dissenting.
In the earlier trial of defendant for the murder of Amie Hoffman, the jury unanimously found two aggravating factors: that he had a prior murder conviction (N.J.S.A. 2C:ll-3c(4)(a)) and that he killed in the course of a sexual assault and kidnapping (N.J.S.A. 2C:ll-3c(4)(g)). The jury, however, did not find two other aggravating factors that were alleged by the State: that the murder was “outrageously or wantonly vile” (N.J.S.A. 2C:ll-3c(4)(c)) and committed to “escape detection” (N.J.S.A. 2C:ll-3c(4)(f)). The jury was unable to agree unanimously with respect to those two factors, voting eleven to one in favor of the former, and eight to four in favor of the latter. Following the appeal to our Court, the case was remanded for another trial to determine whether defendant should be put to death.
On remand, defendant moved to bar the submission of the aggravating factors not previously found by the jury, i.e., that he had committed an “outrageously wanton and vile” murder “to escape detection.” The trial court agreed, holding that our decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), and 110 N.J. 521, 542 A.2d 442 (1988), barred the State from charging any aggravating factors at the second penalty *533trial which it failed to prove to unanimous-jury satisfaction in the first penalty trial. The majority reverses that determination, concluding “that a jury’s failure to determine unanimously the existence of a statutory aggravating factor does not constitute an ‘acquittal’ of that factor, barring its presentation at resentencing on double-jeopardy grounds.” Ante at 524, 572 A.2d at 628.
I disagree. The dissenting opinion of Justice O’Hern, with which I concur, demonstrates as a matter of federal constitutional law that double jeopardy applies to the specific context of the sentencing phase of a capital-murder trial and should bar the resubmission of the aggravating factors that were not found by the jury in the prior sentencing trial. Post at 547, 572 A.2d at 639-640 (citing Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)). I would also hold that given this State’s statutory treatment of aggravating factors, double jeopardy principles under state, as well as federal, constitutional standards preclude the re-presentation at a new trial of aggravating factors that have been rejected by a jury, either by a unanimous or non-unanimous determination.
We have consistently recognized the bar of double jeopardy against successive prosecutions for essentially the same crime. See State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983); State v. Lynch, 79 N.J. 327, 399 A.2d 629 (1979); State v. Tropea, 78 N.J. 309, 394 A.2d 355 (1978). The crime of capital murder is defined by relevant aggravating factors. As underscored by Justice O’Hern, it is indisputable that under our death penalty statute the aggravating factors are essential elements of the crime of capital murder — a murder for which the death penalty can be imposed. Unless a murder is shown to have been committed under circumstances establishing an aggravating factor under the death penalty statute, it will not constitute capital murder warranting the death penalty. Post at 545-547, 572 A.2d at 639. This Court itself recognized in the seminal Ramseur case that the aggravating factors constitute elements of the offense *534of capital murder. The Court, here, reiterates this understanding:
We observed in State v. Ramseur, supra, 106 N.J. at 185 [524 A.2d 188], that the jury’s consideration of statutory aggravating factors serves to narrow the class of death-eligible murderers as well as to guide the jury’s discretion in determining the appropriateness of a death sentence.
[Ante at 525, 572 A.2d at 628.]
According to one standard test under well-settled principles of double jeopardy, a crime is defined by its essential elements; crimes are the same if their elements are the same. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); State v. DeLuca, supra, 108 N.J. at 105, 527 A.2d 1355; see Brown v. Ohio, 432 U.S. 161, 163, 97 S.Ct. 2221, 2224, 53 L.Ed.2d 187, 193, 195 (1977). Thus, the subsequent prosecution for an offense that is based on the same elements of a crime involved in an earlier prosecution would involve the prosecution of the same crime for double jeopardy purposes. See, e.g., State v. DeLuca, supra, 108 N.J. 98, 527 A.2d 1355; State v. Dively, supra, 92 N.J. 573, 458 A.2d 502. It follows that when there is a verdict to impose the death penalty involving the rejection of specific aggravating factors, a retrial seeking the death penalty based on identical aggravating factors is tantamount to a retrial for the same crime. Here, two of the elements of the crime tried and previously determined not to exist are identical to two of the elements of the crime that will be retried, namely, capital murder as defined by the aggravating factors c(4)(c) and c(4)(f). The State may not in any other context retry a defendant for the same crime involving the same elements with respect to which there was a rejection. See, e.g., State v. Grunow, 102 N.J. 133, 149, 506 A.2d 708 (1986). The State should not, in the context of a capital murder prosecution, be given an opportunity in the retrial of a defendant to establish the same aggravating factors that had previously been rejected.
