concurring and dissenting.
Paradoxically, more victim impact evidence would pose less of a constitutional burden than that presented by the statute before us. Not more victim impact evidence in the cumulative sense in each case but more in the sense that the use of such evidence should not be limited to cases in which a defendant has pled the catch-all mitigating factor of N.J.S.A, 2C:ll-3c(5)(h) as qualified by the method of implementation set forth in Laws 1995, chapter 123, N.J.S.A. 2C:ll-3c(6). I reach this conclusion without meaning any criticism of the well-intended sponsors of the law. The Legislature was acting out of an excess of caution. However, the procedure for introducing victim impact evidence that it has selected imposes an impermissible burden on the right of a defendant to introduce logically relevant evidence. The price is that the jury will be instructed to consider a proposition that is instinctive to the human experience but illogical in law — that the worth of the victims’ lives affects the weight to be given to the mitigating circumstances in the defendant’s life.
*61I have no doubt that the constitutional amendment, article I, paragraph 22 of the New Jersey Constitution, should be read to permit the Legislature to effectuate to the fullest extent permissible under the Federal Constitution a reasonable respect for the rights of crime victims. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), establishes, as a matter of federal constitutional law, that in capital cases
[t]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the senteneer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society in particular to his family.
[Id. at 825, 111 S.Ct at 2608, 115 L.Ed.2d at 735 (quoting Booth v. Maryland, 482 U.S. 496, 517, 107 S.Ct 2529, 2540, 96 L.Ed.2d 440, 457 (1987) (citations omitted) (White, J., dissenting)).]
In our capital cases we have concluded that even when not required by constitutional compulsion, our common sense of humanity would not permit a jury to sentence a person to death without ever hearing his or her voice spoken in a courtroom. State v. Zola, 112 N.J. 384, 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989). I believe that we may say with equal conviction that a jury should never consider a sentence of death without having known who has died. In almost every capital case that we have considered, our juries have had an understanding of the unique human personalities of the victims and their families. We need consider but a few of those cases. In State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991), the defendant’s innocent wife as victim and their two trusting children were all too well known to the jury. In State v. Harris, 141 N.J. 525, 662 A.2d 333 (1995), the jury knew that Harris had inflicted lethal torture, not only on the murder victim but on the other members of the victim’s family. In State v. Clausell, 121 N.J. 298, 580 A.2d 221 (1990), witnesses described the victim’s role as a high school basketball coach and his relationship with his child. In State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990), there was testimony concerning the lives of the victim, Arlene Connors, her husband, Frank, and their children.
*62“We recognize that it is impossible to avoid referring to the victim in a capital trial.” Id. at 570, 575 A.2d 816. What we have stressed is that “the prosecution may not comment on the evidence in a manner that serves only to highlight the victim’s virtues in order to inflame the jury.” Ibid, (quoting State v. Williams, 113 N.J. 393, 451-52, 550 A.2d 1172 (1988)).
Under our system of capital punishment, the jury “forms the essential link between society and the defendant before the court. Each capital jury expresses the collective voice of society in making the individualized determination that a defendant shall live or die.” Zola, supra, 112 N.J. at 429, 548 A.2d 1022. In the course of that decision, which allowed defendants to make unsworn pleas for mercy to the jury at the penalty phase, we said “we need not discard our common humanity in the process of decision.” Id. at 431, 548 A.2d 1022. I therefore agree with those who argue that in view of our common humanity, the collective voice of society can best be pronounced when in fair measure the murder victim’s identity is preserved and considered in the capital decisionmaking process. That is only human.
At the same time, we must always avoid an appeal for a verdict based on the worthier life. Our society is dedicated to the preservation of human life. We treasure every life, whether that of victim or of defendant. Hence, I would hold that the triggering and response mechanisms in the statute are invalid in that they unconstitutionally encumber the right of a capital defendant to present mitigating evidence to a jury.
If there is one constant in Supreme Court jurisprudence, it is that a defendant should be able to present to a jury every aspect of his character and personality for its consideration and assessment. Since Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court has repeatedly held that, consistent with the Eighth and Fourteenth Amendments, a sentencer in a capital case may “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 *63offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982) (finding that sentencer’s refusal to consider defendant’s youth and turbulent family history violated the Eighth and Fourteenth Amendments) (quoting Lockett, supra, 438 U.S. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990).
In State v. Davis, 96 N.J. 611, 619, 477 A.2d 308 (1984), we noted that at a capital sentencing proceeding, “a defendant is entitled to the use of all reliable, helpful information.” Indeed, sentencing deliberations may appropriately take into account factors that would not satisfy conventional evidential standards. “[T]he sentencing process should embrace an evidential inquiry ‘broad in scope, largely unlimited either as to the kind of information that may be considered, or the source from which it may come.’” Id. at 620, 477 A.2d 308 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592, 596 (1972)). Little will remain of the constitutional rights guaranteed by Eddings and Lockett if the State may encumber those rights by an illogical inference that the defendant’s evidence in mitigation is less worthy of weight because the victim in the matter before the court is more worthy than another.
