concurring in part and dissenting in part.
Defendant, James Clausell, was convicted of capital murder and sentenced to death. He was also convicted of three counts of aggravated assault and related weapons offenses. Defendant appealed his capital conviction to this Court as of right. R. 2:2-1(a)(3). The Court now reverses the capital-murder and derivative assault convictions and sets aside the death sentence.
I concur in the judgment of the Court. With respect to certain issues, there are additional reasons supporting the result it reaches that require comment. Further, there are several issues with respect to which the Court recognizes the existence of error, acknowledges their potential for serious prejudice, but avoids concluding that they constitute grounds for reversal. Those concern the testimony of a key prosecution witness and the admission of a voice identification. In my view, error with respect to those matters warrants reversal, and if *356the Court believes that, it should say so. Capital-murder prosecutions are too important, complex, and controversial for the Court on appeal to assume an ambivalent or irresolute posture.
I also note my position that capital-murder jurisprudence is ongoing and evolving. The Court should reassess its earlier decisions determining that the capital-murder statute, as construed and applied by it, is constitutional in all respects. I strongly differ and continue to record my dissent from its disposition of these appeals.
I.
In State v. Gerald, 113 N.J. 40, 69, 549 A.2d 792 (1988), this Court held that “a defendant who is convicted of purposely or knowingly causing ‘serious bodily injury resulting in death’ under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them — as opposed to one who is convicted of purposely or knowingly causing death under those same provisions — may not be subjected to the death penalty.” The Court agrees with defendant’s claim that Gerald requires a reversal of his conviction and sentence. Ante at 316, 580 A.2d at 229. It points out that the trial court did not require the jury to distinguish between knowing or purposeful murder, which carries a possible death penalty, and serious-bodily-injury murder, which does not carry a possible death sentence. The jury instructions merged both forms of murder, making it impossible to determine “whether the jury convicted defendant or purposely or knowingly causing death or purposely or knowingly causing serious bodily injury that resulted in death.” State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990) (applying Gerald). I concur in this determination.
I also agree with the Court’s conclusion that there is a rational basis on which the jury could have determined that defendant had intended to cause serious bodily injury rather than death. “Omission of a Gerald charge is reversible error if the evidence is ‘minimally adequate’ to provide a rational basis *357for the jury to find that defendant intended to cause serious bodily injury. State v. Pitts, 116 N.J. 580, 615, 562 A.2d 1320 (1989).” State v. Pennington, supra, 119 N.J. at 561, 575 A.2d 816.
Part of the evidence regarding defendant’s state of mind in the shooting is derived from the testimony of Jennifer Schall, concerning what defendants had said before and after the murder, and the details of the shooting itself. Schall testified on direct examination that she had questioned Clausell, on their way to New Jersey, concerning the purpose of the trip. “[H]e said that — that he needed to collect money. This guy owed them money____ He just said, ‘He owes us money, drug money.’ ” Schall stated that she had asked what would happen if the person did not have the money and that “[t]hey just said that maybe they’ll smack him around a little bit or beat him up,----” Another exchange with Schall on direct examination addressed defendant’s state of mind in the killing, suggesting that both Clausell and those who may have hired him to do the “hit” had been surprised that the victim of the shooting had died. Ibid.
Furthermore, portions of Schall’s pretrial statement to the investigators, which was used in part to cross-examine her, implied that Wright, not defendant, had shot the victim. Schall’s statement also indicated that the shooter had aimed low, presumably to • injure, not to kill. Specifically, Schall stated:
Q What did they say happened back there at that residence?
A They told me that James [defendant] knocked on the door and asked for ... somebody. The guy said, “He doesn’t live here.” And James like stood there for a minute because supposedly their plan was Dwayne was supposed to pop out from behind a bush and he didn’t in time, that the guy was just getting, slamming the door and ... Dwayne said the first time he shot the gun, it got caught on the jacket or something like that or it didn’t fire right. So he shot again, and he shot the door, shot through the guy’s front door because he had shut the door. So, from what they told me, they tried, to shoot at this guy and they shot low. He said they were shooting at his legs and that he was just gonna, he was trying to shoot his leg or something like that, hit him in *358the leg and that he didn’t, he didn’t think he hit him, he said. [Emphasis added.]
