacated the defendant’s death sentence where the defendant struck the victim six times in the head, but it was impossible to tell which blow killed him; the Court ruled that there was insufficient evidence of battery. The majority properly holds that there was insufficient evidence of an aggravated battery for the jury to conclude that the aggravating factor of c(4)(c) was established. Ante at 50.
*101Nevertheless, the Court rules that there was sufficient evidence to show that the defendant committed this murder with “depravity of mind,” and that this would satisfy aggravating factor c(4)(c). In the companion case of State v. Ramseur, supra, 106 N.J. 128, the majority explains that “depravity of mind” can consist of several states of mind or mental conditions, and can be found without any evidence of torture or an aggravated battery. Id. at 208-210. In this case, the Court would define depravity of mind as existing when “the only purpose defendant had in killing the victim was to enjoy the act of killing itself and that he had no other reason for killing Ms. Olesiewicz other than wanting to kill.” Ante at 50. For the reasons expressed in my dissenting opinion in Ramseur, I believe that the Court’s definition of “depravity of mind” is utterly vague and incapable of reliable and consistent application. Ramseur, supra, 106 N.J. at 400-402 (Handler, J., dissenting).14 Be this as it may, under the circumstances of this case, I am satisfied that it would violate double jeopardy and fundamental fairness to retry defendant for the purpose of seeking to impose the death penalty.
*102The State’s theory was that the murder was committed under circumstances that demonstrated “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim,” constituting the aggravating factor c(4)(c). The prosecutor relied primarily if not exclusively upon evidence of “an aggravated battery” to establish that the crime was “outrageously or wantonly vile, horrible or inhuman.” The majority sets aside the jury verdict finding that the murder was outrageously or wantonly vile, horrible or inhuman because it was based upon insufficient evidence of aggravated battery. Nevertheless, the Court authorizes a retrial of defendant to enable the State once again to try to establish that the homicide was a c(4)(c) capital murder.
The State should not be permitted to retry the defendant for a crime as to which we have ruled the evidence at the first trial was insufficient. Double jeopardy principles clearly prohibit the State from retrying a defendant for the same crimes based upon evidence that was itself insufficient. This is firmly established as a matter of federal double jeopardy doctrine. See, e.g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We have similarly recognized the bar of double jeopardy against successive prosecutions for essentially the same crime. State v. Tropea, 78 N.J. 309 (1978); State v. Lynch, 79 N.J. 327 (1979). Double jeopardy as a matter of federal constitutional law also has been held to apply to the specific context of the sentencing phase of a capital murder trial. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).
The Court, however, determines that there was other evidence to establish c(4)(c), namely, evidence constituting “depravity of mind.” But because this evidence was improperly presented to the jury to support the aggravating factor c(4)(c), the Court sets aside the jury’s finding of the aggravating factor. The Court concludes that a retrial to establish a c(4)(c) *103murder relying on this evidence would not run afoul of double jeopardy. I disagree.
To allow the State in this case another opportunity to establish defendant’s homicide as c(4)(c) capital murder would be to retry defendant for the same crime that was the object of the first prosecution. I think it is indisputable that under our capital murder-death penalty statute the aggravating factors are essential elements of the crime of capital murder. Unless a murder is shown to have been committed under circumstances constituting an “aggravating factor” under the death penalty statute, it will not constitute “capital murder” for which the death penalty may be imposed. As I pointed out in my dissenting opinion in Ramseur: “The aggravating factors act as specifications of the class [of capital murder]; they form, in effect, elements of the offense defendant must have committed to come within the class.” Ramseur, supra, 106 N.J. at 393 (Handler, J., dissenting) (emphasis added). The majority itself recognizes that the aggravating factors constitute elements of the offense of capital murder, “that functionally the aggravating factors in the Act are indistinguishable from the elements of a crime.” Ramseur, supra, 106 N.J. at 226 n. 27. See Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976); State v. Silhan, 302 N.C. 223, 275 S.E.2D 450 (1981). “Capital murder” embraces a unique degree or quality of culpability. The level or quality of culpability for capital murder is defined by the “aggravating factors.” Hence, under the Code of Criminal Justice aggravating factors are “element[s] of an offense”, defined by the Code to mean the “conduct” or “attendant circumstances” “as [establishes the required kind of culpability.” N.J.S.A. 2C:l-14h. See State v. Goodman, 92 N.J. 43 (1983).
Under well-settled principles of double jeopardy, the subsequent prosecution for an offense that is based upon the same elements involved in an earlier prosecution is barred. See State v. Dively, 92 N.J. 573 (1983). Here there is no material differ*104ence as to the elements of the crime that will be retried—it is capital murder as defined by the aggravating factor of c(4)(c).
The State should not succeed in its argument that on retrial it seeks to rely on evidence of “depravity of mind” rather than of “aggravated battery” to establish c(4)(c). That cannot make a difference in this case. To the extent the evidence earlier relied on was found to be insufficient to support an aggravating factor that would elevate murder to capital murder, the result must be deemed to have been an acquittal of the death penalty, surely barring a retrial to reestablish that aggravating factor. See Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270. With respect to the contention that the State will rely on other—sufficient—evidence on a retrial, the answer to this assertion is that the State still seeks to retry defendant for the same crime, namely, a e(4)(c) murder. Double jeopardy applies here because it applies to bar a successive prosecution of either the same crime and or a crime that has the same elements of the earlier offense. See State v. Dively, supra, 92 N.J. 573. It may be that the evidence to prove that a murder is “vile, horrible or inhuman” may vary. It can consist of proof of torture, or depravity of mind, or aggravated battery. Nevertheless, the crime itself is not different depending on differences in evidence; in other words, c(4)(c) capital murder has but one essential element or “aggravating factor.” Thus, just as the State may not in any other context retry a defendant for the same crime, the State should not in the context of a capital murder prosecution be given an opportunity to retry defendant for purposes of establishing the same aggravating factor.
