concurring and dissenting.
This is a direct appeal from a conviction for capital murder and a sentence of death. A Warren County jury convicted defendant, Bobby Lee Brown, of the knowing and purposeful murders of the aunt and uncle of his girlfriend, Coleen Alexander. The Court reverses defendant’s death sentence because of the inaccuracy and inadequacy of the trial court’s instructions with respect to whether the murders were committed “by his own conduct.” That finding is a specific requirement for murderers to be considered eligible for the death penalty. Defendant was convicted essentially on the testimony of his co-perpetrator and lover, Coleen Alexander.
Little doubt exists that either Brown or Alexander or both committed the murders by their own conduct. Yet, there could be, indeed perhaps ought to be, considerable doubt about which of them murdered by his or her own conduct. Because those charge errors have so serious an impact on precisely that evidentiary question, they compel a reversal of defendant’s death sentence. I concur in that part of the Court’s opinion.
Defendant also raises other serious questions. Those include the sufficiency of the instructions on vicarious liability theories of murder, the adequacy of the death-qualification process during voir dire, the validity of the jury finding on the aggravating factors at the penalty trial, and the introduction of prejudicial and irrelevant bad-act evidence. On those issues the Court determines that the error does not require the reversal of defendant’s conviction or sentence. Although other issues in the case are also troubling, I *564disagree most strongly with the Court’s disposition of the foregoing issues and, therefore, dissent.
I
The Court today determines that a trial court commits reversible error in failing to instruct the jury, during the guilt phase of a capital trial, that an inability to agree unanimously on whether a defendant committed the murder by his or her own conduct, itself, “constitutes a final verdict that results in the imposition of a sentence of imprisonment of at least a thirty-year mandatory term.” Ante at 511, 651 A.2d at 33. In reaching that conclusion, the Court recognizes, ante at 510-511, 651 A.2d at 32-33, the established distinction between elements of the crime of murder and particularized or special findings that are relevant only to the sentencing determination. See, e.g., State v. Gerald, 113 N.J. 40, 93, 549 A.2d 792 (1988). I write separately on this issue to explain more fully the principles that, I believe, demand the conclusion reached by the Court.
The Court recognizes the existence of three distinct options that are available with respect to the own-conduct determination. First, a jury may unanimously agree that the defendant committed the murder by his or her own conduct. Second, a jury may unanimously agree that the defendant did not commit the murder by his or her own conduct. Third, the jury may fail to agree unanimously on that question. Ante at 511, 651 A.2d at 33.
Because the jury has this third option, the Court must inform the jury of its existence. It is a fundamental principle of our capital jurisprudence that, if a jury has an option with respect to the determination of a particular issue, the jury must know that it has that option. See, e.g., State v. Ramseur, 106 N.J. 123, 311, 524 A.2d 188 (1987) (“To hide from the jury the full range of its sentencing options ... is to mock the goals of rationality and consistency required by modern death penalty jurisprudence.”). We will not countenance' the possibility that a jury might condemn, a defendant to death without having carefully considered every *565circumstance that might exempt the defendant from that penalty. Accordingly, the trial court in this case committed reversible error in failing to charge the jury that it had the option of returning a valid conviction of murder without having to reach unanimous agreement on the own-conduct issue, and, I would add, in failing to explain the significance of that kind of determination, namely, that the defendant would, not in that event be eligible for the death penalty.
The dissent denies that any third option exists with respect to the own-conduct determination. Post at 594, 651 A.2d at 75. It reasons that the own-conduct factor constitutes an element of the crime of murder, such that a failure unanimously to agree on that factor results in a hung jury on the charge of murder. That view miseharaeterizes the own-conduct factor. One knows an element of a crime by the circumstance that a failure of proof of the facts underlying an element requires an acquittal of the crime. A failure of proof of own-conduct, though, does not require an acquittal of murder.
This Court has characterized the own-conduct requirement not as the functional equivalent of an “element” of a crime but as “merely a triggering device for the death-penalty phase of the trial.” Gerald, supra, 113 N.J. at 99, 549 A.2d 792 (quoting State v. Moore, 207 N.J.Super. 561, 576, 504 A.2d 804 (Law Div.1985)). In accepting that understanding of the own-conduct determination, the Court sensibly gives weight to the sentencing function of that determination — its only function — rather than to the happenstance of its location in the guilt phase of the capital trial. Although the jury makes its finding during its guilt-phase deliberations, the finding has no consequence for the defendant’s liability for murder; a defendant can commit murder either by his or her own conduct, as an accomplice, or as a co-conspirator. Ante at 511, 651 A.2d at 33.
Because a defendant can be convicted of- murder even if the defendant did not commit the murder by his or her own conduct, as long as the defendant committed it as a co-conspirator or as an *566accomplice, we cannot say that the own-conduct determination involves an element of the crime of murder. The Legislature has, however, invested the own-conduct determination with profound implications for the penalty, by making ineligible for death those murderers who do not kill by their own conduct, except in narrow circumstances not here relevant. N.J.S.A 2C:ll-3c. The Court, recognizing that the own-conduct finding serves a function significant only to the penalty determination, properly applies penalty-determination principles. See Ramseur, supra, 106 N.J. at 443-45, 524 A.2d 188 (Handler, J., dissenting) (recognizing that unique character of capital prosecutions requires uniquely “scrupulous and exacting” review). Among penalty-determination principles is the rule that a jury can permissibly fail to agree unanimously on the sentence without voiding the proceeding altogether. The Court decides today that the rule allowing a jury to return a nonunanimous sentencing verdict requires that the jury be permitted to return a nonunanimous verdict with respect to own-conduct. Ante at 517, 651 A.2d at 36 (“[T]he procedural consequence of nonunanimity in the penalty phase is identical with the consequence of nonunanimity in the own-conduct determination ... ”). A failure to agree unanimously produces a life sentence.
The dissent does not address the logic of the majority’s position. Instead, it refers to the murder statute, N.J.S.A 2C:ll-3c, which identifies three classes of persons who, within the larger set of persons who commit purposeful or knowing murder under N.J.S.A. 2C:ll-3a(l) and (2), can be eligible for capital prosecution. Post at 595, 651 A.2d at 75. The dissent seizes on the two classes of murderers other than own-conduct murderers who can be capitally prosecuted, and assumes that parallel third options of nonunanimity must exist for those classes.
The flaw in the dissent’s approach is its assumption that if the jury has a third option with respect to the own-conduct factor, it must also have a third option with respect to the other classes of murder that appear in the same statutory provision as the own-conduct factor. The majority, however, requires notification of *567the third option of nonunanimity because the own-conduct issue is relevant to the capital sentencing determination and, in this case, is irrelevant to liability for murder. The same may or may not be true with respect to the other statutory classes of murder in a given case.
