dissenting.
In this case, and in the companion case of State v. Biegenwald, 106 N.J. 13 (1987), decided today, we are called upon to consider the constitutionality of the death penalty at a crucial moment in the history of our Constitution. The cases arise against a backdrop of renewed awareness of and heightened sensitivity to the integrity of our State Constitution. This deeper insight into the reach of the State Constitution is considered by many to be the most significant development in contemporary constitutional law. See, e.g., Pollock, “State Constitutions As Separate Sources of Fundamental Rights,” 35 Rutgers L.Rev. 707, 722 (1983). The constitutional questions presented by the capital murder-death penalty statute have been acknowledged to be as significant as they are complex. See Special Project: “The Constitutionality of the Death Penalty in New Jersey,” 15 Rutgers L.J. 261 (1984). Further, we consider the role of the State Constitution in these singularly important cases against a strong tide of federal retrenchment from well-established protections of individual rights. These cases, therefore, present both a constitutional challenge and an opportunity.
The Court’s response is disappointing. By yoking the State Constitution to the federal Constitution at this time and in these cases, this Court limits regrettably the scope of individual constitutional protections; further, it arrests the progress we have made in expounding our Constitution. The harm done by failing to give full effect to our State Constitution transcends, *344therefore, that which flows from cases only incorrectly decided. With its decision today, the Court fails to meet the challenge to vindicate individual rights, and squanders the opportunity to deepen our understanding of the Constitution.
The Court upholds the constitutionality of the capital murder-death penalty statute, L. 1982, c. Ill; N.J.S.A. 2C:ll-3. It concludes that the legislative scheme satisfies both federal and State constitutional standards, including those implicating the respective constitutional doctrines prohibiting cruel and unusual punishments and mandating due process. The Court also concludes that the actual prosecution and conviction of the defendant for capital murder under this statute were, with one exception relating to an aspect of the jury charge on sentencing, free of reversible error. The Court determines, among many other matters, that the selection and qualification of both the grand and petit juries did not violate the constitutional protection assuring a criminal defendant a fair and impartial jury, and, further, that there was no constitutional infirmity in the statutory scheme by which a defendant’s guilt is determined by a death-qualified jury. The Court, in addition, discounts a number of other claimed trial-level errors, regarding the use and effect of a prior non vult plea to murder, prosecutorial misconduct relating to critical defense testimony and an aspect of the court’s charge on sentencing.
The Court reverses, however, the imposition of the death sentence. It finds irremediable prejudicial error in the trial court’s instructions that had the effect of coercing the jury into reaching a unanimous verdict resulting in the death penalty.
I find myself in disagreement with many of the Court’s determinations. I choose, however, to deal only with those matters I deem most serious and important. The most significant area of disagreement relates to the constitutionality of the capital murder-death penalty statute. I find it essential therefore to explain the role of the State Constitution in a case such *345as this and to examine the principles that should govern our understanding and application of the State Constitution.
On the merits of the constitutional issues, I direct attention first to whether the statute’s capital punishment scheme violates the state constitutional provisions relating to cruel and unusual punishment and due process as enhanced by the New Jersey doctrine of fundamental fairness. I then deal with those issues arising out of defendant’s trial and sentencing whose resolution in this case warrant additional grounds for reversal. Certain of these issues relate to the composition, selection and qualification of the grand and petit juries, and the use of a death-qualified jury to determine criminal guilt. Other issues concern the relevance and effect of defendant’s prior non vult plea to murder and the impact of prosecutorial misconduct upon defendant’s murder conviction and death sentence and the effect of certain improper prosecutorial comments combined with certain aspects of the trial court’s sentencing charge to the jury.1
Finally, I consider the issue of whether the trial court impermissibly coerced the jury to reach a decision mandating the death penalty and whether, as the Court determines, the death sentence must be reversed on this ground. I then address the proper grounds for vacation of the death sentence.
I.
It is well-understood that this State has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the federal Constitution.” Prune-*346yard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980). Appreciation of their own sovereignity, and of the institutional constraints that the Supreme Court faces, impels states to consult their own constitutions as distinctive and independent sources of fundamental rights. See Pollock, supra, 35 Rutgers L.Rev. at 714—15; Williams, “In the Supreme Court’s Shadow: Legitimacy of State Regulation of Supreme Court Reasoning and Result,” 35 S.C.L.Rev. 353, 389-404 (1984); Sager, “State Courts and the Strategic Space Between Norms and Rules of Constitutional Law,” 63 Texas L.Rev. 959 (1985).2 This Court has not hesitated to find for its citizens greater protections than are afforded under the federal Constitution. See, e.g., State v. Novembrino, 105 N.J. 95 (1987); State v. Gilmore, 103 N.J. 508 (1986); State v. Hunt, 91 N.J. 338 (1982); Right to Choose v. Byrne, 91 N.J. 287 (1982); State v. Alston, 88 N.J. 211 (1981); State v. Schmid, 84 N.J. 535 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); State v. Bellucci, 81 N.J. 531 (1980).
This imperative of constitutional interpretation is especially important in areas particularly suited to state action. As the majority acknowledges, ante at 167-168, capital punishment is such an area of special state concern. With respect to capital punishment, “it is elementary that States are free to provide *347greater protections ... than the federal Constitution requires.” California v. Ramos, 463 U.S. 992, 1013-14, 103 S.Ct. 3446, 3459-60, 77 L.Ed.2d 1171, 1188-89 (1983).3
The majority, however, persuaded particularly by the reasoning in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), ante at 183-184, only half-heartedly consults our State Constitution and declines to require greater protections in this State than are afforded under federal death-penalty jurisprudence. Because I believe that the federal decisional law has lost coherence and pursues fundamentally contradictory—perhaps unattainable—goals, I have no confidence in federal precedent as a guide in interpreting our Constitution. I am unpersuaded that Gregg and its progeny afford adequate assurance that the death penalty will not be “wantonly and freakishly imposed.” Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 2762, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring). This substantial risk—approaching certainty—of arbitrary application is inconsistent both with the premises of Furman and Gregg and with this Court’s state constitutional jurisprudence, and violates the principle of fundamental fairness underlying due process.
The challenge of state constitutional jurisprudence, as Justice Pollock has written, “is to develop ... a jurisprudence that will make more predictable the- recourse to and the results of state constitutional law analysis.” Pollock, supra, 35 Rutgers L.Rev. at 708. This Court has adopted structured analyses in which recourse is had first to the federal Constitution to assess the *348minimal protections implicated. As Justice Garibaldi has observed, “We refer to federal constitutional law only as establishing the floor of minimum constitutional protection.” State v. Gilmore, supra, 103 N.J. at 524. If the individual is unprotected or inadequately protected under the federal Constitution, the Court engages in a systematic inquiry into whether the State Constitution affords greater protection. In accordance with this general approach, I shall look first to federal precedent to assess the scope of the protection it affords, and then to independent state sources to determine whether State constitutional principles comport with the federal precedent or require different, enhanced protections.
A.
Contemporary federal death penalty jurisprudence embraces conflicting goals that were anticipated in McGautha v. California, 402 U.S. 183, 207-08, 91 S.Ct. 1454, 1467, 28 L.Ed.2d 711, 726-27 (1971). Rejecting an argument that standardless discretion in capital sentencing violated due process, the Court asserted that “[any] attempt to catalog the appropriate factors [to guide discretion] ... could inhibit rather than expand the scope of consideration____ The infinite variety of cases ... would make general standards either meaningless ‘boiler plate’ or a statement of the obvious that no jury would need.” The Court characterized as “beyond present human ability” the tasks of identifying a priori “those characteristics of criminal homicides and their perpetrators which call for the death penalty” and reducing those characteristics to understandable and uniformly applicable language. Id. at 204, 91 S.Ct. at 1465, 28 L.Ed.2d at 724. Any attempt to guide sentencing discretion, according to the McGautha Court, would prove at best ineffectual in guiding discretion, and inevitably arbitrary in distinguishing death-eligible offenses.
One year later, however, in Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 246, standardless sentenc*349ing discretion was held to violate the eighth amendment’s proscription of cruel and unusual punishments (as extended to the states through the due process clause of the fourteenth amendment). It is impossible to distill a single rationale from the nine separate opinions issued in Furman. Writing for a plurality four years later in Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, however, Justice Stewart identified the abiding thrust of Furman: “While Furman did not hold that the infliction of the death penalty per se violates the ... ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment____ Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Id. at 188, 96 S.Ct. at 2932, 49 L.Ed.2d at 883. Thus, Furman is significant for merging eighth amendment analysis with the fundamental principle of fairness underlying due process; because the penalty is severe beyond rectification, its infliction under procedures risking arbitrary application cannot be countenanced.
Following Furman’s invalidation of all existing death penalty statutes, thirty-five states passed new death penalty statutes that purported to guide sentencing discretion. These statutes fell into two categories: those that guided discretion by effectively eliminating it, mandating the death penalty in certain cases; and those that guided discretion by attempting, the misgivings of McGautha notwithstanding, to enumerate for the sentencer deliberative factors in aggravation and/or mitigation of the offense. In 1976, in the complex of cases led by Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Court established the conceptual framework of contemporary federal death penalty jurisprudence by invalidating statutes in North Carolina and Louisiana that mandated the imposition of a death sentence in specified cases, while upholding the constitutionality of statutes in Georgia, Florida, and Texas that enumerated deliberative factors to guide sentencing discretion. *350See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; cf. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (rejecting mandatory death sentences as unconstitutional). In doing so, the Court seemingly fused the elements of cruel and unusual punishment analysis with due process principles:
[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961 (plurality opinion) (emphasis added).]
Mandatory death sentences assure uniform application but are nonetheless unconstitutional, the Court held, because they deprive defendants of a “particularized consideration” of individual character and circumstances that might mitigate the offense. Statutes like Georgia’s, by contrast, which enumerate circumstances of aggravation but allow for consideration of individualized mitigating circumstances, were held to strike the proper balance, assuring consistent application by guiding sentencing discretion, while allowing for consideration of individualized mitigating circumstances. The Court thus set the parameters of contemporary death penalty constitutionality under the federal Constitution: the death sentences resulting from application of the statute must be at once uniform and individualized.
In concluding that both mandatory and arbitrary death sentences are unconstitutional, however, the Court was driven to uphold the very schemes for guided discretion it had disparaged as either ineffective or beyond human capacity in McGautha. The unguided discretion struck down in Furman offered no assurance that capital defendants would be treated uniformly according to their crimes, while the mandatory sentencing invalidated in Roberts and Woodson offered no assurance that they would be treated individually according to their characters. *351When life is at issue, the Court held, either extreme is unacceptable. The requirements of consistency and individualization identified by the Court, as reflected in contemporary schemes for guided discretion, are thus an acknowledgement of the heightened protections due a defendant when the penalty he or she faces is irreversibly severe. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393, 405-06 (1977) (White, J., concurring) (eighth amendment analysis implicates the Due Process clause “as the vehicle by which the strictures of the Eighth Amendment are triggered”).
Schemes for guided discretion, considered in the abstract, escape the mandatory and arbitrary extremes. I submit, however, that these extremes are avoided at a cost of doctrinal tension that has rendered unworkable the schemes embodying them.4 Ultimately, such schemes are ineffectual in guiding sentencing discretion precisely because the unique severity of the penalty to be inflicted so escalates the contrary burdens of uniformity and individualization as to render them extraordinarily difficult, if not impossible, to reconcile. The progeny of Gregg reflects this current failure, if not ultimate futility. This experience argues strongly that the federal precedent not be used for guidance and that we look to our own constitutional resources. Because the majority ignores the lessons of this experience and insists that federal precedent be used to define our own Constitution, a more searching analysis and expose of the federal law is called for.
B.
Despite great diversity in the specific issues it has addressed, and in the reasoning with which those issues have been addressed, the federal case law since Gregg is unified by the *352attempt of the Supreme Court to manage the contrary imperatives of uniformity and individualization, to check, in other words, the tendency of individualized sentencing to be arbitrary while preventing uniform sentencing from becoming Procrustean. See generally Special Project, supra, 15 Rutgers L.J. at 281-303 (describing developments in case law). In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a plurality of the Court emphasized the requirement of individualized sentencing deliberations in reversing a death sentence imposed under a statute that limited, in the interest of uniformity, the number of mitigating circumstances a sentencer could consider. Chief Justice Burger, writing for the plurality, was
satisfied that [the] qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of “relevant facts of the character and record of the individual offender or the circumstances of the particular offense.” ... We ... conclude that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Id. at 604, 98 S.Ct. at 2964, 57 L.Ed.2d at 989-90 (emphasis supplied) (citation deleted).]
Justice Rehnquist dissented, accusing the Court of having gone, in its death penalty rationales, “from pillar to post,” id. at 629, 98 S.Ct. at 2973, 57 L.Ed.2d at 1005 (Rehnquist, J. dissenting), and arguing that if defendants, in the interest of individualized sentencing, are “permitted to offer as evidence in the sentencing hearing any fact, however bizarre ... the new constitutional doctrine will not eliminate arbitrariness or freakishness ... but will codify and institutionalize it____ [I]t will not guide sentencing discretion but will totally unleash it.” Id. at 631, 98 S.Ct. at 2974, 57 L.Ed.2d at 1006 (Rehnquist, J. dissenting).5
*353This exaltation of individualized sentencing over uniformity continued in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), in which the Court held that “|j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Id. at 113-14, 102 S.Ct. at 876, 71 L.Ed.2d at 10-11 (emphasis supplied).
The Court’s emphasis on individualized sentencing has not been limited to the context of mitigating factors. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the Court overturned a death sentence imposed on a person who aided and abetted a homicide but did not kill or attempt to kill and who lacked the intent to kill. Justice White explained:
The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund’s own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on “individualized consideration as a constitutional requirement in imposing the death sentence”____ [Id. at 798, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152 (citation omitted).] 6
Given the Court’s expansion of the requirement of individualization, and given the tendency of individualized sentencing toward arbitrariness, it is legitimate to question whether the Court has been able to vindicate the polar imperative of uniformity. In Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Court relied primarily upon two *354aspects of the Georgia statute as guarantors of uniformity in capital sentencing: the requirements that the jury “find a statutory aggravating circumstance before recommending a sentence of death,” id. at 197, 96 S.Ct. at 2936, 49 L.Ed.2d at 888,7 and that “the Supreme Court of Georgia compareQ each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate.” Id. at 198, 96 S.Ct. at 2937, 49 L.Ed.2d at 888.
As with mitigating factors, the Court’s treatment of aggravating factors has emphasized individualized treatment of cases over uniform application of laws. In Gregg itself, the Court rejected facial challenges to several of Georgia’s statutory aggravating factors. Petitioner argued that statutory provisions specifying as aggravating such factors as the “vileness” or “depravity” of the murder, the petitioner’s “substantial history of serious assaultive criminal convictions,” or the “great risk of death to more than one person” created by the petitioner were either “so broad that capital punishment could be imposed in any murder case” or “vague and therefore susceptible of widely differing interpretation, thus creating a substantial risk that the death penalty will be arbitrarily inflicted____” Id. at 201-02, 96 S.Ct. at 2938, 49 L.Ed.2d at 890-91. The Court acknowledged the possible force of these arguments, but relied on the Georgia Supreme Court to narrow the application of *355these factors. Id. at 202, 96 S.Ct. at 2938, 49 L.Ed.2d at 890-91.
That the Georgia Court was failing to narrow the “vileness” factor became evident in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), where the Court reversed a death sentence imposed after the trial court instructed the jury by merely reading the “vileness” language. Adverting to the statutory language—“outrageously or wantonly vile, horrible and inhuman”—the Court stated: “There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Id. at 428, 100 S.Ct. at 1764, 64 L.Ed.2d at 406. The Court stopped short, however, of invalidating the aggravating factor in the interest of uniformity, relying on the Georgia Court’s narrowing construction in other cases (see detailed discussion of these developments, infra at 394-398). Justice Marshall concurred in the result, but challenged the Court’s reliance on the Georgia Supreme Court to narrow the construction, arguing that the “Georgia court has made no substantial effort to limit the scope of [the “vileness”] factor, but has instead defined the provision so broadly that practically every murder can fit within its reach.” Id. at 441, 100 S.Ct. at 1771, 64 L.Ed.2d at 414 (Marshall, J., concurring), citing Dix, “Appellate Review of the Decision to Impose Death,” 68 Geo.L.J. 97, 110-123 (1979).8
If Godfrey did in fact re-emphasize channeling discretion in the interest of consistent sentencing, three 1983 decisions re*356treated from that goal, to the extent that they did not abandon it entirely. In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the issue was whether the invalidity of one of the aggravating factors considered by a jury in imposing a death sentence required that sentence to be vacated. The Supreme Court affirmed the Georgia Supreme Court’s determination that the sentence was valid despite the invalidity of the underlying aggravating circumstance. In doing so, it accepted the Georgia Court’s characterization of its sentencing system as one in which statutory guidance of discretion ends once a single aggravating factor is found. See id. at 871-73, 103 S.Ct. 2733, 77 L.Ed.2d at 246-47. The unbridled discretion exercised by the jury at the “selection stage”—i.e., once it has found a single aggravating factor—was held to be legitimate, because “[w]hat is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime____ The Georgia scheme provides for categorized narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.” Id. at 879, 103 S.Ct. at 2743, 77 L.Ed.2d at 251 (emphasis added). Because there is no weighing process, discretion is unguided once a valid aggravating circumstance is found; because there were two other valid aggravating circumstances found, the invalid circumstance was held not to have infected the death sentence.
Thus, death penalty jurisprudence was brought full-circle. The Court again sacrificed the uniformity that might be gained by requiring that discretion be guided throughout sentencing in the interest of “an individualized determination”; the discretion it allowed at the sentencing stage was, moreover, like the discretion condemned in Furman, unguided. The latent instability of a system requiring individualized sentencing deci*357sions—its tendency toward arbitrary, unguided discretion—had become patent.9
The holding in Zant was, if anything, expanded in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), in which the Court upheld the validity of a death sentence despite the sentencer’s consideration of (1) a nonstatutory and admittedly improper aggravating factor (the defendant’s prior criminal record), and (2) the racial hatred motivating the murder as a reason for imposing the death penalty. Justice Rehnquist, writing for the plurality, held that the judge’s reliance on his personal views as to racial hatred was not a nonstatutory aggravating circumstance, but instead “not an inappropriate way of weighing the ‘especially heinous, atrocious, or cruel’ statutory aggravating circumstance____” To the argument that allowing such reliance upon the sentencer’s experience was tantamount to allowing arbitrary discretion, the Court responded: “Any sentencing decision calls for the exercise of judgment____ We have never suggested that the ... Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors. But to attempt to separate the sentencer’s decision from his experiences would inevitably do precisely that.” Id. at 950, 103 S.Ct. at 3425, 77 L.Ed. at 1144. Because the sentencer had found no mitigating circumstances to counterbalance the valid aggravating factors, the Court determined that the sentencer’s finding of an invalid aggravating circumstance could not have affected the weighing process and was thus harmless error: “There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance____ ‘What is *358important ... is an individualized determination____’ ” Id. at 958, 103 S.Ct. at 3429, 77 L.Ed.2d at 1149 (citation omitted).
Once again, therefore, the imperative of an individualized determination prevailed over the imperative of uniformity. Justice Stevens and Powell concurred in the judgment, but wrote separately because
[t]he Court has never thought it sufficient in a capital case merely to ask whether the state court has been “so unprincipled or arbitrary as to somehow violate the United States Constitution.” ... Nor does a majority of the Court today adopt that standard. A constant theme of our cases ... has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner. [Id. at 960, 103 S.Ct. at 3430, 77 L.Ed.2d at 1150 (emphasis added) (Stevens, J. concurring).]
For the first time, therefore, there was a recognition of some spill-over effect attributable to the exaggeration of “individualized” sentencing, an intimation that the Court’s elevation of “individualized” sentencing determinations over uniform sentencing determinations was eroding the heightened standard of review in capital cases. In retrospect this is not surprising, for as the amount of discretion afforded the sentencer increases, the degree of scrutiny to which that discretion is subject necessarily decreases, if only because the decision-making process becomes opaque. Once discretion is in some degree unfettered, the question is no longer whether the decision to impose death is unprincipled or arbitrary but, as the plurality phrased it, whether it is “so unprincipled or arbitrary as to somehow violate the United States Constitution.” Id. at 947, 103 S.Ct. at 3423, 77 L.Ed.2d at 1142.
The erosion of the requirement of consistency in Zant and Barclay continued in California v. Ramos, supra, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171, where the Court upheld a death sentence in the deliberation of which the jury was instructed to consider the possibilities that the defendant’s sentence, if less than death, might be commuted or that the defendant might be released on parole. To the argument that such an instruction introduces into death-penalty deliberations *359an element of arbitrariness wholly unrelated to individualization because irrelevant to a defendant’s character or the circumstances of the crime, the Court responded, relying on Zant:
Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury is then free to consider a myriad of factors to determine whether death is the appropriate punishment. In this sense, the jury’s choice between life and death must be individualized. “But the Constitution does not require the jury to ignore other possible ... factors in the process of selecting ... those defendants who will actually be sentenced to death.” [Id. at 1008, 103 S.Ct. at 3457, 77 L.Ed.2d at 1185 (emphasis added, citation omitted).]
The sentencer, then, is not limited to the circumstances either in aggravation or in mitigation of the specific offense and the individual defendant, but is “free to consider a myriad of factors,” among them the likelihood of the defendant’s eventual release or sentence reduction.
With Zant, Barclay, and Ramos, the imperative of “individualized sentencing” identified in Furman and Gregg was substantially advanced, but only by substantially eroding the polar imperative of consistency. Indeed, the very notion of “individualized” sentencing, which in the original Gregg-Woodson cases had referred to the character and circumstances of the individual defendant, was transmuted in Zant, Barclay, and Ramos to refer to the amount of discretion afforded the individual sentencer; thus, the Ramos Court, following Zant and Barclay, found that once the jury has found one aggravating circumstance, it “then is free to consider a myriad of factors____ In this sense, the jury’s choice ... must be individualized.” California v. Ramos, supra, 463 U.S. at 1008, 103 S.Ct. at 3457, 77 L.Ed.2d at 1185, citing Zant v. Stephens, supra, 462 U.S. at 878, 103 S.Ct. at 2743, 77 L.Ed.2d at 251. The justification for this—presumably that the individual defendant can never have truly “individualized” sentencing unless the sentencer, at the selection stage, has unguided discretion—is equally a justification for the unguided discretion condemned in Furman, and *360signals the collapse of any balance between individuality and uniformity.10
Aside from the aggravating factors that were to limit the grounds for imposing sentence, and thus to guide discretion, the other principal guarantor of uniformity identified by the Court in Gregg was the requirement of a state review generally, and proportionality review specifically; indeed, both Zant and Barclay relied on the requirement of proportionality review to ensure uniformity in Georgia and Florida, respectively, in light of the unguided discretion at the “selection” stage of sentencing approved by the Court. Zant v. Stephens, supra, 462 U.S. at 875, 103 S.Ct. at 2741, 77 L.Ed.2d at 248; Barclay v. Florida, supra, 463 U.S. at 953-54, 103 S.Ct. at 3426-27, 77 L.Ed.2d at 1146 (quoting Proffitt v. Florida, supra, 428 U.S. at 248-51, 96 S.Ct. at 2964-66, 49 L.Ed.2d at 920-22). In Pulley v. Harris, 465 U.S. 37, 104 S.Ct. at 871, 79 L.Ed.2d 29 (1984), however, the Court declined to require comparative proportionality review, acknowledging that “[a]ny capital sentencing scheme may occasionally produce aberrational outcomes” (i.e., execute undeserving defendants) but holding that California’s statute, requiring a jury finding of “special circumstances” beyond a reasonable doubt, and providing for sentence review by the trial judge and the State Supreme Court, “cannot be successfully challenged under Furman and our subsequent cases.” Id. at 53, 104 S.Ct. at 880, 79 L.Ed.2d at 42. Justice *361Brennan, in dissent, argued that the Court had betrayed the fundamental premise of Furman:
Although we may tolerate ... irrationality in other sentencing contexts, the premise of Furman was that such arbitrary and capricious decisionmaking is simply invalid when applied to "a matter [as] grave as the determination of whether a human life should be taken or spared.” ... As executions occur with more frequency, therefore, the time is fast approaching for the Court to reexamine the death penalty, not simply to ensure the existence of adequate procedural protections, but... to reevaluate the imposition of the death penalty for the irrationality prohibited by our decision in Furman. [Id. at 64, 104 S.Ct. at 886, 79 L.Ed.2d at 49 (Brennan, J. dissenting) (citation omitted).]
The Court’s decisions in Zant, Barclay, and Ramos to insulate a significant degree of discretion from appellate review, and its decision in Pulley not to require state courts to compare each death sentence to other homicide cases to ensure uniformity, are all the more significant in light of its approval of foreshortened appellate procedures in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct 3383, 77 L.Ed.2d 1090 (1983). In Barefoot, the Court sustained a death sentence despite the fact that the two psychiatrists who were called at the penalty phase to testify that the defendant would constitute a “continuing threat” to society had never examined the defendant. The merits of petitioner’s challenge in Barefoot were lost, however, in the argument over the propriety of the expedited procedures and standard of review used by the Fifth Circuit in rejecting the challenge.11 The plurality acknowledged that “it is not *362clear whether the Fifth Circuit’s recent practice of requiring a showing of some prospect of success on the merits before issuing a stay of execution” is valid. “Approving the execution of a defendant before his appeal is decided on the merits would clearly be improper____” Id. at 889, 103 S.Ct. at 2749, 77 L.Ed.2d at 1102 (citations omitted). The Court held, however, that the Court of Appeals had addressed the question of probability of success on the merits and the merits themselves simultaneously. The Court then addressed the broader question of appellate review of habeas corpus petitions, approving the development of expedited procedures in capital cases. It acknowledged that “an increasing number of death-sentenced petitioners are entering the appellate stages” “but [held that] the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate [of probable cause].” It further concluded that the appellate court could “expedite” the review of death sentence cases so that their determination “is not delayed by the weight of other business.” Id. at 892-95, 103 S.Ct. at 2750-52, 77 L.Ed.2d at 1103-06. The Court thus completely inverted the principle that the unique severity of death as a punishment required that it be treated differently from other punishments. Justice Marshall, in dissent, was mystified:
[U]ntil today it had never been suggested, so far as I know, that fewer safeguards are required where life is at stake than where only liberty or property is at stake. This Court has always insisted that the need for procedural safeguards is particularly great where life is at stake____ By suggesting that special summary procedures might be adopted solely for capital cases, the majority turns this established approach on its head. [Id. at 913-14, 103 S.Ct. at 2761-62, 77 L.Ed.2d at 1117-18 (Marshall, J., dissenting) (citations omitted).]
The plurality’s holding thus allowed an admittedly nonfrivolous appeal “to be singled out for summary treatment solely because the State has announced its intention to execute the appellant before the ordinary appellate procedure has run its course.” Id. at 913, 103 S.Ct. at 2761, 77 L.Ed.2d at 1117 (Marshall, J., dissenting) (emphasis omitted).
