dissenting.
This is the first time that the Court has heard a capital case on post-conviction review since the reemergence of the death penalty in New Jersey. I have twice before expressed unanswered criticisms about this case. State v. Marshall, 123 N.J. 1, 214-67, 586 A.2d 85 (1991) (Marshall I) (Handler, J., dissenting), State v. Marshall 130 N.J. 109, 229-312, 613 A.2d 1059 (1992) (Marshall II) (Handler, J., dissenting), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993). Significant facts that militate materially in support of defendant’s claims for post-conviction relief have been developed during these most recent proceedings. This Court’s dismissive treatment and rejection of all of defendant’s numerous claims strongly reinforce my belief that the death *294penalty cannot be constitutionally applied in any circumstances and is egregiously defective in the circumstances of this case.
In this extended prosecution, time and the realistic limitations on decisional exposition effectively preclude an in-depth discussion of the hundreds of claims raised by defendant and dismissed with little analysis by the majority today. However, three sets of errors are so profound that I feel compelled to discuss them in detail. They differ only in degree of gravity from the many remaining claims that go undiscussed. First, the lack of a meaningful penalty phase coupled with defense counsel’s virtual abrogation of his role as an advocate for defendant warrants a reversal of the death sentence or, at the very least, a remand to determine whether defense counsel had any plausible strategic basis for his decision not to fight vigorously for defendant’s life. Second, the lack of a death-qualified jury at both the guilt and penalty phases accentuates the prejudicial impact of the ineffectiveness of defense counsel. A death sentence handed down by an uninformed and unchallenged jury is unprincipled and cannot be reconciled with even minimal constitutional standards, particularly in the context of a case in which defense counsel is grossly ineffective. Lastly, the multitude of discovery violations, several implicating directly the credibility of key witnesses, warrants close scrutiny of the prosecutor’s role and mandates a remand to permit defendant the opportunity to establish a full factual basis for his Brady1 and prosecutorial-misconduct claims.
In addition to the aforementioned specific categories of errors, I am also troubled by the Court’s treatment of all of defendant’s claims. While properly rejecting the trial court’s blanket assertion of procedural bars, the Court’s cursory and piecemeal analysis of the claims, though partially attributable to defendant’s misguided fracturing of every plausible allegation of error, does a disservice. The trial court erred in not analyzing the merits and in not permitting the development of the claims. Then to relieve the *295court of its obligations by undertaking independent fact-finding, without benefit of a hearing and constrained by this Court’s heavy burden, is mistaken, seriously undermines the Court’s proper role, and visits grave harm on defendant.
I
The trial court erred in dismissing the vast majority of defendant’s claims without holding a hearing or discussing the merits of the claims and based solely on the procedural bars of Rule 3:22-4 and Rule 3:22-5. I join in the majority’s condemnation of that practice. See ante at 143-154, 690 A.2d at 27-33. Unlike the majority, however, I am convinced that the trial court’s error warrants remand of the case for findings. Moreover, I believe that the trial court’s severe abridgement of the hearings that were conducted regarding several of defendant’s claims was unwarranted, ill-advised, and erroneous. Therefore, I would remand the case for both hearings and factual findings.
A.
The trial court’s disposition of defendant’s petition for post-conviction relief (“PCR”) did not conform to the rules governing PCR and this Court’s holdings in State v. Preciose, 129 N.J. 451, 609 A.2d 1280 (1992), and State v. Mitchell, 126 N.J. 565, 601 A.2d 198 (1992).
Defendant raised 548 grounds that he alleged warranted reversal of his conviction and vacation of his death sentence. Relying on procedural bars, the State moved to dismiss. After a brief oral argument on the motion and a short recess, the trial court issued its ruling. The court dismissed 371 claims merely by citing to the procedural bars. For example, in dismissing the seventy-four claims related to jury selection, the court noted in one sentence that it was dismissing them because the claims either “were adjudicated or could have been raised in the appeal process.” In a two-page letter, the trial court confirmed its dismissal of over two-thirds of the claims; again, the court provided no details or *296analysis and simply listed the claims it was dismissing. The court did not even specify which procedural bar it was invoking to deny defendant his day in court.