The dissent also invests too much significance in the fact that the determination of the own-conduct issues occurs in the guilt phase of the capital trial. The Court recognizes that the formal boundary dividing the phases of a capital trial does not prevent events in the first phase from having a substantial effect in the later phase. See State v. Erazo, 126 N.J. 112, 138, 594 A.2d 232 (1991) (noting that evidence introduced at guilt phase of capital trial has inescapable impact on jury’s deliberation in penalty phase). The procedural bifurcation of a capital trial into guilt and penalty phases does not and cannot create an impermeable wall between each phase of deliberation. Because the own-conduct determination bears only on the sentence, we must apply to that determination principles appropriate to its sentencing function.
The profound difference between the natures of the guilt and penalty determinations requires the application of different standards. The law of capital punishment in New Jersey is replete with examples of special statutory rules applied to the penalty determination. For example, this Court conducts a mandatory review of capital cases resulting in a death sentence. N.J.S.A. 2C:ll-3e. In addition, the normal rules of evidence do not apply to a defendant’s offer of mitigating information. N.J.S.A 2C:11-3c(2)(b). The Court’s interpretation of those rules is expansive. State v. Davis, 96 N.J. 611, 477 A.2d 308 (1984). A defendant is also accorded the privilege of presenting non-evidentiary information to the jury during the sentencing phase. State v. Zola, 112 N.J. 384, 548 A.2d 1022 (1988). Different principles apply also to the jury’s sentencing deliberations. For example, jurors need not unanimously agree on the existence of a mitigating factor in order to weigh the factor against any aggravating factors. State v. Bey, 112 N.J. 123, 159-61, 548 A.2d 887 (1988) (Bey II). Most impor*568tant, the normal prohibition on nonunanimous verdicts does not apply to the penalty determination itself, so that a jury’s failure to agree on a sentence produces not a hung jury but rather a sentence of life imprisonment. N.J.S.A 2C:ll-3c(3)(c).
Today, the Court again recognizes the need to apply special sentencing principles to a guilt-phase event that has significant sentencing implications: the determination of whether a defendant committed the murder by his or her own conduct. Thus, with respect to that determination, the majority understands that any finding involving the solemn choice between life or death requires the application of principles developed to govern the sentencing decision, even though the finding in question happens to occur during the guilt-phase deliberations.
Proper instructions on the manner of making the own-conduct finding are crucial here because of the state of the evidence in this case. The infirmities in the own-conduct instruction take effect precisely on this case’s key factual dispute. A reasonable juror could have doubted that defendant pulled the trigger — and that doubt alone would render defendant ineligible for the death penalty. Only Coleen Alexander’s testimony places defendant’s finger on the trigger. She was defendant’s accomplice, and is an habitual liar. The errors peculiar to this case clearly impair defendant’s fair chance of receiving the benefit of the lone, doubting juror. The evidence in this case is troubling. In no way is “doubt” impossible or irrational.
II
The trial court’s failure to instruct the jury properly with respect to its determination of the own-conduct requirement was exacerbated by its error in failing properly to instruct the jury on accomplice and co-conspirator liability. The trial court, in its original charge, failed to instruct the jury that defendant could be found guilty of murder if he conspired to commit the homicides, even if he did not commit the murder by his own conduct, and even if he was not an accomplice of the person who committed the *569homicides. See N.J.S.A. 2C:2-6b(4). During deliberations, the jury asked the court to explain the difference between own-conduct liability and accomplice or co-conspirator liability. The court again failed to instruct the jury that defendant could be convicted of murder on the basis of co-conspirator liability and, further, neglected to re-define accomplice liability as well.
The court’s failure to dispel the jury’s confusion about two of the three possible theories of murder liability compounded the prejudice attributable to its erroneous instructions with respect to the own-conduct requirement. Curiously, the Court agrees that the trial court erred in omitting the instruction, but concludes that because of its reversal of defendant’s death sentence on other grounds, it “need not undertake a detañed analysis of whether the court’s flawed instructions prejudiced defendant in respect of the own-conduct determination that triggered the penalty phase.” Ante at 530, 651 A.2d at 43. I dissent from that disposition of this issue.
Omitting a proper charge on co-conspirator and accomplice liabüity accentuated the faüure to give the third-option charge on the own-conduct factor. The omission prevented the jury from adequately considering the alternatives to the own-conduct theory, namely, accomplice or co-conspirator liabüity, and thus in effect subtly encouraged the jury to choose the only remaining theory, which rendered defendant death eligible. I fail to see how this Court can distinguish between these two instances of insufficient instructions, one affecting the own-conduct theory, the other affecting the vicarious theories, when each compounds the prejudice of the other. The effect of fading to instruct the jury that it could permissibly not agree on the own-conduct question bolstered a finding of own conduct by the jury, assuming the jury was convinced that defendant had committed some form of intentional homicide and felt also an understandable pressure to reach a verdict. Similarly, the failure adequately to instruct that the jury could convict defendant of murder under a conspiracy or accomplice theory indirectly encouraged a finding of own conduct. *570Believing defendant guilty of purposely and knowingly killing the victims, the jury thus had only one clear path, that of own-conduct liability — the death-eligible option — as a means to convict defendant of murder.
Correct instructions are essential for a fair trial. State v. Rhett, 127 N.J. 3, 5, 601 A.2d 689 (1992); State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990); State v. Concepcion, 111 N.J. 373, 379, 545 A.2d 119 (1988). Incorrect jury instructions are “presumed to be prejudicial error,” State v. Federico, 103 N.J. 169, 176, 510 A.2d 1147 (1986), and are considered to be “poor candidates for rehabilitation under the harmless error philosophy.” State v. Weeks, 107 N.J. 396, 410, 526 A.2d 1077 (1987); State v. Simon, 79 N.J. 191, 206, 398 A.2d 419 (1979). The importance of a correct jury charge is enhanced in capital cases in light of the irreversibility of the penalty.
The record contains ample evidence, made clear by the trial court’s decision to allow the jury to consider all three theories and acknowledged in the majority opinion, ante at 524-526, 651 A.2d at 40-41, to support a conviction based on any of the three theories of liability. The insufficient charge prevented the jury from engaging in a balanced and full consideration of all of the possible theories of murder. The trial court’s failure to address the obvious confusion of this jury renders wholly unreliable the jury’s “by his own conduct” finding.
When reasonable evidentiary support exists, a court must charge the jury on the elements of a lesser-included offense. Beck v. Alabama, 447 U.S. 625, 636-37, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392, 401-02 (1980); State v. Saulnier, 63 N.J. 199, 206, 306 A.2d 67 (1973). When a jury is prevented from considering all available options, the jury, convinced that the defendant committed some crime, is tempted to lessen the State’s burden to prove guilt beyond a reasonable doubt. See Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973).