*363Barefoot was decided the same day as Barclay and Ramos, which followed Zant in insulating much of the sentencer’s discretion from appellate review. These cases were followed within a year by the decision not to require comparative proportionality review in Pulley v. Harris. Taken together, the cases signal the Court’s “willingness to tolerate a significant degree of incoherence in capital sentencing procedures,” and thus its abandonment of the imperatives identified in Gregg. “The Supreme Court—1982 Term,” 97 Harv.L.Rev. 72, 118-27 (1984). There is, in other words, a causal connection between the decisions approving unguided discretion at the sentencing stage and the decisions truncating appellate review. To the extent that discretion is unguided, it is more likely to be arbitrary, and hence less likely to pass muster under an appellate review designed—because capital punishment is different in kind from all other forms of punishment—to ensure uniformity. To allow extra-statutory sentencing deliberations, as the Supreme Court has done, is to sanction arbitrary sentencing, and to make anything but perfunctory appellate review of sentencing impossible. The only way, therefore, to expand the scope of allowable discretion while maintaining a functional capital punishment system is to circumscribe the substance and procedure of appellate review. See id. at 127; Special Project, “Capital Punishment in 1984: Abandoning the Pursuit of Fairness and Consistency,” 69 Cornell L.Rev. 1129, 1214-16 (1984).
The cases from Zant through Barefoot to Pulley, then, have in fact if not in doctrine vanquished the requirement of consistency that lies at the core of Furman and Gregg, and thus mark a departure from the principle underlying those cases that death sentences require heightened procedural scrutiny because death is different in kind from any other form of punishment. This retreat unifies the cases decided since Barefoot. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2061, 80 L.Ed.2d 674, 693 (1984), the Court held that “[f]or purposes of describing counsel’s duties ... Florida’s capital sentencing proceeding need not be distinguished from an ordi*364nary trial.” Justice Marshall dissented on the grounds that the Court
has repeatedly acknowledged that the Constitution requires stricter adherence to procedural safeguards in a capital case than in other cases____ In my view, a person on death row, whose counsel’s performance fell below constitutionally acceptable levels, should not be compelled to demonstrate a ‘reasonable probability’ that he would have been given a life sentence if his lawyer had been competent ... [Id. at 716-17,104 S.Ct. at 2079-80, 80 L.Ed.2d at 712 (Marshall, J., dissenting).]
See id. at 702-06, 104 S.Ct. at 2072-74, 80 L.Ed.2d at 702-06 (Brennan, J., concurring in the general principles but dissenting in their application in a capital sentencing context) (“the standards announced today can and should be applied with concern for the special considerations that must attend review of ... a capital sentencing proceeding” because “counsel’s general duty to investigate ... takes on supreme importance ... in the context of developing mitigating evidence to present to [a judge or jury considering the sentence of death]”);12 see also Lockhart v. McCree, — U.S.-, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (upholding use of death-qualified juries during guilt-phase); Poland v. Arizona, — U.S.-, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (holding that resentencing hearing in capital case is not barred by Double Jeopardy when appeals court rejects sole aggravating factor found by sentencer; failure of sentencer to find other alleged aggravating factors is not an “acquittal” of these factors for Double Jeopardy purposes); id. at -, 106 S.Ct. at 1758, 90 L.Ed.2d at 136 (Marshall, J., dissenting) (“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”); Smith v. Murray, — U.S.-, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (holding that petitioner had forfeited his right to object to psychiatric testimony by failing to raise the claim on initial appeal); Cabana v. Bullock, 474 U.S. 376, *365106 S.Ct 689, 88 L.Ed.2d 704 (1986) (holding that the finding of intent to murder required under Enmund does not have to be made by the trial fact-finder, but can be made by federal appellate court after reviewing trial and appellate proceeding); id. at-, 106 S.Ct. at 705, 88 L.Ed.2d at 727 (Blackmun, J., dissenting) (“The Court’s conclusion that we should allow the State to adopt capital punishment schemes that depend on appellate factfinding because ‘it is by no means apparent that appellate factfinding will always be inadequate’ ... turns on its head the heightened concern with reliability ...” required in capital punishment cases); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (holding that Double Jeopardy Clause does not prohibit imposition of death sentence in Alabama, despite life sentence in Georgia in murder-trial arising from same homicide); id. at-, 106 S.Ct. at 444, 88 L.Ed.2d at 402-04 (Marshall, J., dissenting) (“the Court errs in refusing to consider the fundamental unfairness of the process by which petitioner stands condemned to die____”).
No clearer signal of the Supreme Court’s abandonment of the concern for heightened procedural safeguards in capital cases can be found than Darden v. Wainwright, — U.S.-, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). In Darden, the trial court allowed a closing argument in which the prosecutor referred to the defendant as “an animal” and implied that a death sentence would be the only assurance against a future similar act. Applying conventional standards, the Supreme Court held that this allowance was harmless error. What Justice Blackmun wrote in dissent could have been written as easily in response to any of the above-cited post-Barefoot cases:
Although the Constitution guarantees a criminal defendant only “a fair trial [and] not a perfect one” ... this Court has stressed repeatedly in the decade since Gregg ... that the Eighth Amendment requires a heightened degree of reliability in any case where a State seeks to take the defendant’s life. Today’s opinion, however, reveals a court willing to tolerate not only imperfection but a level of fairness and reliability so low it should make conscientious prosecutors cringe. [Id. at -, 106 S.Ct. at 2476, 91 L.Ed.2d at 162 (Blackmun, J., dissenting) (footnote omitted) (citations omitted).]
*366Far from heightening the procedural integrity required because of the nature of the punishment, the Supreme Court in recent cases has, if anything, begun to lower appellate standards to make the punishment possible.
The cases from Zant to Barefoot thus set the trend in federal death penalty jurisprudence that continues to this day: “Despite the confusing plethora of concurrences and dissents in the death penalty cases ... the Court may indeed be setting a course: away from such cases.” Paul Reidinger, “A Court Divided,” ABA Journal, January 1, 1987, at 46, 50. Significantly, the breakdown of the system in Zant-Barefoot occurred just as the system was beginning to yield “results”: roughly ninety percent of the executions since the first post-Furman execution in 1977 have occurred since the decisions in Barefoot, Barclay, and Ramos. See Note, supra, 95 Yale L.J. at 352.13
*367The fundamental incoherence of federal death-penalty doctrine has never been more evident than in the Supreme Court’s most recent disposition of the issue, California v. Brown, — U.S.-, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). Four Justices agreed that California’s instruction prohibiting jurors from being swayed by “mere sympathy” was constitutional because by limiting “the jury’s consideration to matters introduced in evidence before it, it fosters the Eighth Amendment’s ‘need for reliability ...’” in sentencing and “ensures the availability of meaningful appellate review____” Id. at-, 107 S.Ct. at 840, 93 L.Ed.2d at 940. Four other Justices, however, agreed that “[i]n forbidding the sentencer to take sympathy into account, this language on its face precludes precisely the response that a defendant’s evidence of character and background is designed to elicit, thus effectively negating the intended effect of the Court’s requirement that all mitigating evidence be considered.” Id. at -, 107 S.Ct. at 843, 93 L.Ed.2d at 944 (Brennan, J., dissenting). The deciding vote was cast by Justice O’Connor, who concurred in the result only because, in her opinion, “the individualized assessment ... is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence____” Id. at-, 107 S.Ct. at 841, 93 L.Ed.2d at 942. Thus, the plurality result, emphasizing uniformity, was belied by the majority rationale, reempha*368sizing individualized sentencing.14 States with guided-discretion death-penalty statutes will be hard-pressed, to say the least, to identify and apply “the rule of California v. Brown.” As this exposition has demonstrated, moreover, Brown is not aberrational in this sense, but symptomatic. To paraphrase Chief Justice Rehnquist, the case law since Gregg has not eliminated arbitrariness or freakishness but has codified and institutionalized it; it has not guided sentencing discretion but has confused it. Lockett v. Ohio, supra, 438 U.S. at 631, 98 S.Ct. at 2974, 57 L.Ed.2d at 1006 (Rehnquist, J., dissenting).
This, then, is the federal capital punishment system in which this Court acquiesces. The Supreme Court, unable to harness the contending forces of individualization and consistency, has allowed death penalty prosecutions to run out of control. It has sanctioned arbitrary sentencing, and sacrificed the principle underlying Furman and Gregg that death is different in kind from other forms of punishment and thus demands heightened procedural safeguards in sentencing. Instead of balancing individualization and consistency, it has permitted these indispensable principles to cancel out one another. The reasons for this failure are self-evident: “It is naive to mandate individualized sentencing intending it to yield uniform results. The stronger the commitment to either standard—individuality or uniformity—the more difficult the other is to attain.” Special Project, supra, 15 Rutgers L.J. at 300-03. Thus, when the Court has exalted individualization, it has crippled uniformity; when it has tried to rescue uniformity, it has become incoherent. The result is “legal doctrine-making in a state of nervous breakdown,” “almost a bare aesthetic exhortation that the state *369just do something—anything—to give the death penalty a legal appearance.” Weisberg, “Regulating Death,” 1983 Sup.Ct. Rev. 305, 306. This experience at the federal level is disheartening. The federal precedent sets a poor example of constitutional jurisprudence and should not be considered as an interpretative model in giving meaning to our own Constitution or followed to set the outer limits of individual protection in this State.
C.
The lessons of this ongoing federal odyssey compel us to search our own Constitution for the protections that must be applied in determining the validity of our capital murder-death penalty laws. That search must be thorough, conscientious and principled. We have in a variety of contexts emphasized those considerations that are germane to an understanding of our State Constitution. State v. Williams, 93 N.J. 39, 57-59 (1983); State v. Hunt, supra, 91 N.J. at 358-72 (Handler, J., concurring). Among these are the constitutional text and structure, constitutional history, pre-existing state law, state traditions, particular state governmental concerns, strong public policy, and cognizable public attitudes. Id.; see Linde, “E. Pluribus— Constitutional Theory and State Courts” in Developments in State Constitutional Law, 283-91 (deriving from P. Bobbitt, Constitutional Fate (1982), comparable factors to be considered: textual, historical, and structural factors to help define the range of possible meanings; doctrinal, prudential, and ethical factors to help define the desirable interpretation). Decisions based on “[t]he explication of standards such as these demonstrate that the discovery of unique individual rights in a state constitution does not spring from pure intuition but, rather, from a process that is reasonable and reasoned.” Hunt, supra, 91 N.J. at 367 (Handler, J., concurring).
In the context of this case, the language and structure of the New Jersey Constitution, considered in light of the legal history
*370of capital punishment in this state, this Court’s strong tradition of affording heightened protections to its citizens when important interests are at stake, and the special concern and interest of the State and its citizens in the administration of criminal justice, which are intensely concentrated in government-sanctioned capital punishment, create individual rights of exceptional strength. This informed understanding of the State Constitution reveals clearly that these individual rights and their corollary protections exceed those afforded under the federal Constitution. Our Constitution, so interpreted as a matter of both organic right and fundamental fairness, serves at a minimum to affirm the principles originally voiced in Furman and Gregg. Where a life is at stake, the procedures used to take that life must maximize both consistency and individual consideration in sentencing, and thus minimize arbitrariness and irrationality.
The Constitution itself is the first point of reference. The basic constitutional framework within which the validity of the capital murder-death penalty statute must be measured is the set of individual rights and corollary protections that are guaranteed by paragraphs 1, 5, and 12 of Article I of the New Jersey Constitution. Article I provides:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. [N.J. Const, of 1947 art. I, para. 1]
No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin. [Id., para. 5]
Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted. [Id., para. 12]
Both the language and structure of these provisions affirm that the life of the individual—including a quality of life embodied in liberty, safety, security and happiness—is accorded the highest value and greatest protection possible under the State Constitution. Government cannot take life, or detract from the essence of life, or restrict the rights that are supportive of life, *371based on arbitrary and unreasoned actions or invidious factors; even when sanctions must be imposed, the State may not impose any punishments that are cruel and unusual. It follows logically from these provisions and their obvious purport that when life itself is at stake government must be its most scrupulous to avoid any wrongful harm.
The history of New Jersey’s experience in the application of the capital punishment reveals an evolving understanding of this meaning of our Constitution. This history discloses continuing changes in the perceptions of the scope and depth of the constitutional principles that prize individual life. The law has evolved historically in the direction of heightened protections for the individual, reflecting, perhaps tacitly, the need for the law and government to minimize the risk of injustice. This evolving societal awareness of the existence and evil of arbitrariness has in part paralleled increases in our knowledge of social and individual behavior. Over the generations, our understanding of social and individual injustice has become more acute. With greater insights into the existence and reality of such injustice, protections to eliminate undue risks of arbitrariness have also been heightened. This history of capital punishment in our State is most dramatically illustrated by the decreasing use of the capital murder sanction.
The change from lesser to greater protections is evidenced in several areas. Perhaps the most significant changes have been in the law itself. Between 1709 and 1877, the death penalty was apparently mandatory for all first degree murders. Defendants who pleaded guilty were subject to a degree of guilt hearing to determine if the murder was one of first degree. See N.J. Revision 1709-1877, Crimes, § 68, p. 239. Significantly, the death penalty statute enforced between 1906 and 1971 allowed very few murderers to face capital trials; the statute itself narrowly defined a class of capital murderers, see N.J. S.A. 2A:113-2. As pointed out in State v. Genz, 57 N.J.L. 459 (Sup.Ct.1895), however, from the earliest time, courts abhorred entering a death judgment on a defendant’s admission, and *372generally advised prisoners to retract the guilty plea and plead to the indictment to force the State to prove, to the jury’s satisfaction, all elements of the crime charged. Id. at 462-63. Prompted by Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986 (1892), in which a death sentence based on a guilty plea was upheld, the Legislature ended the practice. See Trenton Daily State Gazette, Feb. 14, 1893, at 5, cited in State v. Forcella, 52 N.J. 263, 277 (1968). The Legislature amended the statute in 1893 by abolishing the plea of guilty, thus eliminating “a ready and facile road to the gallows,” State v. Genz, supra, 57 N.J.L. at 462, and authorizing a plea of non vult. If the non vult plea was accepted, the court was required to sentence the defendant to the same term of imprisonment as imposed upon a conviction of murder in the second degree. See Forcella, supra, 52 N.J. at 277. The Forcella Court noted that the non vult plea was intended to benefit murder defendants by permitting the court to bar the death penalty where the facts so warranted.
The Legislature in 1916 again added protections against the imposition of capital punishment. L. 1916, c. 270. That amendment modified the penalty for first degree murder to “death unless the jury at the time of rendering the verdict shall recommend imprisonment at hard labor for life.” L. 1916, c. 170, p. 576. Another amendment increased the authorized maximum sentence on a non vult plea to life imprisonment. L. 1917, c. 238. While this amendment increased the maximum term, its purpose again was to improve the position of homicide defendants by encouraging courts to accept non vult pleas in circumstances in which a maximum term of years did not seem enough but the death penalty was too much. See Forcella, supra, 52 N.J. at 278.15 Finally, in In re Waiver of the Death *373Penalty, 45 N.J. 501 (1965), this Court determined that a prosecutor has discretion to waive the death penalty in any case. “The result is that as to every murder indictment some official agency considers the fitness of the death penalty, the judge doing so on a plea of non vult, and either the prosecutor with the court’s approval or the trial judge doing so when the defendant stands trial.” Forcella, supra, 52 N.J. at 278-79.
These legal developments were reflected in empirical results. The combination of the 1893, 1916 and 1917 amendments had a major impact on New Jersey capital defendants. After 1916, life-term prison sentences were meted out for murder with greater frequency than death sentences would have been. Between 1916 and 1955, 497 persons were given life sentences for murder; 157 persons (or 3.8 per year) were sentenced to death. Between 1907 and 1916, however, 62 persons were sentenced to death while only 3 were given life sentences for murder. See Bedau, “Death Sentences in New Jersey, 1907-1960,” 19 Rutgers L. Rev. 1, 30-31 (1961). Moreover, while New Jersey executed 160 defendants between 1907 (when accurate records began to be kept) and 1972—when the death penalty was declared unconstitutional—the figures declined toward the end of that period (approximately 127 executed between 1907 and 1940; 36 executed between 1941 and 1960; 3 between 1961 and 1963; none after). See New Jersey State Prison, Historical Data on Death House (Trenton, 1970). Clemency also played a role in the low number of eventual executions in New Jersey. Between 1916 and 1960, two persons’ death sentences were commuted for every eleven persons executed. Before juries were given discretion to return a sentence of life imprisonment upon a conviction of first degree murder, two commutations occurred for every seven executions. See Bedau, supra, 19 Rutgers L. Rev. at 32.
*374In other respects the legal system moved to ameliorate the arbitrariness in the administration of capital punishment. Greater procedural protections were provided through the availability of appellate review.
Under the 1948 Constitution, all appeals in capital causes are to be heard by the Supreme Court, and a writ of error with accompanying stay of execution is to issue automatically upon application____ New Jersey has moved from the position that appeal in capital cases is contingent on the pleasure of the court having authority to hear such appeals to the position that appeal is contingent only on the initiative of the defendant____ [Id. at 35-36.]
It was recognized that judicial review must be more scrupulous in capital cases than in others. State v. Mount, 30 N.J. 195 (1959).
The low number of criminals actually executed indicates, and is a consequence of, the strong procedural protections this State increasingly granted those facing the death penalty. Throughout that period the State developed a shared experience that, after prosecutors and juries and judges exercised their discretion, relatively few persons were sentenced to die. It is fair to conclude, in retrospect, that the history of our experience with capital punishment is the history of an evolving moral sense that the ultimate penalty should be inflicted in only the most egregious cases, under only the most rigorous procedural safeguards. Cf. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642 (1958) (the phrase “cruel and unusual punishment” “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”).
Our history thus not only confirms that society places extraordinary value on individual life, but also teaches us society’s moral judgment that the death penalty should not be applied unless it is right to do so, unless, in other words, substantive and procedural protections have been maximized so that the risk of arbitrariness is reduced and the possibility of the ultimate injustice is eliminated.
The import of the constitutional language and structure and the history of our experience with capital punishment must be *375appreciated in the broader context of New Jersey’s strong tradition of interpreting and applying its state Constitution to afford heightened protections for the individual, again reflecting our profound commitment to the worth of the individual.
We have in important cases willingly resorted to our State Constitution as an independent source of individual rights. We have not hesitated to recognize and vindicate individual rights under the State Constitution where our own constitutional history, legal traditions, strong public policy and special state concerns warrant such action. [State v. Williams, supra, 93 N.J. at 52 (1983) (citations omitted).]
See, e.g., State v. Novembrino, supra, 105 N.J. 95; State v. Gilmore, supra, 103 N.J. 508; State v. Hunt, supra, 91 N.J. 338; Right to Choose v. Byrne, supra, 91 N.J. 287; State v. Alston, supra, 88 N.J. 211; State v. Schmid, supra, 84 N.J. 535; State v. Johnson, 68 N.J. 349 (1975); Burlington Cty. NAACP v. Mt. Laurel, 67 N.J. 151, cert, denied, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2& 28 (1975); Cameron v. International Alliance Of Theatrical Stage Employees, Local 384, 118 N.J.Eq. 11 (E. & A.1935). We have, in particular, endorsed an expansive reading of Article I, paragraph 1 of our Constitution, noting that “[t]he State Bill of Rights, which includes that provision, has been described as expressing ‘the ... ideals of the present day in a broader way than ever before in American constitutional history.’ ” Right to Choose, supra, 91 N.J. at 303 (citation omitted).
Our decisions demonstrate that the State Constitution independently provides important guarantees of civil liberties in New Jersey. As recognized by Justice Pollock in Right to Choose, supra, 91 N.J. at 303, this Court “remain[s] obligated ... to evaluate [all statutes] in light of the Constitution of New Jersey.” We carry out this task without granting any presumption that the Supreme Court’s interpretation of the federal Constitution will determine the extent of state constitutional *376rights. See Hunt, supra, 91 N.J. at 355 (Pashman, J., concurring); id. at 367 n. 3 (Handler, J., concurring).16
A consistent theme of our cases in the criminal law context has been this Court’s unwillingness to follow the Supreme Court where its retrenchment of fundamental rights tolerates a significantly higher degree of arbitrary state action than would our own protections of these rights. Thus, in State v. Novembrino, supra, 105 N.J. at 850, Justice Stein, writing for the Court, understood that our State Constitution does not recognize the good-faith exception to the exclusionary rule, because the exception represents a Supreme Court retrenchment that failed to fully protect the underlying individual right to be free from unreasonable searches. The Court in an opinion written by Justice Garibaldi, Matter of Guarino, 104 N.J. 218 (1986), refused to follow the Supreme Court’s reformulation of the fifth amendment privilege because it failed to fully protect the underlying individual privacy interests embodied in this State’s common-law privilege. Justice Clifford, writing for the Court in State v. Alston, supra, 88 N.J. at 226, explained the Court’s refusal to follow federal precedent in a search and seizure context: “Because we find that these recent decisions of the Supreme Court provide persons with inadequate protection against unreasonable searches and seizures, we respectfully part company with the Supreme Court’s view of standing and construe Article I, paragraph 7 of our State Constitution to afford greater protection.”
This Court has consistently seen the necessity for expanded protection when individual liberties are most vulnerable. We *377have not hesitated to provide such protection when the Supreme Court, abandoning such protections, has opted to take a less protective route.
Protection of individuals involved in a criminal trial has also been enhanced by our recognition of the principle of fundamental fairness, a doctrine under New Jersey law that serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily. The doctrine of fundamental fairness serves, depending on the context, as an augmentation of existing constitutional protections or as an independent source of protection against state action. As we explained in State v. Abbati, 99 N.J. 418 (1985):
Fundamental fairness can be viewed as an integral part of the right to due process— It may also be considered a penumbral right reasonably extrapolated from other specific constitutional guarantees____ Regardless of its source, fundamental fairness is a settled repository of rights of the accused. [Id. at 429-30 (citations omitted).]
In this State, fundamental fairness is implicated at all stages of the administration of justice. In State v. Kunz, 55 N.J. 128 (1969), we held that a defendant had a right to disclosure of presentence reports and a right to be heard regarding any adverse matters within those reports. Our holding was
taken [not] as a matter of constitutional compulsion for the Supreme Court holdings to date do not dictate it and we are not now prepared to find that it is of constitutional dimension under our State Constitution. It is being taken as a matter of rudimentary fairness____ [Id. at 144 (citations omitted).]
In Rodriguez v. Rosenblatt, 58 N.J. 281, 294 (1971), we observed that although there is no inflexible constitutional requirement that counsel be assigned without cost to indigents charged in the municipal courts with disorderly persons or other petty offenses, nonetheless “considerations of fairness dictate” that counsel be provided where necessary “to protect unrepresented indigent defendants against injustices which may result from their inability to cope fairly with municipal court charges against them.”
*378Considerations of fundamental fairness are particularly heightened where the potential harm to the individual from arbitrary state action is greatest. Thus, in State v. Tropea, 78 N.J. 309 (1978), we held that a defendant could not be retried on a charge for which the defendant had been convicted, where the conviction had been reversed by the Appellate Division. We disallowed a retrial, because “constitutional compulsion aside, it is plain to us that considerations of fundamental fairness militate against any retrial in this case.”
In State v. Gaffey, 92 N.J. 374 (1983), we said:
In fitting circumstances, [an incompetent whose indictment has been dismissed without prejudice] would doubtless, as a matter of elemental fairness and due process, be protected from any attempt to renew the prosecution against him, notwithstanding an earlier dismissal of the indictment without prejudice.
[Constitutional considerations relating to speedy trial, due process and fundamental fairness will serve, when appropriate, to bar such future prosecutions [of those recently recovered from mental illness], even though not time-barred. [Id. at 388, 389.]
Fundamental fairness thus enhances or extends the scope of other constitutional protections. In State v. Gregory, 66 N.J. 510 (1975), we referred to the concept of fundamental fairness in requiring compulsory joinder of known offenses based on the same conduct or arising from the same criminal episode. We recognized that this protection went beyond the level of protection required by the constitutional guarantee against double jeopardy. The protection, instead, was intended “to satisfy the considerations of fairness and reasonable expectations.” Id. at 521; see also State v. Calvacca, 199 N.J.Super. 434, 440 (App. Div.1985) (custodial sentence was “infringement of defendant’s right to fundamental fairness in sentencing, a doctrine related to but somewhat broader in its application than the constitutional safeguard against double jeopardy”); State v. Godfrey, 139 N.J.Super. 135, 138 (App.Div.), cert. denied, 73 N.J. 40 (1976) (second prosecution of a defendant was barred, the court noting *379that “the motion to dismiss should have been granted whether it be on grounds of double jeopardy or fundamental fairness”).
Fundamental fairness constitutes an imperative that government minimize arbitrariness in its dealing with individual citizens. The imperative can be expressed in substantive as well as procedural laws. In State v. Talbot, 71 N.J. 160 (1976), we authorized an objective standard for an entrapment defense as a barrier against arbitrary police action. The holding was based on the constraints fundamental fairness places on state action.
This ruling is bottomed on the principle of fundamental fairness____ [T]he methods employed by the State must measure up to commonly accepted standards of decency of conduct to which government must adhere. [Id. at 168.]
This Court has explained how “[i]t is universally recognized that, as an aspect of the courts’ duty to ensure fundamental fairness, they will root out arbitrary government action.” State v. Leonardos, 73 N.J. 360, 377 n. 7 (1977); accord State v. Dalglish, 86 N.J. 503, 513 (1981). At its heart, this injunction to avoid arbitrariness recognizes an equation between individual rights and government action. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976); Matter of Polk, 90 N.J. 550, 562 (1982). As with due process, the two must balance: the greater and more important the individual interest, the greater and more sedulous must be the vigilance of the law in preventing the arbitrary invasion of that interest. Where the individual right at stake is the right to life, therefore, the safeguards of that right must be maximal, for “[t]he penalty of death is qualitatively different from a sentence of imprisonment, however long.” Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2989, 49 L.Ed.2d at 961. This Court’s continued reaffirmation of the principle of fundamental fairness in the ordinary criminal context, moreover, stands in sharp contrast to the Supreme Court’s retreat from the proposition that the death penalty requires heightened procedural safeguards.
*380In sum, an independent and separate analysis of our State Constitution demonstrates that individual life is accorded the greatest importance and vested with the highest value. This is fairly discerned from the grand and sweeping provisions of Article I, paragraphs 1, 5, and 12. A full examination of the Constitution also reveals that correlative governmental duties are expressly interposed to protect individual life, such as the prohibition against cruel and unusual punishment and invidious discrimination. The exaltation under the State Constitution of individual life, as well as liberty, safety, security and happiness, accounts in considerable measure for the development of both independent State constitutional interpretation and the ancillary doctrine of fundamental fairness. This has come to mean that government must accord those protections that are necessary and effective to vindicate and assure the individual interest at stake. It means, in the context of a capital murder-death penalty statute—given the unique importance of individual life and finality of death—that the maximum substantive and procedural protections possible must be used, protections that can realistically minimize the risk of arbitrary enforcement.