I am convinced that the views articulated by Justice Marshall in his dissent in Poland v. Arizona, — U.S. -, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), express the principles of double jeopardy that must apply, under our State Constitution, in a capital murder prosecution in these circumstances. There, as here, aggravating factors function as specifications of the class of capital murder and, in effect, form elements of the offense. *105The Supreme Court held that a resentencing hearing in a capital case is not barred by double jeopardy when the appellate court rejects the sole aggravating factor found by the sentencer; the Court ruled that the failure of the sentencer to find other alleged aggravating factors is not an “acquittal” of these factors for double jeopardy purposes. In dissent, Justice Marshall stated: “In no other circumstance would the Double Jeopardy Clause countenance the offer of a second chance to the State and the trial judge to find a better theory upon which to base a conviction.” Id. at-, 106 S.Ct. at 1758, 90 L.Ed.2d at 136 (Marshall, J., dissenting). We ourselves would not countenance a retrial in such circumstances. State v. Tropea, supra; State v. Lynch, supra.
Under these circumstances, principles of double jeopardy and fundamental fairness prohibit the State from trying defendant again to attempt to establish that the murder is a c(4)(c) capital offense.15 For reasons similar to those I expressed in State v. *106Ramseur, I would bar a retrial seeking the death sentence and enter a judgment of life imprisonment.
III.
I have already expressed at length my reasons for concluding that the capital murder-death penalty statute is unconstitutional. See State v. Ramseur, supra, 106 N.J. at 345-408 (Handler, J., dissenting). These reasons, in my estimation, fully apply to this prosecution and would warrant a reversal of the conviction and death sentence.
In this case additional compelling reasons call for such reversal. The massive highly prejudicial pretrial and trial publicity, unjustifiably aggravated by the prosecutor’s misconduct in publicizing the case, rendered impossible a trial by a fair and impartial jury in the vicinage. The court failed to take any effective measures to cure the prejudice occasioned by the publicity. Further, because of the errors involved in the presentation of evidence and jury instructions in the sentencing phase of the trial, defendant, on grounds of double jeopardy and fundamental fairness, should not again be retried for purposes of imposing the death penalty.
The significance of this case impels me to make an added observation. Murderers like Richard Biegenwald pose the greatest challenge to the fairness, impartiality and integrity of our judicial system. The terrifying personalities of such murderers, their inscrutable compulsions, their seemingly irrational, random actions take more than their victims; they exact a debilitating toll on all of society, reducing to nothing the most cherished right of life itself. A public perception that our legal system leaves society unprotected against such people, or fails to register society’s outrage at their actions, undermines both *107respect for the Constitution and, ultimately, belief in the values embodied in the Constitution.
This kind of case puts the judiciary to supreme tests. It exposes judicial attitudes as well as judicial principles. It shows that noble principles are not enough. Principles can be betrayed by a want of conviction. Principles of law serve us only in their application; wrong applications are no better than unjust principles. Here the principles that we summon are those that recognize the importance of individual life and the need for scrupulous protections before a life—any life, including that of an unrepentant murderer—can be taken by the State. One such protection has to do with a fair and impartial jury. The assurance of a fair and impartial jury is not easy to achieve. Vigilance requires that community outrage over a defendant’s crimes not be allowed to infect the jury that will deliberate the defendant’s fate, particularly where life is at stake. We are guided by that principle here. We falter in its application, however, when we allow a defendant to be tried before a jury in which the risk of prejudice is so real. Justice is disserved as much by a failure to follow right principles as by a failure to recognize them.
APPENDIX
There follows excerpts of the voir dire of nine jurors who knew about defendant’s prior conviction or other murders but were accepted by the trial court based on their expressed belief that they could deliberate impartially. The voir dire examination of these jurors is recounted in detail to illustrate the inadequacy of the voir dire in light of the massive adverse pretrial and trial publicity.
(a) Ms. Herron
Mary Herron originally stated that she had some knowledge of the case and recognized the defendant’s name in connection with what she read in the Asbury Park Press.
*108[THE COURT] Q: Do you recall reading anything in the newspapers that you told us about Mr. Biegenwald’s prior background?
[THE JUROR] A: Yes. There was some mention of that.
Q: What you you recall being mentioned?
A: That he had previously been arrested for a crime and also in his childhood he had—I think I may have read that he had been institutionalized as a child or a young person.
The Court then asked Ms. Herron seven questions to determine whether she would be affected by what she knew; she maintained that she would not and volunteered that she didn’t believe everything she read in the newspaper and that there were two sides to every Story. At the end of Ms. Herron’s voir dire defense counsel asked for additional questions about what else the veniremember recalled.
[THE COURT] Q: If there is anything more you recall about reading about it in the newspapers, tell us.
[THE JUROR]: About this particular case?
MR. DIAMOND: About Mr. Biegenwald.
A: I did hear on the radio some time after the original arrest, the incident on Staten Island I heard on the radio news.
Q: Something on Staten Island?
A: Yes. But that’s all.
Q: In my questions to you I was trying to have you include everything that you have heard having to do with Biegenwald.
A: No. It was really like a second time I heard something pertaining, you know, to him.
Q: What did you hear then?
A: In fact I turned on the tail end of of it, that there was some digging in Staten Island and the name was mentioned, but—
Q: Anything again that may have been mentioned then about Mr. Biegenwald’s background?
A: Not at that time, no.
Q: And the only background that you did hear was that which you read in the newspaper that you have repeated to us already?
A: Yes.
Q: All right. The questions I asked before about affecting your judgment, I certainly mean them to include anything you have ever heard on the radio or read in the newspaper. Did you understand them that way?
A: Yes, I did.
THE COURT: Okay, Mr. Diamond?
MR. DIAMOND: I’d just like to know a little bit more about what she knows as to the digging in Staten Island, your Honor.
*109THE COURT: I won’t inquire. If you wish to exercise a challenge for cause, I will hear that.
In open court defendant challenged Ms. Herron for cause on the ground that she would give consideration to other crimes committed by the defendant based on her statement about the diggings on Staten Island. The trial court summarily denied the challenge. Defendant peremptorily excused Ms. Herron two days later.
(b) Mr. Forse
James Forse, Jr. had read articles, although not recently, in the Asbury Park Press about the case.
[THE COURT] Q: What do you remember reading? What sticks out in your mind? There were a lot of things in the paper, but what do you remember?