Schall’s statement that the shooter had deliberately aimed low was also supported by Darrell Atwood’s testimony that the shooter had “pointed downward” when taking the “last shot.” That evidence generated by the State’s investigation was not forthcoming at trial. It did not become a matter of record and is not relied on by the Court in support of its conclusion that defendant was prejudiced by the absence of a Gerald charge. Ante at 315, 580 A.2d at 229.
' In addition to the foregoing evidence bearing on defendant’s intent, it is appropriate to point out, as the Court does, ante at 315, 580 A.2d at 229, that the trial court instructed the jury on' aggravated manslaughter and reckless manslaughter. The court told the jury: “I suppose on the facts of this case if you concluded there was no intent to actually kill Mr. Atwood or to inflict serious bodily injury, but only attempt to scare him and shoot near him, then one of these lesser included offenses might be a possibility.” If the trial court had believed there was a rational basis to support the aggravated manslaughter and manslaughter charges, then it surely would have believed, had it known to make the distinction, that there was a rational basis to support serious-bodily-injury murder charge, because the intent to commit that form of murder lies in between that of manslaughter and of knowing murder. See, e.g., State v. Pennington, supra, 119 N.J. at 562, 575 A.2d 816.
In his separate opinion, Justice Stein finds it “difficult to fathom the majority’s conclusion that there is a rational basis in the evidence on which the jury could have determined that defendant had acted with ‘an intent to inflict only serious bodily injury with no intention that death be the result.’ ” Post at 375, 580 A.2d at 261. His view is that the evidence in the record can lead only to the conclusion that this shooting was committed with an intent to kill. The evidence that he recapitulates, however, from the testimony of four witnesses to physical details of the shooting, hardly leads inexorably to the *359conclusion that the shooting could have entailed only an intent to kill. Nothing to which Jennifer Schall testified exclusively supports a finding of an intent to kill. The fact that Paul Grant defined a “hit” as a killing does not tell us what defendant thought the word meant, and the fact that Grant concluded Wright and Clausell had been paid tells us nothing of Clausell’s intent at the time of the shooting. The testimony by Gail and Darrell Atwood also tells us nothing conclusive about defendant’s intent at the time of the shooting.
Justice Stein also writes that “the victim’s effort to close the door in a vain attempt to save his life is hardly a basis on which a jury could conclude that a shot fired simultaneously was intended to injure only and not to kill,” post at 376, 580 A.2d at 261. This perception of the evidence and of its bearing on the Gerald issue is seriously flawed.
With respect to the evidence, it misstates the majority’s view to suggest that the question of intent hinges on “the victim’s effort to close the door in a vain attempt to save his life.” Rather, the evidentiary significance of the closed door is that it makes more difficult the determination of the intent of the shooting, because the assailant could not see clearly what he was shooting at. Further, this is only one piece of evidence that must be considered in determining defendant’s intent at the time of the shooting.
The view expressed in the separate opinion appears to be that a shooting for hire, at close range, with a powerful gun can be committed only with an intent to kill. Maybe so, probably so. Yet a shooting for hire, at close range, with a powerful gun could be committed with an intent only to cause serious injury. It is a question for a jury, especially on the facts of this case.
Justice Stein states that “[ajbsent specific evidence in the record suggesting that defendant’s intent was limited to the infliction of serious bodily injury only and that death was an unintended consequence,” a homicide such as that in this case does not require a Gerald charge. Post at 373, 580 A.2d at 260 *360(quoting State v. Coyle, 119 N.J. at 201, 574 A.2d 951 (Stein J., concurring in part and dissenting in part)). That view implies that such homicides incur a presumption of capital-murder intent, and that it is the defendant who must show that the facts or the inferences to be drawn from them demonstrate only the intent to inflict serious bodily injury. That suggests that in some way the burden of proof is on the defendant to exculpate himself or herself from capital murder. The constitutional foundation of our criminal justice requires, however, that the State demonstrate that the evidence in this case shows beyond a reasonable doubt that defendant’s intent was only to kill. Due process in criminal prosecutions places on the State the burden of proving guilt beyond a reasonable doubt. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368, 374 (1973). Furthermore, in this case it is worth noting that both defendants claim not to have been at the scene of the murder. To require them to produce evidence of serious-bodily-injury intent in order to avoid a jury conclusion of intent to kill would compromise their legitimate defense. The State, for its part, is certainly not going to present evidence of intent to cause serious injury when it is- attempting to prove intent to kill, for that would compromise its effort to obtain a capital-murder conviction. Thus, Justice Stein’s limitation of Gerald seems wholly inappropriate.