The majority’s suggestion that the botched charge could have “benefited the defendant” is especially puzzling, given the context *571of a capital trial. The Court quite soundly determines that reversible error exists in the failure to make the third-option charge with respect to the own-conduct theory of liability because own-conduct liability triggers the possibility that defendant will be sentenced to death. See Gerald, supra, 113 N.J. at 99, 549 A.2d 792. The peculiar vice in the omission of a proper charge on vicarious murder is the resultant failure to balance or counteract any inclination of the jury to find that defendant committed the crime by his own conduct, again making defendant eligible for death. That failure cannot be overlooked or minimized because it unacceptably increases the risk of an ultimate death sentence.
I can conclude only that the incomplete charge on co-conspirator liability constitutes additional grounds for reversal because it deprived the jury of its ability to consider all its available options with respect to the manner in which the murders had been committed, thereby destroying the reliability of the verdicts as rendered.
Ill
The Court forgoes a significant opportunity to elaborate on what constitutes an adequate death qualification of a jury, and on the importance of the trial court’s obligation to conduct a searching voir dire in capital cases. I cannot condone the Court’s all too casual treatment of an obviously inadequate death qualification. The majority’s review of the record is perfunctory and uncritically deferential rather than conscientious and searching. It fails to meet the standards for review of capital prosecutions exemplified by this Court in State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988) (Bey I).
Defendant argues that in instances involving six jurors, all of whom sat as either actual jurors or alternates, both defense counsel and the court failed to elicit information relevant to juror bias by making no effort to inquire further after receiving vapid responses to open-ended questions. The voir dire of jurors Margaret Dempsey and Christopher Gorzsas, both of whom sat on the *572jury, are representative of the questioning conducted and responses elicited in the voir dire of those six jurors. During her death qualification, Ms. Dempsey responded vaguely to the court’s open-ended questions. 1 Similar questioning of Mr. Gorzsas elicited similarly vague responses.2 In Mr. Gorzsas’ case, defense counsel did conduct some follow-up questioning. He asked one question related to Mr. Gorzsas’ ability to set aside his finding regarding guilt when he moved into the penalty-trial stage. Mr. Gorzsas indicated that “yes” he could do that. No one questioned him further.
“Because adequate juror qualification is an imperative condition for a valid capital-murder prosecution, extraordinary importance attaches to the voir dire and death-qualification process.” State v. Marshall, 123 N.J. 1, 220, 586 A.2d 85 (1991) (Marshall I) (Handler, J., dissenting); State v. Perry, 124 N.J. 128, 188, 590 A.2d 624 (1991) (Handler, J., concurring and dissenting). The majority greatly misunderstands voir dire in characterizing it as a procedural operation. An adequate voir dire requires more than the rote recitation of formal procedures. Rather, adequacy is *573measured by the usefulness of the information elicited for guaranteeing juror impartiality and competency, and for providing counsel with grounds for the intelligent exercise of challenges. See State v. Biegenwald, 126 N.J. 1, 39, 594 A.2d 172 (1991) (Biegenwald IV).
The right to a fair and impartial jury is guaranteed under both the federal and state constitutions. U.S. Const, amends. VI, XIV; N.J. Const, art. 1, para. 10. Moreover, the protection afforded that fundamental right is heightened in capital cases. Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188. Thus, the Court has imposed on trial courts the obligation “to preserve the integrity of the jury- and minimize the danger that prejudice will infíltrate the adjudicatory process * * *.” State v. Williams, 93 N.J. 39, 63, 459 A.2d 641 (1983) (Williams I). Indeed, the voir dire is the most critical and important means of assuring jury impartiality. Id. at 68-69, 459 A.2d 641.
Although we grant a degree of discretion to trial courts in the manner of conducting the death qualification of the jury, State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964), cert. denied sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965), we have recognized that “an appellate tribunal is likewise under a duty to make an independent evaluation of the facts and circumstances and of the juror’s voir dire examination.” State v. Van Duyne, 43 N.J. 369, 386, 204 A.2d 841 (1964), cert. denied 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). Today the Court fails to make such an evaluation, and thus, in effect, affirms the acceptability of open-ended questions evoking “it depends” responses followed by lengthy, leading “yes or no” questions.
On facts very similar to this case, the Court in Biegenwald IV found the death qualification insufficient and grounds for reversal because it offered no assurance of the jury impartiality necessary to a fair trial. In holding that such a voir dire process constituted reversible error, the Court stated:
The suggestion in the colloquy that there is a “correct” answer to the open-ended question “what are your views on the death penalty” is most troubling. Although *574such an open-ended question is undeniably a proper jumping-off point for death qualification, the vapid response “it depends on the circumstances” in no way reduces the need for additional probing of a venireperson’s views on the appropriateness of the sentence of death. The purpose of voir dire is not to elicit from a potential juror the correct answer; it is to draw out the potential juror’s views, biases, and inclinations and to provide both counsel and the court the opportunity to assess the venireperson’s demeanor. We reiterate that voir dire should proceed with the conscious object of providing court and counsel alike with sufficient information with which to challenge potential jurors intelligently — whether for cause or peremptorily.
[126 N.J. at 39, 594 A.2d 172.]
The death qualification in this case bears marked resemblance to the voir dire at issue in Biegenwald IV. Here, as there, venirepersons gave moderately non-committal responses to the court’s pro-forma questions about their views on the death penalty, and defense counsel failed to ask probing follow-up questions. In this case, neither the court nor counsel asked questions of the jurors likely to uncover whether the fact that defendant was accused of committing two murders would affect their deliberations. Additionally, they were not questioned about any effect the elderly status of the victims might have on their determination.3 The examination simply did not inquire sufficiently “into whether any juror could consider the mitigation evidence ... [, effectively denying] counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role [at the penalty phase] in this case.” Williams II, supra, 113 N.J. at 417, 550 A.2d 1172.
The voir dire in this case exemplifies the minimalist approach that is emerging in our capital prosecutions. The Court, in ratifying this form of questioning and the hollow, “it depends on the circumstances” responses, institutionalizes a mode of voir dire that we condemned in Biegenwald IV. The Court thus endorses the acceptability of responses it had previously declared inadequate in the context of a capital case.
*575The majority seems to accept the proposition that the voir dire was sufficient because defense counsel participated in the questioning. Although the incorporation of defense counsel’s questions into those asked by the court can help secure an adequately qualified jury, the mere fact that defense counsel asked questions does not establish the adequacy of voir dire. In the capital-murder context, the trial court bears a special responsibility to ensure an impartial jury, Biegenwald IV, supra, 126 N.J. at 42, 594 A.2d 172, and has an obligation “to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process.” Williams I, supra, 93 N.J. at 63, 68-69, 459 A.2d 641.