[THE JUROR] A: Well, the case in Ocean Township was the one that I remember mostly.
Q: What do you remember of it?
A: About the girl being found in the back of the—the fast food place in Ocean Township.
Q: And do you recall any of the names that were mentioned in connection with that in the newspapers?
A: Only the name of the girl, and I think Fitzgerald and the defendant. Q: Do you recall any details about Mr. Biegenwald’s background that you may have read in the papers?
A: No, not too much I don’t think, no. Yes, I recall the fact that he had been convicted and served time for a crime.
The trial court then asked Mr. Forse four questions to determine whether what the juror knew from the publicity would have any effect on his deliberations. Mr. Forse maintained that he would not be affected. Defense counsel challenged Mr. Forse for cause on the grounds that he knew about the defendant’s prior conviction although the defendant was not going to testify and that he knew specific facts of this case from the newspaper. The court said that, in its evaluation, the juror was sincere, that he has thought about it and that that’s the best that can be asked of a human being. Counsel argued that the juror would not ignore that knowledge. Alternatively, defense counsel requested that the court inquire further about the publicity and the nature of prior conviction. The State agreed *110although it maintained that knowledge of a prior conviction is not grounds for excusing a juror for cause.
BY THE COURT:
Q: Mr. Forse, we are interested in one area, and that is you said that you have read in the newspapers that Mr. Biegenwald had a prior conviction.
Anything more specific than that in your mind?
A: Only that it was for murder.
Q: Now, you know obviously that’s that and you know it. Do you think that is going to affect your ability to judge him in this charge, which is also a charge of murder?
A: No, I don’t think so.
Q: That’s a very important consideration, you know.
A: (Nodding affirmatively.)
Q: Before I forget, if per chance you are ultimately selected as a juror on this case, there should never be any discussions of that fact by anybody in the jury room.
A: I understand it.
Q: Unless the fact is something that comes out in this courtroom.
A: Yes.
Q: Because otherwise it is just rumor.
A: Um-hum.
Q: You understand?
A: (Nodding affirmatively.)
THE COURT: All right. With all the discussions in mind that we have had on the record, I will not grant the challenge for cause.
Defense counsel peremptorily excused Mr. Forse later that day.
(c) Mr. Supple
Michael Supple stated that he had read about the case months before in the Daily Register and heard about it on the radio commuting to and from work.
[THE COURT] Q: Okay. From those sources what details do you recall? There is a lot of stuff thrown in the paper. Some stuff you hear on the radio. But what do you remember hearing?
[THE JUROR] A: Well, I remember hearing that they had arrested Mr. Biegenwald and that he was imprisoned and [ ] up in Staten Island there was some type of burial whatever, a burial area and a gentleman who was with him, an accomplice to some degree, a parent or relative, and just that they were— they had apprehended Mr. Biegenwald, and something about—I believe it was his wife, they have her detained, and she was pregnant or something along those lines.
*111I really didn’t follow it diligently, but [ ] something like that.
Q: Do you recall any details about Mr. Biegenwald’s background that you may have read or heard?
A: No, other than he lived in Asbury Park and—no, I don’t really recall too much of it, sir.
The trial court then asked Mr. Supple four questions to determine whether what Mr. Supple knew about the defendant would affect his deliberations. The juror maintained that it would have no effect. Defense counsel requested that the court probe the juror about his reference to the defendant’s being imprisoned and about the burial area in Staten Island. Defense counsel also indicated that he challenged the juror for cause, which was denied.
BY THE COURT:
Q: [] In the course of discussing what you had read in the papers or had heard you mentioned that Mr. Biegenwald had been in prison. Had you seen that?
A: No. I meant he was taken to prison.
Q: Taken to prison—
A: When he was apprehended.
Q: I thought that was the context in which you used it. Okay.
In Staten Island you mentioned something about a burial. What do you recall about a burial situation in Staten Island?
A: Ugh, the only thing I recall was that they and found bodies.
Q: Did you see anything on television or was that something you read in the newspaper?
A: I believe it was strictly the newspapers, sir.
Q: And then you also mentioned in connection with that something about accomplice.
What do you recall about that?
A: Well, what it could be considered as an accomplice is someone who—who Mr. Biegenwald was affiliated with.
Q: Someone who helped him out?
A: Someone who helped him out, an accomplice.
Q: That’s what you meant by that?
A: Yes, sir.
Q: And do you recall a name? Do you associate a name with that accomplice?
A: No, sir.
Q: You do not?
A: (Nodding negatively.)
THE COURT: Okay. All right. I will rule that the challenge for cause be denied in connection with Mr. Supple____
*112Defense counsel peremptorily excused Mr. Supple the following day.
(d) Ms. Ellen Carroll
Ellen Carroll originally stated that she had some knowledge of the case and recognized the defendant’s name and face from the pictures and captions in the Red Bank Register or the Star-Ledger. She also recalled that defendant’s wife had a baby.
[THE COURT] Q: Now, you say you recall little or nothing about what you read. What do you recall, if I were to press you for your memory of details?
[THE JUROR] A: It’s hard to separate from what I recall from reading and what I have heard since I have been here.
Q: Try to do that and then we will ask you what you have heard since you have been here. But try to make the separation first.
A: Oh, if I’m not mistaken there is a young girl in her teens that was murdered. I remember—I recall a picture in the paper. They were digging up a yard and about Diane having the baby. But other than going into the nitty gritty of it, I wasn’t really involved in it.
Q: Do you recall specifically any reference to Mr. Biegenwald’s background?
A: No, I don’t.
Q: Now, you say what you were told and what you heard when you go here. That means after you got here Monday morning. What did you hear?
A: I heard that he had been arrested for it.
Q: For what?
Now, wait a minute. Someone—somebody was shot before. Somebody was murdered before.
Q: What else did you hear, if anything?
A: He was on parole at the time that this happened. You hear so much. So much goes through—
Q: Well, all right. The so much that you heard, did you hear that before the jurors were brought up to this courtroom and I began telling them about the case?
A: No. I think they were talking about it before we were even selected for the case, because someone said this case was coming up.
Q: And that is when the discussion arose?
A: Then everybody of course has input.