In assessing the constitutionality of New Jersey’s capital punishment statute, we “can hardly ignore the ebb and flow” of the federal case law. State v. Novembrino, supra, 105 N.J. at 857. Further, though mindful of the undeniable popular support for capital punishment, at least in some forum, as reflected in opinion polls and in the passage of this statute, we cannot be swayed by it. As Justice Stein states in Novembrino, “[o]ur concern ... is with the Constitution and with the basic and fundamental guarantees that that document was intended to afford to all our citizens, particularly in times of public ferment---- In our tripartite system of separate governmental powers, the primary responsibility for [their] preservation is that of the judiciary.” Id. at 857.
New Jersey, I believe, can benefit from the hard lessons of the federal experiment with guided discretion in capital cases. The record of that experiment makes “it quite possible that the *381damage to the constitutional guarantee [in this case, of due process and against cruel and unusual punishment] may reach such a level as to cause the Court to reconsider its experiment” with guided discretion. Id. at 857. We need not abide such a result, for our state constitutional jurisprudence furnishes persuasive reasons not to follow federal precedent in this State. This is particularly so when “recent decisions of the Supreme Court provide persons with inadequate protection ...,” State v. Alston, supra, 88 N.J. at 224-26; State v. Novembrino, supra, 105 N.J. 95; Matter of Guarino, supra, 104 N.J. 42, and when federal decisional law is perceived to be unsettled or unclear, State v. Gilmore, supra, 103 N.J. 508; State v. Williams, supra, 93 N.J. 39; State v. Schmid, supra, 84 N.J. 535. Here, the federal case law is unsettled, to say the least, for the standards adopted by the Court are radically indeterminate. The combination—unsettled case law and a trend toward retrenchment—counsels against following the federal precedent.
This Court’s continued reaffirmation of the principle of fundamental fairness in the ordinary criminal context, moreover, stands in sharp contrast to the United States Supreme Court’s retreat from the proposition that the death penalty requires heightened procedural safeguards. Justice Marshall highlighted the difference between the policies underlying recent federal decisions and the independent attitude of this State in his dissent in Heath v. Alabama, supra, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387: “[T]he Court errs in refusing to consider the fundamental unfairness of the process by which petitioner stands condemned to die____ Whether viewed as a violation of the Double Jeopardy Clause or simply as an affront to the due process guarantee of fundamental fairness, Alabama’s prosecution of petitioner cannot survive constitutional scrutiny.” Id. at -, 106 S.Ct. at 445, 88 L.Ed.2d at 402-04 (Marshall, J., dissenting). The federal cases, in short are irreconcilable with the principles we have established to inform capital punishment jurisprudence. By treating capital cases like any others they fail to make the bedrock distinction upon which the entire *382edifice of capital punishment rests. The majority’s acknowledgement of the infirmities of the federal precedent, moreover, and its assurance that it is “not obliged to follow the reasoning of all these [post-Gregg ] United States Supreme Court decisions in interpreting our own state constitutional protections,” ante at 190, have a rather hollow ring in light of its uncritical application in this case and in State v. Biegenwald of such post-Gregg cases as Pulley v. Harris, ante at 324-330, Lockhart v. McCree, ante at 248-261, California v. Brown, ante at 297, and Poland v. Arizona, see State v. Biegenwald, supra, 106 N.J. at 52.
We imperil more than lives, therefore, by following federal death-penalty precedent. To the extent that the majority’s decision today is inconsistent with the approach of our prior state constitutional cases, we jeopardize our efforts to develop a principled recourse to the State Constitution. To the extent that the progeny of Gregg is contrary to the spirit of fundamental fairness underlying our State Constitution, we risk the integrity of our constitutional protections.
II.
There should be consensus on the point that the Supreme Court is willing to tolerate in federal death-penalty jurisprudence an unacceptable level of arbitrariness. The question becomes whether death sentences issued under the New Jersey statute, N.J.S.A. 2C:ll-3, are likely to be any less arbitrary. This question is fairly raised by defendant’s challenge to the major aspects of the statute. He contends that the entire statutory scheme fails to provide a meaningful and effective basis for distinguishing those cases in which the death penalty is an appropriate penalty from those in which it is not, that it creates an intolerable risk that death will be inflicted in an arbitrary and capricious manner. Three major reasons are advanced to show that the statute fails to satisfy these constitutional standards: the death penalty is per se invalid; the capital *383murder-death penalty statute is overly broad and inclusive; and the statute is too vague and imprecise. The Court rejects these contentions.
The majority contends {ante at 190) that I have made, in effect, a per se argument against all death penalty statutes by acknowledging the validity of the principles underlying death penalty jurisprudence while documenting the inability of courts to honor them. A per se invalidation of the death penalty is not, however, an ineluctable logical consequence of this argument; all that follows of necessity is that the protections afforded by federal death penalty jurisprudence in the name of these principles have been minimal, and that a New Jersey death penalty statute must provide, as a matter of independent state constitutional law, significantly greater protection than the minimum countenanced under federal precedent. I do note, however, my apprehension that time will settle the question. All of us will, I am certain, endure the frustrating and frenetic attempts to enforce capital punishment in a fair and sensible way that now plague our sister states. That experience will, I fear, yield grim confirmation of the fact that capital punishment in a civilized constitutional society is virtually impossible to administer in a principled manner. The per se invalidity of official capital punishment, in other words, may well be self-revealing. I therefore choose to concentrate on the statute itself.17
In assessing the constitutionality of our capital murder-death penalty statute under the standards relating to cruel and unusual punishment and due process of law, the major questions concern whether the law suffers from overbreadth and vague*384ness. These concerns bring us to examine (1) whether the law proceeds upon a definition of murder that itself is too broad and inclusive; (2) whether the aggravating factors enumerated in the statute to narrow this broad definition are themselves so vague as to be either meaningless or all-inclusive; and (3) whether the asserted deficiencies in terms of overbreadth and vagueness are exacerbated by (a) the fact that the jury determinations of death-eligibility and death-selection are made simultaneously, and (b) the failure in the statute to provide adequate standards in terms of who may be exposed initially to a capital-murder prosecution, i.e., prosecutorial discretion, and who may ultimately have been unjustly subjected to the death penalty, i.e., proportionality review.
A.
The primary argument advanced by defendant is that our death penalty statute is violative of the cruel and unusual punishment prohibition, as well as due process standards, because the statute has failed both to sufficiently narrow the scope of the statute and to clearly define the crimes for which death can be a punishment.
There are two fundamental aspects to any death-penalty proceeding: a determination of death eligibility, in which the death-eligible class is first defined and then narrowed; and death selection, in which those in the death-eligible class whose crimes warrant the infliction of society’s harshest sanction are selected for death. There is confusion, however, as to where one begins and the other ends. Thus, the majority rejects defendant’s position that the aggravating factors “fail to define a narrow class of persons eligible for death,” concluding instead that “aggravating factors ... are considered only after the death eligibility determination has been made.” Ante at 188 n. 20.
Much, if not all, of the confusion is traceable to the United States Supreme Court’s discussion of sentencing procedures in *385Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, and Zant v. Stephens, supra, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235.18 The Court noted, in Gregg, that “[i]n the wake of Furman, Georgia amended its ... statute, but chose not to narrow the scope of its murder provisions____ Georgia did act, however, to narrow the class of murders subject to capital punishment by specifying ... aggravating circumstances____” Id. at 197-98, 96 S.Ct. at 2936, 49 L.Ed.2d at 887-88. The emphasis in Gregg was on the role of the aggravating factors in guiding sentencing discretion; Zant made it clear, however, that the guiding of discretion during the sentencing proceeding did not extend to the sentencing decision. As we have seen, supra at 356, the Court in Zant upheld a death sentence based in part on consideration of an unconstitutional aggravating circumstance, but was forced in doing so to depart from the principles of Gregg by sanctioning unbridled juror discretion at the selection stage, the sentencing decision itself. The Court’s holding was based in part on its acceptance of the Georgia Supreme Court’s rather abstract depiction of Georgia’s capital sentencing structure as a pyramid:
The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder [and manslaughter]____
The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances.
********
*386The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death____ [Zant, supra, 462 U.S. at 871, 103 S.Ct. at 2739, 77 L.Ed.2d at 246.]
Thus, under the Court’s analysis “death-eligibility” is an equivocal term; while all statutory murders are “death-eligible,” in the sense that conviction of murder exposes the defendant to the penalty proceeding, it is equally arguable that a defendant is not truly “death-eligible” until the jury has found one aggravating factor, for only then has the jury separated “from all murder cases those in which the penalty of death is a possible punishment.” Id. As the Court noted, “statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition; they circumscribe the class of persons eligible for the death penalty.” Id. at 878, 103 S.Ct. at 2743, 77 L.Ed.2d at 250-51. It is equally reasonable, in other words, to argue based on Zant that death-eligibility is defined by the aggravating factors, as to insist, as the majority does, that death-eligibility is defined before the aggravating factors are considered.
New Jersey’s statute differs from the Georgia scheme described in Zant, however, in a decisive respect. Unlike Georgia, where statutory aggravating circumstances serve the sole function of narrowing “the class of persons eligible” for the penalty, and thus play no part in guiding the jury’s death-selection discretion, in New Jersey aggravating circumstances guide the jury’s death-selection discretion. That this distinction makes a difference can be seen in Zant itself, where the Court noted and distinguished cases in which consideration of improper aggravating factors required vacation of the sentence; the dispositive difference, the Court noted, was that those cases involved a statutory weighing process that would be corrupted by consideration of an invalid aggravating factor. Id. at 873 n. 12, 103 S.Ct. at 2741 n. 12, 77 L.Ed.2d at 247 n. 12.
It is appropriate, therefore, to consider, independently of Zant, whether under New Jersey’s statute the aggravating *387factors properly play a role in defining the class of death-eligible murderers. There are two possibilities: (1) that they do not, in which case the class of death-eligible murderers is defined by N.J.S.A. 2C:ll-3(a)(l) and (2), the statutory definition of murder; or (2) that the aggravating factors do define death-eligibility, in which case they serve both to narrow the class of death-eligible murderers and to guide the jury’s discretion in the weighing process. In my opinion, either interpretation is constitutionally defective, the first because of the overbreadth of the statutory definition of murder, the second because of the inherent prejudice, from the defendant’s point of view, of defining the offense as the sentence is imposed, and because of the inherent overbreadth and vagueness of the aggravating factors, most notably c(4)(c).
1.
We turn first then to the definitional provisions of the State capital murder-death penalty statute, NJ.S.A. 2C:ll-3(c). This permits the infliction of the death penalty on anyone who commits a homicide by purposely or knowingly causing death or serious bodily injury if one of the statutory aggravating circumstances is found to exist and to outweigh any mitigating factors. In effect, the statute encompasses all murders, namely, all purposeful killings, all knowing killings, and all killings that result from a purposeful or knowing infliction of serious bodily harm. N.J.S.A. 2C:ll-3(a).
The extraordinary breadth of the current class of murders initially eligible for the death penalty can be illustrated by a comparison to the class that was historically eligible for capital punishment throughout this century under our former death penalty statutes.19 The former murder statute prescribed the *388death penalty option only for first degree murder. This was defined to include “Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate certain felonies.” See L. 1965, c. 212, § 1; R.S. 2:138-2; L. 1917, c. 238, § 1, p. 801 (1924 Supp. § 52-107); L. 1898, c. 235, § 107, p. 824 (C.S. p. 1780, § 107). This definition of first degree murder remained substantially unchanged (there were minor amendments) after 1898.
Under the former statute, with the exception of murders accomplished by poison or lying in wait, murders during the course of certain named felonies and the murder of a law enforcement officer, the State was required to prove three mental operations before a first-degree murder conviction could stand: premeditation, deliberation, and willful execution of the plan. See State v. Anderson, 35 N.J. 472, 496-97 (1961). All other murder was presumptively second degree murder—a non-capital offense—regardless of the circumstances of the murder. The element of deliberation was the crucial difference between first degree (capital) and second degree (non-capital) murder. Deliberation, followed by the homicide, is what was considered so outrageous about first degree murder, justifying societal punishment and retribution in the form of the death penalty. The current mens rea requirement of “purposely” committing the murder, N.J.S.A. 2C:2-2(b)(l), closely corresponds to the former requirement of premeditation, i.e., intent to kill. The new statute, however, contains no requirement of deliberation.
The current statute also includes, as capital murder, death that results solely from the intentional infliction of serious bodily harm. It was clear under the former law that the intent only to do serious bodily harm was insufficient for a first *389degree murder conviction. See, e.g., State v. Thomas, 76 N.J. 344 (1978); State v. Madden, 61 N.J. 377 (1972); State v. Anderson, supra, 35 N.J. at 497; State v. Wynn, 21 N.J. 264 (1956).
The inclusion of these murders and of “knowing” murders—a rough equivalent to the former second degree murder—expands the class of murderers who may be death-eligible as compared to the former statute. The majority acknowledges this, but insists that “[t]he comparison ... is irrelevant” because there is no requirement that the class at the guilt phase “be smaller than the class ultimately subject to the death penalty under a state’s prior statute.” Ante at 187. The majority further finds “no authority” imposing a “ ‘duty to limit’ the number of individuals who are eligible for the death penalty.” Id. Presumably, however, the limitation of the class of those eligible for the death penalty, a duty the majority does acknowledge, will result in a reduction in numbers, unless the class itself is meaninglessly large. I submit that the class here is so broad that the only meaningful definition of the class of death-eligible murderers can occur during the penalty phase. This state’s homicide provision, standing alone, subjects to a possible death sentence defendants who under the prior statute would not even have been given a life sentence. Indeed, under our prior statute even most first degree murder defendants were not subjected to a death sentence, but could exercise a non vult plea; given a choice between excising the non vult plea provision and invalidating the death penalty statute, moreover, the Court in State v. Funicello, 60 N.J. 60 (1972), invalidated the statute, bridling at “the grisly [alternative] proposition that every defendant must risk death____” Id. at 82 (Weintraub, C.J., concurring); cf. id. at 100 (Francis, J., dissenting) (“The result of excision of the non vult provision is to require every first degree murder defendant to be put to trial before a jury, which will be called upon to decide guilt and death or life imprisonment. I agree this is a harsh result, but it follows inevitably from the United States Supreme Court *390fiat____”). Of course, under federal precedent there is no bar to determining death-eligibility during the penalty phase. It is clear, however, that to subject such a broad, nearly all-inclusive, class of defendants to a possible death sentence is to usurp the historical policy of this State, and of this Court, that capital punishment is an extreme sanction to be imposed in only the most egregious cases.20 To the extent that the class is broadened, therefore, the comparison with the prior statute is entirely relevant, for any death sentences imposed upon defendants who would not have been death-eligible under this state’s long-standing definition of first degree murder are, if nothing else, comparatively disproportionate. The likelihood, moreover, that juries will arrive at consistent results, given the variety of states-of-mind and circumstances contemplated by such a sweeping statutory definition of capital murder, is remote to say the least, as is the likelihood that this Court will be able to conduct a meaningful comparative appellate review.
New Jersey’s statute can be “saved,” in short, only if the aggravating factors applied in the penalty phase circumscribe substantially the class of death-eligible murderers. This Court’s historical unwillingness to subject large numbers of first degree murder defendants under the old statute to a possible death sentence counsels in favor of requiring a narrower definition of death-eligible offenses at the guilt phase, and against the sweeping death-eligibility provisions of N.J.S.A. 2C:ll-3(a)(l) and (2).
2.
If the broad definition of murder, standing alone, fails to distinguish adequately the capital offenses, it is arguable that *391the aggravating factors cure any overbreadth by narrowing the class of death-eligible offenses. This argument depends on two assumptions: (1) that no prejudice results from the fact that, unlike the Georgia scheme, aggravating factors in New Jersey serve both to narrow the class and to guide the jury in the discrete function of death selection; and most important (2) that the aggravating factors themselves are sufficiently clear and narrowly drawn to actually narrow the class. I reject both assumptions.
Our statute, as noted, provides a global definition of death-eligible murders. The overbreadth of this definition is “saved,” as in Georgia’s scheme, by interposing “aggravating factors” that must be found by the jury to determine which murderers qualify for capital punishment. In Zant, the Supreme Court approved this limited definitional use of aggravating factors, ruling that “in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons ... eligible for the death penalty.” 462 U.S. at 871, 103 S.Ct. at 2739, 77 L.Ed.2d at 247. This structure differs dramatically, however, from the New Jersey statute, in which the finding of an aggravating factor does play a critical “role in guiding the sentencing body in the exercise of its discretion” by virtue of its function in the weighing process, in addition to “its function of narrowing the class of persons ... eligible for the death penalty.” I have serious reservations as to whether the use of aggravating factors in a single proceeding both to define the murder as a capital offense and to determine the imposition of the death sentence is a fair way to administer the ultimate sanction of death.
This is not to deny that the weighing of aggravating and mitigating circumstances “provides the additional restraint on jury discretion that the petitioner in Zant argued was constitutionally necessary.” Ante at 196. The constitutional infirmity is not in a weighing process. Rather, it inheres in the fact that weighing does double duty. It is used in the factfinding *392necessary to determine whether a murder is capital in the same proceeding and deliberation that determines whether the murderer should be executed. Any distinction between finding an aggravating circumstance and weighing it when the tasks are performed in the same proceeding is at best, in my view, academic; the potential for jury misguidance and arbitrariness is simply too great.21
Other states, recognizing the absolute requirement that death penalty statutes be applied restrictively and clearly, have addressed this structural problem by defining with some particularity at the outset the specific kinds of murder considered “capital murder.” See Cal. Penal Code § 190.2 (Supp.1986). Under these schemes, once a defendant is found guilty of capital murder according to pre-established criteria, the jury’s discretion is then further guided by additional objective standards in sentencing defendants thus convicted of “capital murder”; see Ala. Code § 13A-5-40 to 52 (Supp.1984); Ariz.Rev. StaLAnn. § 13-703, 13-1105 (1978 & Supp.1984); Ill.Rev.Stat ch. 38, § 9-1 (Supp.1984); La.Rev.Stat.Ann. § 14:30, La.Code Crim.Proc., arts. 905 to 905.9 (1984); Miss. Code Ann. § 97-3-19(2), 97-3-21 (Supp.1984); N.H. Rev.Stat.Ann. § 630:1, 630:5 (Supp.1984); Texas Penal Code Ann. § 19.03, Texas Stat.Ann. C.C.P. art. 37.071 (1981 & Supp.1984); Utah Code Ann. § 76-3-207,76-5-202 (1978 & Supp.1984). In other words, death-qualifi*393cation and death-selection are discrete, successive determinations, each to be made by the jury under appropriate standards.
Even though this Court decides that N.J.S.A. 2C:ll-3 does rationally narrow the class of persons eligible for the death penalty under federal precedent, the uniqueness of our statute makes it appropriate as a matter of State constitutional doctrine to interpret Article I, paragraphs 1 and 12 to require a more reliable method of defining the class of murders subject to the death penalty. As noted, the jury’s consideration of aggravating factors serves both to specify which defendants are in the class and, in the same process, to decide their punishment. The aggravating factors act as specifications of the class; they form, in effect, elements of the offense defendants must have committed to come within the class. See ante at 201 n. 27 (“It is clear to us . . . that functionally, the aggravating factors in the Act are indistinguishable ... from the elements of a crime”) (citing Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976)); State v. Silhan, 302 N.C. 223, 269, 275 S.E.2d 450, 482 (1981). However, from the defendant’s perspective, the sentence is imposed as and whén the offense is defined. If the aggravating factors themselves are overbroad or capable of varying interpretation, therefore, the New Jersey process would not only fail to guide jury discretion in choosing the ultimate penalty once the jury has found the defendant to be within the death-eligible class, but it would fail to adequately narrow and define the class itself. The majority concedes, for instance, that “[i]t is true that any aggravating factor may alone lead to death, and that one aggravating factor—that the murder was committed in conjunction with a robbery, rape, burglary, arson, or kidnapping ...—includes a very substantial portion of all murders.” Ante at 188-189. Thus, the over-breadth of the statutory definition of murder is carried through to the aggravating factors, which—however unambiguous in guiding death-selection discretion—necessarily fail to narrow a class they almost completely absorb. See discussion of factor c(4)(c), infra at 200-209. The State Constitution should *394therefore be interpreted to require much greater narrowing of the death-eligible class before sentencing as a hedge against arbitrariness and to achieve greater reliability in sentence results.
3.
The intended definitional and discretion-guiding function of the aggravating factors is undermined by the vagueness of the principal factor implicated in this case, c(4)(c). Aggravating factor e(4)(e) permits a jury to consider whether “[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.” N.J.S.A. 2C:ll-3c(4)(c). In Gregg v. Georgia, supra, 428 U.S. at 201, 96 S.Ct. at 2938, 49 L.Ed.2d at 890, the Supreme Court acknowledged that “it is, of course, arguable that any murder involves depravity of mind or an aggravated battery,” but insisted that “there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction____” The majority today similarly acknowledges that “[t]he provision is troublesome because of its obvious vagueness. Merely quoting it is the best proof of that fact.” Ante at 198. The majority admits, moreover, that the results of attempts in other states to limit the application of their versions of factor c(4)(c) “often provide examples better not followed.” Ante at 205.
The majority persists, nonetheless, in attempting a limiting construction of the factor, reading out of the statutory language both the “outrageously and wantonly vile, horrible or inhuman” phraseology and the legislature’s recent amendment that would include “aggravated assault” as an aggravating factor. Sufficient clarity and narrowing can be achieved, the majority believes, by focusing on the defendant’s state of mind; the standard that results encompasses (1) murders “in which the defendant intended to cause extreme physical or mental suffering” prior to death, but only where the victim actually felt pain or suffered, as well as (2) murders manifesting deprav*395ity of mind, where, in other words, “the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder and served no purpose for the defendant beyond his pleasure of killing____” Ante at 207-209.
The majority’s construction appears, at first blush, both novel and narrow. I submit, however, that when seen in the context of the efforts of other states to limit the application of the factor, the majority’s effort is just one more attempt to salvage an incurably vague standard by rewriting it.
There can be no better illustration of the incurable vagueness of factor c(4)(c) than the attempts of other jurisdictions to limit its application. These attempts have been characterized by an initial assurance that the factor will be narrowed, a convincing-sounding statement of the narrowed standard, and a gradual temporizing expansion of the standard until it becomes unrecognizable. See Richard A. Rosen, “The ‘Especially Heinous’ Aggravating Circumstance in Capital Cases—The Standardless Standard,” 64 N.C.L.Rev. 941 (1986). Indeed, every state whose construction of the “vileness” factor has paralleled the majority’s in not limiting application of the factor to “serious physical abuse” before death has “proven ... unable to provide any other identifiable, consistent, and meaningful limitations on the especially heinous circumstance.” Id. at 968. What has emerged “is a pattern of ad hoc, standardless, and after-the-fact decision making—a pattern of judicial legislation.” Id.
Thus, Georgia, in Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976) , cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 251 (1977) , stated that it approved death penalties founded on this aggravating circumstance only when those cases are “at the core and not the periphery____” Id. at 733, 230 S.E.2d at 11. Yet as Justice Marshall, concurring, noted four years later in Godfrey, Georgia had either abandoned that intention or “its understanding of the ‘core’ had become remarkably inclusive.” *396Godfrey v. Georgia, supra, 446 U.S. at 436, 100 S.Ct. at 1768, 64 L.Ed.2d at 411 (Marshall, J., concurring).
As the Supreme Court noted in Godfrey, by 1977 the Georgia Supreme Court had reached three separate conclusions respecting the (b)(7) aggravating factor as evidenced by the opinions in Harris v. State, supra, 237 Ga. 718, 230 S.E.2d 1 and Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The Godfrey Court noted them approvingly:
The first was that the evidence that the offense was “outrageously or wantonly vile, horrible or inhuman” had to demonstrate "torture, depravity of mind, or an aggravated battery to the victim.” The second was that the phrase, “depravity of mind,” comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, “torture,” must be construed in pari materia with “aggravated battery” so as to require evidence of serious physical abuse of the victim before death. [446 U.S. at 431, 100 S.Ct. at 1766, 64 L.Ed.2d at 408 (footnotes omitted).]
Of course, the first conclusion of the Georgia courts—that torture, depravity of mind or aggravated battery demonstrates an outrageously or wantonly vile murder—is not a construction of the statutory language; it is the statutory language. See Ga.Code Ann. § 17-10-30(b)(7). The second and third constructions, however, taken alone, would have excluded Harris itself, since no physical abuse before death occurred in Harris.
In the wake of Godfrey, the Georgia court redefined the scope of this factor. In Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980), the court rejected a contention that the factor had become a “catch-all” through varied applications. The court reestablished and refined the criteria required to uphold this factor in a capital case.
This statutory aggravating circumstance consists of two major components, the second of which has three sub-parts, as follows: (I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant. In determining “[wjhether * * * the evidence supports the jury’s or judge’s findings of [this] statutory aggravating circumstance * * *. (Code Ann. § 27-2537(c)(2)), the evidence must be sufficient to *397satisfy the first major component of the statutory aggravating circumstance and at least one sub-part of the second component, as herein-after set forth. [Id. at 861, 268 S.E.id at 345 (citation omitted).]
Both before Godfrey and after Hance, the Georgia Supreme Court has found torture supported whenever the victim anticipated the prospect of death. See Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982); Harris v. State, supra, 237 Ga. 718, 230 S.E.2d 1 (victim anticipated death). Thus, Georgia has strayed quite far from the conclusion approved in Godfrey that torture and aggravated battery should be construed in pari materia to require evidence of serious physical abuse before death.
The Georgia court has also strayed from its original conclusion that “depravity of mind” comprehended only that mental state that led the murderer to torture or batter his victim before death. That conclusion suggests that depravity could not exist independently of torture or battery. If it was ever seriously applied, that interpretation has been completely eroded. The Georgia court has found that physical harm to the victim after death will support a finding of depravity of mind. See Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980) (defendant who mutilates or seriously disfigures the victim’s body after death may be found to have a depraved mind). Moreover, in interpreting “depravity of mind,” the Georgia court has found that age and physical characteristics of the victim may be considered, see Thomas v. State, 247 Ga. 233, 275 S.E.2d 318 (1980), cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981), as well as the intent to inflict psychological distress on a witness. Strickland v. State, 247 Ga. 219, 275 S.E.2d 29, cert. denied, 454 U.S. 882, 102 S.Ct. 365, 70 L.Ed.2d 192 (1981). The Georgia Supreme Court has on occasion, moreover, simply recited the facts of cases in which no torture or battery occurred and concluded that these facts evidenced a depraved mind. See Godfrey, supra, 446 U.S. at 436, 100 S.Ct. at 1768, 64 L.Ed.2d at 411 (Marshall, J., concurring). This is especially true of instantaneous gunshot murders, which the Georgia *398court labels “execution-style” by way of reaching its depravity conclusion. See, e.g., Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1980), cert. denied, 451 U.S. 1011, 101 S.Ct. 2348, 68 L.Ed.2d 863 (1981) (execution-style murder of unarmed robbery victim); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), cert. denied 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979) (shotgun murder of child showed depravity); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977) (defendant’s shooting of two non-offending defenseless persons execution-style was depraved). In still other cases, the Georgia Supreme Court has simply noted, in conclusory fashion, that “the evidence supported the jury’s finding under § (b)(7).” Godfrey v. Georgia, supra, 446 U.S. at 440 n. 12, 100 S.Ct. at 1771 n. 12, 64 L.Ed.2d at 414 n. 12 (Marshall, J., concurring) (citing cases).