The majority explains its conclusion that double jeopardy does not apply in this case by focusing on asserted differences that can distinguish a sentencing trial from a guilt trial for *535double jeopardy purposes. It suggests that aggravating factors may not, after all, constitute elements that serve to define the crime of capital murder warranting the death penalty, and, therefore, a jury’s determination with respect to an aggravating factor, be it an affirmative or negative finding, is not a result that can be equated with a conviction or acquittal.
The Court’s position in this regard is untenable. In a capital-murder prosecution there are differences between the trial to determine criminal guilt and the trial to determine the penalty. These trials, however, cannot be principally distinguished for double jeopardy purposes. There can be no question that the bifurcated proceeding prescribed by our capital-murder statute to determine whether a defendant shall be put to death entails trials that must be conducted with maximum protections. The trial that can eventuate in a verdict of capital murder and the death sentence is in all respects a criminal trial that is surrounded by all of the constitutional protections guaranteed any criminal defendant, including those relating to double jeopardy. The majority acknowledges this, as it must. Ante at 520-521, 572 A.2d at 625-626 (citing and quoting Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270.)
The majority endeavors to escape the conclusion that double jeopardy applies fully to a death-penalty trial by relying on Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), where the Supreme Court expressed the view that the failure of the sentencer to find alleged aggravating factors is not an “acquittal” for double jeopardy purposes because the determination of such factors does not involve the determination of a crime or its essential elements. 476 U.S. at 155-57, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-33. Accordingly, the majority here rules that the determination of aggravating factors at the sentencing trial entails only the determination of subsidiary facts and does not rise to the level of a determination of the elements of the crime of capital murder. Ante at 526, 572 A.2d at 629. The majority, however, superimposes the Poland holding on an inapposite statutory scheme, and in *536effect redefines our law concerning the legal significance of statutory aggravating factors. Its legerdemain involves, first, equivocating over whether aggravating factors constitute the essential elements of capital murder; second, viewing aggravating factors somehow as incidental facts not equatable with the elements of a crime; and, third, characterizing the determination of such incidental facts as something less than a verdict.
Because it now chooses to describe aggravating factors as incidental facts, not essential elements of a crime, the majority believes it has put the sentencing trial into a more accurate perspective for double jeopardy purposes. By down-grading aggravating factors, the Court can then consider the jury’s deliberation on these factors as ordinary fact-finding rather than a truly critical and discrete functional part of the trial. So viewed, the jury’s actual determination of such factors, therefore, does not constitute a significant decision, i.e., either a “conviction” or an “acquittal,” and does not implicate the protections of double jeopardy. For this reason, the Court declines to view “the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstances,” surmising that were it to characterize the determination of aggravating factors in a death-penalty trial as entailing more than the resolution of incidental facts, that would convert the penalty trial into a series of trials within a trial. Ante at 522, 572 A.2d at 626-627 (quoting Poland v. Arizona, supra, 476 U.S. at 155-56, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-33).
