dissenting.
Reluctantly, I must dissent. My disagreement with the majority opinion lies in four areas: venue, jury qualification, instructions, and use of rebuttal evidence.
I. VENUE
The trial court erred when it faded to grant a change of venue in this case. Of the ninety-eight prospective jurors called, only six knew nothing of the case and one-third either believed Appellant was guilty or did not presume him to be innocent. Eighteen of those excused from service for cause had an opinion as to guilt, seventeen were unable to give Appellant the presumption of innocence, and six had too much knowledge of the case to sit. Nine others had a bias toward the Commonwealth or police due to relationships with the victims, seven did not believe in the death penalty, one would vote only for the death penalty, and five others were excused for miscellaneous other reasons. The jury was finally selected from a group of thirty-five. Of that group, only two had never before heard of Appellant or the crimes charged.
When the composition of the final jury panel is considered with the evidence of widespread and prejudicial publicity over the prior two years, it is clear that a fair trial in Laurel County was impossible. Newspaper coverage between August of 1991 and the trial date was comprehensive and repetitive. The details of the murders were repeated over and over, along with other information such as the fact that, but for deals with the government, Appellant would have been serving jail time for other crimes at the time these particular offenses occurred. Appellant was the subject of editorials in the local and regional newspapers. Even the majority opinion admits that these editorials contained remarks that were inflammatory. Other suspected crimes of Appellant were detailed in the articles and on television. The statements of witnesses at this crime scene were quoted as to the details of the slayings.
Due process requires a remedy for the effects of prejudicial pretrial publicity, in-*891eluding but not limited to a change of venue, when “there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial_” Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966). Here, the likelihood was beyond “reasonable,” it was a certainty.
Jacobs v. Commonwealth, Ky., 870 S.W.2d 412, 417 (1994), tells us that in determining whether venue was properly determined, we may look not only at pretrial publicity, but at the voir dire examination of the jury. As in that case, the jury’s “knowledge of the crime is evident, almost alarming. It is, however, the opinions evidenced by some jurors, and even that of the foreperson who was unsuccessfully challenged for cause. The totality of views are reflective of the taint which requires a change of venue.” Id. The jury foreperson in this case not only was aware of Appellant’s identity and the crime with which he was charged, but stated that he thought he would require Appellant to put on proof before he could find Appellant innocent. (Altogether, thirteen of the jury pool indicated that they would require proof of innocence rather than giving Appellant the presumption granted by the Constitution.) Another juror knew of this crime, as well as the septic tank murder, and stated that she thought Appellant was guilty, though she had heard only one side of the case. She was rehabilitated by stating that she could wipe her mind clean and consider only the evidence presented in court. Two other jurors who sat on the case stated that they knew the details of the crimes charged and had heard others in the community express the opinion that Appellant was guilty. One said he could not recall ever expressing such an opinion himself, but was not sure that he had not. The other stated that everything he had ever heard about Appellant was negative.
The venue problem presented by this ease is virtually indistinguishable from the one found in Jacobs v. Commonwealth, supra. Appellant was denied his constitutional right to a fair trial.
II. JURY QUALIFICATION
The majority opinion sets out in detail the voir dire testimony of the ten jurors whose qualifications Appellant challenges on appeal. Eight of the ten actually served as jurors and determined Appellant’s fate. Each and every one of the ten knew who Appellant was, and knew of the crime charged. Six of those who served knew something of the other murders with which Appellant was charged. A careful reading of the record confirms what is only hinted at in the majority opinion, that extensive rehabilitation of most of these jurors was necessary in order to qualify them for service on this jury.
Juror A admitted that she knew others who thought Appellant guilty, and that she felt the same way, but could not make a definitive judgement until all of the evidence was presented. Juror B couldn’t recall ever saying that Appellant was guilty of these crimes, but couldn’t say for sure that he had not made such a statement. Alternative Juror D stated that most of the community believed Appellant was guilty, and that the evidence he had heard, and that fact that Appellant had been arrested, made him suspect Appellant was guilty. Juror E stated that the media coverage made him suspect Appellant. Juror G recalled that Appellant was an FBI informant, and stated that she was not sure that she could remove all information she had read of Appellant from her mind during the trial and deliberations.