The application of similar versions of the “heinous” aggravating factor in other states has also been contradictory. Florida’s application of “especially heinous, atrocious or cruel” has been especially erratic. Since that court infused a “conscienceless or pitiless” limitation, evidenced by “torture,” into the meaning of this aggravating factor in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), applications of the factor appear to have strayed from any definite “core.” Compare Mason v. State, 438 So.2d 374, 379 (Fla.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1330, 79 L.Ed.2d 751 (1984) (heinousness supported by victim’s painful death by stabbing; “[she] lingered, unable to breathe and aware of what was happening to her”) with Teffeteller v. State, 439 So.2d 840, 846 (Fla.1983) (“[t]he fact that the victim lived for a couple of hours in undoubted pain and knew that he was facing imminent death ... does not set this senseless murder apart ...”), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). While the court in some cases has adhered to the torture requirement set forth in Dixon, see, e.g., Pope v. State, 441 So.2d 1073, 1078 (Fla.1983) (at least three gunshot wounds and bludgeoning prior to causing death by drowning); Wilson *399v. State, 436 So.2d 908, 912 (Fla.1983) (beating with hammer prior to killing by shotgun); Bottoson v. State, 443 So.2d 962, 966 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct 223, 83 L.Ed.2d 153 (1984) (abduction, stabbing fourteen times, and run over with a car), the court has allowed factors distinct from this “torture” focus to enter into the analysis of whether a particular murder is heinous. See, e.g., Breedlove v. State, 413 So.2d 1, 9 (Fla.), cert. denied, 459 U.LS. 882, 103 S.Ct 184, 74 L.Ed.2d 149 (1982) (while pain suffered from a single stab wound alone might not make this murder heinous, atrocious, and cruel, the attack occurred while the victim lay asleep on his bed).
In Magill v. State, 428 So.2d 649 (Fla.), cert. denied, 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983), the Florida Supreme Court rejected a claim that the factor had become unconstitutionally vague because of the wide swings in meaning varied applications had created. The court’s justification is classic temporizing:
[t]here can be no mechanical, litmus test established for determining whether this or any aggravating factor is applicable. Instead, the facts must be considered in light of prior cases addressing the issue and must be compared and contrasted therewith and weighed in light thereof. [Id. 428 So.2d at 651.]
The ad hoc experience of the Georgia and Florida courts has been replicated in the other states employing aggravating factors akin to c(4)(c). Thus, Arizona, which, like the majority, takes the view that depravity refers to the defendant’s state of mind, has upheld death sentences based on the factor “[w]he-never anything about a murder has proved offensive to the court.” Rosen, supra, 64 N.C.L.Rev. at 980-81. See, e.g., State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980) (death after multiple shot wounds was not “cruel” because no pain was suffered, but was definitely depraved because multiple shots evidenced a “ ‘shockingly evil’ state of mind ‘marked by debasement’ ”). See generally Rosen, supra, 64 N.C.L.Rev. at 972-28 (surveying inability of state Supreme Courts of Florida, North Carolina, Nebraska, Alabama, Arizona, Georgia, Mississippi, Missouri, Oklahoma, and Virginia to limit the application of *400their narrowing constructions when the constructions were, like the majority’s, not limited to physical abuse before death). This most comprehensive state-by-state analysis of the case law concludes:
The legislature must provide a standard of sufficient definiteness to limit the discretion of juries and courts. Experience shows that the terms “heinous, atrocious or cruel,” “depravity of mind,” and “outrageously vile, wanton or inhuman” cannot perform this function. These terms, largely because they are so subjective and emotion laden, cannot, under the eighth amendment, limit the class of those eligible for the death penalty or provide a meaningful basis to distinguish the few who are to die from the many who are to live. They cannot, as required by the fourteenth amendment, adequately define and limit the elements that the prosecution must prove____ They cannot, as required by both the eighth and fourteenth amendment, sufficiently channel the sentencer’s discretion to eliminate, or at least to minimize, the possibility of arbitrariness, capriciousness, and discrimination. [Id. at 990.]
I am persuaded by this decisional experience from other states that aggravating factor c(4)(c) is intractably vague. It cannot be sensibly clarified so as to overcome the intolerable risk that it will be vague in virtually all contexts and hence produce results unacceptably arbitrary and capricious. That this inherent vagueness infects the majority’s attempt to limit the factor is best seen by exposing its construction to a real-world test. In State v. Newlon, 627 S.W.2d 606 (Mo.) (en banc), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982), the Missouri court construed a version of c(4)(c) identical to New Jersey’s in the following factual context: defendant entered a store and asked the clerk for cigarettes; when the clerk turned around the defendant shot him twice in the back with a shotgun; there was no conclusive evidence of suffering or of awareness of the gun. The Missouri court rejected the argument that the jury’s depravity finding was unconstitutional under Godfrey; depravity, it held, had meaning independent of torture or aggravated battery. The murder was depraved, the court held, because the defendant had killed the victim without warning or provocation; the killing, as the court put it, was “senseless.” Id. at 622. Similarly, under the majority’s analysis a killing without warning or provocation, a “senseless” killing, satisfies the depravity standard. The manipulability of *401this standard becomes clear, however, when the facts are varied. Suppose the murderer had threatened the victim, and the victim had threatened him in turn. In this event, the murder might no longer be “depraved,” because it was committed not out of enjoyment but out of concern for personal safety; regardless of whether it was “depraved,” however, the fact that a warning was issued brings the crime within the ambit of intentional infliction of psychological pain (awareness of impending death), thus still potentially satisfying the factor. Of course, the murder might still, at the court’s discretion, be considered depraved, if the defendant had no “standard motive” for plotting the killing in the first instance. The point, however, is that motives are both innumerable and, ultimately, inscrutable; this is evidenced by the majority’s own open-ended catalog of standard motives for murder (“greed, envy, revenge, or another of those emotions ordinarily associated with murder____” ante at 211). Indeed, to the extent that a given defendant is likely to fit within the majority’s definition of depravity, i.e., his motives are inexplicable in ordinary terms, he is also likely to verge on insanity. It is troubling that our society, which seeks to safeguard its citizens against arbitrary treatment by the state, responds to its most disturbed citizens by executing the depraved while acquitting the insane.
Nor are the objective factors unequivocal. In Newlon, the court “held that the jury’s finding was supported by the evidence that defendant shot twice: if the victim still was alive after the first shot, the defendant must have suffered; if the victim died after the first shot, the second shot showed a purpose to mutilate the corpse.” Rosen, supra, 64 N. C.L.Rev. at 985; Newlon, supra, 627 S.W.2d at 622. The majority’s standard is no less malleable; in cases where there are multiple wounds, the jury can find either suffering or, if pain cannot be proved, mutilation. The majority’s attempt to limit the application, in other words, by excluding murders where pain was intended but not felt is ineffectual; even where the absence of pain is provable, the defendant’s intent to inflict pain in addition *402to death makes the presence of mutilation (and thus depravity) likely. Ante at 209, n. 35.
The majority’s insistence, finally, that “[t]he definition of this kind of murder is not vague,” ante at 210, highlights once more the structural infirmities of the Act. It may be legitimate for society to be concerned, in capital murder, with “the complete absence—from society’s point of view, of any of the recognizable motivations or emotions that ordinarily explain murder”; I believe, however, that this concern should be registered—from the defendant’s point of view—earlier than when the sentence is imposed.
Aggravating circumstances are used in determining who among the class of all murderers is death-eligible. In this sense, these factors define the elements of capital murder. See discussion, supra, at 391-392. The factfinding necessary to determine if the murder is capital murder occurs in the sentencing rather than the guilt phase; moreover, the identical factfinding is necessary to determine if the murder is to be punishable by death. Thus, in the same process that the jury considers aggravating factors to determine if the murder is capital murder, it also must use the aggravating factors to determine if the sentence is death. In our statute, because the definition of capital murder is all-encompassing, and it is “narrowed” by resort to aggravating factors, the vagueness of c(4)(c) infects the very definition of the crime. Cf. State v. Payton, supra, 361 So.2d 866 (“vileness” aggravating factor sufficient for sentencing purposes but not as an element of an offense). In my opinion this is an impermissible way to narrow the class of death-eligible murders. I believe that a statute that in effect permits a jury to determine that any murder can be eligible for the death penalty without a prior, distinct and discrete determination that the murder is suitable for consideration as a death-penalty murder is intolerably arbitrary.
The reasoning of the California Supreme Court in People v. Superior Court of Santa Clara Cty., 31 Cal.3d 797, 183 *403Cal.Rptr. 800, 647 P.2d 76 (1982) is persuasive on this point. In Santa Clara, the Court invalidated California’s equivalent of factor c(4)(c). The court noted that terms such as depravity “address the emotions and subjective, idiosyncratic values. While they stimulate ... repugnance, they have no directive content.” Id. 183 Cal.Rptr. at 802, 647 P.2d at 78. Such terms fail, the court concluded, to meet “the standards of precision and certainty required of statutes which render persons eligible for punishment, either as elements of a charged crime or as a charged special circumstance.” Id. The conclusion that the aggravating factor was invalid took on added significance, moreover, because of the structure of the California statute:
We must reject the People’s argument that when the jury is determining the truth of the charged special circumstance, it is exercising a sentencing function and that, therefore, the requirements of due process for narrowness and clarity are lessened. Proceedings do not move into the penalty, or sentencing, phase until after a defendant is convicted of first degree murder and the special circumstance is found to be true____ The fact ... to be found in regard to the special circumstance is no less crucial to the potential for deprivation of liberty ... then are the elements of the underlying crime____ [/<£]
Although the structure of the New Jersey statute differs, as a matter of its basic definition of murder the statute effectively telescopes the definitional narrowing of the class of death-eligible murderers with the jury’s finding of aggravating factors at sentencing. The vagueness of factor c(4)(c), in New Jersey no less than in California, infects both the death-selection and the death-eligibility determinations.22
Whether seen as elements of the offense of capital murder or as factors used to narrow the class at the sentencing stage, the aggravating circumstances must realistically act as a limit on *404the otherwise over-inclusive category of murder. The structural vice of our statute, which merges the classification and sentencing functions—the defendant death-qualification and death-selection decisions—is compounded by its use of a critical aggravating factor that is itself inscrutable and overbroad.
B.
There are additional reasons for concluding that the state capital murder-death penalty statute is unconstitutional because it fails to eliminate the real risk of arbitrary enforcement. The statutory infirmities—the global definition of capital murder, the overbreadth and vagueness of the statute’s most critical aggravating factor, and the merger of the defendant death-qualification and death-selection determinations—highlight another equally profound constitutional weakness in the capital murder-death penalty scheme.
Just as the statute fails to guide juries at its most critical points of application, it fails to channel prosecutorial or judicial discretion in ways that could reduce the threat of arbitrariness. On occasion we have acknowledged the possibility for abuse in the administration of criminal justice given the broad discretion that prosecutors are entitled to exercise in bringing prosecutions. We observed in In re Ringwood Factfinding Comm., 65 N.J. 512, 516 (1974), that a prosecutor’s discretion in selecting matters for prosecution is broad but it “is not unregulated or absolute and may, in appropriate circumstances be reviewed for arbitrariness or abuse.” See State v. Gledhill, 67 N.J. 565 (1975).
There was a time when prosecutorial discretion to determine whether the death penalty should be pursued was recognized as a factor that benefited a defendant. See In re Waiver of Death Penalty, supra, 45 N.J. 501. This was, however, in the context of a statute that did not itself adequately regulate through careful substantive standards or proper procedures the decision to treat a particular murder as a capital crime for which the *405death penalty is to be imposed. The current capital murder-death penalty statute provides no standards to guide a prosecutor’s discretion in terms of who may be prosecuted for capital murder. In State v. McCrary, 97 N.J. 132 (1984), we required that a pretrial hearing in a capital murder prosecution be held to determine whether aggravating factors alleged by the prosecutor were adequately supported by evidence. Nevertheless, the Court permitted this to be done by a slight evidentiary showing, one no greater than that required to avoid the dismissal of an indictment. That evidentiary burden, in my view, is insufficient to assure a defendant that there is a reasonable, well-founded basis to prosecute him or her for capital murder. Id. at 147 (Handler, J., concurring). This is particularly so in light of the fact that in many murders the aggravating factor will be c(4)(c), which is hopelessly overbroad and vague. Not only is it insufficient to guide jury discretion, it is insufficient to guide prosecutorial discretion.
Thus, the standards that govern prosecutorial decisions leave the prosecutor virtually unfettered in terms of who should be prosecuted for capital murder. Any prosecutor is in a position to classify almost any murder as a capital offense. His decision, though conscientious, must necessarily be highly subjective and speculative. The decision, moreover, is virtually unchecked. While the prosecutor must notify defendant of the grounds for the decision, the evidentiary support that must be shown to sustain that decision is light. The inevitability of arbitrariness in a system in which prosecutorial discretion is unfettered is verified in the results—albeit preliminary—of the Public Defender’s study The Reimposition of Capital Punishment in New Jersey: Homicide Cases from 1982-1986, which suggest that “there is an enormous discrepancy between the way in which prosecutorial discretion is exercised in each community. Every county prosecutor is politically autonomous, and the predilections and practices ... differ enormously____ As the preliminary data from these 568 cases demonstrate, *406different methods of applying the statute have been institutionalized in each jurisdiction, and there are enormous discrepancies on both substantive and procedural matters.” Id. at 3-4. Hence it becomes clear that prosecutorial decisions to prosecute for capital murder are basically standardless, and there is no procedure that will adequately provide a screen to intercept those defendants who should not be tried for capital murder.
A comparable infirmity exists at the other end of the death-penalty tunnel. The statute as enacted—and in effect when the defendants in this and the companion case were prosecuted—required proportionality review. In my opinion this is constitutionally essential. The statute with its serious flaws of over-breadth, vagueness, and the blurring of decision-making, to which may be added unchecked prosecutorial discretion, is grossly defective if it cannot provide an ultimate fail-safe that could otherwise rectify individual injustice and spare the life of a defendant improvidently sentenced to death.
It cannot be overstressed that at the time of his trial, defendant would have been entitled automatically to “proportionality review.” Subsequently, the statute was amended to provide for proportionality review only when requested, presumably in response to Pulley v. Harris, supra, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29. L.1985, c. 467. The absence of proportionality review, in my opinion, becomes a fatal constitutional flaw because there is no other way under the statute to correct an arbitrary or discriminatory death sentence.
Given the majority’s assurance that it is “not obliged to follow the reasoning of all these [post-Gregg ] United States Supreme Court decisions in interpreting our own state constitutional protections,” ante at 190, it is difficult to comprehend its—and the legislature’s—reliance on Pulley v. Harris, supra, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29, which held that proportionality review is not necessarily mandated by the eighth amendment. This hardly answers the question whether *407it is mandated as a matter of fundamental fairness under our State Constitution.
Proportionality review has a unique function in a capital murder prosecution. It seeks to determine whether the death penalty is “unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.” Id. at 43, 104 S.Ct. at 875, 79 L.Ed.2d at 36. Proportionality review can act “as a check against the random and arbitrary imposition of the death penalty” by an aberrant jury. Gregg v. Georgia, supra, 428 U.S. at 206, 96 S.Ct. at 2940, 49 L.Ed.2d at 893. Proportionality review tests the capital murder-death penalty scheme for fairness and consistency. It can measure whether “ ‘we have designed procedures which are appropriate to the decision between life and death and ... [that] we have followed those procedures.’ ” Pulley v. Harris, supra, 465 U.S. at 68-69, 104 S.Ct. at 888-89, 79 L.Ed.2d at 52 (Brennan and Marshall, JJ., dissenting) (quoting Kaplan, “The Problem of Capital Punishment,” 1983 U.Ill.L.Rev. 555, 576).
The majority itself observes that “proportionality review * * * is a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination in imposing the death penalty,” ante at 327, and, further, that it “is an important procedural mechanism to safeguard against the arbitrary and capricious imposition of the death penalty,” ante at 330.
I am convinced that as a matter of fundamental fairness capital murder-death penalty convictions under our current statute must require proportionality review. It may well be that the paradox acknowledged by the majority—of attempting to assure uniformity at the end of a process that guarantees an individualized assessment of the defendant—will prove unresolvable; to the extent that our system seeks to assure both uniformity and individualization, however, proportionality review is indispensable in monitoring its efficacy. To the extent *408that proportionality review is made optional, moreover, any case in which review is not exercised where review would have vacated the sentence irrevocably prejudices all future cases by lowering the threshold of properly imposed death sentences. The statute, I submit, is rife with substantive and procedural deficiencies that strongly demonstrate the real likelihood of arbitrary application. The Supreme Court in Pulley clearly recognized that proportionality review may be obviated only where the capital murder scheme provides substantive and other procedural safeguards against arbitrary or capricious sentencing. Our does not.
D.
Thomas Ramseur was convicted and sentenced under a statute that violates our own constitutional standards relating to cruel and unusual punishment and due process of law. The statute fails markedly to clearly and strictly define the kind of murder that ought to be considered capital in nature. Its mechanisms for attempting to narrow and confine the definition of murder and this Court’s attempts to give this definition clarity and certainty are inadequate. The fact that the aggravating factors are used in the same proceeding to define the offense and to determine the sentence compounds the high risks of arbitrariness stemming from inadequate standards. The absence in the scheme of any other measures that could ameliorate or rectify arbitrariness, such as guided prosecutorial discretion and appellate proportionality review of sentences, underscores the arbitrariness of the scheme.
III.
Defendant raises several important issues involving his constitutional rights to indictment and trial by properly constituted juries. These issues concern the manner in which the juries, both grand and petit, were selected. Defendant asserts that the respective juries were neither fair and impartial nor a *409representative cross-section of the community, and, further, that the trial court, in the selection of the petit jury, improperly limited voir dire examination into possible racial bias. In addition, defendant contends that the trial of the issue of criminal guilt before a jury that has been death-qualified, under the bifurcated trial scheme of the capital murder-death penalty statute, fails to satisfy constitutional requirements of a trial by a fair and impartial jury. Because these issues arise in the context of a criminal prosecution that can—and did—eventuate in the imposition of the death penalty, I disagree strongly with the Court’s position that conventional standards and practices enable us to overlook the gravity of these jury-related errors. I therefore dissent from the Court’s determination that none of the serious deficiencies attendant upon the selection and use of the juries in this case warrants a reversal of defendant’s conviction and sentence.
A.
Defendant challenges the composition of the grand and petit juries that were used respectively in his criminal indictment and trial conviction and sentence. He argues that the method used for jury selection resulted in underrepresentation of blacks in violation of his right to equal protection of the law and his right to be indicted and tried by a jury drawn from a representative cross-section of the community.23 Specifically, defendant contends that the Essex County source list for grand and petit jurors was underrepresentative of blacks and, therefore, that the resulting pool of qualified jurors chosen from this list was unconstitutionally unrepresentative under the sixth amendment and the equal protection clause of the fourteenth amendment as well as Article I, paragraphs 5 and 9 of the State Constitution. *410He also challenges the method by which grand jurors were selected and empaneled individually, as well as the procedures used to select grand jury forepersons.
In Essex County, grand and petit jurors are chosen from a list containing the names of all registered voters and licensed drivers of motor vehicles. N.J.S.A. 2A:70-4.24 These lists, as acknowledged by the majority and demonstrated by the record, are clearly underrepresentative of blacks. Ante at 213-214; infra at 410-417. In addition, this underrepresentation is exacerbated by the individualized empaneling procedures used by the assignment judges in Essex County. As noted by the majority, these procedures were highly subjective and focused upon racial considerations.25 Moreover, once each grand jury was selected, the assignment judges used a highly subjective method of selecting grand jury forepersons.26
Defendant’s several challenges were tried and rejected by the court below. See State v. Ramseur, 197 N.J.Super. 565 (Law Div.1984). As noted, the majority does not dispute the fact that the jury-selection procedures used in this case resulted in the underrepresentation of blacks. Defendant and the State stipulated to the fact that blacks comprise 35.9% of the jury-eligible population in Essex County. Ante at 213. Because neither the sources from which the jury list is derived nor the questionnaires sent to those on the list classify jurors according to race, the defense used three surveys to determine the percentage composition of blacks on the jury list. Averaging the results of two telephone surveys and one survey based on a geographical*411ly-inferred method,27 the defense concluded that, for the period between 1979 and September 1982, the percentage of blacks on the source list and the qualified list was 21.3 and 21.8 percent respectively. Ante at 214.
The trial court accepted this evidence, State v. Ramseur, supra, 197 N.J.Super. at 574, n. 4, and found that the absolute disparity between the percentage of blacks in Essex County and the percentage on the qualified and source lists was 14.1 and 14.6 percent respectively.28 As noted, the majority does not quarrel with these figures. Ante at 214-215. In determining disparity the court did not utilize two other acceptable measurement techniques—the comparative disparity and statistical significance methods—because it felt that absolute disparity was the simplest measure and the one used by the United States Supreme Court in three precedents on this issue. See State v. Ramseur, supra, 197 N.J.Super. at 573 n. 3.
In order to resolve defendant’s contentions, it is important first to explain the legal framework within which his constitutional rights must be analyzed. A defendant in state court may challenge the representativeness of the list from which jurors are chosen on two federal constitutional grounds. First, the equal protection clause of the fourteenth amendment protects a defendant from state action that invidiously discriminates against a distinctive class of people of which the defendant is a *412member. In the juror-selection context, an equal protection violation occurs when “the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group of which he belongs.” Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 510 (1977). Because the fourteenth amendment applies to all state action, the test developed to gauge discrimination applies equally to the selection of grand jurors and petit jurors.
The sixth amendment is the second federal constitutional ground that may be available to a state defendant. The sixth amendment right to trial by an impartial jury requires that petit juries be drawn from a “cross-section of the community.” Thiel v. Southern Pacific Co., 328 U.S. 217, 219-220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1184 (1946). This requirement is based on the principle that a jury determination can be truly fair and impartial only if the beliefs, attitudes, and perspectives of the whole community are represented. See Ballard v. United States, 329 U.S. 187, 194, 67 S.Ct. 261, 264, 91 L.Ed. 181, 186 (1946) (“a flavor, a distinct quality is lost if either sex is excluded [from the jury.]”); Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690, 698 (1975) (“The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”). The cross-section requirement, “fundamental to the jury trial guaranteed by the Sixth Amendment,” Taylor v. Louisiana, supra, 419 U.S. at 530, 95 S.Ct. at 697, 42 L.Ed.2d at 698, has been applied to the states through the fourteenth amendment. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).
The right to a jury drawn from a fair cross-section, cognizable under the sixth amendment, is violated when the operation of the system results in a non-representative jury list. It is settled that total exclusion is not required in order to make out *413a constitutional violation. Castaneda v. Partida, supra, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498; Turner v. Fouche, supra, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Carter v. Jury Comm’n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds, Batson v. Kentucky, — U.S.-, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). Unlike an equal protection challenge—which stresses impermissible discrimination—sixth amendment analysis is concerned with the result that members of a group have been excluded, not with the reasons for such exclusion or the motives of those implementing the system.
However, the sixth amendment’s proscriptions apply only to juries chosen for trial and, therefore, do not limit the powers of the federal or state government to select grand jurors. It is the fifth amendment right to a “presentment or indictment of a Grand Jury” which requires that federal grand juries be selected from a cross-section of the community.29 Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). This right to a representative grand jury “is similar to the right—applicable to state proceedings—to a representative petit jury under the Sixth Amendment.” Castaneda v. Partida, supra, 430 U.S. at 510, 97 S.Ct. at 1288, 51 L.Ed.2d at 520 (Powell, J., dissenting). However, “[T]he [United States Supreme] Court has never held that federal concepts of a ‘grand jury,’ binding on the federal courts under the Fifth Amendment, are obligatory for the States.” Alexander v. Louisiana, supra, 405 U.S. at 633, 92 S.Ct. at 1226, 31 L.Ed.2d at 544; Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232 (1884).
*414Although the Supreme Court has not held specifically that a state defendant is entitled to a grand jury chosen from a representative cross-section of the community, this right can be found in our State Constitution. Article I, paragraph 8 of the New Jersey Constitution extends to the citizens of this state the right of indictment. In State v. Rochester, 54 N.J. 85, 88 (1969), we interpreted this provision as requiring that grand jury selection “be so designed as to insure that juries are impartially drawn from community cross-sections.” See also State v. Porro, 158 N.J.Super. 269, 272 (App.Div.), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978); State v. Smith, 102 N.J.Super. 325 (Law Div.1968), aff’d o.b., 55 N.J. 476 (1970), cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970). A majority of state courts have similarly decided that this right exists. See, e.g., State v. Bowen, 45 Or.App. 17, 607 P.2d 218 (1980); Adler v. State, 95 Nev. 339, 594 P.2d 725 (1979); State v. Foster, 196 Neb. 332, 242 N.W.2d 876 (1976); State v. Nelson, 603 S.W.2d 158 (Tenn.Cr.App.1980); People v. Guzman, 60 N.Y.2d 403, 469 N.Y.S.2d 916, 919 n. 3, 457 N.E.2d 1143, 1146 n. 3 (1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984); State v. Castonguay, 194 Conn. 416, 481 A.2d 56, 59 (1984); State v. Jenison, 122 R.I. 142, 405 A.2d 3 (1979). Therefore, although the federal fifth amendment right to indictment has not been applied to the states, Hurtado v. California, supra, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, state constitutional principles grant defendant the right to have an indictment returned by a grand jury whose members are drawn from a fair cross-section of the community. See State v. Rochester, supra, 54 N.J. at 88; State v. Smith, supra, 102 N.J.Super. 325.
Regardless of whether state or federal grounds are employed, federal analysis remains instructive in terms of understanding the constitutional right to a fair and impartial jury. Defendant has the right to demonstrate that the jury-selection system fails to provide adequate representation of cognizable groups, in which event his conviction must be considered invalid *415regardless of whether actual prejudice was suffered. See Vasquez v. Hillery, 474 U.S. 254,---, 106 S.Ct. 617, 622-24, 88 L.Ed.2d 598, 607-09 (1986). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court set forth the framework for evaluating fair cross-section claims under the federal constitutional entitlement to a fair and impartial jury.30 First, the defendant must establish a prima facie case that the fair cross-section requirement has been violated, by showing:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. [Id. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587.]
Once the defendant has made this prima facie showing, the burden shifts to the state to justify this infringement of the defendant’s right “by showing attainment of a fair cross-section to be incompatible with a significant state interest.” Id. at 368, 99 S.Ct. at 670, 58 L.Ed.2d at 589-90. It is not sufficient that the exclusion rests on “rational grounds.” Rather, those aspects of the selection process that result in the exclusion must “manifestly and primarily” advance the state interest. Id. at 367, 99 S.Ct. at 670, 58 L.Ed.2d at 589.