There are two additional problems. First, the statute mandates that only those members of the jury that find the catch-all mitigating factor may consider the victim impact evidence and that the other jurors must disregard it. Such an instruction is almost fatuous. There is little chance that members of a jury that hear evidence about who was murdered and the effect of the murder on the victim’s family will be able to put that evidence out of their minds merely because they do not find the catch-all mitigating factor. For this Court to sustain a statute that depends on that kind of jury instruction undermines much of the credibility that we have earned in the course of our diligent efforts to ensure that death penalty prosecutions are fair to both the State and the defense. I do not believe that we should give a jury instruction *64that is all but impossible to follow. To do so discredits the legitimacy of the capital punishment process that we have erected.
A second concern is that the statute will virtually compel defense attorneys to shoehorn the mitigating evidence that previously was introduced under the catch-all factor into one of the other mitigating factors, most likely factors c(5)(a), c(5)(d), and c(5)(e). Those factors read as follows:
c(5)(a) The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution;
c(5)(d) The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecutionf.];
c(5)(e) The defendant was under unusual and substantial duress insufficient to constitute a defense to prosecution.
[N.J.S.A 2C:ll-3c(5) (emphasis added).]
Inevitably, defense counsel will attempt to use evidence about the defendant’s upbringing and background to prove that the defendant’s emotional condition was such as to fit within the broad confines of those three mitigating factors to avoid the effect of the statute. Defense counsel who do not make that effort will be questioned because the consequences of relying on the c(5)(h) factor could be so potentially devastating. And even more paradoxically, the Court itself may have to take steps to ensure that the c(5)(h) evidence is introduced on the trial court’s own initiative, not the defendant’s. See State v. Hightower, 120 N.J. 378, 415, 577 A.2d 99 (1990) (mandating that mitigating factors be presented in every capital case, even over defendant’s objection, to ensure reliability of sentencing process). In short, following the statute may result in less victim impact evidence, not more.
I would not resist enforcement of the statute so strongly if there were no alternative. But there is an alternative, and it is simple, relatively uncontroversial and consistent with the Court’s opinion in State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988), the only *65case in which the Court heretofore has spoken at length about victim impact evidence. We said in Williams: “Any capital trial will necessarily involve testimony and physical evidence pertaining to the victim. This evidence, though admissible, cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence.” Id. at 451, 550 A.2d 1172.
Accordingly, I would hold that properly qualified and limited victim impact evidence should be admissible in every capital prosecution. Its use reinforces the bonds of common humanity that link the jury, the collective conscience of the community, to the administration of the death penalty. A necessary corollary to the general admission of victim impact evidence is that the jury should understand that no victim’s life is more worthy than that of another but that each victim’s life, and that of the defendant, is unique. I therefore would hold invalid that portion of N.J.S.A 2C:ll-3c(6) that would instruct the jury that it should consider the victim impact evidence “in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection [the catch-all factor].” What possible logical relevance can the status of the victim have to the probative weight to be given to the circumstances of a defendant’s life? Does an abused childhood become less so because the child become man has killed a Nobel Prize winner? Or, put the other way, would an abused childhood be any more of a mitigating factor because the defendant had killed a prostitute or a homeless vagrant? The illogic of the proposition is obvious.
We should follow what the people of the State of New Jersey have, through the constitutional amendment, stated to be the clear expression of State policy — to allow to the fullest extent possible the use of victim impact evidence in capital cases when it is used to present to the jury, not the worthier status of the victim’s life, but rather only the unique personality of the victim and the victim’s family as sharers in the common humanity that links the administration of the death penalty to the “evolving standard[s] of *66decency” that define cruel and unusual punishment. Spaziano v. Florida, 468 U.S. 447, 488, 104 S.Ct. 3154, 3174, 82 L.Ed.2d 340, 368 (1984) (Stevens, J., concurring in part and dissenting in part) (quotation omitted). Without the distortion created by the statute, juries would understand the valid purpose of such evidence, that is, to gain an understanding of the unique personality of the victim as well as that of the defendant. Payne, supra, 501 U.S. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735.