One could debate at length, if not endlessly, the inferences to be drawn from undisputed facts and the ultimate determination of intent to be made on those facts and on those inferences. Evidence of intent is amenable to debate, regardless of how one-sided. It is a misconception and misapplication of the appellate function to give that evidence a single interpretation. When an appellate court does that it indeed become the thirteenth juror.
The perception of the evidence as indicating only an intent to kill is not the only problem. It then becomes the basis for applying a standard of law that is also seriously flawed. We stated in Gerald that a defendant who intends to inflict serious *361bodily injury resulting in death has not committed capital murder. 113 N.J. at 89, 549 A.2d 792. We did not rule, as now urged by Justice Stein, see post at 376, 580 A.2d at 261; State v. Long, 119 N.J. 439, 527, 575 A.2d 435 (1990) (Stein, J., concurring in part and dissenting in part); State v. Pennington, supra, 119 N.J. at 615, 575 A.2d 816 (Stein, J., concurring in part and dissenting in part); State v. Coyle, supra, 119 N.J. at 251, 574 A.2d 951 (Stein J., concurring in part and dissenting in part), that a defendant who intends only to inflict such serious bodily injury has not committed capital murder or, to put it differently, that a defendant who is indifferent between the intent to kill and the intent to cause serious bodily injury is guilty of capital murder. Yet Justice Stein argues that a defendant with a mixed intent can be guilty of capital murder.
In Gerald, supra, 113 N.J. at 72-73, 549 A.2d 792, the Court was clear in its decision to adhere to the teaching of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). We endorsed the principle that under our state constitution only a defendant who kills solely with the intent to kill can be found to have committed capital murder. A different intention accompanying a homicide does not constitutionally justify the death penalty. Our adherence to that principle is made even clearer by our rejection of the Supreme Court’s decision in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), in holding that under the state constitution a defendant who does not directly and personally intend to kill cannot be exposed to the death penalty. State v. Gerald, supra, 113 N.J. at 73-89, 549 A.2d 792. Hence, it cannot be overemphasized that a defendant who murders with an indefinite intent that is other than an exclusive intent to kill has not committed capital murder.
Because of the ambiguity in the record as to defendant’s specific intent in the killing, I agree with the Court that the jury rationally could have found that defendant intended only serious bodily injury rather than death, and that the conviction *362on knowing or purposeful murder is properly reversed. State v. Pennington, supra, 119 N.J. at 561-62, 575 A.2d 816; State v. Coyle, supra, 119 N.J. at 209, 574 A.2d 951; State v. Gerald, supra, 113 N.J. at 69-70, 549 A.2d 792. I believe, further, that if the jury were to find that defendant had a mixed intent in the shooting then he cannot be convicted of capital murder and cannot, therefore, be subject to the death penalty. State v. Gerald, 113 N.J. at 72-73, 549 A.2d 792.
II.
Defendant argues that the jury instructions on murder indicated that the mental state of recklessness would suffice as the intent for “knowing” murder under N.J.S.A. 2C:11-3a. Both defendants objected at trial that the court had not properly communicated to the jury the mental state of knowing. Defendant specifically points to this statement by the trial court: “[Y]ou might kill a person purposely. That means you want to do it. Or you might kill a person knowingly. You didn’t mean to do it, but you were doing acts which are certain to bring about death. You just don’t care whether it happens or not ____ You are aware, in terms of knowing, you are aware of circumstances which make death practically certain.” (Emphasis added.) The Court says only that “[ajlthough [that] statement was incorrect, that isolated reference in an otherwise adequate murder charge is unlikely to have confused the jury.” Ante at 331, 580 A.2d at 237. I believe the instruction was sufficiently misleading to warrant a reversal.