With respect to the first criterion—whether the excluded group is “distinctive”—the group must have been “singled out for different treatment under the laws.” Castaneda v. Partida, supra, 430 U.S. at 494, 97 S.Ct. at 1280, 51 L.Ed.2d at 510. No discussion is needed to support the conclusion that blacks constitute a distinctive group for purposes of jury selection *416challenges. Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 3005, 61 L.Ed.2d 739, 756 (1979); Swain v. Alabama, supra, 300 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Whitus v. Georgia, supra, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1879).
The defendant must next prove significant underrepresentation of the cognizable group. Such underrepresentation is shown by a comparison of the proportion of the group in the total population to the proportion called to serve as jurors. Under the equal protection clause, such underrepresentation must be substantial over a significant period of time. See Castaneda v. Partida, supra, 430 U.S. at 493, 97 S.Ct. at 1279, 51 L.Ed.2d at 509. Under the sixth amendment, the defendant must show that the representation of the group in venires from which juries are selected is not fair and reasonable. See Duren v. Missouri, supra, 439 U.S. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587.
Defendant’s claim of significant underrepresentation is based on the statistical disparity that results from using the Essex County voter’s registration and licensed driver lists to create the source list. With respect to the grand jury, this claim is augmented by reference to the discriminatory practices of the assignment judges in selecting individual grand jurors.
In upholding the jury selection process, the trial court relied primarily on Swain v. Alabama, supra, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. In that case, blacks constituted 25 percent of the relevant population while the venire contained only 10-15 percent blacks. The Supreme Court ruled that underrepresentation on the venire of 10% did not show purposeful discrimination. The trial court also relied on State v. Porro, supra, 158 N.J.Super. 269, in which the Appellate Division ruled that disparities of 44% for Hispanics, 12% for blacks and 13% for blue collar workers were permissible because the disparities were generated by problems with the voter registration list, not as part of a systematic exclusion. Id. at 280-81.
*417Thus, the trial court ruled that an absolute disparity of 14.1% between the population and the qualified list (14.6 for the source list) was neither substantial nor unreasonable according to federal precedent. State v. Ramseur, supra, 197 N.J.Super. at 581. The trial court bolstered its conclusion by reasoning that any possible constitutional infirmity was cured by the “fact” that black representation in the grand juror selection process increased, rather than decreased, as blacks moved through that system: 21.3% representation on the source list to 21.8% representation on the qualified list. Id.31
In my opinion, the increase by one-half of one percent from the source list to the qualified list (21.3% to 21.8%) is insignificant where there is a disparity of 14 percent at the outset. In any event, the proofs used to demonstrate this ameliorative trend were problematic.32
*418There is ample support for defendant’s contention that a 14% differential between the population and the source and qualified lists raises a presumption of discrimination. See, e.g., Preston v. Mandeville, 428 F.2d 1392 (5th Cir.1970) (29.3% of the relevant population, but only 15% of the master juror list, was black; 14.3% disparity sufficient to make out a prima facie case); Stephens v. Cox, 449 F.2d 657 (4th Cir.1971) (over the time period studied, black population was 36 and 34%, but only 14.64 and 15.74% of those actually drawn for service were black; court ruled that approximately 10% or 2 to 1 disparity established a prima facie case under the sixth amendment); Barrows v. State, 239 Ga. 162, 236 S.E.2d 257, 260 (1977) (black population was 37.3% but blacks comprised only 3% of the grand jury, while black representation on the traverse jury— from which the petit juries were chosen—increased from 11.3 to 22.9%, disclosing minimum disparity of 14.4%; the court focused on the historical pattern of discrimination and concluded that a significant disparity had been shown); Villafane v. Manson, 504 F.Supp. 78 (D.Conn.1980) (prima facie case established where 1.8% of the population was Puerto Rican, while .93% of the electorate eligible for grand jury duty was Puerto Rican, but only two out of 738 grand jurors empaneled were Puerto Rican). Moreover, in addition to the absolute *419disparity of 14.1% (35.9 minus 21.8), the record in this case fairly reflects the following: (1) the comparative disparity was 35.3 (14.1 divided by 35.9)—indicating that a white person had approximately a 40% greater chance than did a black of being selected; and (2) the standard deviation from the expected outcome was 28.9.
The majority states that it will not “choose one test over the others as the best method for assessing the significance of statistical evidence.” Ante at 222. However, in concluding that the underrepresentation of blacks on the jury list does not rise to the level of a constitutional violation, the Court totally ignores the results of the statistical decision theory (SDT) or statistical decision test.
As noted by the majority, “SDT provides a measure of the extent to which the actual percentage of minority jurors can be expected to differ from the percentage of the minority proportion in the general population if the selection process is completely random. SDT further indicates whether this figure is so at variance with the expected outcome that the hypothesis of random selection ought to be rejected.” Ante at 222 (emphasis added). As the Court concedes, id. at 221-222, a statistician would conclude that a result more than 2 or 3 standard deviations from the expected would be suspect. See Castaneda v. Partida, supra, 430 U.S. at 496 n. 17, 97 S.Ct. at 1281 n. 17, 51 L.Ed.2d at 512 n. 17. In this case, however, the difference between the expected and observed number of blacks on the jury list is 28.9 standard deviations. The majority’s conclusion that this figure “straddle[s] the borderline of substantial underrepresentation” is inexplicable. Ante at 223-224. Moreover, in Castaneda v. Partida, supra, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498, the Court held that a figure of 29 standard deviations reflected substantial underrepresentation of Mexican-Americans in violation of the fourteenth amendment. In reaching this conclusion, the Court noted: “[T]he likelihood that such a substantial departure from the expected *420value would occur by chance is less than 1 in 10140.” Id. 430 U.S. at 496 n. 17, 97 S.Ct. at 1281 n. 17, 51 L.Ed.2d at 512 n. 17.
In light of the above figures, it is impossible to understand the majority’s conclusion that “the statistical evidence .. is not so alarming as to compel a conclusion of substantial underrepresentation.” Ante at 223. Indeed, one has to wonder how severe the underrepresentation would have to be before the Court would be “sufficiently alarmed.” The majority’s conclusion flies in the face of the evidence and is bottomed on constitutionally irrelevant considerations. One is the claim that because the selection from the source list did not involve “subjectivity,” “[a] higher disparity [higher than what?] is tolerable.” Id. at 224. The asserted relevance of “subjectivity” is exaggerated. The Court itself rejects the argument that a jury-selection procedure based on voter or similar lists “can never amount to a ‘systematic exclusion,’ ” noting that “the fair cross-section principle ... is designed to achieve results ” and “ ‘compilers of jury lists may drift into discrimination by not taking affirmative action to prevent it.’ ” Id. at 226 (quoting People v. Harris, 36 Cal.3d 36, 58, 679 P.2d, 433, 446, 201 Cal.Rtpr. 789 (1984) (quoting People v. Superior Court, 38 Cal.App.3d 966, 971-72, 113 Cal.Rtpr. 732, 736 (1974)) (emphasis added).33 Another irrelevant consideration is the proposition that there is no “history of exclusion.” Ante at 225. Finally, and paradoxically, the Court depreciates the current defects in the system by finding some significance in the State’s “efforts at reform.” Id. at 226.
*421The Court’s reasoning is spurious. It finds—then disregards—the fact that defendant has clearly demonstrated the “systematic exclusion of the [cognizable] group in the jury-selection process.” Duren v. Missouri, supra, 439 U.S. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587. The Court’s tacit and disingenuous recognition of the constitutional violation is suggested in its acknowledgement that “the results [i.e., the disparity] are still far from optimal____[and g]reater representativeness on the jury panels is obviously desirable.” Ante at 226. I am therefore satisfied that the exclusion of blacks, as a distinctive group, from the jury list was significant and that blacks were substantially underrepresented.
The final prong of the Duren test requires an analysis of whether the underrepresentation came about as a result of volitional governmental action. Under the sixth amendment, the defendant must prove the systematic exclusion of blacks in the jury selection process. See Duren v. Missouri, supra, 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588. The Duren Court’s definition of systematic exclusion is whether the exclusion was “inherent in the particular jury selection process utilized.” Id.
As noted, the jury selection system employed in Essex County utilized a merged list of registered voters and licensed drivers from which a source list was generated. Since blacks appear less frequently on these lists than in the general population, when names are chosen at random from the source list, blacks are substantially underrepresented. Thus, the resulting underrepresentation is “inherent in the selection process utilized” or “due to the system.” However, many state courts that have dealt with similar systems—those based on voter registration lists—have held that such underrepresentation is not “systematic.” Presented with the assertion that the system underrepresents a particular group that registers to vote with less frequency than the community as a whole, courts reply that this is not the fault of the system but of those who fail to register. See, e.g., United States v. Brady, 579 F.2d 1121 (9th *422Cir.1978), cert. denied, 484 U.S. 1074, 99 S.Ct. 849, 54 L.Ed.2d 41 (1979); United States v. Test, supra, 550 F.2d 577, 586 (10th Cir.1976); State v. Bowen, supra, 45 Or.App. 17, 607 P.2d 218.
These eases totally misconstrue the right to a jury drawn from a representative cross-section of the community, and are hardly persuasive of what our own constitution reasonably requires in a death penalty trial. This right creates an affirmative duty on the part of the state to utilize a system that fairly represents all cognizable groups. If the chosen system fails adequately to represent a certain group, for whatever reason, this underrepresentation is “inherent in the selection process utilized.”
Moreover, as the majority notes, ante at 230-232, the assignment judges’ procedure for selecting each panel of grand jurors was anything but neutral. In fact, this procedure differs little from the “key man” juror selection system, utilized in many states, which has been attacked as “highly subjective” and “susceptible to abuse as applied.” Castaneda v. Partida, supra, 430 U.S. at 491, 497, 97 S.Ct. at 1281, 51 L.Ed.2d at 508, 512.34 Imperative to the integrity and legitimacy of the grand and petit jury system is the requirement that any biases from whatever source be minimized. In Rose v. Mitchell, supra, 443 U.S. at 555-56, 99 S.Ct. at 2999-3000, 61 L.Ed.2d at 749, the Supreme Court said:
Selection of members of a grand jury because they are one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group qualified to serve, impairs the confidence of the public in the administration of justice ... ‘The injury is not limited to the defendant—there is injury to the jury system, to the law as an institution, to the community at large, and to *423the democratic ideal reflected in the processes of our courts.’ [quoting Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181, 187 (1946).]
The assignment judges’ discretionary selection of the members of the grand jury is the epitome of a system subject to abuse. We should not hesitate to conclude, under our own Constitution, that this susceptibility, when combined with actual underrepresentation, is violative of the right to a properly constituted jury. Accord Castaneda v. Partida, supra, 430 U.S. at 494-95, 97 S.Ct. at 1280, 51 L.Ed.2d 510-11; Whitus v. Georgia, supra, 385 U.S. at 552, 87 S.Ct. at 647, 17 L.Ed.2d at 605.
Moreover, the assignment judges’ exercise of discretion to obtain what was, in their subjective opinion, a fair cross-section of the county, violated equal protection standards. First, the judges admitted that race played a part in who was selected to sit on the grand juries. Undoubtedly, this practice was well-intentioned; however, it constituted a conscious effort to establish grand juries based on racial factors. This is as obnoxious as systemic exclusion. See Cassell v. Texas, 339 U.S. 282, 287, 70 S.Ct. 629, 631, 94 L.Ed. 839 (1950) (plurality opinion); Ross v. Wyrick, 581 F.2d 172, 175 (8th Cir.1978); Harris v. Stephens, 361 F.2d 888, 891 (8th Cir.1966), cert. denied, 386 U.S. 964, 87 S.Ct. 1040,18 L.Ed.3d 113 (1967); Villafane v. Manson, supra, 504 F.Supp. at 88.35 In addition, the judges’ professed ignorance of the actual racial composition of Essex County casts doubt on their subjective determination of a fair cross-section. See Barrow v. State, supra, 236 S.EM at 261 (jury composition invalid where jury commissioners were not informed of the meaning of the term “fairly representative cross-section”).
*424To the extent that motive or design is important in equal protection analysis, it may be inferred from the continued use of a system that results in underrepresentation. Thus, it is not enough for the State to claim that no one purposefully excluded blacks or that the system operates on a race-neutral basis. The lack of actual motive or intent to discriminate is irrelevant. The Supreme Court has consistently held that “affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion.” Alexander v. Louisiana, supra, 405 U.S. at 632, 92 S.Ct. at 1226, 31 L.Ed.2d at 543; see Turner v. Fouche, supra, 396 U.S. at 361, 90 S.Ct. at 540, 24 L.Ed.2d at 579; Whitus v. Georgia, supra, 385 U.S. at 551, 87 S.Ct. at 647, 17 L.Ed.2d at 604; Hernandez v. State of Texas, 347 U.S. 475, 481, 74 S.Ct. 667, 98 L.Ed. 866, 872 (1954). Under our own Constitution, we have readily acknowledged the significance of discrimination under circumstances in which the purpose to discriminate can readily be imputed even though clear proof of actual discriminatory intent may be lacking.
In sum, defendant has amply demonstrated that the substantial underrepresentation of blacks on the jury source list constituted a violation of his constitutional rights to equal protection and a fair and impartial jury, both grand and petit. Thus, his conviction must be considered invalid regardless of whether actual prejudice was suffered. See Vasquez v. Hillery, supra, 474 U.S. at-, 106 S.Ct. at 622-24, 88 L.Ed.2d at 607-09.
B.
Related to the problem of non-representative grand and petit juries is whether the trial court erred by refusing defendant’s request to ask prospective jurors certain questions designed to expose possible racial prejudice. The trial court limited defendant to the single question whether race would affect the juror’s ability to reach a fair and impartial verdict, but did not allow any more specific or pointed inquiries as to racial bias. See *425ante 243-245. The Court suggests that this refusal was a poor exercise of judgment by the trial court—not to be repeated in future cases—but one that does not rise to the level of trial error, let alone provide a basis for reversing defendant’s conviction. I disagree.
The issue is whether there existed in this trial for capital murder a “reasonable possibility” that racial prejudice could influence the jury in its decision to convict and sentence to death, defendant—a black man. Rosales-Lopez v. United States, 451 U.S. 182, 191, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22, 30 (1981). The majority finds no error in the trial court’s failure to recognize such a possibility because, in its view, race was not an issue in this case. This premise is mistaken.
The majority’s position that racial issues were not implicated in this case is unsound. As has been shown, defendant was indicted, convicted and sentenced by juries drawn from lists that were clearly underrepresentative of blacks. Ante at 222-223. Indeed, the majority itself concedes that the underrepresentation of blacks on the jury list was “significant enough to alert us to a possible constitutional violation,” ante at 224, and that “[gjreater representativeness is obviously desirable” in the future. Id. at 226. Moreover, the Court purports to be “sensitive to the reality of racial prejudice in American life,” and to the danger—particularly in a capital case—“that jurors may prejudge a defendant because of his or her race.” The Court notes that “[rjacial prejudice may operate, for instance, when the defendant is black simply because the defendant is black and regardless of the victim’s color.” Id. at 247.
In State v. Long, 137 N.J.Super. 124, 131 (App.Div.1975), certif. denied, 70 N.J. 143 (1976), the court held that whether the trial court abuses its discretion by failing to ask racial-prejudice questions depends on the facts of the case. In this case, blacks were improperly excluded from the source list from which both the grand and petit juries were drawn. When this fact is considered in conjunction with “the reality of racial *426prejudice in American life”, the possibility that racial bias could have an insidious and invidious influence in the trial is enhanced. These cumulative deficiencies—the invalid composition of the jury lists and the failure to permit searching inquiry as to individual racial bias—constitute reversible error.
Under our State Constitution, as a matter of fundamental fairness, defendant was entitled to have procedures invoked that would maximize his right to be tried by a fair and impartial jury. New Jersey has always evinced exceptional concern with the evils of racial prejudice, as exemplified by the State’s many strong prohibitions against discrimination. See, e.g., N.J. Const, of 1947 art. I, para. 5; N.J.S.A. 10:5-3 (Law prohibiting discrimination); N.J.S.A. 2A:72-7 (establishing criminal penalties for disqualifying a person from jury service on account of race). Moreover, this Court has consistently confirmed the right of a criminal defendant to a fair and impartial jury as a matter of state constitutional jurisprudence. E.g., State v. Ragland, 105 N.J. 189 (1986); State v. Ingenito, 87 N.J. 204 (1981). We have given this constitutional right added force in terms of providing a criminal defendant with a trial free of racial bias. E.g., State v. Gilmore, supra, 103 N.J. 508.
The majority is satisfied in this case to tolerate a non-searching examination of potential jurors as a matter of state constitutional law because it interprets the federal Constitution as imposing no more heightened protections. However, the comparatively narrow federal protection against potential racial bias by individual jurors can be ascribed to concerns relating to federalism. As observed in Ristaino v. Ross, 424 U.S. 589, 597 n. 9, 96 S.Ct. at 1022 n. 9, 47 L.Ed.2d 258, 265 n. 9 (c1976):
Although we hold that voir dire questioning directed to racial prejudice was not constitutionally required, the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant. Under our supervisory power we would have required as much of a federal court faced with the circumstances here. See Aldridge v. United States, supra; cf. United States v. Walker, 491 F.2d 236 (CA9), cert. denied, 416 U.S. 990, 40 L.Ed.2d 769, 94 S.Ct. 2399 (1974); United States v. Booker, *427480 F.2d 1310 (CA 7 1973). The States also are free to allow or require questions not demanded by the Constitution. (Emphasis added.)
Several state courts have recognized the need for enhanced protections to assure a jury free from racial bias as a matter of strong local public policy and state constitutional concern. They have, therefore, required more extensive voir dire examination under state law than that mandated by the federal Constitution. See, e.g., State v. Windsor, 316 N.W.2d 684, 687 (Iowa Sup.Ct.1982) (inquiry required in any case “in which a reasonable possibility exists that the verdict might be affected by racial prejudice”); Commonwealth v. Lumley, 367 Mass. 213, 327 N.E.2d 683, 685-86 (1975) (inquiry mandated when a defendant is a “special target for prejudice”; in all other cases, the trial judge should grant a motion for such questioning); State v. Taylor, 423 A.2d 1174, 1175 (R.I.Sup.Ct.1980) (court rule gives right to inquire about prejudice).
A searching voir dire is especially critical in cases where the defendant is exposed to the death penalty. This is particularly so when the questioning is directed to potential racial bias. See State v. Gilmore, supra, 103 N.J. 508; see also Commonwealth v. Holland, 298 Pa.Super. 289, 444 A.2d 1179, 1181 (1982) (prohibition of such questioning is “[t]o sweep under the rug, figuratively, the reality of life and that racial prejudice exists [and] can prevent a defendant from obtaining a fair trial”). The Supreme Court itself has recognized the need for heightened questioning in capital cases. In Turner v. Murray, — U.S.-, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), the Court held that a capital defendant was entitled to have potential jurors questioned on the issue of racial bias. Id. — U.S. at -, 106 S.Ct. at 1688, 90 L.Ed.2d at 37. The Court stated:
Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected____
The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. “The Court ... has recognized that the qualitative difference of death from all other punishment requires a correspondingly greater degree of scrutiny of the capital *428sentencing determination.” [Id. — U.S. at-, 106 S.Ct. at 1687-88, 90 L.Ed. 2d at 35-6 (citation omitted).]
This Court has also recognized the indispensable role of the voir dire in capital cases to expose juror prejudice:
Another important, indeed critical means for dealing with potential and latent bias is the voir dire. The court should consider the efficacy of more exhaustive and searching voir dire examinations. The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias. The 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, trial judges should exercise extraordinary care in the voir dire of potential jurors. [State v. Williams, 93 N.J. 39, 689 (1983) (footnotes omitted).]
When racial prejudice questions are excluded from the voir dire, the trial court’s ability to remove prospective jurors is severely impaired as is the defendant’s right to exercise intelligent challenges. See Rosales-Lopez v. United States, supra, 451 U.S. at 188, 101 S.Ct. at 1634, 68 L.Ed.2d at 28. Moreover, the actual costs of requiring the inquiry are slight. Id. at 190, 101 S.Ct. at 1635, 68 L.Ed.2d at 30.
The Court acknowledges that a more searching voir dire directed against racial bias could be permitted and, indeed, is the preferred course. Ante at 247-248. However, this concession deserves only the faintest praise. In this case, the Court has concluded that defendant suffered no constitutional violation and is not entitled to any redress. Admonitions to sensitize judges in the future and recommended measures to extirpate racial bias in capital murder trials cannot excuse the failure to have done so here. The trial court’s refusal in this case to permit such questioning constitutes reversible error.
C.
Defendant challenges the use of a death-qualified jury during the guilt phase of his bifurcated trial. Death-qualification involves the removal of veniremen
who ma[ke] unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude *429toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. [Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776, 785 n. 21 (1968).] 36
Defendant does not challenge the removal of the second group of veniremen (known as “nullifiers”) from the guilt-phase jury, nor does he challenge the removal of the first group from the penalty phase of the trial. However, defendant claims that the removal of the first group from the guilt phase infringes his state constitutional right to trial by an impartial jury. He argues that the State should not be able to exclude at the guilt determination phase of the trial prospective jurors whose sole asserted disqualification consists of their inability to vote for the death penalty at the penalty phase of the trial. This claim should be upheld.
In Witherspoon v. Illinois, supra, the Supreme Court held that states could not exclude from a jury hearing a capital case all venirepersons expressing any scruples against capital punishment. The Court determined that using such a jury in the penalty phase of a bifurcated capital case would violate the defendant’s rights under the sixth and fourteenth amendments. Id. at 518-23, 88 S.Ct. at 1775, 20 L.Ed.2d at 782-86. The Court noted that a narrower exclusion of venirepersons would be permissible in the limited context of a jury hearing the penalty phase of a bifurcated trial: “If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply ‘neutral’ with respect to penalty.” Id. at 520, 88 S.Ct. at 1776, 20 L.Ed.2d at 784 (footnote omitted).
*430The Witherspoon Court did not have enough evidence before it to conclude that states were constitutionally prohibited from removing venirepersons who might hesitate to return a verdict of death from the jury hearing the guilt phase of a bifurcated trial; the Court left this question open for future defendants to attempt to prove that such juries were less than neutral with respect to guilt. Id. at 517-18, 521 n. 18, 88 S.Ct. at 1774-75, 1776 n. 18, 20 L.Ed.2d at 782, 784 n. 18.
Eighteen years later, a defendant did bring to the Court extensive evidence and a full record showing
that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment [37] are permitted to serve____ [B]y systematically excluding a class of potential jurors less prone than the population at large to vote for conviction, the State gave itself an unconstitutional advantage at his trial. [Lockhart v. McCree, supra, — U.S. at —, —, 106 S.Ct. 1758, 1770, 1775, 90 L.Ed.2d 137, 155, 161 (Marshall, J., dissenting).]
Inexplicably, the Lockhart majority rejected defendant’s argument: “it is hard for us to understand the logic of the argument that a given jury is unconstitutionally partial when it results from a State-ordained process, yet impartial when exactly the same jury results from mere chance.” Id. at-, 106 S.Ct. at 1767, 90 L.Ed.2d at 151. As the dissent pointed out, it is just this kind of “logic”—rejecting as unconstitutional a process for selecting jurors when that process creates bias— “which carried the day in Witherspoon, and which never has been repudiated by this Court.” Id. at-, 106 S.Ct. at 1775, 90 L.Ed.2d at 161 (Marshall, J., dissenting).
Extensive social science research indicates that death-qualified jurors—i.e., jurors who are not in the two groups described in the earlier quote from Witherspoon—are
more likely to believe that a defendant’s failure to testify is indicative of his guilt, more hostile to the insanity defense, more mistrustful of defense attorneys, and less concerned about the danger of erroneous convictions____ [They *431have a] greater readiness to convict or to convict on more serious charges. And finally the very process of death qualification—which focuses attention on the death penalty before the trial has begun—has been found to predispose the jurors that survive it to believe that the defendant is guilty. [Lockhart v. McCree, supra, - U.S. at -, 106 S.Ct. at 1772, 90 L.Ed.2d at 157 (Marshall, J., dissenting) (citation omitted).] 38
The evidence that death-qualification is a process that creates partiality in the juries it produces has been quite convincing.
The chief strength of [the sociological] evidence lies in the essential unanimity of the results using diverse subjects and varied methodologies____ Where studies have identified and corrected apparent flaws in prior investigations, the results of subsequent work have only corroborated the conclusions drawn in the earlier efforts.
********
The true impact of death qualification on the fairness of a trial is likely even more devastating than the studies show [due to the use of peremptory challenges and lax judicial application of the Witherspoon standards.] [Lockhart, supra, — U.S. -, -, 106 S.Ct. at 1773-74, 90 L.Ed.2d at 158, 159 (Marshall, J., dissenting).]
The social science research has consistently found that proponents of the death penalty are more punitive than opponents of the death penalty. Wilson, “Belief in Capital Punishment and Jury Performance” (unpublished, University of Texas 1964); Jurow, “New Data on the Effects of a ‘Death-Qualified’ Jury on the Guilt Determination Process”, 84 Harv.L.Rev. 657 (1971); Fitzgerald and Ellsworth, “Due Process vs. Crime Control: Death-Qualification and Jury Attitudes”, 8 Law Hum.Behav. 31 (1984). “Death-qualified respondents were more punitive than excludable respondents—less likely to consider mercy, more likely to favor harsh punishment as a means of reducing crime, and more likely to believe in the strict enforcement of all laws, no matter what the consequences. These differences are dra*432matic.” Fitzgerald and Ellsworth, supra, 8 Law Hum.Behav. at 43-44.
Death-qualification as a voir dire process has its own effects, creating partiality among the jurors, even aside from the exclusion of veniremen.
By focusing on the penalty before the trial actually begins the key participants, the judge, the prosecutor and the defense counsel convey the impression that they all believe the defendant is guilty, that the “real” issue is the appropriate penalty, and that the defendant really deserves the death penalty.
The spectacle of the defense attorney being forced to lead and cajole a prospective juror who has expressed adamant opposition to the death penalty in order to prevent him from being “witherspooned” off the jury is striking: “Mr. A, don’t you know that under some set of facts you could consider imposing the death penalty? Certainly if the evidence is bad enough you would be able to follow the law by considering imposing death?” [Grigsby, supra, 669 F.Supp. at 1303 & n. 8.]
The majority follows Lockhart because it finds itself in essential accord with the Supreme Court’s resolution of this issue. Ante at 248-254. The majority does not construe the New Jersey Constitution as an independent source of protection in this area. Because I disagree with the majority on its interpretation of the State Constitution, I must dissent on this issue.