In State v. Preciose, this Court warned lower courts not to restrict PCR unduly through the use of procedural hurdles:
New Jersey’s system of state post-eonviction review apparently affords criminal defendants a broader opportunity to raise constitutional claims than does federal habeas review. It would be a bitter irony indeed if our courts, in an attempt to accommodate the Supreme Court’s retrenchment of federal habeas review, were artificially to elevate procedural rulings over substantive adjudications in post-conviction review, at a time when the [United States Supreme] Court’s curtailment of habeas review forces state prisoners to rely increasingly on state post-eonviction proceedings as their last resort for vindicating their state and federal constitutional rights. When appropriate, the procedural bars imposed by [the rules governing post-conviction review] ... may be asserted to preclude post-conviction relief, but their use should not be shaped or influenced in the slightest by the federal courts’ restrictive standards for allowing or disallowing habeas review. In such instances, an abbreviated reference to underlying meritorious issues may be useful in demonstrating that reliance on the procedural bar has caused no injustice. However, when meritorious issues are raised that require analysis and explanation, our traditions of comprehensive justice will best be served by decisions that reflect thoughtful and thorough considerations and disposition of substantive contentions.
[129 N.J. at 477-78, 609 A.2d 1280.]
We further warned that “[o]ur compelling judicial interest in sustaining only those convictions free from constitutional error is disserved by decisions of our courts or, for that matter, federal courts that limit the availability of ... habeas review in cases in which such review may be warranted.” Id. at 454, 609 A.2d 1280.
This Court has announced that because the issues potentially raised in a PCR petition are so varied and important, “[f]rom our state perspective, finality is [only] achieved when our courts grant or deny post-eonviction relief.” Id. at 475, 609 A.2d 1280. The Court has explained that this principle exists because “[w]here meritorious issues are presented, our interest in affording defendants access to both state post-conviction and federal habeas review outweighs our interest in finality____■ Simply put, considerations of finality and procedural enforcemént count for little when a defendant’s life or liberty hangs in the balance.” Id. at 475-76, 609 A.2d 1280. We thus recognized, in Preciose, that the *297rules governing PCR are not to be read strictly to avoid substantive adjudications. Id. at 477-78, 609 A.2d 1280; see also State v. Johns, 111 N.J.Super. 574, 576, 270 A.2d 59 (App.Div.1970) (“[T]he constitutional problem presented is of sufficient import to call for relaxation of the rules [governing PCR] so that we may consider the question on its merits.”), certif. denied, 60 N.J. 467, 291 A.2d 17, cert. denied, 409 U.S. 1026, 93 S.Ct. 473, 34 L.Ed.2d 319 (1972).
PCR’s importance escalates in quantum measure in capital cases. Thus, even when procedural bars might properly preclude certain claims in noncapital cases, I believe that courts must address the merits of those claims in capital cases to ensure that a defendant will not be executed in violation of our Federal or State Constitution. That approach is implicit in the enhanced procedural and substantive protections that are essential to the constitutional effectuation of any capital-punishment regime. State v. Ramseur, 106 N.J. 123, 324, 524 A.2d 188 (1987); State v. Williams, 93 N.J. 39, 61, 459 A.2d 641 (1983) (Williams I). Thus, in State v. Martini, 144 N.J. 603, 677 A.2d 1106 (1996) (Martini III), cert. denied, — U.S. —, 117 S.Ct. 699, 136 L.Ed.2d 621 (1997), we held that the public interest in the reliability and integrity of a decision to sentence a defendant to death transcends the normal procedures governing post-conviction review. Therefore, even when a capital defendant seeks to abandon his appeals and to speed the date of his execution, “[t]he Court must decide if issues that could not be raised on direct appeal make the prisoner’s sentence of death unconstitutional or illegal.” Id. at 614, 677 A.2d 1106; see also State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990) (Hightower I) (citing with approval State v. Hightower, 214 N.J.Super. 43, 518 A.2d 482 (App.Div.1986), and its requirement that mitigating evidence be introduced even over a capital defendant’s objections); State v. Koedatich, 98 N.J. 553, 489 A.2d 659 (1984) (Order), and 112 N.J. 225, 548 A.2d 939 (1988) (Koedatich I) (requiring appellate review even over a capital defendant’s objections), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989).
*298Where the enforcement of the bar would result in fundamental injustice or where the denial of relief would be repugnant to the United States Constitution or the New Jersey Constitution, the rules permit the claims to be heard. R. 3:22-4; see also State v. Cerbo, 78 N.J. 595, 605, 397 A.2d 671 (1979) (“In the absence of the timely raising of an issue available on direct appeal or a constitutional infringement, relief will be granted in such proceedings only in exceptional circumstances involving a showing of fundamental injustice.”). I believe that a claim that the death penalty was unconstitutionally applied to a defendant would implicate the type of fundamental injustice contemplated by the rule.
I therefore join with the majority, ante at 153, 690 A.2d at 32, in “expressly overruling] the post-conviction relief court’s reliance on the Rule 3:22-4 and -5 procedural bars to dismiss defendant’s claims.”
B.