The Court’s duty to ensure that a capital defendant receives a trial by a properly qualified jury is overarching and nondelegable. It cannot be abandoned to defense counsel. We have stated: “whatever lack of zealousness and vigor one might ascribe to defense counsel in no way diminishes our duty to ensure that defendant is sentenced by a fair and impartial jury.” Biegenwald IV, 126 N.J. at 42, 594 A.2d 172.
Only a proper death qualification can assure the State and the defendant that the jury harbors no preconceived biases and can follow and apply the law in determining whether the defendant shall live or die. The failure to conduct an extensive, individualized death-qualification inquiry, notwithstanding defense counsel’s failure to request it, negates that assurance. Just as a defendant has no right to decide whether he or she is tried for capital murder or sentenced to death, see, e.g., State v. Koedatich, 112 N.J. 225, 329-32, 548 A.2d 939 (1988), neither a defendant nor defense counsel has the prerogative to decide whether to death qualify a jury in capital cases. See Marshall I, supra, 123 N.J. at 224, 586 A.2d 85 (Handler, J., dissenting).
In light of Biegenwald IV and our death penalty jurisprudence proclaiming the importance of effective death qualification, the voir dire in this case was clearly deficient. The touchstone of our decision in Biegenwald IV was that the jury may have included *576unqualified persons. Id. at 43, 586 A.2d 85. Here, we cannot possibly know the extent of the impairment of those six jurors, five of whom participated in the deliberation that resulted in defendant’s death sentence. The gravity of the error inheres in the unreduced risk that defendant was condemned after a trial before an improperly qualified jury. The court’s failure to conduct an adequate voir dire and to ensure a trial before a fair and impartial jury constitutes irremediable error, see Williams II, supra, 113 N.J. at 413, 550 A.2d 1172; Marshall I, supra, 123 N.J. at 221, 586 A.2d 85 (Handler, J., dissenting), and independent grounds for the reversal of the death sentence.
IV
In this case, the prosecution sought to establish, and the jury found, two aggravating factors. The first is that “[t]he murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another.” N.J.S.A 2C:ll-3c(4)(f). The second is that “[t]he offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, murder, robbery, sexual assault, arson, burglary or kidnapping.” N.J.S.A 2C:11-3c(4)(g).
On the verdict sheet submitted to the jury, the trial court presented the c(4)(g) aggravating factor for each victim in the following terms:
The murder was committed while the defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit murder and/or robbery, (emphasis added).
The verdict sheet presented the c(4)(f) factor for each victim as follows:
The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant.
The verdict sheets clearly failed to communicate the fact that the jury had to agree unanimously on some particular underlying felony or offense in order to find those aggravating factors.
*577The trial court’s instructions to the jury, also, did not communicate any need for the jury to reach a unanimous agreement on the specific felony underlying an aggravating factor in order to find that factor. Thus, with respect to Alice Skov, the trial court instructed the jury as follows on the c(4)(g) factor:
the offense as to Alice Skov was committed while [defendant] was engaged in the commission of, or an attempt to commit or flight after committing or attempting robbery and/or murder of John Donald Bell and/or robbery of Alice Skov. (emphasis added).
The trial court used identical “and/or” language for the felonies underlying the c(4)(f) factor.
The instruction on each aggravating factor is rendered ambiguous by the “and/or” term. The use of that term does not communicate that the jurors must unanimously agree on one specific predicate felony in order for them to find the aggravating factor. Absent a clear communication, four jurors might have found an aggravating factor in reliance on a finding of robbery of John Bell, while four others might have found the factor in reliance on the murder of John Bell, while yet four other jurors might have found the factor in reliance on the robbery of Alice Skov. The Court’s approval of the instruction with the inclusive “and/or” expression allows a finding of the aggravating factor by a jury thus fractured. I strongly differ with the Court, and would not allow the possibility of a fractured jury raised by the deficient presentation of that critical issue to go unredressed.
In State v. Parker, 124 N.J. 628, 592 A.2d 228 (1991), the Court considered when, if ever, a jury can return a unanimous verdict without unanimously agreeing about some preliminary factual issues. It stated that
[i]n some circumstances, however, a general charge on jury unanimity will not suffice. That is so when, for example, “a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and [when] the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory.”
[124 N.J. at 635, 592 A.2d 228 (quoting People v. Melendez, 224 Cal.App.3d 1420, 274 Cal.Rptr. 599, 608 (1990).]
*578The circumstances identified by this Court in Parker as requiring jury unanimity closely resemble the circumstances in this case. Thus for example, with respect to Alice Skov the c(4)(g) factor may be established by proof of one of several theories, each distinguished by the particular predicate felony on which it relies: murder of John Bell, robbery of John Bell, or robbery of Alice Skov. Each of those predicate felonies, or theories of the aggravating factor, depends on distinct acts and is proven by different evidence. Accordingly, the jury must unanimously agree on one of the predicate felonies in order to find the aggravating factor.
The majority endorses that conclusion. Ante at 554, 651 A.2d at 55. If the jury were not required unanimously to agree on a predicate felony in order to find the aggravating factor, a jury that voted 8-4 against each of the three possible predicate felonies could still find the aggravating factor, provided that every juror voted for one of the three predicate felonies. The possibility that a jury so configured might nevertheless find an aggravating factor does not comport with the substantial certainty we require of juries that would sentence a defendant to death. See, e.g., State v. Biegenwald, 106 N.J. 13, 53, 524 A.2d 130 (1987) (requiring that aggravating factors must outweigh mitigating factors beyond reasonable doubt) (Biegenwald II).
In Parker, the Court observed that a specific unanimity instruction is required when “the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory.” 124 N.J. at 635, 592 A.2d 228. That possibility exists in this case because each of the felonies alleged as a predicate for the aggravating factors involves distinct acts. Accordingly, as the majority acknowledges, if the defendant here had asked for a specific unanimity instruction, the trial court would have been obliged to give one. Ante at 554, 651 A.2d at 55. The Court, however, finds no plain error in the lack of any specific unanimity instruction. Id. at 552, 651 A.2d at 54. I believe the *579error is stark and requires a reversal of the jury’s sentencing determination.
The c(4)(f) and c(4)(g) factors essentially contain two elements. First, each requires the commission of a predicate offense. Second, each requires the existence of a specific relationship between that offense and the murder. The two factors differ, though, both in the kinds of offenses that can serve as predicates and in the nature of the requisite relationship between the offense and the murder. The c(4)(f) factor allows any “offense” to serve as its predicate, even an offense committed by “another.” N.J.S.A. 2C:ll-3c(4)(f). The e(4)(g) factor much more narrowly restricts the class of eligible predicate offenses to those committed by the defendant and enumerated among the factor’s listed felonies.