“In assaying the measure of success in the jury charge,” the reviewing court must look at the charge as a whole. State v. Freeman, 64 N.J. 66, 69, 312 A.2d 143 (1973). The overall charge distinguished between the mental states of knowing and purposeful. The court informed the jury that “purposeful” entailed the “conscious purpose to kill,” while “knowingly” involved “an awareness that what he was doing was practically certain to cause death or serious bodily harm resulting in *363death.” Following the sentence to which defendant objects (emphasized in the quoted passage above), the court stated that knowing involves awareness of “circumstances which make death practically certain.” The court also gave charges on aggravated manslaughter, N.J.S.A. 2C:11-4a, and reckless manslaughter, N.J.S.A. 2C:11-4b. Regarding the element of intent for both of those crimes, the court told the jury it must determine whether “the defendant was aware of and consciously disregarded a substantial and justifiable risk that death would result from his conduct.” The court elaborated: “The risk must be of such a nature and degree that considering the nature and purpose of the defendant’s conduct and the circumstances known to the defendant, his disregard of that risk is a gross deviation of the standard of conduct that a reasonable person would follow in the same situation.” With respect to aggravated manslaughter, the court expressly stated, “the defendant must have acted in a way under circumstances involving the probability of death.”
Thus, the court delineated for the jury three mental states that correspond to purposeful murder, knowing murder, and (both aggravated and reckless) manslaughter. Reduced to their essentials, the mental states under the instructions in this case were “conscious purpose to kill” (for purposeful murder), awareness of “circumstances which make death practically certain” (for knowing murder), and awareness and conscious disregard of “a substantial and justifiable risk that death would result” from the conduct (for aggravated and reckless manslaughter). Because these distinctions are subtle and easily confused, the sentence to which defendants object, even in the context of the court’s charge on knowing murder and the court’s distinctions between the requisite mental states for purposeful murder, knowing murder, and manslaughter, appears to have engendered a prejudicial influence.
The trial court’s statement that with knowing murder, “[the perpetrator] just [does not] care whether it happens or not” seems correct, although at the same time it confuses the *364standards of intent for “knowing” and “recklessness.” It is correct in the sense that, as the court told defense counsel, “[kjnowingly means you realize that you are going to cause a death, but you don’t care whether you do or don’t.” Nevertheless, the court’s charge approaches Justice O’Hern’s explication of the mental state of recklessness under aggravated manslaughter: “ T couldn’t care less, I don’t care at all, I don’t care in the least bit if the person dies, even though I know that my act possesses a high degree of probability of causing that person’s death.’ ” State v. Gerald, supra, 113 N.J. at 139, 549 A.2d 792 (O’Hern, J., concurring). I have before observed: “These offenses, knowing murder and aggravated manslaughter, are couched in terms that in any given case can render the two indistinguishable.” Id. at 151, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part). The confusion can work both ways. “Knowing murder ... can incorporate a degree of ‘indifference’ that can, on a given state of facts, serve to make aggravated manslaughter the functional equivalent of knowing murder,” while “[cjonversely, on identical evidence, aggravated manslaughter can encompass a quality of indifference that could transform knowing murder into aggravated manslaughter.” Id. at 150-51, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part) (citations omitted).
The instruction by the trial court in this case that “knowing” murder means “not caring” whether death results highlights the evasiveness of the distinction between the mental states of knowing murder and aggravated manslaughter. The instruction that “knowing” murder means “not caring” whether death results pulls the jury’s attention away from the critical and fine distinction between practical certainty on the one hand, and awareness and conscious disregard of a substantial and justifiable risk on the other. It emphasizes the lack of care common to the mental state of both. At the very least, the charge in this case would have better served the legislative intent in distinguishing between the crimes of knowing murder and aggravated manslaughter if it had not included the superfluous *365addition that knowing murder entails simply not caring whether death results.
III.
Defendant also attacks the admission of Mrs. Atwood’s in-court voice identification. He claims that the in-court voice identification itself was impermissibly suggestive. The Court treats that issue dismissively. Ante at 328-329, 580 A.2d at 236.