The flaw in this presentation, however, flows from the labels that the Court uses. It is misguided and confusing to label the jury’s consideration and determination of aggravating factors as entailing “mini-trials,” even on the premise that those factors are, indeed, the elements of the crime of capital murder. The jury is required by statutory mandate, not judicial whimsy, to deliberate separately on each aggravating factor and to consider, in accordance with the highest standards of proof, whether each aggravating factors exists. This is functionally no different from the jury’s responsibility in any criminal case *537to determine each element of the crime charged beyond a reasonable doubt. N.J.S.A. 2C:1-13a; see State v. Federico, 103 N.J. 169, 174, 510 A.2d 1147 (1986); State v. Martinez, 97 N.J. 567, 572, 483 A.2d 117 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573, reh. den., 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979)). Yet, in the setting of ordinary criminal prosecutions, we are not impelled to call the jury’s consideration and determination of essential elements of the charged crime a “mini-trial.” Furthermore, the responsibility for the specific determination of such elements is heightened in a capital-murder prosecution as compared to an ordinary criminal prosecution. In the latter it is generally impermissible to request juries to return special verdicts or answer specific interrogatories with respect to particular fact issues or elements. See, e.g., State v. Simon, 79 N.J. 191, 398 A.2d 861 (1979). The opposite is true of a capital-murder prosecution wherein we insist that such special interrogatories be answered by the jury. See N.J.S.A. 2C:11-3.
Hence, just as double jeopardy would apply to any jury determination that necessarily resolves the existence of an element of a crime, so must it apply when the jury’s determination resolves the existence of an aggravating factor. The characterization or label given the jury’s deliberations on aggravating factors simply has nothing to do with whether double jeopardy can attach. A jury’s determination of the elements of a crime is itself a matter to which we give legal significance. See N.J.S.A. 2C:l-13a. Surely, the specific determination of separate statutory aggravating factors required of a jury in a capital-murder case is an identifiable trial event invested with similar significance.
Having undone the legal concept that aggravating factors are elements of capital murder, the Court then proceeds to ignore the statutory and judicial recognition of “non-unanimity” in capital-murder sentencing. It now rules that a non-unanimous determination cannot be accorded the significance of a non-unanimous verdict. It states:
*538[W]e are unwilling to imbue a jury’s non-unanimous decision with respect to an aggravating factor with the same reliability that attends a verdict of acquittal on a criminal charge.
1Ante at 526, 572 A.2d at 629.]
The majority, as earlier noted, repudiates, without expressly acknowledging, our statutory and decisional law that equates aggravating factors with the essential elements of the crime of capital murder, which must be determined by the jury in a death-penalty trial by the same standards of proof that apply to its determination of criminal liability and its determination of the sentence. Because the jury is required conscientiously to make a determination of aggravating factors in the sentencing trial satisfying the exacting standards of proof, and, indeed, to do so with even greater clarity, specificity, and solemnity than may surround its determination of the elements of criminal guilt, aggravating factors are properly considered the subject of a jury “verdict.” The Court’s contrary position today is unfathomable because it depreciates the role of non-unanimity in a capital-murder trial. Thus, N.J.S.A. 2C:ll-3c(3)(c) explicitly and clearly provides:
If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b [providing for a prison sentence rather than the death penalty].
The Court itself has recognized that a non-unanimous verdict constitutes a jury verdict. We have stated clearly, precisely, and simply:
From this statutory language, it is clear that the Legislature contemplated three possible final verdicts in a capital case: a unanimous verdict that results in imprisonment, a unanimous verdict that results in death, and a non-unanimous verdict that results in imprisonment.
[State v. Ramseur, supra, 106 N.J. at 301, 524 A.2d 188.]
Moreover, we could not have been more emphatic about the legal significance of a non-unanimous determination as constituting a verdict:
In a capital trial, unlike the ordinary criminal prosecution, the jurors need not reach a unanimous verdict; a true jury deadlock results not in a mistrial but is a final verdict.
[Id. at 312, 524 A.2d 188.]