The majority addresses the two distinctive elements of each of the aggravating factors as though they were virtually identical:
[W]e think that the jury’s unanimous verdicts in the guilt phase that defendant was guilty of robbery and murder regarding each victim makes remote at best the possibility that the jurors disagreed on the underlying felony that supported each aggravating factor. Although one could conceive of an instance in which the alternative underlying felonies would be sufficiently distinct in occurrence to lead jurors to disagree about whether the defendant had killed to escape detection for one as opposed to the other, that is not this case.
[Ante at 553, 651 A.2d at 54.]
The majority thus discounts any actual difference between the elements of the respective aggravating factors. Further, it discounts the requirement for a particularized relationship between the predicate offense and the murder, by finding mere contemporaneity sufficient to establish the relationship. Thus, the Court states:
The parties did not dispute that the murders and robberies essentially were contemporaneous events, with the murder of Bell preceding the murder of Skov. That a juror could believe, therefore, that defendant murdered Skov to escape detection for the robbery, but not to escape detection for the murder of Bell, seems implausible.
[Ibid.]
The majority, finally, fails to recognize in this context that the jury’s guilt-phase determinations do not automatically or necessarily carry over into the penalty phase of the trial.
*580Rule 2:10-2 allows appellate courts, “in the. interests of justice, [to] notice plain error not brought to the attention of the trial or appellate court.” We have said that the interests of justice warrant a finding of plain error if “in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits.” State v. Macon, 57 N.J. 325, 338, 273 A.2d 1 (1971). More pointedly, we said that a plain error is “one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.” Id. at 336, 273 A.2d 1. We find plain error, then, in an error that could have changed the result.
The Court, applying conventional plain-error doctrine, undertakes an independent examination of the record and purports to know what a properly instructed jury would have done. To presume to have such knowledge, the Court must assume that juries in this context perform essentially a fact-finding function. That, however, is not the case. As this Court has in the past recognized, our juries in reaching ultimate verdicts perform a function far more embracive and nuanced than that of mere fact-finding. See, e.g., State v. Ingenito, 87 N.J. 204, 432 A.2d 912 (1981); State v. Simon, 79 N.J. 191, 398 A.2d 861 (1979).
This Court has recognized that the right to a trial by jury holds “a hallowed place” in the firmament of American law. State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982). The jury, indeed, is so important that we do not lightly allow a defendant even voluntarily to waive a jury. State v. Dunne, 124 N.J. 303, 590 A.2d 1144 (1991). The right is protected by both the United States Constitution, amendment six, and the New Jersey Constitution, article I, paragraph 9. The genius of the jury consists in its introduction of “the conscience of the community” into our system of justice. See Ingenito, supra, 87 N.J. at 212, 432 A.2d 912. We burden the jury with the responsibility of making the “paramount, exclusive and independent” adjudication of criminal guilt or innocence. Simon, supra, 79 N.J. at 199, 398 A.2d 861. In discharging that responsibility, the jury does not function as a mere fact-*581finder, but rather more broadly finds the truth as expressed in its ultimate verdict. Ingenito, supra, 87 N.J. at 211, 432 A.2d 912. We understand that a jury’s verdict in a criminal case transcends its fact-finding function. Thus, a jury may acquit even in the face of overwhelming evidence of guilt. Simon, supra, 79 N.J. at 208, 398 A.2d 861. Furthermore, courts will accept from juries even inconsistent verdicts, if they “accrue to the benefit of a defendant.” Ingenito, supra, 87 N.J. at 212, 432 A.2d 912. A jury may also “nullify” a law by acquitting a defendant for some reason even though the jury may believe the defendant guilty beyond a reasonable doubt. State v. Ragland, 105 N.J. 189, 205, 519 A.2d 1361 (1986).
We thus recognize the moral dimension of jury verdicts. A defendant’s right to a jury trial means that a defendant has the right to trial by a jury possessed of the fundamental power to exercise moral judgment in discharging its responsibility to determine ultimate criminal guilt or innocence. To dilute or diminish the jury’s responsibility, therefore, violates a defendant’s constitutional right to a trial by jury. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 516 n. 5, 99 S.Ct. 2450, 2455 n. 5, 61 L.Ed.2d 39, 46 n. 5 (1979) (holding that federal constitution bars directed verdicts against defendants in criminal cases regardless of strength of state’s evidence); State v. Coyle, 119 N.J. 194, 574 A.2d 951 (1990) (ruling that sequential charge of successive crimes was improper because it can prevent jury from fully considering each charge); Collier, supra, 90 N.J. at 123, 447 A.2d 168 (invalidating rape conviction where trial court directed verdict on lesser charge of contributing to delinquency of a minor; noting that direction of verdict on lesser charge might “improperly imping[e] on the sensitive area of jury deliberation”); Simon, supra, 79 N.J. at 199-200, 398 A.2d 861 (ruling that piecemeal instructions, special interrogatories, and fragmented deliberations can result in “subtle coercion” and may undermine jury’s capacity to determine ultimate criminal guilt or innocence).
*582By statute, our Legislature has extended the right to a trial by jury to capital-sentencing proceedings. N.J.S.A. 2C:ll-3c(l). All of the principles that define the duty of a jury and govern its deliberations, then, apply in full measure to the sentencing phase of this defendant’s trial. A sentencing jury, like a guilt jury, bears the ultimate responsibility of decision. N.J.S.A 2C:ll-3e(3). Any attempt by the prosecutor or the court to diminish the jury’s sense of responsibility for the verdict constitutes serious error. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
The decision to sentence a defendant to death vastly exceeds in intellectual and moral difficulty the determination of ultimate criminal guilt. State v. Purnell, 126 N.J. 518, 553, 601 A.2d 175 (1992) (Handler, J., concurring and dissenting). The extraordinary severity and irreversibility of the penalty command a heightened degree of care in the application of the principles of our law. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Ramseur, supra, 106 N.J. at 316, 524 A.2d 188. Thus, the right to trial by jury at capital sentencing invokes protections greater even than those necessary to preserve the right to trial by jury on the issue of guilt.
In criminal prosecutions, our courts, as noted, recognize that the jury’s ultimate determination of criminal liability imports a moral dimension. To ensure that the jury’s determination of criminal liability is independent and that its consideration and assessment of all relevant matters bearing on the ultimate question of criminal guilt is comprehensive, we do not permit the jury to take short cuts or to abbreviate its deliberations. For that reason, we do not allow collateral estoppel to supplant the independent fact-finding that serves as the necessary basis for the ultimate determination of criminal guilt. Thus, a jury must consider from a fresh vantage point the evidence of guilt supporting a criminal conviction even though that evidence was previously considered by the jury in a separate criminal proceeding charging an additional crime. Ingenito, supra, 87 N.J. at 209, 432 A.2d 912. In order to safeguard *583the defendant’s presumption of innocence on a second charge, we require that “the jury be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict.” Ragland, supra, 105 N.J. at 195, 519 A.2d 1361. It is even more imperative that such reconsideration be ensured in a capital sentencing trial.