During redirect examination of Mrs. Atwood, the prosecutor asked the court for permission to have Wright “brought forward in the Courtroom, stand approximately 4 feet away from Mrs. Atwood and say the name ‘Ed’ and say the name ‘Dwayne’ for identification purposes.” Pour feet was the distance determined at trial between Mrs. Atwood and the man outside her front door on August 11; “Ed” and “Dwayne” were the only two words that the man spoke. Counsel for Wright objected that the procedure would be highly suggestive and argued that a lineup was required. Counsel for Clausell objected that the witness had testified that there was nothing distinctive about the voice at her door, and that the procedure would prejudice his client. The court overruled Wright’s objection, stating that although courtroom identifications “are to some extent inherently suggestive, ... they’re still admissible, but the weight that they have is something that’s for the Jury to decide.” The court also overruled Clausell’s objection, finding that the probative value outweighed any possible prejudicial effect.
Before the jury, the court asked Wright to step forward in front of the witness stand. He did so, and the following transpired:
THE COURT: All right. Now, Mr. Wright, what we would like you to do is to say the name “Ed” and then pause for a minute and then say the name “Dwayne”. Would you please do that.
DEFENDANT WRIGHT: Yes, Sir.
Ed (pause) Dwayne.
*366THE COURT: Thank you, Mr. Wright. You may have a seat____
The prosecutor continued redirect examination:
Q Mrs. Atwood, have you ever heard that voice before?
A The way he says his name, “Dwayne”, you can say it one way, but his — his “D” is different. That’s what I hear in his voice; and when you sound like you’re saying “Ed”, it always seemed like it’s a question.
THE COURT: So were you able to recognize the voice or were you not?
THE WITNESS: Yes.
THE COURT: All right. Now, I’ll permit further questions on it in a moment, but I would like to tell the Ladies and Gentlemen of the Jury, this is what’s called a voice identification, and it’s for you to decide what weight it should be given. The possibilities are always present, that when a witness hears a person’s voice in a Courtroom and they know the person is on trial for the crime, that that might suggest to them that this is, indeed, the person who committed the crime; or a witness might be basing the identification on having heard the voice at the time of the crime; and they may be the same person that committed the crime and that’s why they recognize the voice. That kind of a decision is in the province of the Jury, and it’s for you to decide what weight to give to this identification____
The prosecutor resumed:
Q Ma’am, have you heard that voice before? Is that the voice of the man that was at your door that night?
A Yes.
Q And how do you know that?
A He said “Ed” to me. It was like — it’s like a — it was like it was always like a question. Okay. And some people can just say — that can just say “Ed”; and then it was like when he said his name “Dwayne” — I can say it one way, and I can say it over and over “Dwayne”, okay, but for me it was always — it was always the “D” in the way he said “Dwayne”, and that’s what stayed in my mind a lot.
Q And is that what you recognize here today?
A Yes.
Clausell does not argue that the in-court voice identification of Wright violated Wright’s fifth-amendment privilege; rather, he contends that it was inadmissible due to its suggestiveness. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), emphasized reliability as the “linchpin” for admissibility of identifications. That case involved the admissibility of a photo identification. Its balancing test between reliability and suggestiveness, however, is not inherently limited to the context of visual identifications. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); *367United States v. Domina, 784 F.2d 1361, 1374 (9th Cir.1986) (Schroeder, C.J., dissenting). The factors that relate to reliability (Manson-Biggers criteria) include
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. [Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154; see Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.]
The reliability of the identification must be weighed against any suggestiveness in the procedure followed. Ibid.; see State v. Hurd, 86 N.J. 525, 548, 432 A.2d 86 (1981).
In this case, the witness had little opportunity to hear the person at her door. She did not hear a speech. She did not hear the person speak at length. She did not hear a complete sentence. According to the witness’ own testimony, she heard the person speak only two words. They were one-syllable words. This kind of identification is as unreliable as would be a visual identification based on a two-second view of only a fragment of a person’s head through a keyhole. Even under conditions that best facilitate the witness’ full concentration, a witness can hardly take the full measure of a person’s voice hearing only two one-syllable words. Two brief words hardly provide a basis on which the average person can identify the normal resonance, timbre, pitch, emphasis, and accent — much less the idiosyncrasies — of a person’s voice. Moreover, the conditions in this instance were not conducive to the witness’ full attention to the stranger’s voice. Although Mrs. Atwood emphasized in her testimony that she was paying attention to the stranger at her door, trying to figure out who he was, she was concentrating as much on the two visitors’ physical appearance as she was on the voice. She was able to supply the police with rather precise descriptions of the visitors’ builds and their clothing. She was also able to provide enough details to help develop a sketch of the person who had stood at the door that she approved as a close resemblance. In short, her opportunity to hear the stranger’s voice at the time of the crime was slight, *368while her attention was not fully devoted to listening to that voice.