*539The Court understandably suggests that there is a significant difference between a “verdict” encompassing guilt or innocence or the sentence itself and a “determination” of other issues in the trial. The notion of non-unanimous rejection, as it were, applies only to the former, according to the Court. Undoubtedly, the difference between a verdict and a determination in this context is more than semantical, but it surely cannot follow that a non-unanimous determination — a failure to reach a unanimous determination — of the existence of an aggravating factor is tantamount to a “non-determination.” The statute and our decisional law demand explicitly that an aggravating factor be found only by unanimous jury agreement. In contrast, a mitigating factor can be found even by a non-unanimous determination and be used in the critical and delicate weighing process. See State v. Bey (II), 112 N.J. 123, 161, 548 A.2d 887 (1988). Clearly it is within the completion of our legislative scheme that once a jury has been asked to consider and determine — unanimously—whether an aggravating factor exists, its failure to do so must equate legally with the rejection of that factor. This conclusion is entirely consistent with that prescribed for the return of a sentencing verdict, and must be accorded the same treatment.
The Court justifies its ruling that a non-unanimous determination of aggravating factors is not a legal final determination with respect to those factors by impugning the integrity of jurors, stating that jurors who have reached “non-unanimous decisions” are “unreliable.”
Under our capital-sentencing scheme, a unanimous finding of the existence of any one oí the statutory aggravating factors charged by the State could result in a death sentence, provided that the jury determines that such aggravating factor outweighs the mitigating factors beyond a reasonable doubt. Unlike guilt-phase deliberations, a jury charged with deciding the existence of several aggravating factors might not exhaust its deliberative capacity in an effort to achieve unanimity on all such factors if it has already found that one aggravating factor, on which it does unanimously agree, outweighs the mitigating factors beyond a reasonable doubt.
[Ante at 525-526, 572 A.2d at 628.]
*540The Court must be describing a phantom jury summoned to serve a special role in its opinion. There is, however, not the slightest suggestion that the real jury in this case at the first trial acted like the flagging, impatient, and inattentive jury in the Court’s scenario. The jury in this case was required by express instructions to consider and determine each and every aggravating factor before it proceeded to consider mitigating factors, which it must have then done because it was also instructed to do so before it could weigh aggravating factors against mitigating factors. If the jury had followed the Court’s script here, we would have to conclude that the jury willfully failed to follow instructions. If that becomes an operating premise with respect to the way we believe jurors discharge their responsibilities, it will undermine the foundation on which this Court has upheld the constitutionality of the death-penalty statute. That foundation is based on the belief in the integrity of jurors, who must, under clear standards to guide their discretion, act as the conscience of the community in deciding whether the defendant lives or dies. State v. Bey (II), supra, 112 N.J. at 163, 548 A.2d 887.
The Court’s jaundiced view of jurors contradicts both its holding and its reasoning in State v. Ramseur, supra, that jurors will be conscientious and responsive to their oaths even when they reach a non-unanimous determination.
We do not believe that the premise underlying this reasoning — that jurors will, if given the chance, take the easy way out and fail even to try to reach agreement — is sound. The process of death qualification, the jurors’ oath, and the trial court’s instructions are all designed to assure that the jury will make a conscientious attempt to follow the law in reaching its verdict. The entire system of capital punishment depends on the belief that a jury representing the conscience of the community will responsibly exercise its guided discretion in deciding who shall live and who shall die. To hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence. A capital jury does not “avoid its responsibility” by disagreeing — genuine disagreement is a statutorily permissible conclusion of its deliberations.
[106 N.J. at 310-11, 548 A.2d 887 (citations omitted).]
*541The Court’s obliteration of the legal significance of a non-unanimous jury decision engenders greater confusion when we remind ourselves of the Court’s statement of its holding: “a non-unanimous jury finding with respect to the existence of a statutory aggravating factor does not constitute an ‘acquittal’ of that factor, barring its presentation at resentencing on double-jeopardy grounds.” Ante at 524, 572 A.2d at 628. Unexplained is whether the infirmity of such a jury determination for double jeopardy purposes is the fact that it is non-unanimous or the fact that it involves an' aggravating factor. If the former, then unextracted from the Court’s holding is the inference that a unanimous rejection by apury of an aggravating factor would constitute “an ‘acquittal’ ” and trigger double jeopardy, barring the re-presentation of the same aggravating factor in a new death-penalty trial. The Court should say so. If the latter, then the Court must acknowledge that aggravating factors are not the essential elements of the crime of capital-murder, repudiating the .construction of our own capital-murder statute and its state constitutional implications. It should say so.