If we require a jury to reconsider evidence in a case in which the bifurcation separates two guilt determinations involving the same evidence tending to establish the same elements, e.g., Ragland, supra, 105 N.J. at 195, 519 A.2d 1361; Ingenito, supra, 87 N.J. at 209, 432 A.2d 912, we surely must require it when the bifurcation separates a guilt from a capital sentencing determination. In that latter case, the jury considers the evidence again for its capacity to establish the elements of the felony, but now the decision on the felony exists in a wholly new deliberative universe. Now, the aim of the larger deliberation is not to establish criminal guilt or innocence, but to decide whether the defendant shall live or die.
To conclude that the absence of a specific unanimity instruction concerning the predicate felonies as a basis for finding aggravating factors does not constitute plain error, the Court must necessarily subscribe to two assumptions. First, the Court must assume that the jury did reconsider the evidence underlying the predicate felonies. Second, the Court must assume that, on reconsideration, the jury unanimously found some single specific predicate felony underlying each aggravating factor. Neither assumption is justified. The trial court never specifically instructed the jury in the penalty phase to reconsider anew, without being bound by its guilt-phase determinations, the evidence underlying the possible predicate felonies. And if the jury did on its own initiative correctly consider that evidence, we have no way of knowing, in the absence of a specific unanimity instruction, whether the jury did unanimously agree on a specific predicate felony.
We cannot assume that with proper instructions the jury would have reached a unanimous determination on each of the predicate *584felonies. That assumption would require the Court to know that no juror harbored any doubts or misgivings about defendant’s guilt, or that such doubts and misgivings would have had no influence on that juror’s ultimate sentencing decision. Numerous jurisdictions recognize the propriety of allowing a jury to consider residual doubts about guilt in determining whether to sentence a defendant to death. See, e.g., Andrews v. Collins, 21 F.3d 612, 623, n. 21 (5th Cir.1994) (Texas); Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988) (approving counsel’s strategy of arguing residual doubt to jury), rev’d on other grounds sub nom. Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), aff'd as modified, 979 F.2d 38 (5th Cir.1992); Rupe v. Wood, 863 F.Supp. 1315, 1340 (W.D.Wash.1994); People v. Johnson, 3 Cal.4th 1183, 14 Cal.Rptr.2d 702, 741-42, 842 P.2d 1, 40-41 (1992), cert. denied — U.S.-, 114 S.Ct. 114, 126 L.Ed.2d 80 (1993); State v. Watson, 61 Ohio St.3d 1, 572 N.E.2d 97, 111 (1991); cf. Franklin v. Lynaugh, 487 U.S. 164, 164-171, 108 S.Ct. 2320, 2326-2332, 101 L.Ed.2d 155, 172-182 (1988) (ruling that no federal constitutional right exists to have jury consider residual doubts in mitigation of sentence).
We cannot fully fathom or divine the deliberative dynamics of a jury’s decision on whether to put a defendant to death. For that reason, even within the framework of substantive standards explained by clear instructions, we cannot deny a jury the decisional flexibility and freedom of conscience to consider lingering doubts and to give those doubts weight that spares the life of a defendant. See Lockhart v. McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 1769, 90 L.Ed.2d 137 (1986); Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir.1981) (applying Georgia law), cert. denied 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). If, as recognized by many courts, a jury’s residual doubts about guilt of murder can properly affect its weighing of aggravating and mitigating factors in the ultimate life-or-death decision, so also can a jury’s residual doubts about guilt of an underlying felony properly affect the jury’s decision about the existence of an aggravating factor dependent on that felony. If the jury is not given a real opportunity to *585reconsider the evidence supporting the felony conviction, the jury will be deprived of the chance to ponder any remaining doubts it had about guilt of the felony. When brought to bear in the decision on the existence of the aggravating factor, those doubts, although previously resolved, may appear to the jury in a sharply different light because of their crucial significance to the awesome sentence the jury is asked to impose.
Defendant’s sentencing jury, then, should have been required to reconsider the evidence of the charged felonies and to deliberate anew in the penalty phase about the existence of the felonies underlying the c(4)(f) and c(4)(g) aggravating factors. Most importantly, it should have been instructed to do so unencumbered by its prior determinations based on that evidence.
Even if we assume that the jury did properly deliberate anew, we must acknowledge that we have no way of knowing whether, in those deliberations, the jury unanimously found any of the possible predicate felonies. Perhaps doubts latent during the first deliberation on criminal guilt figured more substantially in the second deliberation on the ultimate sentence given the different and portentous purpose of the latter. Perhaps the changed deliberative universe of capital sentencing affected the deliberations about the possible predicate felonies. Perhaps not. The point, though, is that this Court has no way of knowing whether, in those new and more extended deliberations, the jurors unanimously agreed on some particular predicate felony. We know that every juror individually found the existence of some predicate felony, because the jury as a whole found the aggravating factors; but because the jury was not instructed on the necessity of unanimous agreement on a specific predicate felony, we cannot know whether in fact the jury did thus unanimously agree.
The majority, therefore, looks in vain to the guilt verdicts for guidance and support concerning the events of the penalty deliberation. There is none that enables it to use those verdicts simply to ratify defendant’s death sentence. Accordingly, the majority’s *586finding of no plain error, relying on the fact of the guilt verdicts, is not defensible.
I continue to adhere to the view that the plain error doctrine does not apply in the review of capital cases. See Bey I, supra, 112 N.J. at 118, 548 A.2d 846 (Handler, J., concurring). The unique seyerity of capital punishment commands the application of special procedural protections, Ramseur, supra, 106 N.J. at 324, 524 A.2d 188, including a searching review of the record by this Court for error. When this Court finds error, whether or not noticed by the defendant below, we should not strain, as the majority today does, to find that error harmless. Because this Court cannot know whether proper instructions would have changed the result, the premise of the plain-error standard fails. The Court ought, in this circumstance, eschew that standard in favor of the simple error standard. Under that standard, our course is clear: because the trial court failed to instruct the jury of the necessity of unanimous agreement on a particular predicate felony to support a finding of the aggravating factors, we must vacate defendant’s death sentence.