Juror H knew of the charges against Appellant in regard to both the Vaughns and the other murders, as did Juror I. Both assured the trial court that they could put that knowledge out of their minds in sitting on this case. Not surprisingly, each of the challenged jurors made similar assurances to the trial court. “Later rehabilitation statements on impartiality should be given little weight.” Jacobs, supra at 417.
Appellant used all of his peremptory challenges and had none left to strike these jurors. Though each of these potential jurors denied actual bias or prejudice, their knowledge of the media coverage and facts surrounding these and the other charges Appellant faced, and the attitudes expressed in their responses to voir dire, “such may be *892implied or reasonably inferred.” Montgomery v. Commonwealth, Ky., 819 S.W.2d 713, 717 (1991).
It makes no difference that the jurors claimed they could give the defendants a fair trial. As we held in Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 224 (1958), “[i]t is the probability of bias or prejudice that is determinative in ruling on a challenge for cause;” and in Tayloe v. Commonwealth, Ky., 335 S.W.2d 556, 557 (1960), “the conditions were such that their connections would probably subconsciously affect their decision of the case adversely to the defendants”; and in Marsch v. Commonwealth, [ (Ky.) ] supra, 743 S.W.2d [830] at 834, [(1987)] “their statements, given in response to leading questions, that they would disregard all previous information, opinions and relationships should not have been taken at face value.” Pennington, Tayloe, and Marsch stand for the principle that objective bias renders a juror legally partial, despite his claim of impartiality.
Montgomery, supra at 718.
III. INSTRUCTIONS
This court has clearly and definitively spoken on the question of whether it is proper to use the word “recommend” when instructing the jury on its responsibility in sentencing. In Tamme v. Commonwealth, Ky., 759 S.W.2d 51, 53 (1988), we said “in capital eases in which trial commences after the effective date of the finality of this opinion, the word ‘recommend’ may not be used with reference to a jury’s sentencing responsibilities in voir dire, instructions or closing argument.”
The instruction given herein directed the jury as follows:
If you have a reasonable doubt as to the truth or existence of any aggravating circumstance listed in Instruction No. 5 or in Instruction No. 7, you shall not make a finding with respect to it.
If upon the whole case you have a reasonable doubt whether the defendant should be sentenced to death, you shall recommend a sentence of imprisonment.
Clearly and unequivocally, the mandate of Tamme was violated. This is grounds for reversal.
TV. REBUTTAL EVIDENCE
The trial court erred when it permitted, over defense objection, presentation of evidence that Appellant’s wife and father were arrested for intimidation of a witness, Ronnie Dugger, against Appellant. This evidence was revealed during re-direct examination of Appellant’s wife and Dugger after cross-examination elicited the fact that both were subject to pending charges when they took the stand. The trial court ruled that Appellant had opened the door to the evidence by inquiring about the pending charges his wife faced. In testifying about her own charge, Mrs. Foley also informed the jury that Appellant’s father had a similar charge. Dug-ger testified that he was promised probation on a marijuana charge if he testified against Appellant.
It is a rule of longstanding in this jurisdiction that evidence that a witness has been threatened or otherwise influenced in an attempt to suppress his testimony is admissible in a criminal prosecution only where the threat was made by, or on behalf of, the accused.
Campbell v. Commonwealth, Ky., 564 S.W.2d 528, 531 (1978).
There is absolutely no evidence that these threats were made on behalf of Appellant. The majority cites as authority for allowing the admission of this evidence, United States v. Gatto, 995 F.2d 449 (3rd Cir.1993). Therein, the court allowed admission of evidence that a spectator had “looked unhappy” at a witness during cross-examination, thereby causing the witness to alter his testimony. Id. at 451, 456-57. A third circuit case is not binding authority upon this Court. Additionally, this Court has spoken definitively in Campbell. We require a showing that the threat was made on behalf of the accused, *893not evidence raising an inference that this is true. Campbell, supra. That an act was done which might be to Appellant’s benefit is not proof that the act was performed at appellant’s behest. The evidence was inadmissible.
For the reasons set forth herein, I would reverse the conviction and remand for a new trial.
STEPHENS, C.J., joins this dissenting opinion.
KING, J., joins sections I and II of this dissenting opinion.