The decision in Lockhart was based in part on that Court’s analysis that at least for the purposes of the federal constitution, Arkansas’ interest in a unitary jury—having one jury hear both phases of a capital trial—outweighs the defendant’s interest in not being tried by a jury that has been made less impartial by being death-qualified. Lockhart, supra, — U.S. at -, 106 S.Ct. at 1768-69, 90 L.Ed.2d at 152-54. The balance this Court makes under our Constitution must be different from that made by the United States Supreme Court under the federal constitution. First, the right to be tried by an impartial jury is given great protection under the our state standards and under our State Constitution. See, e.g., State v. Ragland, supra, 105 N.J. 189; State v. Gilmore, supra, 103 N.J. 508; State v. Ingenito, supra, 87 N.J. 204; State v. Simon, supra, 79 N.J. 191. Second, under the state doctrine of funda*433mental fairness, that right to an impartial jury must be applied even more strictly when life is at stake. Third, New Jersey’s interest in a unitary jury is weaker than Arkansas’ was in Lockhart Arkansas’ death penalty statute requires one jury to hear both the guilt phase and the penalty phase of the trial. See Ark.Stat.Ann. § 41-1303(3). New Jersey’s death penalty statute makes a unitary jury discretionary. See N.J.S.A. 2C:ll-3.
We have exhibited great concern and exceptional sensitivity to the subtle but real evils of jury bias. In State v. Simon, supra, 79 N.J. 191, we rejected a procedure in which a jury was “forced into a premature consideration of criminal guilt for which it was inadequately prepared.” Id. at 201. The jury was required to answer special interrogatories which had a “subliminal suggestiveness” and created “conscious or subconscious feelings as to [defendant’s] guilt.” Id. The death-qualification process has an effect on prospective jurors as serious and as obvious as the effect created by special interrogatories. “The death-qualification process traps the participants into the necessity of communicating false cues to the jury”: cues that the prosecutor, the judge, and even the defense attorney believe that the defendant is guilty, and the only real issue is what the penalty should be. See Grigsby, supra, 569 F.Supp. at 1303.
The right to trial by an impartial jury has always been highly valued by our state constitution.
In this State, the Constitution of 1776 expressly provided that “the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal, forever,” N.J. Const. (1776), Art. XXII. The right to “an impartial jury ... in all criminal prosecutions” was similarly guaranteed by the 1844 Constitution, N.J. Const. (1844), Art. I, II7-8, and the present constitution of course, reaffirms that “the right to trial by jury shall remain inviolate.” N.J. Const. (1947), Art. I, H 9. [State v. Ingenito, supra, 87 N.J. at 210.]
We have held that the right under our state constitution to trial by an impartial jury grants protections broader than those granted by the parallel federal right. See State v. Gilmore, supra, 103 N.J. at 524-29, 543-44.
*434The process of imposing a death sentence has three stages. The jury must determine that the defendant was guilty of murder, the jury must determine whether the murder the defendant committed was a kind for which the death penalty can be imposed, and the jury must decide whether this particular defendant should be given the death penalty. See supra at 379-382, 386-391. When not only the third decision (a decision of guided discretion), but also the first two decisions (in theory, matters not open to jury discretion) are decided by a death-qualified jury—a biased jury—a great injustice is done to the defendant.
The question, ultimately, is whether the state’s putative interest in “neutrality” on the issue of penalty may be vindicated at the expense of the defendant’s interest in a fair trial if both interests may be accommodated by using different procedures. If different and more protective procedures could be devised serving to guarantee defendant’s right to be tried by a fair and impartial jury then, as a matter of fundamental fairness in a capital punishment prosecution, the State is enjoined to use such protective procedures.
I agree with Justice O’Hern in his concurring opinion, Ante at 334-341, that the inconvenience entailed in providing for a non death-qualified jury—one that is fair and impartial—in the trial of guilt is not too high a price to pay to vindicate defendant’s constitutional interests. There can be no question that the use of completely separate juries would solve the problem because guilt would be determined by a normally composed jury but penalty would be determined by a death-qualified jury. A prohibition of death-qualifying the jury for the guilt phase of capital trials would impose relatively insubstantial burdens on the State. See Grigsby, supra, 569 F.Supp. at 1319:
If such a bifurcated system were established, would it mean that in every case in which the State sought the death penalty two separate juries would have to be impaneled? The answer is, obviously, no. To require the impanelment of the second jury, the guilt phase jury would have to end with the *435conviction of the defendant, in accordance with the statutory requirements, of capital murder (not a conviction on a lesser included offense, e.g., first degree murder); it would have to reject any insanity claim; and finally, the State would have to continue to seek the death penalty and to insist upon its consideration by a fully death-qualified jury____ [And] capital trials themselves comprise a miniscule percentage of all criminal trials.
Another procedure—death qualifying the jury after the guilt phase and replacing non-death-qualified jurors with alternate jurors—would also solve the problem. This approach is quite plausible, since N.J.S.A. 2A:74-2 authorizes the impaneling of more than the required number of jurors.
Either using two separate juries or using alternate jurors is more protective of the defendant’s right to an impartial jury of the community than the current system. Using alternate jurors is less costly than using two separate juries but the actual cost in dollars and hours is unknown. Looking at the factors which influence that cost, however, suggests the costs are minimal.
I conclude, therefore, that the current system violates State constitutional guarantees of a fair and impartial jury as a matter of fundamental fairness.
D.
In sum, defendant was deprived of his constitutional rights to indictment and trial by properly constituted juries. The source list, from which both the grand and petit juries were drawn, was substantially underrepresentative of blacks and resulted in non-representative juries. Moreover, this underrepresentation was exacerbated by the trial court’s error in refusing defendant’s request to ask prospective jurors questions directed toward possible racial bias. The use of a death-qualified jury at the guilt-phase of the trial was also reversible error, as it deprived defendant of his right under the state constitution to trial by an impartial jury.
*436IV.
There were several particularly serious errors that affected the fairness of the guilt-phase trial or the penalty-phase trial or both. One involves the use of a prior non vult plea as an aggravating factor. There was also prosecutorial misconduct in the form of inappropriately aggressive cross-examination and the improper projection of testimonial commentary. Further, general comments by the prosecutor during summation coupled with the trial court’s explanation to the jurv of mitigating factors and the question of sympathy served to mislead the jury. In my opinion these matters constitute additional grounds for reversal.
A.
Defendant raises the issue whether defendant's non vult plea to a 1966 murder indictment is an aggravating factor—a prior conviction of murder—for purposes of N.J.S.A. 2C:11-3(c)(4)(a). This poses two questions: the first is whether the non vult plea is a conviction for purposes of a subsequent criminal prosecution; the second question, assuming the plea is a conviction, is whether it is a conviction of murder.
Under the law as it stood in 1965, a plea of non vult was to the indictment, which charged murder generally. N.J.S.A. 2A:113-3 (repealed 1979). See State v. Williams, 39 N.J. 471, 479 (1963); State v. Walker, 33 N.J. 580, 588 (1960). New Jersey apparently used the same short form murder indictment from 1874 to 1979, which indictment encompassed the crime of manslaughter as well as first degree and second degree murder. See State v. Zelichowski, 52 N.J. 377, 382 (1968), State v. Sullivan, 43 N.J. 209, 241-42 (1964). Even though manslaughter was an offense distinct from, not a degree of, murder, it nevertheless was subsumed in the short form murder indictment. See State v. Brown, 22 N.J. 405 (1956). This factor takes on critical significance because under the current death penalty statute a prior conviction for manslaughter does not *437constitute an aggravating factor. N.J.S.A. 2c:ll-3(c)4(a). Thus there is no firm basis for concluding, as the majority does, that the Legislature intended to permit prior non vult pleas to be considered a prior conviction for the purpose of constituting a statutory aggravating factor. Given the gravity of capital punishment and the imperative that criminal statutes be strictly construed, absent the clearest expression of a contrary intent, it is fundamentally wrong to impute this conclusion to the Legislature.
At the outset of the non vult plea practice, judges accepting such pleas to short-form murder indictments were required to “proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly.” State v. Sullivan, supra, 43 N.J. at 243 (describing requirements of Rev. Stat. 1874 § 68, p. 145). The degree-of-guilt hearing was necessary because if the judge found the crime was first degree murder, he or she could impose the death penalty. In 1893, the Legislature amended the murder statute so that defendants pleading non vult could not be sentenced to death, only imprisoned for life or a term of 30 years (the penalties for first and second degree murder, respectively). See L. 1893, c. 36 (precursor of N.J.S.A. 2A:113-3) (repealed 1979). This charge tended to obviate any factual inquiry relating to the degree of murder since the sentence would not likely be affected by such a determination. By accepting a non vult plea, the court generally did not decide the factual issue of the degree of defendant’s guilt, for that issue was not before the court. State v. Williams, supra, 39 N.J. at 479; State v. Walker, supra, 33 N.J. at 588-89. Further, the statutory change appears to have created the notion that the crimes committed, and therefore the convictions, were presumed to be of second degree murder; the penalties imposed by the Legislature matched those crimes, even though the indictment continued to charge manslaughter. See State v. Zelichowski, supra, 52 N.J. at 382; State v. Sullivan, supra, 43 N.J. at 242-43.
*438Degree of guilt was never an issue because imposition of the death penalty did not depend on the use of prior murder convictions as an aggravating factor. Indeed, the State was prohibited from introducing evidence of defendant’s prior convictions for the purpose of punishment at a capital trial. See State v. Forcella, supra, 52 N.J. at 288-89. Because no degree of guilt was determined upon the acceptance of non vult pleas since 1893, this Court should not automatically view a conviction based on a non vult plea to a short-form murder indictment as a conviction for second degree murder. A defendant who believed himself only guilty of manslaughter and innocent of murder, but who might have been found guilty of murder at trial, might well have accepted an offer to plead non vult to be sure of escaping the death penalty. See State v. Corbitt, 74 N.J. 379 (1977), aff'd, Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). In that situation, it would be illogical and unfair to assume that the “conviction” is for murder. Consequently, in the absence of a clear legislative expression that a prior non vult plea to murder could, under appropriate circumstances, be considered a prior conviction of murder, and therefore an aggravating factor under N.J.S.A. 2C:ll-3(c)(4)(a), this Court must conclude that it was not intended to serve this purpose. It was therefore reversible error to have permitted the jury to consider it as an aggravating factor.
In addition, it would be improper to allow the use of such a prior non vult plea in the absence of an adequate factual record demonstrating that the underlying crime clearly constituted murder. Other states have resolved this degree-of-guilt problem through preliminary hearings. Under such a system, before a plea of non vult to general murder could be used as an aggravating factor, as in current New Jersey capital cases, trial courts would have to examine the record of the plea leading to the prior conviction to determine degree of guilt, at *439least where there is some evidence that the crime committed was manslaughter.39
Even if there were facts from which a reasonable jury could infer that defendant had the requisite mental state for murder, the convictions should not be regarded as a murder conviction if that inference was not inescapable or if a jury would not be legally required to draw such an inference. See Henderson v. Morgan, 426 U.S. 637, 645-46 n. 17, 96 S.Ct. 2253, 2258 n. 17, 49 L.Ed.2d 108, 115 n. 17 (1976). The record in this case strongly suggests that it is equally possible for a reasonable jury to find manslaughter from the same circumstances.
Further, these proceedings occurred in 1965. Voluntary manslaughter at that time included slayings committed in a transport of passion induced by an adequate provocation (provided *440the killing occurred before the passage of time sufficient for an ordinary person in like circumstances to “cool off”). State v. Guido, 40 N.J. 191, 209 (1963); N.J.S.A. 2A:113-5 (repealed). The difference between second degree murder and manslaughter was the element of malice. State v. Brown, supra, 22 N.J. 405. In Guido, for example, this Court held that a course of ill treatment, including continuous unfaithfulness, could induce a homicidal response in a person of ordinary firmness if the accused reasonably believed that it would continue. The Court permitted a finding of provocation where a wife intentionally emptied a gun into her sleeping husband who had abused her and threatened to kill her and their baby. Guido, supra, 40 N.J. at 195-96, 211. There was in the prior offense in the present case evidence of provocation, which might have brought the case within the Guido ruling had the defendant gone to trial. Further, defendant said, “I never intended this is happen.” Thus, the record of defendant’s plea and sentence in the 1965 conviction does not convincingly and clearly establish that he had the requisite intent for first or second degree murder.40
*441In criminal cases, particularly death penalty cases, any doubt or ambiguity should be resolved in favor of the accused. See State v. Biegenwald, 96 N.J. 630, 640 (1984); State v. Maguire, 84 N.J. 508, 514 n. 8 (1980). Defendant’s non vult plea, therefore, should not have been considered a prior conviction of murder under N.J.S.A. 2C:ll-3c(4)(a). It is perverse to use a procedural device available twenty years ago to enable defendants to avoid a possible death sentence as the vehicle for imposing one now.
In this case the jury erroneously determined that defendant’s non vult plea was an aggravating factor. The death sentence should be vacated if, as here, the jury improperly found a non-statutory aggravating factor. While the Supreme Court in Zant v. Stephens, supra, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235, did uphold a death sentence imposed under Georgia law which was based on three aggravating factors, one of which was found to be invalid, that holding does not apply due to differences in Georgia and New Jersey law. Under the New *442Jersey statute the jury is expressly required to add together and then balance aggravating and mitigating factors. See N.J.S.A. 2C:ll-3c(3). Under New Jersey’s statute, therefore, the factors are not solely a threshold screening device to determine whether defendant is death-eligible. Rather the aggravating factors are also a device to determine whether the defendant is death-selected. A defendant becomes death-selected in this State when he becomes death-eligible; both determinations are made simultaneously. In a very real sense, therefore, the offense is defined when the punishment is fixed.
This difference means that the effect of introducing an invalid factor in New Jersey can differ from the effect of introducing an invalid factor in Georgia. Under New Jersey’s statute, there is the real and inescapable possibility that introduction of an invalid factor would have an “ascertainable and ‘dramatic’ impact” on the jury by infecting the weighing process. See Zant v. Stephens, supra, 462 U.S. at 903, 103 S.Ct. at 2756, 77 L.Ed.2d at 267. Indeed, states whose death penalty statutes require the jury to balance aggravating and mitigating factors when deciding whether to impose the death penalty,41 usually hold that a death penalty which is based on both valid and invalid aggravating factors must be set aside. See, e.g., Williams v. State, 274 Ark. 9, 621 S.W.2d 686, 687 (1981); State v. Irwin, 304 N.C. 93, 282 S.E.2d 439, 448-49 (1981); State v. Moore, 614 S.W.2d 348, 351-52 (Tenn.1981); Hopkinson v. State, 632 P.2d 79, 90 n. 1, 171-72 (Wyo.1981); cf. Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (judge’s improper use under state law of defendant’s criminal record as an aggravating factor did not require reversal of death sentence despite Florida’s requirement that aggravating and *443mitigating factors be balanced since Florida court considered error harmless due to absence of mitigating factors).
Despite its conclusion that a non vult plea can be introduced as a prior conviction for the purposes of Section c(4)(a), the majority would allow defendants to present evidence to “cast some doubt about the conviction’s reliability as proof that defendant committed murder.” Ante at 278. That the majority needed to resort to elaborate procedures and a rebuttable presumption regarding non vult pleas, see ante at 277-279, only serves to reinforce the conclusion that the non vult plea should not be treated as a “prior conviction” aggravating factor.
Under prior case law and the relevant statutes, it is clear that the non vult plea cannot be considered as a conviction of murder. Thus to consider the prior non vult plea as an aggravating factor was improper for purposes of capital sentencing. Given the structure of the capital murder-death penalty statute, the use of an improper factor must be considered reversible error.
B.
My assessment differs from the majority’s of the prosecutorial misconduct that occurred in the course of this trial. In my opinion this misconduct in particular instances was egregious and highly prejudicial. As a result defendant was denied a fair trial, mandating reversal of his conviction.
With respect to this issue, it is important to understand the scope and focus of appellate review of capital murder-death penalty prosecutions. That review is especially scrupulous and exacting. The basic standard governing appellate review of claimed errors in criminal trials remains that expressed in State v. Macon, 57 N.J. 325, 335 (1971): “No matter how a test may be stated, the question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict.”
*444The Court has demonstrated a reluctance to disregard errors that affect the jury’s impartial deliberations upon the guilt of a criminal defendant. In State v. Simon, supra, 79 N.J. at 206, this Court stated:
Errors impacting directly upon ... sensitive areas of a criminal trial are poor candidates for rehabilitation under the harmless error philosophy. The harmful effects of errors of this character cannot be readily measured by the empirical or objective assessment of the evidence bearing upon the defendant’s guilt. For this reason, the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards “designed to assure a fair trial.” (citations omitted).
The Court reiterated this position in State v. Czachor, 82 N.J. 392 (1980). There, the issue was whether the repeated use of the Allen charge constituted reversible error. In refusing to apply the harmless error doctrine this Court stated:
We have recognized that errors which impact substantially and directly on fundamental procedural safeguards, and particularly upon the sensitive process of jury deliberations, are not amenable to harmless error rehabilitation____ A defendant confronted with this kind of trial error need not demonstrate actual prejudice in order to reacquire his right to a fair trial. [Id. at 404.]
This Court was extremely reluctant to use the harmless error doctrine in its treatment of New Jersey’s former death penalty statute. In State v. Mount, supra, 30 N.J. 195, the defendant was found guilty of murder in the first degree and was sentenced to death. On appeal, the defendant contended that the court’s comments during the voir dire examination unfairly prejudiced his opportunity for a jury recommendation of life imprisonment which would have automatically voided his death sentence. The Court stated:
“It is not enough that a trial goes through the forms of law. Especially where life is at stake it is requisite that the trial judge should so guide the jury that the jurors may be equipped to determine whether death should be the penalty for conduct. Of course society must protect itself. But surely it is not self-protection for society to take life without the most careful observance of its own standards against the misuse of capital punishment.” [Id. at 206 (quoting Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382, 1391 (1946) (Frankfurter, J., dissenting)).]
The Court recognized that the defendant voiced no objection to the trial court’s remarks and made no motion for mistrial, but held that
*445[w]here a life is at stake, this court does not hesitate in the interests of justice to invoke the plain error rule ... and to reverse when the trial errors were impregnated with the likelihood of having harmed the substantial rights of the defendant, [Id. 30 N.J. at 213.]
The Court concluded that the defendant’s opportunity for a jury recommendation of life imprisonment had been adversely affected, and reversed the judgment of conviction.
I am satisfied that, as a matter of fundamental fairness, in a capital murder-death penalty case there must be a searching and strict standard of judicial review. The appellate court must be strongly persuaded and firmly convinced that there was no real possibility that an error influenced the jury to return a verdict of capital murder and the death sentence. It is this standard undér which we must assess the prosecutor’s conduct in this case.
The prosecutor’s role is a special one in that his interest is not in winning a case but in seeing that justice is done. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 1314, 1321 (1935); State v. Spano, 64 N.J. 566, 568-69 (1974); State v. Farrell, 61 N.J. 99, 104-05 (1972). Thus “[i]t is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633, 79 L.Ed.2d at 1321; see State v. Spano, supra, 64 N.J. at 568-69; State v. Farrell, supra, 61 N.J. at 104-05. When the prosecutor’s conduct is so egregious as to deprive the defendant of a fair trial, then the defendant’s constitutional rights have been violated.
A prosecutor may not in either specific or general terms express to the jury his personal belief that a defendant is guilty. See State v. Farrell, supra, 61 N.J. at 103; State v. Hipplewith, 33 N.J. 300, 311 (1960). An assertion of belief may be reversible error if the prosecutor insinuates that his or her opinion is based upon expertise or special training or is based on facts not in evidence. See State v. Farrell, supra, 61 N.J. *446at 103; State v. Hipplemth, supra, 33 N.J. at 311. As this Court noted:
The vice inherent in such insinuation is that it encourages the jury to base its decision on the undisclosed, superior knowledge of the prosecutor, who, in their eyes, represents the authority of the government and the people of the State. See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); State v. Johnson, 31 N.J. 489, at p. 511 (1960). Additionally, the defense is deprived of the opportunity to cross-examine what is in effect unsworn and probably inadmissible testimony. Note, 54 Colum.L.Rev. 946, 955 (1954). [Id. at 311-12.]
The same considerations dictate that in summation a prosecutor, while otherwise entitled to wide latitude, must “stay” within the evidence. See State v. Maybery, 52 N.J. 413, 437 (1968); State v. Hill, 47 N.J. 490, 499 (1966).
In this case, defendant’s primary defense consisted of expert testimony relating to “diminished capacity.”42 The evidential support for this defense was furnished mostly by Dr. Lewis, who testified that defendant suffered from psychomotor sei*447zures. The prosecutor both ridiculed Dr. Lewis and brought his personal opinion to bear against that of the witness. The prosecutor made comments which, in a non-evidentiary fashion, impermissibly demeaned and denigrated the witness and projected his own personal views and opinions with testimonial effect. On numerous occasions the prosecutor intimated that, according to his own personal belief and expertise, defendant had “hoodwinked” Dr. Lewis. The first such incident occurred when Dr. Lewis discussed defendant’s conduct as a child. The witness testified that, according to defendant’s mother, defendant’s father was shot in a card game and defendant, who was then 11 years old, took his father’s bloodstained clothes “[a]nd kept them in his room and sat with them and isolated himself with them.” The prosecutor then testified in the form of a question:
You know something about how a person who commits a crime behaves when you talked about Mr. Ramseur giving a statement. Don’t you know that the police at the scene of a homicide would secure the clothing and keep them for evidence and hold them for a long period of time and they wouldn’t turn them over to an 11-year-old kid? Do you believe that really happened?
The prosecutor clearly offfered his own personal belief in defendant’s guilt to neutralize Dr. Lewis’ expert testimony, and further, he insinuated that his belief was based on expertise.43
*448The Supreme Court has vacated a death sentence where the prosecuting attorney injected into his argument at summation his own account of his record as a prosecutor to persuade the jury that he did not ask for the death penalty where it was not deserved. See State v. Westbrook, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1978), vacating 279 N.C. 18, 181 S.E.2d 572 (1971). In this case, there was nothing inadvertent or acciden*449tal in what the prosecutor did.44 That conduct clearly is prosecutorial misconduct, see State v. Farrell, supra, 61 N.J. at 103; State v. Hipplewith, supra, 33 N.J. at 311, and, in my estimation, was highly prejudicial.
C.
Defendant also raises the claim that the trial court’s charge that the jury consider the issue of penalty without “sympathy” constituted reversible error. At the close of the penalty phase, defendant requested that the jury be instructed to consider “fairness and mercy” and “compassion and sympathetic understanding” as mitigating factors.45 The trial court rejected the *450request and instructed the jury that it “should decide the case on the evidence without any bias, prejudice or sympathy and, of course, without reference to conjecture” and with “cool, calm and dispassionate judgment.” (Emphasis added). The trial court also explained the process by which the jury was to weigh the aggravating against the mitigating factors, including an instruction that the jury might consider as mitigating evidence “any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” Nevertheless, defendant contends, the court’s charge effectively removed considerations of sympathy and compassion from the jury’s deliberations and, further, prevented the jury from properly assessing the other mitigating circumstances. The majority rejects this position. It contends that the Supreme Court’s decision in California v. Brown, — U.S.-, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), supports its determination.
There can be no genuine dispute that in determining whether or not to impose the death sentence, among the many factors the jury may rationally take into consideration is sympathy or compassion for the defendant. This has long been acknowledged by the Supreme Court, e.g., Winston v. United States, 172 U.S. 303, 312-13, 19 S.Ct. 212, 215, 43 L.Ed. 456 (1899). We also have firmly understood that juries must be allowed to consider “sympathy for the accused in deciding whether the punishment shall be death,” State v. Conyers, 58 N.J. 123, 137 (1971); State v. Mount, supra, 30 N.J. 195. While jury discretion must be guided and confined by suitable standards, the ultimate decision as to whether a defendant deserves to die *451cannot be totally scientific or objective. The jury in a criminal trial “serves as the conscience of the community, and the embodiment of the common sense and feelings reflective of society as a whole.” State v. Ingenito, supra, 87 N.J. at 212; United States v. Quarles, 350 U.S. 11, 18-19, 76 S.Ct. 1, 5-6, 100 L.Ed. 8 (1955); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
The Supreme Court has invalidated death penalty statutes that have attempted in any way to limit the circumstances which the jurors could consider in mitigation at the penalty phase of capital trials. Lockett v. Ohio, supra, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973; Eddings v. Oklahoma, supra, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1.
[The] Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death. [Lockett v. Ohio, supra, 438 U.S. at 604, 98 S.Ct. at 2964, 57 L.Ed.2d at 990 (footnote omitted).]
Indeed, N.J.S.A. 2C:ll-3(c)(5)(h) requires that the jury consider in mitigation “any factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” This statutory provision is accorded a liberal interpretation in order to assure complete fairness to the defendant. State v. Davis, 96 N.J. 611 (1984).
Here, the trial court not only refused to instruct the jurors that they could incorporate sympathetic and compassionate feelings into their analysis of the mitigating circumstance, he forbade them to do so. Clearly this constitutes an impermissible curtailing of the defendant’s right to have the jury consider every possible mitigating circumstance. In People v. Bandhauer, 1 Cal.3d 609, 463 P.2d 408, 83 Cal.Rptr. 184 (1970), the defendant, charged with capital murder, presented evidence of an abused childhood, mental impairment and alcoholism in mitigation of penalty. The trial court charged the jury that “[t]he law forbids you to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or pub-*452lie feeling.” 463 P.2d at 416, 83 Cal.Rptr. at 192. The Supreme Court of California held this charge to be reversible error:
Thus, jurors who may have felt sympathy for defendant because of the evidence of his tragic childhood might also have felt compelled as “the law of the case” to disregard such sympathy even though the consequence was to impose a death penalty they otherwise would have deemed unwarranted. [/A]
Further, the court ruled that the additional instruction to the jurors that they were “entirely free to act according to your own judgment, conscience and absolute discretion” was not sufficient to overcome the effect of the court’s direction to ignore sympathy and sentiment. Id.; see People v. Stanworth, 71 Cal.2d 820, 457 P.2d 889, 80 Cal.Rptr. 49 (1969); People v. Polk, 63 Cal.2d 443, 451, 406 P.2d 641, 47 Cal.Rptr. 1 (1965); People v. Friend, 47 Cal.2d 749, 767, 306 P.2d 463 (1957); State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963); State v. Connor, 244 N.C. 109, 92 S.E.2d 668 (1956).
The Supreme Court of Georgia came to the same conclusion in Legare v. State, 250 Ga. 875, 302 S.E.2d 351 (1983). While the case was reversed on another ground, for purposes of the retrial the court considered the defendant’s challenge to a charge that instructed the jurors to render a penalty verdict “unaffected by either sympathy or prejudice.” Id. at 354. Citing to Lockett v. Ohio, supra, the Georgia Supreme Court noted that no aspect of a defendant’s background or character can be excluded from the jury’s consideration. The court found that the trial judge’s charge properly instructed the jury “to consider in mitigation all circumstances which in fairness and mercy offer a basis for not imposing the death penalty____” Id. Nevertheless, the court ruled:
But the jury was also charged not to base their verdict on sympathy for the defendant. Since the evidence in mitigation might well evoke sympathy, we find these charges in irreconcilable conflict. Because the charge complained of might well confuse the jury and limit their constitutionally required consideration of evidence in mitigation, we hereby disapprove it. [/A]
The Supreme Court of the State of Washington also found error when the trial court instructed the jury “not to be moved *453by sympathy or influenced by prejudice” in coming to a verdict. State v. Quinlivan, 81 Wash.2d 124, 499 P.2d 1268, 1271 (1972). The court noted that “contrary to this implication in the instructions, sympathy is an appropriate factor in the jury’s consideration of the penalty issue”, id. 499 P.2d at 1272, and found this charge to be one of several errors requiring a reversal.