Q: A buzz buzz kind of thing?
A: Um-hum.
The trial court then asked Ellen Carroll two questions to learn whether what she heard in the juror assembly room or what she read in. the newspapers would affect her deliberations. *113She maintained that it would not, volunteering that she would have to make her own decision.
At the end of Ellen Carroll’s voir dire, defense counsel requested further questioning about defendant’s prior murder conviction, what she learned from other jurors on the panel, and her statement about the yard being dug up to see if she knew there was more than one body. Except for the last, the court agreed to inquire.
BY THE COURT:
Q: [] You mentioned that when you first came here and people were saying something about the Biegenwald case and started talking about it—
A: Um-hum.
Q: (Continuing) somebody mentioned Mr. Biegenwald had another conviction, or what did they say to you?
A: Well, they had said—I can’t repeat it word for word—that he had been in trouble before.
Q: You said something about parole.
A: And evidently he was on parole when this happened.
Now, I don’t know if these facts are right. I’m just telling you what I heard.
Q: All right. Once you hear something it is there.
A: Um-hum.
Q: Do you think that having heard that, that if you sit as a juror on this case before the case even starts you might have a feeling that maybe he did something as far as this case is concerned, maybe it is so?
A: No. I’d have to hear the facts for myself.
Q: Okay.
A: To make my own opinion up. As I say, I have heard so much. You hear so much. People just are guessing at a lot of things.
Q: So much about this case?
A: About this case or any case or anything?
Q: People do talk.
A: People talk, um-hum.
Q: But you are saying to us whatever it was that you heard you could put aside?
A: I’d want to hear it from someone in authority, someone who I thought knew.
Q: And if you didn’t hear it here in this courtroom you wouldn’t, or would you, allow it to somehow or other intrude on your ultimate decision?
A: No. I’d have to hear it from someone who really knows what they are talking about.
Q: In this courtroom?
A: Um-hum.
*114Q: Because as far as a juror is concerned, anybody outside this courtroom hasn’t the foggiest idea of what they are talking about.
A: You are right.
Defense counsel asked for further questions because the juror had heard “so much.” The court refused and denied the challenge for cause on the grounds that the juror was not precommitted to any position. The defendant peremptory excused Ms. Carroll the following day.
(e) Ms. Patterson
Sylvia Patterson knew from the Asbury Park Press that the defendant was accused of murder.
[THE COURT] Q: Do you recall ever hearing anything on the radio or seeing anything on television about the Biegenwald matter?
[THE JUROR] A: Yes.
Q: What do you recall seeing?
A: Just the Staten Island incident where they discovered whatever it was, you know. And, well, see, I don’t watch the news that much. It was just on one of the channels. It was there and it caught your attention and you keep going and it’s not—
Q: Do you recall any other details from what you have have read or what you may have seen on television other than what you have told us so far?
A: By details you mean, you know—
Q: Specifics as to what happened or what he is supposed to have done, that sort of thing, whatever the newspapers said as you remember it.
A: No, ’cause I don’t even remember how many people it is he is supposed to have—you know, it’s something once and it wore off. I didn’t even think of it again.
Q: Do you as a person accept the proposition that when someone is accused of committing a crime, as far as the law is concerned it is assumed they didn’t do it and that the burden is always on the State to prove that he did do it?
A: Yes.
Q: You accept that?
A: Um-hum.
The court then asked the juror two questions to learn whether her deliberations would be affected; she denied any effect. Neither party challenged Ms. Patterson for cause. She was peremptorily excused by the State the following day.
*115(f) Ms. H. Johnson
Hilda Johnson knew about the case from the radio and newspaper but did not connect defendant’s name with it until she got to court.
[THE COURT] Q: Okay. What did you read in the paper and hear on the radio or what do you remember?
[THE JUROR] A: About the happenings.
Q: When you say the happenings, what details do you remember?
A: About various—uh, things he was connected with; them finding the people that were buried.
Q: But you didn’t—you didn’t associate that with the name Biegenwald?
A: No.
Q: Biegenwald meant nothing to you?
A: No.
********
Q: Okay. So that do you remember any of the details of the background of that person from reading the newspapers or hearing it on the radio?
A: I don’t know about the background.
The trial court then asked the juror two questions to learn whether her deliberations would be affected, but she denied the publicity would have any effect. Neither the State nor the defendant challenged the juror for cause, although the court did not specifically ask whether either wished to challenge for cause. In fact, the defendant did not challenge anyone for cause after the 36th juror was accepted. When Judge McGann asked for challenges, each party simply alternated making their peremptory challenges; until that time, every challenge for cause by the defendant had been denied. At side bar, both the State and the defendant requested further questioning about the death penalty and the juror’s statement about “finding bodies,” respectively. The Court cut defense counsel off for “being nonsensical” when he asked for a ruling between a prior juror’s statement about “mass murders,” which prompted further questions and the court’s refusal to ask more questions after this juror mentioned “finding bodies.” Defendant peremptorily excused Ms. Johnson later that day.
*116(g) Ms. Hugo
Michelle Hugo actually served on the jury. She said knew nothing about the defendant before she appeared for jury duty but learned details from other prospective jurors.
[THE COURT] Q: After you came here Monday morning did any of the jurors before they were assembled and before they sat down, did any of the jurors talk about this case?
[THE JUROR] A: There were a few. I have heard mentioned that name, that [] they heard the trial they were supposed to be picking jurors, whatever. They never—none of them talked to me about [] the trial itself, what had happened or anything. They just mentioned the name and then the only thing I heard was what you had told when we were in the other room. And then of course [ ] that roused up people and—
Q: What I told you when you were in the other room, and I roused up people?
A: Um-hum.
Q: What was that?
A: When you told what the case was about.
‡*******
Then I guess, you know, they started talking about it.
Q: After I told them not to talk about it they talked about it?
A: Yes, yes.
Q: What did they say?
A: Well, they all had different stories. None of them—I don’t think any of them really had—[] had it all straight or anything. Everybody [] was talking about different things. One person heard this. One person heard that. They never—the stories really—never really matched or anything.
Q: And this was in the other courtroom when you were waiting there?
A: Yes.
