dissenting.
The dilemma presented by this appeal is obvious. The Legislature perceives an imbalance in the trial of capital cases because juries in the penalty phase often hear mitigating evidence from a defendant’s family about his disadvantaged background, without hearing any evidence about the identity of the victim and the impact of the homicide on the victim’s family. To correct that imbalance, the Legislature has authorized the State to introduce victim impact evidence to offset the weight that those jurors in a capital case who find the c(5)(h) mitigating factor accord to that mitigating evidence. The Court’s primary concern is that the admissibility of such evidence does not subject death-penalty juries to emotional and inflammatory testimony that will result in death-sentencing decisions based primarily on the force of the victim impact evidence.
Although well-intended, the statute creates more problems than it solves, and poses a fundamental threat to the- rationality of death-penalty prosecutions in New Jersey. Justice Handler addresses many of the practical problems posed by the statute, ante at 191-194, 678 A.2d at 199-205, and concludes that the statute violates state constitutional principles. Ante at 77-82, 678 A.2d at 93-105. The Chief Justice, although concluding that the statute is unwise but not unconstitutional, believes that its application will inject arbitrariness into the prosecution of capital cases. Justices O’Hem and I believe the statute may violate the federal constitutional guarantee that a defendant be allowed to introduce relevant mitigating evidence in his own behalf. We would invalidate the *107statute, but would allow limited use of victim impact evidence in all capital prosecutions, differing somewhat on the permitted use of such evidence.
The majority sustains the statute without addressing or resolving many of the problems it poses, but appropriately attempts to limit the potentially distorting effects of victim impact evidence by authorizing trial courts to impose restrictions on the emotional and substantive context of such testimony in order that juries will not be misled by its admission. Ante at 54, 678 A.2d at 180.
For over ten years this Court has attempted to infuse rationality and coherence into capital murder prosecutions, steadfastly refusing to sustain death sentences that did not satisfy our standards of constitutionality and trial fairness. In my view, this statute will grossly distort the reliability of capital prosecutions, prevent defendants from asserting their constitutional right to present mitigating evidence, and leave juries seriously confused over their function. It will also raise a cloud over the constitutionality of death sentences imposed in this State. Moreover, no statute is necessary to permit the limited introduction of victim impact evidence in death penalty cases. For those reasons, I cannot join the majority opinion.
I
The majority opinion will leave unsettled for many years the constitutionality of any future death sentence, in this case or any other case, imposed under New Jersey’s capital punishment act, N.J.S.A, 2C:ll-3c. Although the United States Supreme Court held in Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720, 735 (1991), that the Eighth Amendment does not prohibit states from admitting victim impact evidence in death penalty prosecutions, that Court has never held, much less considered, whether a State can admit that victim impact evidence to rebut evidence of only one of the several authorized statutory mitigating factors.
*108As Justice O’Hern’s separate opinion implies, N.J.S.A. 2C:11-3c(6) impermissibly burdens the constitutional right of a defendant to offer mitigating evidence under the c(5)(h) catch-all mitigating factor. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court invalidated an Ohio capital-punishment statute that recognized only three mitigating factors and precluded consideration by the sentencing judge of a defendant’s age, character, prior record, lack of specific intent, and relatively minor role in the homicide. The Court held that under 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 offense that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990.
Although the victim impact statute does not preclude a defendant from offering evidence to support the c(5)(h) factor, the statute burdens the exercise of that right by allowing the State to rebut only that mitigating evidence with victim impact proof. As Justice O’Hem demonstrates, the inevitable effect of that “restriction” on the use of the c(5)(h) factor will be to compel defense counsel to avoid that factor and attempt “to shoehorn the mitigating evidence * * * into one of the other mitigating factors, .most likely factors c(5)(a), c(5)(d), c(5)(e).” Ante at 64, 678 A.2d at 184. Accordingly, the statute poses a substantial risk of violating the core principle of Lockett because it so greatly burdens the use of the c(5)(h) factor alone — and no other — by subjecting it to the powerful offsetting effect of victim impact evidence. Any defense counsel would be deficient if he or she did not try to avoid using the c(5)(h) factor by attempting to offer substantially the same evidence through other mitigating factors.
Thus, it is a virtual certainty that any defendant sentenced to death after this opinion will raise an Eighth and Fourteenth Amendment challenge, alleging that the restriction on the right to offer mitigating evidence imposed by the victim impact statute is *109unconstitutional. Defendants who offer c(5)(h) evidence will argue that their right to do so was impermissibly burdened by the victim impact evidence offered in rebuttal, and defendants who avoid the use of c(5)(h) evidence will argue that their presentation of mitigating evidence was unconstitutionally restricted by the need to eschew use of the c(5)(h) factor in order to avoid the effect of victim impact evidence.
At the heart of the Supreme Court’s holding in Payne was its observation that “there is nothing unfair about allowing the jury to bear in mind [the harm that Payne’s killing had caused] at the same time as it considers the mitigating evidence introduced by the defendant.” 501 U.S. at 826, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. Not one line of that opinion suggests that the State can single out evidence of one mitigating factor and authorize the use of victim impact evidence solely to rebut that mitigating evidence. In my view, the constitutional question presented by the victim impact statute is substantial and unresolved, and the constitutionality of death sentences imposed in New Jersey for years to come will hang in the balance, while the constitutionality of the statute is litigated through the federal appellate process.