V
Another reversible error also infects the jury’s determination that defendant deserved to die for the murder of Alice Skov. The State alleged two aggravating factors with respect to John Bell: c(4)(g), a killing committed during the commission of another felony, either the robbery of John Bell and/or the murder and/or burglary of Alice Skov; and c(4)(f), a killing to prevent defendant’s detection for robbing John Bell and/or robbing and/or killing Alice Skov. Likewise the State alleged parallel aggravating factors with respect to Alice Skov: c(4)(g), a killing committed during the commission of another felony, either the robbery and/or killing of John Bell and/or the robbery of Alice Skov; and c(4)(f) a killing to prevent detection for the robbery and/or killing of John Bell and/or the robbery of Alice Skov. The jury unanimously found the c(4)(g) factor in both killings. On the c(4)(f) factor, however, *587the jury found it applicable only to the killing of Alice Skov. Further, the jury did not indicate on which predicate felony it based any of its aggravating factor determinations.
As I previously expressed in State v. Moore, 122 N.J. 420, 585 A.2d 864 (1991), in order for a charged murder to be subject to an aggravating factor reflecting the commission of another felony, the charged murder must arise during the course of and as a probable consequence of the other felony. Id. at 506, 585 A.2d 864 (Handler, J., concurring and dissenting). I believe that causal nexus reflects the clear legislative intent, as shown by the analogous legislative treatment of the substantive crime of felony murder. It is reasonable to infer from the language of the statute (“committed while defendant was engaged in the commission of’) that the Legislature intended to incorporate elements of the felony-murder doctrine into the standards governing the c(4)(g) aggravating factor. See Moore, supra, 122 N.J. at 506-07, 585 A.2d 864 (Handler, J., concurring and dissenting). In determining the elements of the substantive crime of felony murder, we have ruled that the commission of the murder must be a probable consequence of the felony. State v. Martin, 119 N.J. 2, 27-28, 573 A.2d 1359 (1990). It follows that in the context of the e(4)(g) factor, the Legislature presumably intended that the charged murder occur while the defendant “was engaged in the commission of [the predicate felony],” and was the “probable consequence” of the commission of that felony.
Here, the State did not argue that the killing of either victim was a probable consequence of the other. Rather the State argued that defendant and Coleen Alexander had conspired from the outset to kill and rob the victims, as is evidenced by the fact that defendant was charged with conspiracy to commit the murder and robbery of both victims. Thus, each murder was independently intended by defendant. More significantly, the jury was not instructed to consider, nor asked to determine, whether a sufficient causal nexus existed between the two murders. I believe the legislative intent underlying that aggravating factor *588cannot be effectuated by charging only that Alice Skov was killed during the commission of the murder and/or robbery of John Bell. Rather, that aggravating factor could be established only if the jury was able to conclude beyond a reasonable doubt that her killing was a probable consequence of either the killing and/or robbery of John Bell. See Moore, supra, 122 N.J. at 509-10, 585 A.2d 864 (Handler, J., concurring and dissenting).
The Court fairly comments on the logic underlying c(4)(g) — that certain types of murders are more blameworthy than others. However, the Court overlooks the specific logic of the statutory construct — that e(4)(g) murders are more blameworthy because they are causally related to the commission of an accompanying felony. The language of the statute contemplates that the killing is aggravated because of defendant’s greater fault in that it occurred because the defendant was engaged in other criminal behavior that, under our law, generated a real risk that someone would be killed. Moore, supra, 122 N.J. at 508, 585 A.2d 864 (Handler, J., concurring and dissenting). Thus, I do not believe that the felony-murder aggravating factor was meant to encompass intentional multiple-murder situations. See People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 801, 679 P.2d 433, 452, cert. denied 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984).
Moreover, using each murder to aggravate the other unavoidably leads to double counting and exaggerates the weight of the aggravating factors. The California Supreme Court expressed the point in Harris. The Court stated:
In this case, alleging this special circumstance with each murder count results in a finding of two special circumstances. Since there must be more than one murder to allege this special circumstance at all, alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty[.]
[36 Cal.3d 36, 201 Cal.Rptr. at 8017, 679 P.2d at 452 (citations omitted).]
Here, the evidence of each murder is used twice by the jury in determining punishment for each murder. The Legislature could not have intended this result. In the absence of a limiting instruction providing a careful explanation of the proper use of the *589same evidence, the double use of the evidence to establish aggravating factor c(4)(g) constitutes reversible error.
VI
I agree with the Court that most of defendant’s arguments with respect to prior bad-act evidence do not establish reversible error. However, the trial court committed an egregious error in admitting Stephen Krouch’s testimony that he showed the eventual murder weapon to defendant as a warning to him about beating Coleen.
Stephen Krouch’s testimony regarding defendant’s beating of Coleen was neither elicited during cross-examination of the witness nor did it involve a subject that defendant had placed in issue. Rather, that testimony was elicited by the prosecutor on direct examination of Mr. Krouch after defense counsel had strenuously objected to that line of questioning during the testimony of Coleen’s mother, Violet Krouch. In the case of Mrs. Krouch, the prosecutor agreed to withdraw the question asking why Mrs. Krouch’s husband had told defendant about the rifle.
The majority ignores the fact that the jury first heard during Mr. Kroeh’s testimony that defendant had beaten Coleen in the past. All other references to defendant’s beating of Coleen, including Coleen’s own testimony elicited by defense counsel on cross-examination, came after the trial judge had admitted Mr. Krouch’s testimony. Thus, it is likely that defense counsel’s strategic treatment of later testimony about the abuse constituted a defensive reaction to that earlier adverse ruling.
Moreover, the majority misconstrues the purpose of the testimony elicited. According to the majority, the primary purpose of the evidence was to establish that Stephen Krouch had informed defendant of the existence of a weapon in the Krouch home. Ante at 534, 651 A.2d at 45. Clearly, however, explaining why Stephen Krouch introduced defendant to the weapon is irrelevant to proving that he in fact did introduce defendant to the weapon. Such irrelevant testimony, showing reprehensible spousal abuse, is so *590obviously inflammatory and prejudicial to defendant that it could not possibly withstand the test for admissibility laid out in N.J.R.E. 403.
The Court suggests that at a subsequent re-trial a court should “carefully scrutiniz[e]” the evidence and consider a limiting instruction should it determine to admit the testimony. Ante at 534, 651 A.2d at 45. I strongly disagree with that disposition. There can be no reason to admit the prejudicial testimony in light of the fact that the prosecutor could have elicited the needed information by simply asking Mr. Erouch if he ever told defendant that there was a gun in the house. The majority intimates that the testimony that Mr. Erouch told defendant about the rifle is inseparable from the testimony indicating why Mr. Erouch told him. This is not the case. In fact, the prosecutor asked two distinct questions to elicit the information. The State could have easily avoided the prejudicial testimony while simultaneously imparting to the jury that defendant had knowledge of the weapon prior to the commission of the murders.