Q: What did you hear?
A: [ ] One girl was saying how she [ ] was reading about it in the newspaper, whatever, and a couple of us had said [ ] well, we don’t know anything about it [ ] and being that we are not supposed to talk about it[ ] and she said, “Well, I heard this, that, and the other thing,” “about this girl and this girl.” And [ ] it was just—and then it was like—“Well, I’m not to say anything so I won’t say anything.”
Q: Can you identify that person for us?
A: Um—Ruth—I don’t know her last name.
Q: Ruth?
A: Yes.
Q: Okay. And what was she saying that you recall?
A: Um, she said something about how he [ ] how he had killed them. How he had gone about like luring them or [] getting them to go with him or—and, *117ugh—oh—and about a friend of his or something, [ ] how he went to the police or whatever and told them about what he knew.
Q: Was this Ruth the only one who was talking in that fashion or were others giving little tidbits?
A: There were others, others that knew it, yes.
Q: I’m sure there were others that knew about it. What were they saying about it?
A: Ugh, they were more or less comparing what they read. They were— “Well, I read this newspaper and this newspaper said this,” and, “Well, I read this one. This one said this.” And they were just like comparing what they knew between each other.
Q: Did any of those notes that they were comparing or any of the little information that they were contributing have anything to do with Mr. Biegenwald’s background?
A: No no.
Q: Is there anything that you heard them that gave you a mind set which you feel might affect your ability to judge this case fairly on what you hear in this courtroom?
A: No. Because, um, I very rarely go by what the newspapers will say before a trial. I don’t believe in prejudging people. I don’t—I very seldom pick up a newspaper, because all different newspapers have different stories and it would just—it wouldn’t [] allow you to think clearly if you were to go by what everybody says, because nobody really has the true facts, the true honest facts about the trial or anything.
Q: Let me ask you this: This case that we are trying concerns one incident. Apparently what some of the people were saying there referred to other incidents.
A: Yes.
Q: Do you think the fact that there was reference to other incidents might have a capacity to affect your judgment sitting on this case?
A: No, because you are just dealing with one. The other ones aren’t—don’t have anything to do with this case.
Q: How extensive would you say were these discussions of Ruth or whoever else was comparing notes with Ruth?
A: They—they brought the other things into it.
Q: How long did that last?
A: I guess until—well, that was just the first day when we were sitting by ourselves. After we had found out what the case was about and, um, after a couple of us who hadn’t known about what was going on had [ ] said, “Ruth, you’re not supposed to talk about it,” whatever, I think she got the idea too, [ ] not to talk about it or whatever.
Q: She was the principal big mouth from what you say?
A: Where I was sitting.
Q: All right. But you feel that whatever you heard you would be able to put aside and not allow to affect your judgment if you sit as a juror?
*118A: That’s right.
Neither party challenged Ms. Hugo for cause nor peremptorily excused her.
(h) Ms. Kelly
Kathy Kelly knew nothing about Mr. Biegenwald until she read the article in the Asbury Park Press on Sunday, November 13, 1983.
[THE COURT] Q: Now, what knowledge did you have of the case, when did you acquire the knowledge and from what source?
[THE JUROR] A: It was Sunday from the Asbury Park Press. Someone called me up and said that they are picking jurors for a murder trial and I laughed because I hadn’t heard about anything. So then my mom made it a point to stick the paper in front of me so I would read the article so that I wouldn’t be considered basically. So I read it briefly, but I didn’t—I always sort of pass over that information in the paper anyway.
Q: Your mother put the paper in front of you.
What do you remember reading in the paper?
A: I read that, um—that Mr. Biegnewald supposedly talked to somebody, in the Asbury Park Press, and then later they found the body of other things that had happened. But of the case at hand, it really didn’t go into that much.
Q: Did it go into at all the background of Mr. Biegenwald?
A: Something that—something about 1958, about he had been in prison at one time.
Q: Do you recall for what?
A: For murder of a District Prosecutor or something like that.
The trial court then asked Ms. Kelly two questions to learn whether her deliberations would be affected by what she knew. She said no and volunteered that she believed everyone was innocent until proven guilty of the particular crime, and that depended on what was presented. The court then continued his questioning.
Q: All right. Also in the newspaper was there something about other—other things?
A: There were about others, but I didn’t want to read the rest and I didn’t. I sort of stopped reading it.
Q: Other what?
A: There were about other murders that were—that was going to be tried succeeding this jury.
Q: Okay. Then you are aware there are other charges of murder against Mr. Biegenwald?
*119A: Right.
Q: Do you feel that if you were a juror on this case judging this case, that that information about his background might affect your ability to judge this case?
A: Um, I don’t feel it will, but—I—I guess—nobody knows exactly how they are going to feel when they start hearing testimony.
Q: No one ever does. But what we are asking is an honest self-appraisal.
A: No, I don’t think it is going to affect me.
Q: The fact of Mr. Biegenwald’s prior conviction—I think I covered that a little bit—but if I didn’t—
A: Did that affect me?
Q: Right.
A: No.
Q: You could say, “It is something we will put aside and we will concentrate on what is here,” is that it?
A: Yes.
Q: You think so? You honestly think you can do that?
A: The only reason why I am hesitating at all is just because of—I guess, as you say, the inconvenience of staying here through this and having my boss getting upset with me.
In regards to being a fair and honest juror, I think I could be able to sit through the information that is given at this trial and not—not listen to anything else.
Q: After you came here Monday when the jurors were assembling and getting seated and organized and that sort of thing, did any of the other jurors talk to you about this case or did you overhear any of the other jurors talking about the case?
A: Everyone—I really doubt if anybody—I can’t speak for other people, but everybody was speaking about it.
Q: All right.
A: Speaking about what they heard. Somebody wanted to speak to me today and I said, “Leave me alone. The judge said not to talk about it.”
Q: Okay. That’s helping. But in the assembling process—now we are concentrating back then on Monday.
A: People were speaking about, “Did you see the guard on top of the building?” when we were walking in in the morning.
Q: Right.
A: And then reading—somebody had read the papers the other night.
Q: Do you recall any details that you overheard them discussing?