Our own understanding is in accord with these views. In State v. Conyers, supra, 58 N.J. 123, we considered a trial court instruction that “[sjympathy should play no part in your deliberations.” Id. at 136. Conceding that such an admonition would be appropriate with regard to the jury’s determination of guilt or innocence, defendant argued that the jury might have misunderstood and applied this admonition to the penalty portion of its deliberations. We stated that “there is no dissent from the proposition that a jury should not be told to exclude sympathy for the accused in deciding whether the punishment shall be death.” Id. at 137.
There should be no quarrel with the proposition that compassion and sympathy for the defendant are proper considerations for the jury in assessing penalty. The exclusion of these considerations from the jury’s deliberations in a capital case should be considered highly prejudicial. In this case, the trial court’s instruction to exclude sympathy was delivered at the close of the penalty phase, and could only have been understood by the jurors to be applied to their penalty deliberations.
The Court is misguided in treating California v. Brown as determinative. In Brown, the trial judge charged the jury that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” in making the penalty decision. Brown, — U.S. at-, 107 S.Ct. at 840, 93 L.Ed.2d at 940. In delivering the opinion of the Court, Chief Justice Rehnquist reaffirmed the established principles that a capital defendant must be allowed to introduce any relevant mitigating evidence regarding his character or record or the circumstances of the offense, and that consideration of *454such evidence by the jury is constitutionally indispensible to the process of imposing a death sentence. Id. However, he went on to state that since the sentencer cannot be given “unbridled discretion” in determining who is to be sentenced to death, an instruction prohibiting a jury from considering “extraneous emotional factors,” i.e., sympathetic response not rooted in the mitigating evidence introduced during the penalty phase, would be constitutionally permissible. Id. — U.S. ---, 107 S.Ct. at 840, 93 L.Ed.2d at 941.
In evaluating the instruction challenged in Brown, the Chief Justice concluded that because the jury was told “to avoid basing its decision on mere sympathy,” no reasonable juror would have understood it as an admonition to ignore emotional responses emanating from the mitigating evidence presented. Id. — U.S. at-, 107 S.Ct. at 840, 93 L.Ed.2d at 940. The use of the word “mere” to modify “sympathy” would have been understood to apply to extraneous factors divorced from the evidence. Id. In this case, however, the instruction given by the trial court differed significantly. As noted, the trial court told the jurors that they should decide the penalty “on the evidence without any bias, prejudice or sympathy ...” (emphasis added). Because of the use of the word “any” in conjunction with a specific reference to “the evidence,” the instruction at issue here could be reasonably understood as excluding even sympathy that might emanate from the mitigating testimony presented by the defense. Thus, even under the Brown ruling, this instruction is constitutionally defective.
Additionally, the impression given by the trial court here, that the jury should not be moved by considerations of sympathy, was intensified by several of the comments made by the prosecutor in his penalty-phase summation. The prosecutor denigrated the significance of sympathy or compassion.46 He *455invited the jury to believe that such feelings were improper— “human weakness,” “human frailty,” inconsistent with the law, and an abdication of responsibilities. Justice O’Connor grasped this identical point in her concurrence in California v. Brown, supra. She concluded that the “mere sympathy” instructions considered together with remarks made by the prosecutor in summation suggesting that the jurors should ignore mitigation evidence about the defendant’s background may have impaired the jury’s proper consideration of the mitigating factors. Accordingly, she recommended that on remand the California Supreme Court consider whether the combination of instruction and comments may have created an impermissible ambiguity in the minds of the jurors as to their responsibility to consider all of the mitigating evidence introduced by the defendant. Id. — U.S. at-, 107 S.Ct. at 842, 93 L.Ed.2d at 943 (O’Connor, J., concurring).
*456The Supreme Court in Brown disingenuously suggests that “the jury’s ... reliance on extraneous emotional factors ... would be far more likely to turn the jury against a capital defendant than for him.” Id, — U.S. at-, 107 S.Ct. at 840, 93 L.Ed.2d at 941 (majority opinion). However, the decision really implies that the constitutional prohibitions against arbitrary imposition of the death penalty require the elimination of mercy, sympathy and compassion from the deliberations of a jury because these might result in the arbitrary sparing of life. In my opinion a condemned defendant’s rights under both federal and State Constitutions do not imply such judicial neutrality, nor require the extirpation of such humane impulses from capital sentencing proceedings.
It must be presumed that jurors conscientiously follow the trial court’s instructions; the jury here was admonished to and presumably did eliminate sympathy and compassion from its penalty phase deliberations. While prejudice under these circumstances should be presumed, in this case the erroneous instructions are likely to have actually affected the jury’s deliberation. In this case the jurors first announced that they were deadlocked and then, following coercive instructions, found an equal number of aggravating and mitigating factors. It eventually weighed these factors to bring it to the ultimate sentence of death. To have allowed jurors to incorporate feelings of sympathy into their deliberations might well have altered the balance in defendant’s favor.
D.
I am firmly of the belief that reversible error occurred when the trial court permitted the jury to consider as an aggravating factor, under c(4)(a), defendant’s prior non vult plea. In my view, such a plea does not constitute a prior conviction of murder and in this case does not clearly and convincingly demonstrate that the underlying crime constituted murder in the first degree under the former criminal statute. Under the *457heightened standard of review applicable to capital murder-death penalty prosecutions, there was also serious prejudicial misconduct on the part of the prosecutor, who, through excessively aggressive cross-examination, improperly fostered and presented to the jury his own personal belief and expert view that a key defense witness was not credible or competent and that her opinion on critical defense issues was not to be given weight by the jury. The prosecutor further added prejudicial influence by insisting in summation, during the penalty phase of the trial, that it would be wrong for the jury to give any consideration to notions of sympathy. These comments combined with the trial court’s specific instruction to the jury to remove considerations of sympathy not only had the capacity to confuse and mislead the jury but very likely contributed to their imposition of the death penalty. These several, seriously prejudicial errors furnish added grounds for reversal of defendant’s conviction and sentence.
V.
Irremediable prejudicial error occurred when the trial court coerced the jury to return a unanimous verdict for the death penalty. This error requires the vacation of defendant’s death sentence, as the majority itself fully understands. Ante at 312. The Court also holds that where a trial court in a capital case has erroneously given coercive supplemental instructions, in violation of State v. Czachor, supra, 82 N.J. 392, to a jury that has expressed its inability to agree, the defendant may not be subjected to another capital sentencing proceeding. Id. at 312-313. However, the basis for the majority’s ruling is not explained. The majority refuses to acknowledge the constitutional underpinnings of the result it reaches, positing, instead, a rule apparently limited to this particular situation. I agree with the Court’s ruling that defendant may not, on retrial, be sentenced to death. However, I believe that this result is mandated by constitutional principles of double jeopardy and fundamental fairness.
*458When there is error in the penalty phase of a trial, resulting in the imposition of the death sentence, the Supreme Court has sanctioned the vacation of this sentence while leaving the conviction intact. See, e.g., Eddings v. Oklahoma, supra, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1; Adams v. Texas, supra, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581; Roberts v. Louisiana, supra, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637; Gardner v. Florida, supra, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. We have on occasion done the same thing. See, e.g., State v. Mount, supra, 30 N.J. 195; State v. White, 27 N.J. 158 (1958). A retrial of the penalty phase has not been viewed as violating double jeopardy because the defendant was not previously acquitted of the death sentence nor on retrial would he be subjected to a more serious penalty than earlier imposed.
However, double jeopardy does bar resentencing if, in the earlier trial, the defendant was in fact sentenced only to life imprisonment. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). This result is based upon the fact that a sentence of life imprisonment is tantamount to an acquittal of the death penalty. The law is settled that a judgment of acquittal bars further prosecution on any aspect of a criminal case. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43, 56 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, 9 (1978); State v. Tropea, 78 N.J. 309 (1978); State v. Lynch, 79 N.J. 327, 343 (1979).
While this case may be distinguished from Bullington on the ground that defendant was not explicitly sentenced to life imprisonment, there are equally strong reasons militating against a second exposure to the death penalty. When the trial court rejected the jury’s announcement that it could not agree and then coerced the jury into returning a unanimous verdict for the death penalty, it unfairly and improperly deprived defendant of the very real opportunity to have had the jury return a life sentence. Moreover, we can fairly infer from *459these circumstances that the jury was otherwise unable to find sufficient evidence to return a unanimous verdict for a sentence of death. Consequently, exposure of the defendant to a second death penalty trial would, on state constitutional grounds, violate principles of double jeopardy and fundamental fairness.
Neither the United States Supreme Court nor this Court has ever expressly decided or discussed the exact question presented before us. However, in deciding whether to resentence capital murder defendants generally, two fundamental constitutional rights are implicated: the prohibition against double jeopardy and the due process guarantee, as well as the related principle of fundamental fairness.
It is settled that double jeopardy applies to sentencing as well as conviction. See Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). As noted, the Supreme Court ruled in Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, that a capital defendant who had earlier been sentenced to life imprisonment could not, on remand, be resentenced to the death penalty. The Court held that a sentencing hearing is, for double jeopardy purposes, a trial. Thus, resentencing was barred because the jury’s first sentence was tantamount to a finding that the evidence was insufficient to support the death sentence—defendant had been acquitted of the death penalty. See Sanabria v. United States, supra, 437 U.S. at 69, 98 S.Ct. at 2181, 57 L.Ed.2d at 56 (a judgment of acquittal bars further prosecution on any aspect of a criminal trial.)
In pre-Furman cases arising from the state courts, the Supreme Court would frequently leave convictions of guilt standing but vacate the death penalty when trial error affected sentencing alone. See Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1978). These cases apparently contemplate either resentencing or modification of the sentences to life imprisonment. Of course, *460where the Court struck down entire death penalty provisions of state or federal laws, modification of the sentence to life was also permissible. In Furman v. Georgia, supra, for example, the Court reversed the consolidated state court decisions only insofar as they imposed the death penalty. There being no other valid penalty on remand, however, the defendants’ sentences were modified to life imprisonment. See Sullivan v. State, 229 Ga. 731, 194 S.E.2d 410 (1972); see also United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (sentence modified to life imprisonment).
In post-Furman cases, the Supreme Court has continued to vacate defendants’ death sentences while affirming their convictions. ‘ See, e.g., Eddings v. Oklahoma, supra, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1; Adams v. Texas, supra, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581; Roberts v. Louisiana, supra, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637; Gardner v. Florida, supra, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393; S. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Woodson v. North Carolina, supra, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944. In effect, the Court has left to the individual states the decision as to the proper disposition of a capital murder case in which the prejudicial error affected only sentencing. There are, therefore, compelling reasons to examine our own constitutional jurisprudence to determine whether allowing defendant to be resentenced to death comports with our notions of double jeopardy and fundamental fairness.
We have recognized the interaction between principles of double jeopardy and fundamental fairness. When a defendant has been acquitted—for any reason—he may not again be prosecuted for the same crime. State v. Tropea, supra, 78 N.J. 309; State v. Lynch, supra, 79 N.J. 327. Moreover, it is settled that where there has been a determination that evidence is insufficient to support a conviction, a defendant may not be tried again—even when this determination is made on appeal. *461See State v. Lynch, supra, 79 N.J. 327. We have also ruled, primarily on grounds of fundamental fairness, that a defendant may not be exposed to multiple trials involving the same or related crimes, particularly when the state has had an adequate and reasonable opportunity to prosecute the defendant. See, e.g., State v. Abbati, 99 N.J. 418 (1985); State v. Gaffey, 92 N.J. 374 (1983); State v. Gregory, 66 N.J. 510 (1975).
As noted, the issue of whether a capital defendant can be resentenced to death, under the circumstances presented by this case, has never been fully considered. It is fair to assume that the apparent dearth of cases in which the issue of retrial has arisen is due to the small number of capital cases prosecuted in New Jersey and death penalties returned by juries. However, in State v. Laws, 50 N.J. 159 (1967), reargued and sentences modified, 51 N.J. 494, cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968), we held, under the former death penalty statute, that errors affecting only the sentence should result in modification of the death penalty to life imprisonment. In that case, defendants were tried and convicted of murder in the course of a robbery. After deliberating for several hours, the jury asked if it could return a binding verdict of life imprisonment without possibility of parole. Although the trial judge replied in the negative, he failed to explain that, under State v. White, supra, 27 N.J. 158, a jury is prohibited from consideration of parole when deciding punishment. The jury then sentenced the defendants to death. On appeal, this Court ruled that the trial court’s error was prejudicial but that the error related solely to the death sentences. On reargument, the Court held that a new trial on the issue of punishment alone would be inappropriate. State v. Laws, supra, 51 N.J. at 511. We based this decision primarily upon the impracticality of such a trial. The Court noted that the costs in terms of time and money to the State of either a partial or full retrial would most likely be very large. Moreover, the Court was *462unable to conceive of the operation of a penalty trial. Id. at 511-12.47
In my opinion, these considerations remain relevant, if not dispositive, in deciding the correct disposition of this case. When the previous trial has been prolonged and complicated, it would be fundamentally unfair to subject defendant to the painful rigors of another death sentence trial. See State v. Gregory, supra, 66 N.J. 510; cf. United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2191, 57 L.Ed.2d 65, 71-72 (1978) (“[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby ... compelling him to live in a continuing state of anxiety and insecurity.”). When it is practically impossible to rectify the issue of punishment on remand, considerations of fundamental fairness should preclude such a retrial.
In this case, although the proceedings were bifurcated, the guilt trial was prolonged and the record produced therein became the sole evidential record in the penalty phase of the trial. The end result was no different from a unitary trial on guilt and punishment. Thus, we should adopt the salutary resolution of Laws by modifying defendant’s sentence to life imprisonment.
More importantly, other considerations also implicating notions of double jeopardy and fundamental fairness militate against the defendant once again being exposed to the death penalty. The capital murder-death penalty statute contem*463plates three possible final penalty verdicts: a unanimous verdict that results in a sentence of death, a unanimous verdict that results in life imprisonment, and a non-unanimous verdict that results in a sentence of life imprisonment. In this case, defendant argues that the jury had in fact reached a non-unanimous verdict and, therefore, that a sentence of life imprisonment should have been imposed.
I believe that the trial court improperly refused to accept the jury’s communication as a non-unanimous verdict. The jury had been instructed that it was permissible to reach a non-unanimous verdict and that the result would be life imprisonment. Moreover, it had deliberated a sufficient amount of time to have reached such a determination. While the intended effect of the jury’s communication was not crystal clear, the trial court was derelict in not clarifying its meaning. If the court had allowed the jury to clarify further its communication, the jury might have indicated that the non-unanimous verdict was intended to be its final disposition. Not having done so, the communication should have been accepted at its face value—a determination by the jury that it could not agree. Thus, the trial court irrevocably deprived the defendant of the opportunity to have had this jury impose a sentence of life imprisonment rather than the penalty of death.
If the jury had reached such a disposition—a non-unanimous verdict for life imprisonment—double jeopardy would protect defendant from a retrial on the death sentence. See Bulling-ton v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270. Unfortunately, the jury deliberations and determinations cannot be reconstructed, the course cannot be rerun. Under these circumstances—when the consequence of ambiguity may be death—defendant is entitled to the benefit of this important doubt.48 Thus, the express announcement by the *464jury of its inability to agree on a unanimous verdict should be deemed a non-unanimous verdict—which results in a sentence of life imprisonment. On grounds of double jeopardy and fundamental fairness, a death penalty retrial is barred.
In addition, the sentence of death in this case must be viewed as founded on insufficient evidence, thus triggering the double jeopardy bar. As clearly and emphatically recognized by the majority, the trial court coerced the jury into returning a unanimous verdict for the death sentence. Ante at 305. After the jury announced that it could not reach unanimity, the trial court gave three separate additional charges. At no time during these added instructions did the court remind the jury that the issue of penalty could be finally resolved by a non-unanimous verdict, resulting in a sentence of life imprisonment. Further, the court repeatedly, improperly and erroneously emphasized to the jurors the “importance of reaching a unanimous verdict.” Indeed, the court indicated that by failing to reach unanimity, the members of the jury were betraying their oaths as jurors and shirking their responsibilities as citizens. The trial court emphasized more than once the amount of time and effort that went into the case, implying that the jurors would be responsible for wasting all of those resources if they failed to reach unanimity. Finally, the trial court remarked that the juror’s task—whether or not defendant should be put to death—was “rather simple.”
In State v. Czachor, supra, 82 N.J. at 402, we disapproved of the traditional Allen charge because it was unduly coercive. In this case, the supplementary instructions delivered by the trial court were rife with compulsion clearly offending the Czachor *465strictures against charges that do not “permit jurors to deliberate objectively, freely, and with an untrammeled mind.” Id. at 402. We noted in Czachor that a trial court’s remarks to a jury that it should render a unanimous verdict so as to prevent a “waste” of time and resources and avoid additional expense are completely improper—even in the ordinary criminal prosecution, where a second trial may result because of a deadlock. Id. at 398. Such remarks are particularly misleading in a capital trial, where a non-unanimous verdict is not simply a deadlock that will result in a second trial, but constitutes a final resolution of the case.
The underlying problem caused by the coercive Allen-type charge, as recognized by the majority, ante at 312, is its purpose “to undo a jury deadlock.” Czachor, supra, 82 N.J. at 398. In capital murder trials, however, a defendant has the right to a non-unanimous verdict. See Lewis v. State, 369 So.2d 667, 670 (Fla.App.1979); Kozakoff v. State, 323 So. 2d 28 (Fla.D.C.A.1975); Bell v. State, 311 So.2d 179 (Fla.D.C.A.1975) (cases holding that a defendant has a right to a hung jury). Thus, an Allen charge in a capital murder trial is especially intolerable. In an ordinary criminal case, the offending charge deprives the defendant of a mistrial; in a capital murder trial, it deprives him of his life.
In this case, it is clear that the Allen-type charges succeeded in “undoing the jury deadlock.” Thus, the defendant was not simply deprived of a mistrial based on a hung jury, he was deprived of much more—an acquittal of the death penalty. Under these circumstances, double jeopardy and fundamental fairness principles preclude the retrial of defendant on the sentencing issue. See State v. Lynch, supra, 79 N.J. 327.
Further, in finding that the trial court’s instructions were impermissibly coercive and constituted reversible error, the Court necessarily concludes that the jury was compelled to return the death sentence. What is particularly significant, however, is that the jury clearly demonstrated an inability or unwillingness to bring in c,n uncoerced unanimous verdict for *466the death sentence. The conclusion is inescapable that, absent this compulsion, the jury would not have returned the death penalty, rather it would have sentenced defendant to life imprisonment. We are entitled to infer that before it was subjected to unwarranted compulsion, the jury had found the evidence legally insufficient to sustain a penalty of death. An acquittal based upon evidential insufficiency triggers double jeopardy and bars a retrial. See State v. Lynch, supra, 79 N.J 327. The bar should apply under these circumstances.
Moreover, in State v. Lynch, supra, 79 N.J. at 340-41, this Court observed: “A defendant is generally entitled to have a trial proceed to its conclusion, to be free from the harassment of successive prosecutions, and to receive only one punishment for an offense.” As already noted, in the ordinary criminal case a non-unanimous verdict will not terminate a criminal prosecution. A hung jury will signify a mistrial and the defendant will be tried again—although there may be cases where fundamental fairness will bar reprosecution following a mistrial. See State v. Abbati, supra, 99 N.J. 418. However, a capital murder trial can be concluded by a non-unanimous verdict. Hence, because a defendant is “entitled to have a trial proceed to its conclusion,” defendant here was entitled to have his case fairly and finally ended by a non-unanimous verdict.
Finally, I believe the Court possesses the inherent power to modify the sentence in this case to life imprisonment. In State v. Laws, supra, 51 N.J. at 501, we carefully traced the history and development of the judicial power to review and modify sentences. The State Constitution also grants this Court the authority to reduce a jury-determined death sentence to life imprisonment.49 The original jurisdiction clause and the appellate jurisdiction or “last resort” clause provide strong support *467for this position. The original jurisdiction authority empowers appellate courts to make independent findings of fact when the factual determinations of the trial court are incomplete or erroneous. See State v. Johnson, 42 N.J. 146 (1964); State v. Taylor, 38 N.J.Super. 6 (App.Div.1955); State v. Richardson, 4 N.J.Super. 503 (App.Div.1949). At the time of the Laws decision, the original jurisdiction clause had already been invoked by the Appellate Division to modify a trial court’s sentence that was manifestly excessive, even though within statutory limits. See State v. Johnson, 67 N.J.Super. 414 (App.Div.1961).
Moreover, this Court is vested with “Such original jurisdiction as may be necessary to the complete determination of any cause on review.” N.J. Const, of 1947 art. VI, § 5, para. 3. When read in conjunction with the grant that the Supreme Court exercise appellate jurisdiction in the last resort in all cases provided in the Constitution, art. VI, § 2, para. 1—capital cases being a clear subset, art. VI, § 5, para. 1,—the Court’s power to modify a sentence from death to life imprisonment is obvious, particularly in exigent circumstances.50 See, e.g., Frady v. United States, 348 F.2d 84 (D.C.Cir.), cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965); Williams v. State, 183 Ark. 870, 39 S.W.2d 295 (1931); State v. Sorrentino, 31 Wyo. 129, 224 P. 420 (1924).
In sum, “the state with all its resources and power should not be allowed to make repeated attempts” to impose the death *468penalty in this case. United States v. Scott, supra, 437 U.S. at 87, 98 S.Ct. at 2191, 57 L.Ed.2d at 71-72. State constitutional principles of double jeopardy and fundamental fairness prohibit exposing defendant once again to the onerous trevail of a death-penalty trial.
VI.
A final thought. There is no more difficult constitutional issue, in a system that circumscribes state power to safeguard individual life, than the issue of capital punishment, for capital punishment is the exercise of ultimate state power against the individual, the denial of that life. In no other issue, moreover, does the gulf between arcane legalism and brute reality appear wider; it is futile to attempt to reconcile in one’s mind the abstract justifications of death penalty jurisprudence with the pain and suffering of Asaline Stokes. Law cheats morality.
Because of the primacy our society reposes, as against the state, in individual life, however, no other issue so demands that legal doctrine be coherent and just. Society is entitled to express through its institutions the outrage felt when lives such as Asaline Stokes are taken so senselessly; if nothing else, this outrage expresses the value we place on individual life and reaffirms our commitment to the sanctity of individual life. As guardians of the Constitution that embodies that value and that commitment, however, the Court must never suffer state actions to replicate even remotely the irrationality of a Thomas Ramseur. Were the state to do so through the unreasoned imposition of death it would be traducing individual life, not honoring it. In a moral code of just deserts, Thomas Ramseur may deserve the same treatment he visited upon Asaline Stokes; under the Constitution, however, the refusal to allow the state to take life in an irrational or arbitrary manner affirms the value of all life including the life so cruelly taken. This Court’s capital murder-death penalty decisions will define, by the degree of arbitrariness tolerated, the enormity of the *469difference between the value the Constitution places upon individual life and the value the murderer placed upon the life of his victim. When the state takes life in an arbitrary manner, this difference begins to blur. We are all diminished by the violent taking of innocent life; an assurance that our constitutional values retain integrity, however, is our only abiding consolation.
O’HERN, J., concurring in the result.
For affirmance in part, reversal in part and remandment —Chief Justice WILENTZ and Justices POLLOCK,
CLIFFORD, O’HERN, GARIBALDI and STEIN—6.
Opposed—Justice HANDLER—1.
There are a number of other questions—the validity of proceeding without a struck jury, the handling of defense testimony relating to defendant's psychiatric and mental condition, and the trial court’s instructions relating to evidence, flight and other matters—that are addressed in the majority opinion. I do not necessarily agree with the Court’s determination of these issues. However, in my opinion, many of these issues are not determinative. I therefore do not deal further or directly with such questions.
As a lone court sitting atop the immense federal judicial pyramid, the Supreme Court has concerns that are more extreme than comparable problems within state judiciaries; and the management concerns interact unhappily with the diversity of settings in which the rules established by the Court must operate. Management concerns point to clarity, simplicity, and fact-independence, while diversity calls for nuance and fact-sensitivity.
********
State judges confront institutional environments and histories that vary dramatically from state to state, and that differ, in any one state, from the homogenized, abstracted, national vision from which the Supreme Court is forced to operate. It is natural and appropriate that in fashioning constitutional rules the state judges’ instrumental impulses and judgments vary. [Sager, supra, at 974, 975-76 (footnote omitted).]
-See, e.g., Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984); District Attorney v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980); People v. Superior Court of Santa Clara County, 647 P.2d 76, 31 Cal.3d 797, 183 Cal.Rptr. 860 (1982); People v. Anderson, 493 P.2d 880, 6 Cal.3d 628, 100 Cal.Rptr. 152, cert. denied 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972); State v. Payton, 361 So.2d 866 (La.1978); State v. Detter, 298 N.C. 604,260 S.E.2d 567 (1979); State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981); Miller v. State, 584 S.W.2d 758 (Tenn.1979); Petition for Writ of Mandamus, 433 A.2d 375 (Del.1981); Special Project, supra, 15 Rutgers L.J. at 323-24.
The majority, noting the reliance of sentencing policy generally on the concept of "guided discretion,” rejects the notion that "doctrinal tension” per se "is a basis for depriving society of the ability to ordain what it believes to be the appropriate sanction for murder.” Ante at 190. So do I.
See also Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (capital defendant’s due process right to introduce mitigating penalty phase evidence overrides state’s rules of evidence); Beck v. Alabama, 447 U.S. 625, 100 *353S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be permitted to consider convicting of lesser-included offense).
Cf. 458 U.S. at 828, 102 S.Ct. at 3392, 73 L.Ed.2d at 1171-72 (O’Connor, J. dissenting, but favoring remand because the trial judge’s failure to consider defendant’s "relative lack of mens rea and his peripheral participation in the murder” as mitigating factors denied the defendant the individualized sentence required in Lockett). See also Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) (finding of intent to murder under Enmund does not have to be made by trial jury, but can be made by federal appellate court after reviewing state trial and appellate findings).
The aggravating circumstance requirement was seen as the linchpin of the process, assuring uniformity through individualization:
These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do what Furman’s jury did: reach a finding of ... guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime ... [and] focused on the characteristics of the person who committed the crime____ As a result, while some jury discretion still exists, "the discretion to be exercised is controlled by clear and objective standards so as to produce nondiscriminatoiy application." [428 U.S. at 197, 96 S.Ct. at 2936, 49 L.E.2d at 888 (citation omitted).]
This failure was due not to "bad faith” on the Georgia Court’s part, but to what Justice Marshall identified as a "deeper problem”: "The task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system ... is unable to perform.” 446 U.S. at 440, 100 S.Ct. at 1771, 64 L.Ed.2d at 413. All of the forebodings in McGautha as to the impossibility of “selecting in some objective way those persons who should be condemned to die" had, in Justice Marshall’s view, been realized; the Georgia Court’s failure to narrow its construction of the “vileness” factor was but a symptom of that impossibility.