The third factor in the Manson-Biggers criteria, the accuracy of the witness’ prior description, is not satisfied to any extent in this ease. There was no prior description — indeed, Mrs. Atwood was unable to give one. Following the in-court confrontation, Mrs. Atwood was confident that Wright’s voice was the one she had heard the night of August 11-12. Yet, in the twenty months between the homicide and the trial, the State never conducted a voice lineup or any other type of voice identification with' Mrs. Atwood. In her statement of August 16, 1984, Mrs. Atwood had told investigators that the person who had spoken at her door had neither an accent nor a stutter. Further, her statement indicated that she said “No” to the question, “When the subject spoke, was there anything unusual or different about his manner of speaking?” At no time between the crime and the trial did Mrs. Atwood tell the State that she could recognize the voice if she were to hear it.
Finally, the vast length of time between the event and the in-court identification raises doubts about the reliability of the identification. Twenty months had elapsed between the crime and the identification. Although Mrs. Atwood testified that she had lived with that voice since the murder, twenty months’ time surely takes its toll on any witness’ memory of facts or of sensory perceptions. This Court has recognized time as a factor that can erase the prejudicial effects of pretrial publicity on potential jurors. The more time that passes between a period of prejudicial publicity and the beginning of trial, the Court has observed, the less likely such publicity might interfere with the jury’s ability to determine the issues in a case only on the evidence introduced at trial. State v. Biegenwald, 106 N.J. 13, 35, 524 A.2d 130 (1987); State v. Koedatich, 112 N.J. 225, 272, 548 A.2d 939 (1988); see Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2890-91, 81 L.Ed.2d 847, 856 (1984). In view of the common sense and ordinary experience *369that instruct us that the memory of a perceived fact is increasingly suspect the further removed in time is recollection from the perception, we should not repudiate that intuition with respect to a recollection that can lead to the death penalty.
An additional factor, not listed among the Manson-Biggers criteria, bears on the reliability of the identification in this case. The in-court voice identification occurred on Monday, April 7, 1986. On cross-examination of Mrs. Atwood toward the end of the preceding week, defense counsel had brought out the fact that the witness had not remembered anything distinctive about the voice she had heard. During the weekend prior to the 7th, the prosecutor had told Mrs. Atwood to be prepared for an in-court voice identification of Dwayne Wright on re-direct. There is no suggestion in the record that the prosecutor instructed the witness to make a positive identification. The notification to the witness, however, raises a further doubt about the reliability of her later identification. Mrs. Atwood was an able and perceptive witness and she was fully aware of the context in which she was asked to make the identification. We should not permit the State to take advantage of such a possibly deceptive investigative procedure without a full explanation. See State v. DiFrisco, 118 N.J. 253, 305, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part).
Not only was the in-court voice identification procedure clearly unreliable, it was also highly suggestive. To have Wright speak the same words as the assailant had spoken, from the same approximate distance as at the crime scene, was to make Wright, in front of the witness and the jury, assume the mantle of the perpetrator of this crime. See, e.g., Domina, supra, 784 F.2d at 1371-72 (recitation of neutral words preferable to recitation of those words used in crime). Forcing Wright to say the same words from the same distance was no different from making Wright wear red shorts and a white muscle shirt and pose in front of the witness.
*370The use of in-court voice identifications has been severely condemned for its suggestive and prejudicial impact. In United States v. Brown, 644 F.2d 101 (2d Cir.1981), a bank robbery case, the defendant challenged an in-court voice-identification procedure as a violation of his rights to counsel and due process. “During the trial one of the tellers .., testified that the robber said ‘Give me your money, all your money, or I am going to blow you up,’ ” and at the prosecutor’s request, the trial court required defendant to say those words in front of the witness and the jury. Id. at 103 (Oakes, J., dissenting). The Second Circuit rejected defendant’s claims. Judge Oakes dissented, however, saying:
[B]y having the defendant utter the threatening and menacing words that the robber had allegedly used, the Government ... gave the defendant an aura of criminality, thus providing a strong suggestion to the jury of his guilt. It is hard for me to conceive of a more prejudicial method of establishing a voice identification. Only if the jury had gone down to the bank and watched the defendant put on a ski mask, wave a toy gun, and shout “Give me your money or I’m going to blow you up,” could Brown have been worse off. I know of no case — certainly neither the Government in its brief nor the majority in its opinion has found one — which justifies the use of an in-court identification procedure as suggestive and prejudicial as the one used here. [Id. at 106-07.]