A: Um, one person had read the article about the first juror saying that they believed a life for a life.16 Another person had just discussed the processing, coming into the courtroom and out of the courtroom.
*120Q; I’m looking for any detail about the background of the case, the underlying facts of the case, that sort of thing.
A: Actually nobody really wanted to talk about that part. They were just talking about whether we were going to go through the picking process.
Q: Then remember you were part of a general panel pool available for trials.
As you sat there did anyone talk to you about this case or did you overhear anyone talking about the case? And we are talking not, just, you know, the cases going on in the courthouse, but details about the incident itself.
A: Um, not actually about this case. It was more about—about the other cases, about having people—the proceeding cases that are going to come up about having bodies found in his mother’s lawn or something.
Q: ’ Do you recall whether they were jurors who were just in that general pool or were they maybe persons who had been excused as jurors from here and had gone back?
A: No. It was everybody—I’m sorry. It was the people in the general pool before they had come.
Q: All right. Again is there anything that they told you, all these little tidbits that may have been passed around, whatever they may have been, that you feel would accumulate and add to whatever other information you had and then have the capacity to affect your judgment as a juror?
A: Um, my honest feeling is that for this case, the stuff for this individual case, for what I read and what I heard, there wasn’t any evidence that—I mean, it wasn’t substantial that he was the killer in this case; but it was my feeling that after so many—incidents, it is highly probable he is guilty of one of these crimes.
Q: How about highly probable of being guilty of this crime?
A: From what I read and what I talked about this crime, he talked to somebody and then there was a body. But I saw no connection in between.
Q: All right. As far as a connection is concerned, whether there is or is not, do you feel that you could sit as a juror and listen to all the evidence that is presented in this case and then make that determination, is or is not, based on what you hear in the courtroom and disregarding anything else you may have heard or read.
A: Yeah, I feel so.
Q: It is important to us that you give us that honest feeling. You understand that, right?
A: Yeah.
No one challenged Ms. Kelly for cause; she was peremptorily excused by the State later that day.
*121(i) Mr. Revill
Bertram Revill stated in his jury questionnaire that he, recognized the defendant’s name.
[THE COURT] Q: Now would you tell us what information, what knowledge you had of the case before you got here on Monday?
[THE JUROR] A: Uh, just that the girl was missing from the Boardwalk in Asbury Park and that they had found the body a couple of days later, and about the bodies in Staten Island.
Q: Okay. And Mr. Biegenwald’s name in connection with that?
A: Right.
Q: The Staten Island connection, did that have any connection in your mind with your sister working over in Staten Island?
A: No, sir.
Q: And did you read that in the newspapers, get that information from the newspaper or from television or from a combination?
A: A combination.
Q: What papers would you have read do you think?
A: It would be the Star Ledger.
Q: And then maybe television, too?
A: Right.
Q: Okay. The fact that you mentioned, quote, bodies in Staten Island—we are dealing with one case—do you think that the plural, the bodies that you mentioned might affect’ your judgment sitting on this case?
A: No, sir.
The trial court then asked Mr. Revill five questions to learn whether he could be fair and impartial despite what he had heard or knew about the defendant. Mr. Revill said that “I think so” twice, and twice said “no” when asked if his judgment would be affected. Then questioning continued.
Q: Once you got here as a juror and all the jurors were coming together in the assembly room downstairs and before you were kind of organized into groups, did any of those jurors talk with you about this case or did you talk with any other jurors about this case?
A: There has been mention of it.
Q: All right. Did people mention it directly to you or did you overhear that, or both?
A: Both.
Q: Okay. What was mentioned to you?
A: Just basically that the case was being held here.
Q: Okay. What did you mentioned to anybody else?
A: Just, you know, basically what I knew.
*122Q: Did you exchange that information that you just told us about with other jurors?
A: Oh, yes.
Q: Did you say like, “Oh, this case has to do with a girl disappearing from the Boardwalk in Asbury Park”?
A: Yes.
Q: “And bodies in Staten Island”?
A: No.
Q: You didn’t mention that?
A: No. It never came up.
Q: Do you recall any information regarding Mr. Biegenwald’s background? A: Yes.
Q: What do you recall about that?
A: That he had been in prison prior.
Q: For what?
A: For murder.
Q: Did you read that in the newspapers?
A: Yes.
Q: You didn’t get that information here?
A:
Q: Do you think that fact might stick in the back of your head and affect your judgment if you sit as a juror on this case?
A: No, sir.
Q: Do you think you could really put that aside and again stick with what you hear in this courtroom?
A: Yes, sir.
Q: We are talking about jurors kind of talking among each other. You are talking about what people said to you and what you said to other people.
Did you ever overhear other jurors discussing, talking, whatever you want to say, about the case?
A: Yes, sir. I just mentioned it.
Q: Okay. I thought it was you and another juror.
A: You said overheard or talked.
Q: Overheard, okay. And did you overhear any details being exchanged among the jurors?
A: Uh, no, sir.
Q: Just generally they knew this was a case. There was a murder case or some sort of big case they are here for?
A: Yes.
* * * * * * * *
Q: Then as far as you are concerned, from all that you have heard, whatever input you have, do you feel that if you sat on this case you could give a fair shake, be fair and impartial both to Mr. Biegenwald and to the State in coming to your decision?
A: I think so.
*123Q: And put aside whatever gossipy stuff or whatever you heard?
A: Yes, sir.
Q: Including those other items that we talked about?
A: Nodding affirmatively.)
********
A: Right.
Q: Do you think that that basic perception about the presumption of innocence as it is called would be affected in your mind by the fact that you know that he had a prior conviction of murder?
A: Can you repeat that?
Q: He is presumed to be innocent when he goes to trial here.
A: Yes, sir.
Q: You understand that.
A: Right.
Q: Now, do you think the perception you have of that principle, the presumption of innocence, would be affected because you know that he had a prior conviction of murder?
A: No, sir.
Q: You could keep that completely separate and apart?
A: Yes, sir.
[THE COURT]: Okay. All right. Then I am satisfied and Mr. Revill can then take chair number____
Mr. Revill was peremptorily excused by the defendant as soon as he was accepted by the court.