Justice Marshall, in dissent, reviewed the emphasis upon uniformity in Gregg and Godfrey, then lamented: 'Today we learn for the first time that the Court did not mean what it said in Gregg____ We now learn that the actual decision whether a defendant lives or dies may still be left to the unfettered discretion of the jury.” 462 U.S. at 910, 103 S.Ct. at 2760, 77 L.Ed.2d at 271 (Marshall, J., dissenting).
Cf. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in which a different plurality of the Court (led by Justices Marshall and Brennan) refused to extend Ramos to validate a prosecutor’s closing argument in which the jury was assured that it did not have ultimate responsibility for the death sentence. Justices Rehnquist and White and the Chief Justice dissented, noting that the plurality's “string citations to our prior cases, many of which yielded only plurality opinions, which hold that capital sentencing juries must be allowed to consider all forms of mitigating evidence so as to facilitate individualized ... determinations ... simply highlight the lack of authority for the path the Court takes.” Id. at 348-51, 105 S.Ct. at 2650-51, 86 L.Ed.2d at 252-53 (Rehnquist, J., dissenting). Justice O’Connor concurred, but only because the prosecutor's remarks had been misleading. Id. at 342, 105 S.Ct. at 2646, 86 L.Ed.2d at 248. .
Because the defendant’s argument—that use of the psychiatrists’ testimony was unconstitutional—had been heard and rejected by the state court and a federal district court—which had nonetheless certified probable cause to appeal—and because an execution date had been set and was imminent, the Fifth Circuit Court of Appeals gave little more than a day’s notice for oral arguments, and heard argument without briefs; one of the judges was wholly unfamiliar with the record in the case. One day after argument, and four days before the scheduled execution, the Court of Appeals issued a 16-page opinion denying the petitioner’s request for a stay of execution, on the ground that he could not show “some prospect of success on the merits____" 463 U.S. at 892, 103 S.Ct. at 2750, 77 L.Ed.2d at 1103. The court failed, however, to affirm the district court formally on the merits. See generally Note, 95 Yale L.J. 349, 349-52 (1985) (more detailed narration of the procedural facts).
This Court adopted the general principles of Strickland in State v. Fritz, 105 N.J. 42 (1987). Fritz offered no occasion to decide, however, the applicability of those standards in the special context of capital punishment.
Indeed, as important as the Supreme Court's substantive case law since 1983 has been the rancor on the Court evident in its denials of certiorari or of stays of executions. See Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984), in which five members of the Supreme Court—possessing neither the final draft of the lower court’s decision nor the defendant’s defense of the stay, but only the state attorney general’s three-and-a-half page handwritten motion to vacate—vacated stay in order to beat the 6:00 p.m. expiration of the death warrant. Justices White and Stevens described the Court’s per curiam vacation of the stay as "opaque"; Justice Brennan described as “indefensible” the Court’s “rush to judgment." 464 U.S. at 383, 104 S.Ct. at 755, 78 L.Ed.2d at 546 (Justices White, Stevens & Brennan, dissenting). "In all candor," Justice Marshall wrote in dissent, "if there is an abuse of federal power in this matter, it is to be found in our own chambers." Id. at 384, 104 S.Ct. at 755, 78 L.Ed.2d at 547 (Marshall, J., dissenting). The issue that the petitioner had sought to preserve was eventually decided in 1986. See Lockhart v. McCree, supra, — U.S.-, 106 S.Ct. 1758, 90 L.Ed.2d 137. See generally Note, supra, 95 Yale L.J. 349 (collecting cases). Other illustrative cases are: Dobbert v. Wainwright, 468 U.S. 1231, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984) (a "frenzied rush to execution ... has become a common, if Kafkaesque, feature of the Court’s capital cases”) (Marshall, J., dissenting from denial of stay of execution); Stephens v. Kemp, 469 U.S. 1043, 105 S.Ct. 530, 83 L.Ed.2d 417 (1984) (court’s denial of stay "result orientation carried to its most cynical extreme") (Brennan, J., dissenting from denial of stay); Wainwright v. Adams, 466 U.S. 964, 104 S.Ct. 2183, 80 L.Ed.2d 809 ("The haste and confusion surrounding this decision is degrading____’’) (Marshall, J., dissenting from vacation of stay); *367Wainwright v. Booker, 473 U.S. 935, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985) (Court has "moved with 'an impetuousness and arrogance that is truly astonishing’ ” in vacating stay granted to allow filing of petition for certiorari when Court had not seen the petition); Skillern v. Procunier, 469 U.S. 1182, 105 S.Ct. 945, 83 L.Ed.2d 956 (1985) (majority denied stay to one of eight named plaintiffs in a case challenging constitutionality of death by lethal injection, despite fact that certiorari had been granted in the case weeks earlier; Brennan, J. dissented: ‘The irony of the Court’s ... action will not be lost on the public, when we ultimately issue a decision to a plaintiff no longer able to receive it”). Cf. California v. Ramos, supra, 463 U.S. at 1031, 103 S.Ct. at 3469, 77 L.Ed.2d at 1200 (1983) (Stevens, J., dissenting) ("Nothing more than an interest in facilitating the imposition of the death penalty in California justified this Court’s exercise of its discretion to review the judgment of the California Supreme Court”).
The plurality opinion in Brown is also fundamentally incompatible with prior decisions such as Chief Justice Rehnquist’s own opinion in Barclay, which emphasized the legitimacy of the inability of sentencers to detach themselves from feelings unrelated to the evidence (in that case, the sentencer’s likening of the murder to his personal experience with Nazi concentration camps). Barclay, supra, 463 U.S. at 949-50, 103 S.Ct. at 3424-25, 77 L.Ed.2d at 1144. See discussion, supra, at 355-358.
[A]fter 1916 life term prison sentences were meted out for murder with much greater frequency than death sentences would have been. But how much this is due primarily to the fact that juries availed themselves of the right to recommend mercy, and not to the fact that courts became more willing to accept *373pleas of non vult or nolo contendere, cannot be said. [Bedau, "Death Sentences in New Jersey, 1907-1960," 19 Rutgers L.Rev. 1,30-31 (1961).]
See Pollock, supra, 35 Rutgers L.Rev. at 722:
In the first half of this century, the most significant historic fact about New Jersey constitutional law was the adoption of a modernized constitution in 1947. During the balance of this century, the most significant fact may be the extent to which courts look to state constitutions as separate declarations of fundamental rights. If those declarations are to endure, courts must base their decisions on a principled theory justifying recourse to the constitutions.
I choose not to address defendant’s related arguments based on federal constitutional grounds—that the death penalty is excessive; that a less severe penalty will serve the same deterrent and punishment process; that it serves no valid legislative purpose; and that retribution is not a legitimate state purpose. While I am not persuaded that these arguments lack merit under the State Constitution, disputation on these issues will prove at best inconclusive, problematic, and divisive, persuading few and settling nothing.
The statute to which New Jersey’s is most often likened is that of Georgia. See Special Project, supra, 15 Rutgers L.J. at 274-76 (“The similarity of the New Jersey statute to the Georgia version approved ... in Gregg v. Georgia is not accidental”); Capital Punishment Act: Hearings on S.112 Before the N.J. Senate Judiciary Comm., 200th Leg., 2nd Sess. 1 (1982) (Statement of Senator Russo: “Basically, the bill is drafted in accordance with the United States Supreme Court guidelines that render capital punishment constitutional in the Supreme Court case that so declared"). It is appropriate, therefore, to refer to the Supreme Court’s analysis of the structure of the Georgia statute as a framework for discussing our own.
I harbor no "preference” for one definition of murder over another. Ante at 195. To the extent that the prior definition of murder created a class of death-eligible murders so large that the arbitrary device of a non vult plea was required to narrow the class, even the prior definition may have been too *388broad; it was nonetheless, I believe, more definite than the current definition. I am drawing a comparison here, not making a recommendation.
The majority finds my reliance on the function of the non vult plea in this context "ironic given the dissent’s overall purpose of demonstrating that the current Act will be arbitrarily applied.” Ante at 195. I do not dispute the arbitrariness underlying the use of the non vult plea under the former statute; I do insist, however, upon the validity of the policy underlying its use as affirmed in Funicello —to subject only the most egregious first degree murderers to the death penalty.
Consider, for instance, a circumstance in which a woman is raped before death, a circumstance arguably satisfying both c(4)(g) and c(4)(c). To the extent that the aggravating factors serve to define capital murder, the prosecution will insist that both factors be introduced, see, e.g., People v. Harris, supra, 679 P.2d at 448-50, 201 CaLRptr. at 797-99; however, the murder is not determined to be capital murder until the aggravating factors are weighed, and if they are weighed so as to render the murder capital, they will then automatically—without further deliberation—serve to call for the death sentence. See, e.g., Wiley v. State, 484 So.2d 339, 351-52 (Miss.), cert. denied, — U.S.-, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986) (Marshall, J., dissenting from denial of certiorari); Cook v. State, 369 So.2d 1251, 1256 (Ala.1979); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
In Virginia, by contrast, the elements of capital murder serve to narrow the class of death-eligible murderers significantly at the outset, such that the vileness factor is used only for sentencing, rather than as a defining element of the respective class. (For example, Mr. Ramseur’s crime does not satisfy the elements of capital murder in Virginia. See Va.Code Ann. § 18.2-31 (1982).) In Tennessee and Georgia, the death-eligible class is limited to first degree or murderers, respectively, although both states construe this limitation rather broadly. See Tenn.Code Ann. 39-2-202 (1984); Ga.Code 16-5-1 (1982).
Originally, defendant alleged that blacks, women, low-income groups, young people, students and Newark residents were unconstitutionally underrepresented. The Court focuses its attention only upon the alleged improper exclusion of blacks.
The procedures followed in selection of jurors are outlined by the majority. Ante at 212-213.
The Court also summarizes this aspect of grand jury selection. Ante at 228-230.
The majority has described this aspect of jury selection. Ante at 236. I am satisfied that the selection of grand jury forepersons was deficient but see no need to treat this claim as a basis for reversal.
The geographically-inferred method determines a juror’s race based on inferences drawn from the composition of the juror’s neighborhood. This survey indicated that 17.9% of the source list was black. This total was the lowest of the three surveys. The defense claimed that even though this survey could have been given more weight because it used a much higher sample, the experts decided to use the more "conservative" methodology of giving the three samples equal weight.
The court also found that the absolute disparity: between women in the population and the source and qualified lists was 6.0 and 6.7 percent respectively; with respect to low-income persons on the qualified list was 12.2 percent; and for Newark residents was 9.2 percent for the source list and 15.7 percent for the qualified list. State v. Ramseur, supra, 197 N.J.Super. at 573.
The Federal Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. also requires that grand and petit juries be selected "from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. § 1861.
As noted, a challenge to the composition of state grand juries, unlike a challenge to the petit jury, involves only the equal protection clause rather than the sixth amendment. However, defendant contends that the source list and the qualified list, from which both petit and grand jurors are drawn, is substantially underrepresentative. Thus, defendant’s sixth amendment claim may be considered in this context. Other state courts have followed this approach in similar situations.
The trial court noted:
This increase in representation as we move through the selection process is consistent with the results of the post summons surveys [headcount] of the race and sex of jurors reporting to the courthouse for jury service which was submitted by the state. [197 NJ.Super. at 581.]
The court then concluded that the disparities were permissible because:
Of the 4450 petit jurors observed 47.64% were female and 32.20% were black; 52.74% of the 455 grand jurors were female and 24.61% were black. The significance of these figures is obvious. Not only is there an increase in the representation of blacks and women, but the increase occurs in the most significant stage of the selection process in terms of the defendant’s right to a fair trial, among those jurors who report to the courthouse for jury service. Id.
The prosecution’s 12 week headcount showed that 24.61% of those who appeared for grand jury duty and 32.20% of those reporting for petit jury service were black. State v. Ramseur, supra, 197 N.J.Super. at 16. However, the defense experts, as well as Dr. Taylor testifying for the prosecutor, correctly pointed out that the prosecution’s headcount was an unreliable and unacceptable survey from which to conclude the percentage of blacks who actually appeared for service. The most obvious and uncontrolled problem was survey- or bias—the very person who was in charge of the challenged jury system designed and executed the survey. This fact alone would render the results void in any ordinary scientific inquiry for statistically valid and reliable information. Another problem was the large number of people the three *418observor-clerks had to "check in” and record for their race and sex within an hour or hour and twenty minutes. Indeed, Dr. Lamberth pointed out a great deal of missing data throughout the weeks. An additional unexplained problem involved the wide swing in the percentage of blacks who appeared on Monday mornings and those who appeared later in the week. In general, mistakes seem inevitable in this type of survey. The prosecution witnesses vigorously contended that they would not skew results, not realizing that the defendant’s complaint was based in the fixed and readily observed phenomenon, whether conscious or unconscious, of surveyor bias when the hope or intended goal is known to the surveyor, rather than an attack on their honesty and integrity. See Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25, 26 (1967) (Supreme Court was unpersuaded by lower court’s finding that “public officers are presumed to have discharged their sworn official duties [including] eliminating] prospective [black] jurors on the basis of their competency to serve, rather than because of racial discrimination.”).
In Duren, 54% of the relevant population but only 26.7% of those summoned and 14.5% of those who actually served were women. However, Missouri law granted women an automatic exemption from service at their request. Nevertheless, the exclusion was held to be systematic and the petitioner was granted relief. See also Taylor v. Louisiana, supra, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (statutory exemption for women); Thiel v. Southern Pac. Co., supra, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (all daily wage earners excluded from jury list). Thus, the systematic nature of the exclusion of blacks is reflected not in the "objectivity vs. subjectivity” of the selection process but simply in its results.
The Essex County system may even be worse because the assignment judges expressly included or excluded persons based on race, sex, occupation, and other variables. In contrast, many of the "key man" states require the jury commissioners to choose men “of sound mind and good moral character” who are literate. Castaneda v. Partida, supra, 430 U.S. at 485, 97 S.Ct. at 1275, 51 L.Ed.2d at 505.
The trial court did not mention that race was an overt factor in the selection of grand juries. It merely stated that ”[a]fter a brief voir dire, [the assignment judge] taking into consideration all the information he has about the particular juror, will seat or excuse the juror in an effort to select those jurors who will represent a cross-section of the community and responsibly perform the functions of a grand juror.” See Ramseur, 197 N.J.Super. at 591.
The standard for death-qualification was clarified and modified in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The new standard is that “a juror may ... be challenged for cause based on his views about capital punishment [if] those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams, supra, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 581; see Witt, supra, 469 U.S. at 420-22, 105 S.Ct. at 850-51, 83 L.Ed.2d at 849-53.
"[P]rospective jurors uncommonly aware of an accused's constitutional rights,” Lockhart v. McCree, — U.S. —, —, 106 S.Ct. 1758, 1770, 90 L.Ed.2d 137, 155 (1986) (Marshall, J., dissenting).
The social science research is discussed and summarized in Grigsby v. Mabry, 569 F.Supp. 1273, 1291-1304 (E.D.Ark.1983), aff'd, 758 F.2d 266 (8th Cir.1985) (en banc), rev’d sub nom. Lockhart v. McCree, — U.S.-, 106 S.Ct. 1758, 90 L.E.2d 137 (1986); see also Lockhart, supra, — U.S. at-, 106 S.Ct. at 1771-74, 90 L.Ed.2d at 156-59 (Marshall, J., dissenting).
In this case the record of the prior conviction or non-vult plea contains evidence that would be insufficient to establish murder. The factual basis for the plea consisted of the following exchange at the 1966 plea hearing:
THE COURT: How was this killing done?
MR. RAMSEUR: You mean the way it happened?
THE COURT: Yes. Knife or gun or what?
MR. RAMSEUR: It was a gun.
THE COURT: With a gun?
MR. RAMSEUR: Yes.
THE COURT: In other words, you shot your wife causing her death; is that right?
MR. RAMSEUR: Correct.
THE COURT: And what were the circumstances?
MR. RAMSEUR: I gave her money for my kids Christmas which she had given to her boy friend, telling me she haven't saw him, and demanding her to go and find him. That is when she said she was not going, and she started to run away, and I shot her.
No other facts were adduced. At the sentencing hearing, Judge Glickenhaus referred to the facts contained within the presentence investigation report:
THE COURT: ... This man had no previous violations of the law. Against that, however, I considered the circumstances of the killing, a shooting of the deceased when she was prone to the ground, with a revolver which he had recently acquired.
Further, at sentencing under the prior conviction, defendant’s counsel alleged that defendant’s wife had been continuously unfaithful and neglected their children and that defendant had been attacked with a knife by one of her boyfriends. Defendant also indicated that he never intended to kill his wife.
This Court in State v. Corbitt, 74 N.J. 379 (1977), aff’d, Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) left open the possibility that the former statute unnecessarily coerced non vult pleas from defendants guilty only of manslaughter. In Corbitt, the petitioner unsuccessfully argued, on the basis of Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), that any system under which the defendant received a lesser penalty in exchange for a guilty plea was unconstitutional. This Court noted that "[t]he criminal process ... is replete with situations requiring 'the making of difficult judgments’ as to which course to follow," Corbitt, supra, 74 N.J. at 398 (quoting McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711, 729 (1971)), and that such dilemmas were never thought to invade constitutional rights. However, significantly, the Corbitt Court was considerably less sanguine about the dilemma when one choice involved the death penalty. The Court concluded:
Finally, it is our considered view that Jackson today is authority only for a situation where a defendant faces the prospect of a possible death sentence if convicted as against the alternative of merely a prison term if he pleads guilty. We have hereinabove stressed the language of Jackson emphasizing the awful pressure exerted upon a defendant whose choice of a course of action may mean his death. At the time of Jackson, the Court *441was undoubtedly already sensitive to the considerations which were to lead to the later broad invalidation of death penalties in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Cf. Witherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. [Id. 74 N.J. at 399.]
It reasonably follows, then, that defendant’s non vult plea in 1966 should not be considered voluntary at least for purposes of determining whether the plea is a valid prior conviction and an aggravating factor under the death penalty statute. Other courts have reached analogous conclusions. In Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116, 124 (1984), the Massachusetts high court ruled that that state’s newly-enacted death penalty law, which provided that the death penalty could only be imposed after a jury trial but permitted defendants to plead guilty to first degree murder to avoid any possibility of a death sentence, was unconstitutional because it impermissibly violated defendants’ state constitutional rights to demand a jury trial and against self-incrimination. See Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968) (invalidating under the right to trial by jury a rape statute under which only a jury could impose the death penalty); State v. Martin, 94 Wash.2d 1, 614 P.2d 164 (1980) (invalidating a statute that authorized the imposition of the death penalty upon conviction following a plea of not guilty, but not following a plea of guilty).
Rg., Ark.Stat.Ann. § 41-1302(1) (1977); N.C.Gen.Stat. § 15A-2000(b) (Supp.1979); Tenn.Code Ann. § 39-2-203(g) (Supp.1979); Wyo.Stat. § 6-4-102(d)(1) (1977).
"Diminished capacity” constituted defendant’s main defense with respect to guilt, as well as being relevant in the penalty phase of the trial. In his summation in the penalty phase the defense attorney emphasized, as a mitigating factor, the testimony that Mr. Ramseur was a disturbed man and that he was not whole. He also pointed to the expert testimony that Mr. Ramseur was "literally losing his mind, but more importantly, he’s losing that portion which controls or ... controlled his judgment and ability to control his own behavior.” The prosecutor in his summation did not respond specifically to this approach.
"Diminished capacity” also was implicated in the issue of flight. Defense counsel objected to a charge on flight. The trial court gave a charge on flight because the defendant’s own psychiatrists testified that flight would have a bearing on whether the defendant was suffering from a psychomotor seizure at the time of the murder, i.e., was suffering from diminished capacity. However, these reasons were not explained or communicated to the jury. Rather, the instruction focused on "flight" only as evidence of "consciousness of guilt." Hence, defendant contends, the charge authorized consideration of a non-statutory aggravating factor, ie., consciousness of guilt, which prevented the jury from fully considering the defendant’s mental problems in mitigation. The trial court’s failure to make clear that "consciousness of guilt” with respect to flight from the scene was relevant only as it bore on the evidence of the mitigating factors concerning mental culpability, not as any independent aggravating factor, was arguably harmful error.
This was compounded by at least two other incidents. At one point the following discussion occurred:
Q Do you think you’re any more qualified to say whether or not he would be in a position to knowingly make up a story or excuse than anybody else in this courtroom?
A Yes, certainly I would hope so after many years.
Q How about more than me?
A Yes.
Q Do you know anything about my background with how many cases of homicides I have handled? In my career?
A However—
Q How many murderers I’ve spoken to?
A Yes, but you are not a physician and you are not a neurologist and you do not know what to look for in these particular areas to the best of my knowledge, that is your area of expertise.
*448Q What do you know whether or not I have any training in the area of medicine and psychiatry.
A To the best of my knowledge you are not a psychiatrist.
Q Do you know?
A I’m not positive but I would have been introduced to you as a doctor had you been.
Q Well, you’ve never been introduced to me, have you? You're saying you’re more qualified than I am to make a determination, given an opinion as to whether or not a man such as this under these circumstances would render such a story, right?
A That is why they called in psychiatrists as expert witnesses and not an attorney as an expert witness.
A Is that why?
Q Yes.
As did this discussion:
Q Doctor, using just common sense like anybody in this courtroom would you, like any of those kinds back there (indicating), like any of these men here, these women (indicating), whatever they may be in walks of life in this courtroom, use your common sense.
Isn’t it the most logical, most reasonable explanation that this man after having done that act was fleeing the scene, after he just killed somebody? A It is not logical. That’s why you ask an expert witness. It is not my mind—
Q You have a different type of logic than anybody has. You have a different kind of common sense. Is your common sense and logic any better than anybody's in this courtroom?
A My logic is—
Q —is your logic and common sense in your opinion any better than anybody in this courtroom, including those young boys in the back, Doctor, who appear to be fourteen or fifteen years old?
A In regard to this, yes.
Q Do you think your common sense and logic in regard to this is better than the Prosecutor in the State of New Jersey who has tried maybe two hundred criminal jury cases and investigated a thousand? Do you think it is better than this unnamed person?
Defense counsel also points to the prosecutor’s extensive questioning about Dr. Lewis’ failure to get defendant's old medical records. Dr. Lewis had testified that she believed that the more intensive a behavorial and medical history a doctor has, the better her opinion will be. She then stated that defendant’s old medical records were unavailable, and explained how defense counsel and investigators had tried to locate this information and that some of it had been obtained from defendant's family. Apparently, the records were unavailable because of a fire. The prosecutor directed myriad questions at Dr. Lewis about what she personally had done to get records apart from what defense counsel and investigators had done. Eventually, defense counsel and the witness complained about prosecutorial harassment. The court ruled that the questions were proper but the prosecutor had made his point. Nevertheless, the prosecutor later continued to question Dr. Lewis concerning her own personal efforts to got the records.
Defense counsel contends that the prosecutor knew that Dr. Lewis’ opinion was not invalid simply because she did not do her own legwork and that this line of questioning was “a cheap shot at the witness." The questioning was rude and abusive, as were other ridiculing and unnecessary comments made by the prosecutor to the witness, and they could very likely have caused an average juror to reject testimony which the juror would not otherwise reject.
Defendant requested that the jurors be instructed as follows:
Ladies and gentlemen, it is now your duty to determine what punishment will be imposed upon Mr. Ramseur____ You must now decide whether extenuating circumstances exist which in fairness and mercy require that Mr. Ramseur be confined to prison with no possibility of parole for 30 years, or whether the Prosecutor has proven aggravating circumstances which you believe warrant Mr. Ramseur’s execution.
*450Mitigating factors do not necessarily constitute a justification or excuse for the offense; rather they are circumstances which in fairness and mercy, may be considered as extenuating or reducing the degree of blame or moral culpability; circumstances which in your human experience warrant the exercise of compassion and sympathetic understanding.
Even if you find that one or more aggravating factors exist, you as the sentencing body may still determine that in fairness and mercy a sentence of death would be unjust. (Emphasis added)
The prosecutor in summation made these comments: *455Who will decide, counsel asks you whether Mr. Ramseur lives or dies? Put in a very emotional and very sympathetic manner of which the defense tries to get to your sympathy, ladies and gentlemen, and to mine, tries to get to the human weakness if you will, human frailty in all of us and that is to let emotions overcome facts and reality ... Ask yourself, ladies and gentlemen, whether or not that play on emotion should really play a role in your deliberations.
********
It’s emotional but take ahold of your emotions and look at why you’re here. You’re here representing everybody out there. You're here to say to these people out in the streets working, living, playing that I will uphold the laws as a juror. It’s not easy, I don’t like it, I don’t want it but I will do it and I will deal with it not out of emotion or sympathy or bias or prejudice but I will render a decision consistent with the laws, consistent with the laws that are here to protect us, all of us.
The most difficult things we do in our life are not the things we enjoy, you know that. The things we enjoy in life are the easy things in life. It’s the difficult decisions, the ones which you anguish over which you lose sleep over, which you may cry over and which you may die over. They’re the difficult ones but once we start abdicating those responsibilities, once we start giving them up, ladies and gentlemen, and getting emotional and getting emotional and getting sympathetic; where it shouldn’t be, once we start to get into that frame of mind the system is going to collapse. (Emphasis supplied).
The majority holds that defendant may not be resentenced to the death penalty because he has “irrevocably lost not merely a theoretical possibility but a substantial likelihood that, absent the [coercive Allen charge], the jury would have reached a verdict resulting in imprisonment rather than death." Ante at 314. In effect, the Court is saying that it would be impossible and fundamentally unfair to attempt to reconstruct the jury deliberations on remand: the course cannot be rerun. In this respect the majority tacitly adopts the rationale of State v. Laws, supra, 51 N.J. at 511-12, relating to the impracticality of a retrial on the sentencing issue alone.
In Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966), the court found error in the imposition of a jury-determined death sentence, resulting from *464prosecutorial misconduct, and remanded with directions to resentence the defendant to life imprisonment. The Court determined that the error was equivalent to disagreement of the jury and, consequently, that the death sentence should be reduced to life imprisonment since the statute, as does the New Jersey statute, authorized life imprisonment if jurors were unable to reach unanimity as to sentence.
The relevant constitutional provisions are: N.J. Const. of 1947 art. VI, § 2, para. 1 (Supreme Court exercises appellate jurisdiction in the last resort in all cases provided in the Constitution); art. VI, § 5, para. 3 (grants to Supreme Court such original jurisdiction as may be necessary to complete determination *467of any cause on review); art. VI, § 2, para. 3 (Supreme Court empowered to make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts); and art. VI, § 5, para. 1 (providing for appeals to the Supreme Court in capital causes).
Arguably, the Legislature’s prohibition on prosecutorial waiver of the death penalty, combined with the statutory provision for proportionality review— which creates in this Court the power to modify disproportionate sentences to life imprisonment—limits this Court’s power to modify death sentences only in the proportionality review context. However, it would seem odd if the Legislature’s recent authorization of this Court’s review of sentences in the proportionality context was construed as limiting that authority to only that context.