Just as we would not accept in Zola, supra, the argument that the briefest statement by the defendant would inject a fatal emotionalism into the jury’s deliberations, so too, a measured statement from the murder victim’s family as to how the killing has affected their lives need not be prejudicially emotional. The common law has always sought a reasoned judgment from juries. Thus, we have developed over time the rules of evidence that laypersons at times find counterintuitive. (For example, we do not tell guilt juries that an accused is a previous offender.) There is always a danger in departing from those settled rules of law. There is a danger that victim impact evidence might degenerate, as we have observed in sentencing statements, into vitriolic emotional attacks upon the character and, sometimes, upon the humanity of the defendant. It is that danger against which courts must guard. Justice Frankfurter once wrote that “[l]aw triumphs when the natural impulses aroused by a shocking crime yield to the safeguards which our civilization has evolved for an administration of criminal justice at once rational and effective.” Watts v. Indiana, 338 U.S. 49, 55, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801, 1807 (1949).
I thus believe that a delicate balance between an understanding by the jury of the common humanity of victims and defendant and the strict procedures of the common law can be fairly accomplished. In all of our cases we have emphasized that balance. In Williams, supra, 113 N.J. at 447, 550 A.2d 1172, we condemned emotional appeals based on the victim’s character. The victim’s hopes and plans were characterized as having been brutally *67destroyed by the defendant. The Court said that the prosecutor’s “overzealous advocacy” had the “same effect as would a deliberate plan to induce the jury to reach a verdict based on the victim’s virtuous character.” Ibid. Despite the inherent emotion in a capital case, to avoid the arbitrary and capricious imposition of the death penalty is fundamental. Id. at 454, 550 A.2d 1172. “It is constitutionally.required that juries in capital trials reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary.” Id. at 458, 550 A.2d 1172. The established parameters within which the status of the victim in a capital case may be presented to a jury are established by our tradition and laws.
In State v. Coyle, 119 N.J. 194, 281-32, 574 A.2d 951 (1990), we recognized the prejudice inherent in arguments that suggest that a verdict be returned out of sympathy for the surviving members of the victim’s family. The Court then found improper and prejudicial an appeal to juror sympathy in penalty phase comments concerning the victim’s children and their loss of a father’s love and guidance. See also Pennington, supra, 119 N.J. at 568-69, 575 A.2d 816 (disapproving prosecutor’s emphasis on victim’s family relationship and appeal not to dishonor her memory); State v. Harvey, 121 N.J. 407, 425, 581 A.2d 483 (1990) (disapproving references to victim’s recent widowhood and importance of trial to her family), cert. den., 499 U.S. 931, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); Clausell, supra, 121 N.J. at 339-41, 580 A.2d 221 (disapproving contrast of defendant’s lifestyle with family activities of victim and his children).
From those cases, we may derive the constant theme that our trial judges must protect jurors from illegitimate influences that threaten to taint their verdict. In re Kozlov, 79 N.J. 232, 239-40, 398 A.2d 882 (1979).
Thus circumscribed, I would permit victim impact evidence in every capital case. I would not condition the use of that evidence on the defendant’s exercise of a constitutional right to present mitigating evidence. I would not unconstitutionally distort the *68limited purpose for which that evidence may be offered — an expression of the unique personality of the victim — by instructing the jury that the defendant’s evidence in mitigation is rebutted by some aspect of the character and personality of the victim.
In State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987), we said that Article I, paragraph 12 of the New Jersey Constitution requires “consistency and reliability” in the enforcement of the death penalty. We undermine that consistency and reliability when we unnecessarily inject into capital trials an unconstitutional inference that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Such considerations “effectively devalue the deaths of those victims who have no family or those whose relatives are ‘less articulate in describing their feelings even though their sense of loss is equally severe.’” Pennington, supra, 119 N.J. at 570, 575 A.2d 816 (quoting Booth, supra, 482 U.S. at 505, 107 S.Ct. at 2534, 96 L.Ed.2d at 450).
The United States Supreme Court has never held that victim impact evidence should be admitted specifically and only to counter one aspect of a defendant’s life offered in mitigation. Quite to the contrary, the Court has repeatedly emphasized that
victim impact evidence is not offered to encourage comparative judgments of this kind-for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be.
Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.
[Payne, supra, 501 U.S. at 823, 825, 111 S.Ct at 2607-08, 115 L.Ed.2d at 734-35 (emphasis added).]
Remember that in Payne the totality of the “evidence of the impact of Payne’s offenses during the sentencing phase was [a] grandmother’s description — in response to a single question — that *69the child [of the victim] misses his mother and baby sister [who was also killed].” Id. at 826, 111 S.Ct. at 2609, 115 L.Ed.2d at 735.
We should not create another cloud over the death penalty by asking victim impact evidence to shoulder the unconstitutional assignment of creating an impermissible inference that defendants “whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.” Id. at 823, 111 S.Ct. at 2607, 115 L.Ed.2d at 734.