For affirmance —Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
For reversal —Justice HANDLER-1.
On the first day of jury voir dire, November 14, the trial court denied several of defendant’s motions relating to the empaneling of a jury. These *78motions sought to sequester the jury during the Thanksgiving week after jury selection but before the trial, and to allow the attorneys to conduct the voir dire. The court also refused to ask whether the juror’s determination of guilt would be affected by defendant’s choice not to testify unless the defendant, who had not yet decided whether to testify, made an election at that time.
In connection with the general voir dire, the defense and prosecution attorneys were required to submit any additional questions they wanted to have the court ask the jury. The court made a few exceptions, however, allowing counsel to ask one or two follow-up questions. Prospective jurors were questioned about their family, education, occupation, prior contacts with law enforcement, whether they had been victims of crime, generally whether they could apply the law even if they disagreed with it, their feelings about capital punishment and ability to vote for the death penalty, whether they would automatically vote for a death penalty (if the juror’s initial answer suggested this), and whether they would consider both the death penalty and life imprisonment as options in the penalty phase. Some prospective jurors were asked whether television cameras in the courtroom would bother them.
Defense counsel thought the court would allow further voir dire after the initial 16 jurors were seated. After the first peremptory challenge was used, another juror was questioned outside the presence of jurors already selected, and so forth. When the first panel from the general jury assembly room was exhausted, a second panel was brought in and instructed by the court not to discuss the case. When this panel was exhausted, the third panel was called but was not similarly instructed; however, by this time only one more juror was needed to complete the jury. Each new panel waited in another unused courtroom that was-apart from the voir dire proceedings and the general jury assembly room.
Jurors who said merely they knew defendant’s name, knew he was accused of the Olesiewicz murder, or other facts about this case were not considered exposed to significant pretrial publicity. Only jurors who expressly mentioned their recollection of several murders or bodies or that defendant had a prior murder conviction were considered exposed to significant pretrial publicity *80since these matters were inadmissible at trial, except for the prior conviction at the sentencing phase.
After Ms. Cooper was questioned, the jurors already seated on the jury were brought into the courtroom and asked, in Ms. Cooper’s presence, if they had had discussions about the case or had spoken to Ms. Cooper. They denied such discussions. Then the general panel was brought in and Ms. Cooper identified those to whom she spoke, who, in turn, were questioned on bias. In Ms. Megill’s case, she said 10 or 12 jurors were in her discussion group and had "come to conclusions already.” She could name only two of those involved, however. These two were questioned the next day on bias and excused by the court. Ms. Ennis said she gave details of the crimes to about six potential jurors in the panel, but could recall only two names. One was questioned and excused on other grounds, while the other had been excused on the first day due to family illness. Neither the already-seated jurors nor the balance of the general panel was brought before Ms. Megill or Ms. Ennis so that others involved in the discussions could be identified.
In 1980, Monmouth County’s “over 18’’ population was 359,254. Its total population was 503,175. Its July, 1983 total population was 515,181, a slight increase over the 1980 figures. See N.J. Dept, of Labor, Office of Demographic and Economic Analysis, Official State Estimate, Population Estimates for New *85Jersey: Revised Estimates, July 1, 1982 and Provisional Estimates, July 1, 1982 and Provisional Estimates, July 1, 1983 (Sept. 1984). Thus, jurors were drawn from an adult (over 18) population of Monmouth County of approximately 360,000 or slightly more, in 1983. The Monmouth County adult readership of the Asbury Park Press, in which the greatest number of prejudicial articles appeared, was 115,276 (daily) and 162,513 (Sunday) in 1982 and slightly higher, adjusted for the population increase, in 1984. Thus, as much as one-half of the population from which the jury pool was drawn was exposed to highly prejudicial information in the Asbury Park Press on the day before trial.
For example, prospective juror, Mr. Cross, said he read articles in the Asbury Park Press about the defendant, including a particular article that appeared the day before trial, which mentioned the prior conviction and link to other murders. Yet because Mr. Cross did not refer to any of these specific facts on voir dire and said he would be impartial, the trial court denied the defendant’s challenge of Mr. Cross for cause.
The ABA’s “Standards Relating to Fair Trial and Free Press” are instructive as to the adequacy of voir dire for purposes of exposing the prejudice resulting from adverse publicity. They provide:
(a) Method of examination.
*90Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial materia), the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors____ The questioning shall be conducted for the purpose of determining what the prospective juror had read and heard about the case and how his exposure has affected his attitude towards the trial, not to convince him that he would be derelict in his duty if he could not cast aside any preconceptions he might have.
See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press 3.4(a) (approved ed. March, 1968) [hereinafter ABA Standards],
The Appendix to this opinion, infra at 107, recounts the examination of these nine jurors. It is included to illustrate the inadequacy of the voir dire examination to ferret out the prejudicial effects of the pretrial publicity as well as to provide a basis for concluding there was a strong likelihood that these jurors had been prejudiced by pretrial publicity.
The ABA Standards relating to empaneling fair juries address the tests for determining whether a juror exposed to adverse pretrial publicity should be excused for cause, viz:
*92(b) Standard of acceptability.
Both the degree of exposure and the prospective jurors’ testimony as to his state of mind are relevant to the determination of acceptability. A prospective juror who states that he will be unable to overcome his preconceptions shall be subject to challenge for cause no matter how slight his exposure. If he has seen or heard and remembers information that will be developed in the course of trial, or that may be inadmissible but is not so prejudicial as to create a substantial risk that his judgment will be affected, his acceptability shall turn on whether his testimony as to impartiality is believed. If he admits to having formed an opinion, he shall be subject to challenge for cause unless the examination shows unequivocally that he can be impartial. A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to his testimony as to his state of mind. [See ABA Standards, supra, 3.4(b).]
This standard is comparable to the ABA standards that call for a reasonable likelihood test and require no showing of actual prejudice in the jury. The ABA standards also provide that where a motion to change venue is made or reconsidered after the jury is selected, the fact that the jury satisfies prevailing standards of acceptability is not controlling if the record shows that the reasonable likelihood standard was met. See ABA Standards, supra, 3.2. See discussion, supra, at 91-92 n. 10.