I adhere to the view under our case law that we are here confronted with what is legally the rejection by a jury of an essential element of a crime. It is illogical to inform a jury that a non-unanimous outcome is legally permissible and acceptable, and will engender specific results, and then fail to attribute any significance or finality thereto. Indeed, we have ruled explicitly in the context of capital murder that even the lost opportunity to have the jury consider and return a non-unanimous verdict concerning the death penalty will trigger double jeopardy and bar a retrial seeking the death penalty.
We hold that where a trial court in a capital case has erroneously given coercive supplemental instructions in violation of [State v. Czachor, 82 N.J. 392, 413 A.2d 593 (1980) ] to a jury that has expressed its inability to agree, the law must afford defendant the benefit of the final non-unanimous verdict that might have been returned absent the coercion. Having erroneously been deprived of a substantial opportunity to receive a jury verdict resulting in imprisonment *542rather than death, the defendant may not be subject to another capital sentencing proceeding.
[Ramseur, supra, 106 N.J. at 313, 524 A.2d 188.]
The majority deprecates the effect of its holding by asserting that to disregard completely the non-unanimous verdict is not fundamentally unfair to the defendant — who has been told by the Legislature and by this Court that a non-unanimous verdict is a verdict. Here, the jury has been specifically instructed that a failure to agree unanimously on the existence of an aggravating factor means that that factor cannot be considered in any way in the deliberations that can eventuate in death sentence. Yet, the Court says that the resubmission of aggravating factors at resentencing that were rejected by a non-unanimous determination “poses no fundamental unfairness to defendants.” Ante at 532, 572 A.2d at 631-632. That cannot be squared with what we have already concluded to be the effect of a non-unanimous verdict in determining whether the defendant should be put to death: “In these circumstances, we would regard it as intolerably unfair to require the defendant to undergo a second capital resentencing proceeding.” Ramseur, supra, 106 N.J. at 314, 524 A.2d 188. Moreover, the Court consoles itself with the thought that negating the effect of a non-unanimous determination of an aggravating factor will also be “helpful” to the next jury. Ante at 531-532, 572 A.2d at 631-632. That, however, cannot be determinative: Presenting issues foreclosed by a prior prosecution cannot forestall the bar of double jeopardy, no matter how enlightening they may be in a subsequent trial. We have repeatedly stressed that
underlying all the protections provided by the [double jeopardy] clause is the principle
that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innoeent he may be found guilty.
[State v. DeLuca, supra, 108 N.J. at 102, 527 A.2d 1355, quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957).]
*543The Court, here, again acknowledges that double jeopardy protections “primarily seek to prevent the State from using its vast resources to harass and oppress defendants through multiple prosecutions or punishments for the same offense.” Ante at 530, 572 A.2d at 631 (citing State v. Currie, 41 N.J. 531, 539, 197 A.2d 678 (1964)). It strikes me that what the Court is doing today is both “intolerably unfair” and a use of State resources “to harass and oppress” a defendant.
The Court’s rationalization of fairness and enlightenment in support of its holding sounds particularly hollow. Notwithstanding a crocodilian explanation to the contrary, the Court sanctions a prosecution that flouts the protections of double jeopardy and is patently unprincipled. Its holding is flatly at war with our clear holdings construing and applying the capital-murder statute. The Court redefines the legislative scheme and converts our prior decisions into curious essays on capital-murder jurisprudence. Because the Court does not confront our prior holdings and overrule them, it disquietingly appears to abandon the fundamental principle that a capital-murder system is tolerable only if the execution of defendants is based firmly on the nondelegable decision of responsible jurors clearly guided by exacting standards. As disturbing, the Court’s opinion betrays a loss of patience with the current administration of capital-murder justice — a patience that is essential if we insist, as we must, that the State may not execute a defendant without first providing the fullest measure of protection.
Justice CLIFFORD joins in so much of this opinion as departs from the Court’s “new ruling” that non-unanimous jury decisions are “unreliable.”