VII
Defendant’s trial was rife with serious errors impugning the reliability of the verdict and death sentence. The court’s instructions concerning the own-conduct determination and the vicarious murder theories undermine the reliability of the jury’s decision on those issues, and the court’s failure properly to instruct the jury concerning its deliberations on the aggravating factors render insupportable the sentence of death. More generally, the case reveals in many ways the fallibility of our current efforts to prosecute capital cases and enforce capital punishment.
The problems that afflict the judicial administration of capital punishment are endemic. Those problems are intractable because, I believe, we seek to administer capital punishment under a judicial regime that is firmly fixed on a foundation of constitutional due process and fundamental fairness.
*591From the beginning of our experiment with death, we have confronted the unresolvable dilemma inherent in having a guilt determination made by a death-qualified jury that, by the very process of death qualification, becomes conditioned in the direction of guilt. Ramseur, supra, 106 N.J. at 428-35, 524 A.2d 188 (Handler, J., dissenting). In Marshall I, the Court reviewed the judgment made by a jury that experienced all of the pitfalls surrounding the process of death qualification. The defendant was found guilty by an inadequately death-qualified jury — indeed, a jury that defense counsel declined to death-qualify at all, allegedly pursuing a “strategy” of avoiding any reference to the death penalty. I noted that the Court’s acceptance of that trial strategy, which rested on the notion that repeated references to the death penalty in the course of qualifying the jury were likely to predispose the jury toward a belief in the defendant’s guilt, confirmed the premise that the process of death-qualification biases a jury toward conviction.
In State v. Perry, 124 N.J. 128, 187-90, 590 A.2d 624 (1991) (Handler, J., concurring and dissenting), State v. Erazo, 126 N.J. 112, 142-50, 594 A.2d 232 (1991) (Handler, J., concurring and dissenting), and State v. Purnell, 126 N.J. 518, 560-62, 601 A.2d 175 (1992) (Handler, J., concurring and dissenting), I further criticized the slip-shod quality of attempted death-qualifications, which served only to increase the risk of conviction, and thus to increase the chance that a poorly-qualified jury would make the ultimate life or death judgment. Similarly, in this case, defendant was convicted by an inadequately death-qualified jury because the trial court as well as defense counsel failed to probe and follow up non-committal responses to open-ended questions. None, or very few, of the so-called “safeguards” inherent in death qualification were applied in defendant’s voir dire. Rather, it contained all the telltale signs of pro forma death-qualification: vague responses to open-ended questions; no probing; and only formulaic, obvious, yes or no, will-you-do-your-duty-type questions as follow-up. And worse, the jurors were subjected to repeated and portentous references to the death penalty. Defendant’s fate was placed in *592the hands of a jury that had been death qualified only in the pernicious sense of having been exposed to the possibility of a death sentence, thus inciting, but leaving hidden, potential biases. See Ramseur, 106 N.J. at 430-31, 524 A.2d 188 (Handler, J., dissenting).
In addition, the trial court inadequately instructed the jury with respect to its available options concerning determinations that were critical to the penultimate issue of death eligibility but not to the issue of guilt. Defendant was subjected to a guilt-phase charge that (1) confused the jury by inadequately defining the death-eligible offense, (2) failed to inform the jury that it could disagree about the underlying basis of guilt (by his own conduct or aecomplice/co-conspirator) thus producing a potentially coercive influence over the jury’s deliberation, (3) gave an inadequate instruction for one of the alternative findings to own conduct, namely, co-conspiracy, and (4) debilitated the protection afforded defendant by the “beyond a reasonable doubt” standard by incorrectly informing the jury that it must agree on one theory beyond a reasonable doubt instead of instructing that only a finding of own conduct need be unanimous and beyond a reasonable doubt.
Those errors occurred at the very stage at which the guilt-phase bleeds into the penalty-trial, insofar as the “own-conduct” determination must be made ostensibly during the guilt phase, but possesses only penalty implications. To the extent that some logic justifies bifurcation of guilt and penalty proceedings, it rests on the presumption that different evaluative norms are implicated at the different stages, thus warranting different rules. The “own-conduct” finding blurs the distinctions and because of that blurring, creates an unprotected area in which a defendant experiences the worsts of both worlds. I think Bobby Lee Brown is that defendant.
In essence, a jury given enough death qualification to prejudice its guilt determination but not enough adequately to qualify it to decide impartially life or death as an ultimate sentence sat without proper guidance in judgment on an issue, own conduct, that serves *593to distinguish death-eligible from non-death-eligible crimes. Defendant thus endured all the errors that made Robert Marshall’s case so troubling. But worse, he endured them at the moment in the guilt phase when the jury is asked to make what is basically a sentencing determination without having the benefit of the procedural protections imposed at the penalty trial.
This case shows again the doctrinal tangle that ensnares our capital murder jurisprudence. We continue in the administration of this law to struggle to free ourselves from confusion, contradiction, and arbitrariness. We try valiantly but vainly to identify, define, and follow intelligible principles and guiding rules so that capital prosecutions can be conducted with consistency, even-handedness, and fundamental justice. The objective that we have set for ourselves — to punish a criminal defendant with death— categorically demands that capital prosecutions be conducted at the very highest levels of fairness and constitutional due process. This case, unfortunately, exemplifies our failure — it again demonstrates the confusion and arbitrariness that beset the administration of justice in capital causes. We seem determined to seek the ultimate punishment, but we are equally determined not to give up our constitutional protections. Our experience is teaching us that we cannot have both — the retributive luxury of sentencing criminals to death and the constitutional glory of due process and the rule of law.
Ms. Dempsey answered the court's initial open-ended questions about her general views on the death penalty by saying, "I believe in it depending on, as you just said, factors involved.” Asked whether she favored, disfavored or was neutral on the death penalty, she responded, "I think you have to be very careful, I don't know where that falls with favor or disfavor. You have to be very careful.” Ms. Dempsey further indicated, in response to yes-or-no questioning, that she would consider mitigating evidence and that race and age had nothing to do with the case. She also indicated that the fact that defendant could receive life imprisonment would not impair her ability to sentence. Defense counsel asked no further questions.
The examination of Mr. Gorzsas typically indicated:
COURT: In general, what's your opinion with regard to the death penalty?
GORZSAS: I really have no strong opinion one way or another. I believe that in certain circumstances it may be a good thing, however, it’s not a black and white issue.
COURT: Let me put it another way, do you generally favor, disfavor of are you neutral on the issue of imposing the death penalty?
GORZSAS: I guess I would say that I favor it slightly.
We have previously acknowledged the potential benefit of using hypothetical questions designed to draw out bias and predisposition if open-ended questions are insufficient. See Biegenwald IV, supra, 126 N.J. at 42, 594 A.2d 172.