The psychological and social science research on the effects of publicity on juror prejudice is not entirely conclusive, but casts serious doubt on whether jurors can ignore prejudicial information relating to the defendant obtained outside the courtroom despite curative instructions. At least two studies posit that jury instructions can eliminate or reduce the effect of prejudicial publicity on jurors’ deliberations. See, e.g., Simon, "Does the Court’s Decision in Nebraska Press Association Fit the Research Evidence on the Impact on Jurors of News Coverage?,’’ 29 Stan.L.Rev. 515 (1977); Kline and Jess, “Prejudicial Publicity: Its Effect on Law School Mock Juries," 43 Journalism Q. 113 (1966). However, other studies indicate that such cautionary instructions are ineffective or counter-productive. See, e.g., Padawer-Singer, Singer & Singer, “Voir Dire by Two Lawyers: An Essential Safeguard,” 57 Judicature (1974); PadawerSinger & Barton, "The Impact of Pretrial Publicity on Jurors’ Verdict," The Jury System in America: A Critical Overview (Simon ed. 1975); Doob, “Evidence, Procedure, and Psychological Research,” Psychology and the Law: Research Frontiers (Berman, Nemeth & Vidmar, eds., (1976)); Sue, Smith & Caldwell, "Effects of Inadmissible, Evidence on the Decisions of Simulated Jurors: A Moral Dilemma," 3 J. Applied Soc. Psych. 345 (1973); Sue, Smith & Gilbert, “Biasing Effects of Pretrial Publicity on Judicial Decisions,” 2 J.Crim. Justice 163 (1974); Tons & Chaffee, "Pretrial Publicity and Juror Prejudice," 43 Journalism Q. 647 (1966); Wolf & Montgomery, “Effects of Inadmissible Evidence and Level of Judicial Admonishment to Disregard On the Judgment of Mock Jurors," 7 J. Applied Soc. Psych. 205 (1977); Oros & Ellman, “Impact of Judge’s Instructions Upon Jurors' Decisions: The Cautionary Charge in Rape Trial," 10 Representative Research Soc. Psych. 220 (1977); Broder, “The University of Chicago Jury Project,” 38 Neb.L.Rev. 744 (1959). The foregoing studies suggest that rather strong empirical evidence exists for the proposition that jurors are influenced by prejudicial publicity and carry that bias into jury deliberations, regardless of the court’s instructions or their sincere belief in their own impartiality.
In State v. Smith, supra, 55 N.J. 476, the first time counsel asked to make a challenge for cause at the bench he was permitted to do so and the challenge was sustained, the second time the trial court told him to make his challenge in open court and it was also sustained. On appeal, this Court observed that the trial court, knowing its probable ruling in the second instance, may have wanted to save time. Later, defense counsel made challenges for cause without requesting permission to come to the bench. When at one point counsel said that he felt compelled to exercise peremptory challenges because the court had instructed him “that challenges for cause could not be heard at side bar,” the trial judge said "I did not say that." Id. at 483. Later, when counsel asked, he was again permitted to come to the bench for the purpose of making a challenge for cause. This Court concluded that the trial court had not made any general ruling prohibiting challenges for cause at side bar, that the subject was within the trial court’s discretion, and that no prejudice to the defendant had been shown. Id. In this case, the trial court not only barred side bar conferences, it refused to excuse the challenged jurors for cause.
The Court’s definition of “depravity of mind” does not follow the original rule of the Georgia courts that required a state of mind that led the murderer to commit torture or an aggravated battery on the victim before death. See Godfrey, 446 U.S. 420, 431, 100 S.Ct. 1759, 1766, 64 L.Ed.2d 398, 408 (1980). Instead, the Court’s interpretation more closely resembles Florida's construction of its "heinous” factor: "a conscienceless or pitiless crime.” See State v. Dixon, 283 So.2d 1 (Fla. 1973). However, even under Florida law, the murder in this case might not be considered “heinous.” In Jackson v. State, 451 So.2d 458 (Fla.1984), the defendant picked up McKay for a drive and shot him in the back; the defendant put McKay in a plastic bag and placed him in the trunk apparently while he was still alive. McKay was later shot again and the body dropped off a bridge; the record contains no evidence that McKay remained conscious for more than a few moments after the first shot. It was held that McKay was incapable of suffering to the extent contemplated by this aggravating circumstance. In Clark v. State, 443 So.2d 973 (Fla.1983), the defendant shot a disabled elderly woman in head and she later died; there was no evidence that she was conscious after being shot, or in any pain. The Court ruled that helpless anticipation of impending death for an instant is insufficient to establish this aggravating factor.
Under the facts of this case, I think it would be contrary to fundamental fairness to subject defendant to another sentencing hearing, even if the State were to base its request for the death penalty only on the prior conviction aggravating factor, c(4)(a).
The Court has found that the trial court’s instructions regarding the c(4)(c) aggravating factor were improper and that the evidence at the trial did not support the jury’s finding of the c(4)(c) aggravating factor. The jury did find that aggravating factor c(4)(a) also applied to defendant and that this factor alone was not outweighed by the mitigating factors. This fact, however, would not be determinative on a retrial as this Court has held that the State must meet a higher burden of proof: that the aggravating factors must outweigh the mitigating factors beyond a reasonable doubt. Ante at 53. Also, the jury’s finding must be considered to have been tainted by “the potentially prejudicial influence that an unsupported instruction could well wield in jury deliberations." State v. Christener, 71 N.J. 55, 71 (1976).
Without this taint, the jury may have reached a different weighing regarding the mitigating factors and the one remaining aggravating factor. The trial court’s error thus deprived defendant of an opportunity to secure a jury finding that could have avoided the death penalty. When the State acts improperly in the sentencing phase of a capital case, fundamental fairness requires that the State not be allowed to subject the defendant again to the risk of being *106sentenced with death. See State v. Ramseur, 106 N.J. 460-468 (1987) (Handler, J., dissenting).
The Asbury Park Press article on Tuesday, November 15, 1983 reported, inter alia, that the very first juror questioned on voir dire said she believed in *120"a life for a life." She was excused because she said she would automatically vote for the death penalty.