The other irremediable flaw in the statute, as noted by Justice O’Hern, ante at 63-64, 678 A.2d at 184-185, and Justice Handler, ante at 95-95, 678 A.2d at 200-201, is the absurd and surely to be ignored jury instruction that it requires. Because only jurors who find the c(5)(h) mitigating factor can consider the victim impact evidence, the trial court must instruct the jury that those members who do not find the c(5)(h) factor must disregard the victim impact evidence. No court could expect jury members to obey that instruction, but the majority sustains the statute nevertheless. The Court should not uphold a statute that requires a jury instruction with which no jury could conceivably comply.
Moreover, the statute authorizes the admissibility of the victim impact evidence solely in response to the defendant’s presentation of evidence pursuant to the e(5)(h) factor, and before the jurors determine whether any of them find the existence of that mitigat*110ing factor. Thus, the possibility exists that the victim impact evidence will be admitted but ultimately will be irrelevant because no juror finds the c(5)(h) factor to exist. The court would then be obligated to instruct the entire jury to disregard the victim impact evidence, an instruction virtually impossible to obey.
II.
With but one qualification, I am persuaded that Justice O’Hem’s proposed procedure, which requires no statute, is far preferable to that endorsed by the majority. I would invalidate N.J.S.A 2C:ll-3c(6) under the federal Constitution, as an impermissible burden on a defendant’s right to present mitigating evidence. I would hold that limited victim impact evidence is admissible in every capital case to inform the jury of the victim’s identity and unique characteristics and generally to inform the jury of the impact of the homicide on the victim’s family.
As Justice O’Hern observes, our death penalty jurisprudence has excluded evidence and argument focused on the victim only when its obvious purpose was to inflame the jury, and evidence informing the jury about the victim in some detail has been routinely admitted when relevant to the State’s guilt-phase proofs. Ante at 61-62, 678 A.2d at 183-184. In State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988), we held that evidence pertaining to the victim, although 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. Because the constitutionality of non-inflammatory victim impact evidence has been resolved by the United States Supreme Court, I would hold that such evidence is admissible in the penalty phase of all capital cases without statutory authorization. The jury should be permitted to evaluate that evidence in determining the weight to be accorded to all mitigating evidence offered by a defendant. The critical task is to control the emotional context of that evidence.
*111To counterbalance the obvious emotional effect of such evidence, I would require the jury to be instructed that it is not to attempt any comparison between the value of the victim’s life and the defendant’s life, and that our jurisprudence does not permit the imposition of the death penalty to be predicated on the relative worth of victims. Regrettably, in considering such evidence as bearing on the weight to be accorded a defendant’s mitigating evidence, the jury will be comparing unrelated evidence, although in a manner not dissimilar from the jury’s function in weighing aggravating against mitigating factors. Accordingly, I would also require a jury instruction along the following lines:
I have previously instructed you that in order for you to sentence the defendant to death you must find that the State has proved that the aggravating factors that you have determined to exist in this case substantially outweigh the mitigating factors that you have determined to exist in this case, beyond a reasonable doubt. I note that when you engage in that weighing process you will be comparing aggravating factors and mitigating factors that are not directly relevant to each other. For example, the aggravating factor that the homicide was committed in the course of a felony does not readily relate to the mitigating factor based on defendant’s age. Nevertheless, the law requires that you weigh those factors against each other. In doing so, the law in effect requires that you determine the relative significance of the aggravating and mitigating factors as they apply to your determination about the appropriateness of the ultimate penalty to be imposed on defendant.
With respect to the victim impact statements that have been offered into evidence, your function is a similar one. The purpose of those statements is to show you the victim’s unique status as a human being and the nature of the harm caused by the defendant’s criminal conduct. Just as you should know the unique human being that is the defendant, you should know the unique human being that was the victim of his crime. The status of the victim is not in any sense to be considered by you as an aggravating factor under the Death Penalty Act. Each murder victim is equally worthy in the eyes of the law and you are not to infer that such evidence signified that defendants whose victims were assets to the community are more deserving of death than defendants whose victims are perceived to be less worthy.
Nevertheless, I instruct you that you are permitted to evaluate the evidence concerning the victim’s unique status as a human being and the harm caused by the defendant’s conduct in deciding how much weight you will attribute to the mitigating factors that you find. Of course, in making that evaluation, you must not attempt to compare the value of the victim’s life with the value of the defendant’s life. You must simply consider the victim impact evidence and then determine whether or to what extent it does or does not affect the weight that you will assign to the mitigating factors that you determine defendant has proved to exist.
*112III
The grave constitutional issue posed by the statute and the incomprehensible jury instruction required by it, argues compellingly against the result reached by the majority. It may be contended that the alternatives proposed by Justice O’Hem and by this opinion would result in more victim impact evidence than is authorized by the statute. Perhaps so, but that evidence would be presented more coherently, without subverting and burdening the constitutional rights of defendants and without requiring jury instructions that no jury could honor. The Court can accommodate the legislative will without distorting and undermining the reliability of all death penalty prosecutions. By sustaining the statutory scheme, the Court explicitly enforces the legislative mandate, but in the process subjects capital prosecutions to an incoherent procedure with serious constitutional vulnerability.
For affirmance — Chief Justice WILENTZ, and Justices POLLOCK, GARIBALDI and COLEMAN — 4.
Concurring in part; dissenting in part — Justice O’HERN — 1.
Dissenting — Justices HANDLER and STEIN — 2.