In Domina, supra, another bank robbery case, one witness “was asked to identify the defendant after he had donned the mask of the robber,” while another “was asked to identify the defendant’s voice after he spoke the very words spoken by the robber.” 784 F.2d at 1374 (Schroeder, J., dissenting). Judge Schroeder observed in his dissent that “[i]t is difficult to imagine any more corruptively suggestive procedures, short of transporting the jury to the bank and asking the defendant to reenact the crime.” Ibid. Judge Schroeder succinctly summarized his view of the in-court identifications in that case: “The procedures at trial did not produce reliable or certain identifications. They did unfairly present the defendant to the witnesses and the jury in the guise of a criminal.” Ibid.
In this case, the trial court attempted to dampen the suggestiveness of this voice identification, to a certain extent, with a curative instruction. The court alerted the jury to the possibili*371ty that the witness’ knowledge that Wright was being tried for the crime might have influenced her identification. Such an instruction, however, may serve only to reinforce the prejudicial impact of the evidence if it was otherwise improperly admitted. See State v. Long, supra, 119 N.J. at 527, 575 A.2d 435 (1990) (Handler, J., concurring in part and dissenting in part).
In short, given its lack of reliability and its marked suggestiveness, the in-court voice identification was not properly admitted. Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154; State v. Hurd, supra, 86 N.J. at 548, 432 A.2d 86. I believe it played an important role in establishing the State’s case beyond a reasonable doubt. In my opinion there is a reasonable doubt whether this evidence had the capacity to bring the jury to a determination it might not otherwise have reached. That constitutes an unjust result. State v. Melvin, 65 N.J. 1, 319 A.2d 450 (1974). The viewing of Wright in a re-enactment of part of the crime and Mrs. Atwood’s adamant identification immediately following that re-enactment may well have dissipated any reasonable doubt in the jurors’ minds that defendants were guilty. The potential harm to Clausell engenders greater concern and requires greater deference to the prejudicial influence of the error. Clausell ended up subject to the death penalty in part because of that error. “In the context of the death penalty, where the demands for fairness and accuracy are heightened, the principles of consistency and reliability rise to constitutional dimension.” State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987).
ÍV.
Defendant claims that the trial court erroneously permitted testimony alleging defendant’s past misconduct and that the trial court erred further by not issuing a limiting instruction to the jury with respect to such testimony. The Court agrees with the State that testimony concerning past criminal behavior of defendant was admissible under Evidence Rule 55 to show *372defendant’s motive for killing Atwood. Ante at 323, 580 A.2d at 233.
Defendant is correct in his assertion that the trial court issued no limiting instruction under Evidence Rule 6 with respect to any evidence of alleged past misconduct. The Court agrees with defendant that, to the extent that any evidence of past misconduct was properly admitted under Evidence Rule 55, the trial court erred in failing to issue an instruction about the limited relevance of that evidence. Ibid.; see, e.g., State v. Lair, 62 N.J. 388, 391, 301 A.2d 748 (1983).
I would add that that omission takes on added prejudice because it occurs in the context of a capital-murder prosecution. The weighing that the trial court must undertake in applying Evidence Rule 55 and Evidence Rule 4 must be within a framework that focuses attention on the prejudicial effects not only with respect to guilt but also with respect to sentence. State v. Pennington, supra, 119 N.J. at 844, 575 A.2d 816 (Handler, J., concurring in part and dissenting in part); State v. Long, supra, 119 N.J. at 527, 575 A.2d 435 (Handler, J., concurring in part and dissenting in part).
V.
With these additional reasons, I express my concurrence in part and dissent in part from the opinion of the Court.