The majority correctly recognizes the deficiencies of the trial court’s handling of this petition and therefore refuses to dismiss most of the claims raised by defendant on mere procedural technicalities. The Court seemingly spends much time and effort discussing each of defendant’s claims and then rejecting them on the merits. As discussed below, I find the majority’s dismissal on the merits of several of the claims to be erroneous. Worse, however, is the majority’s decision to forge ahead with a discussion of the merits after concluding that the trial court’s dismissal of the claims based on procedural bars was improper.
By refusing to remand the action for findings of fact and law, the Court has dramatically moved away from its function as a reviewing court. See State v. Whitaker, 79 N.J. 503, 515-16, 401 A.2d 509 (1979) (“The appellate tribunal ‘should give deference to those findings of the trial judge which are substantially influenced' by his opportunity to hear and see the witnesses and to have the “feel” of the case, which a reviewing court cannot enjoy,’ since it depends rather upon the cold appellate record.”) (quoting State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964)). The Court today *299assumes a dual role of fact-finder and appellate court. I believe the Court is misguided in overreaching its traditional function of determining whether the trial court committed error in ruling on a defendant’s claims.
By not remanding the action for factual findings, the Court puts itself in the contradictory position of crediting the fact-finding that was done on some claims while attributing no weight to the absence of fact-finding on other claims. Thus, the majority sways back and forth in its opinion as to the importance of the trial court’s findings. At several points, the majority recognizes the importance of a trial court’s review of the evidence. E.g., ante at 186, 690 A.2d at 49 (citing trial court’s finding as an important aspect of its ruling that the alleged error was not material). At other times, the Court has no trepidation in plunging ahead without benefit of the trial court’s findings. E.g., ante at 193, 690 A.2d at 53 (assuming trial court’s role in determining whether under the totality of the circumstances a search warrant would have been issued); ante at 208, 241, 690 A.2d at 60, 76 (finding strategic reasons for trial counsel’s behavior despite absence of record). The majority’s oscillation bespeaks its recurrent ambivalence. Its decision moves us far from our ruling in Preciose where we noted that “we cannot address the merits of defendant’s claim without ascertaining the sufficiency of the factual record before us.” 129 N.J. at 462, 609 A.2d 1280. There, like here, the fact-finding was deficient and the defendant’s allegations grave; in that case, however, we ordered a “remand to the trial court for an evidentiary hearing and a determination of the merits of defendant’s claim.” Id. at 464, 609 A.2d 1280.
Remarkably, the claims in Precióse are not only identical to some of the claims raised below, but the factual support for the claims there was not nearly as strong as the support evident here. The strongest evidence of ineffectiveness of counsel put forth by the defense in Precióse was an affidavit by the defendant setting forth his specific allegations of error. Id. at 456, 609 A.2d 1280. That affidavit was not submitted until the appeal of his denial of PCR. Ibid. Yet in Precióse, the Court found that those allegations *300required a factual hearing. Here, the Court does its own fact-finding, which, not surprisingly, is cursory and superficial. That the Court would beggar the need for trial-level fact-finding in a PCR proceeding seeking to redress error in a capital prosecution that has led to a death sentence is an alarming anomaly. See Marshall I, supra, 123 N.J. at 215-16, 265-66, 586 A.2d 85 (Handler, J., dissenting) (pointing out that capital jurisprudence subtly may be distorting traditional criminal law).
Real fact-finding is necessary here, and such a process can occur only in a trial court. As the Appellate Division recently noted, “[d]efendant’s claim of ineffective assistance of counsel based on these grounds cannot be resolved on the basis of this record. The appropriate forum for resolving such claims is in the trial court....” State v. Lane, 279 N.J.Super. 209, 224, 652 A.2d 724 (App.Div.), certif. denied, 141 N.J. 94, 660 A.2d 1193 (1995); see also State v. Florez, 134 N.J. 570, 584-91, 636 A.2d 1040 (1994) (finding factual record insufficient and remanding case to trial court for development of record); State v. Shabazz, 263 N.J.Super. 246, 256, 622 A.2d 914 (App.Div.) (“Because this issue is cognizable on a petition for post-conviction relief, we hold that the Law Division judge erred by refusing to consider the question. The issue should be further developed and resolved by the Law Division.”) (emphasis added), certif. denied, 133 N.J. 444, 627 A.2d 1149 (1993). See generally State v. Kremens, 52 N.J. 303, 245 A.2d 313 (1968) (remanding case for purpose of taking testimony and developing factual record on which to evaluate defendant’s claims).
If the Court insists on making factual findings on the basis of the record, it is obligated to accept those facts urged by defendant. Preciose, supra, 129 N.J. at 462, 609 A.2d 1280. The Court does not do that here. Instead, flouting our precedent and practice, the Court undertakes independent fact-finding for no apparent purpose other than to rationalize its dismissal of defendant’s claims.
*301c.
Compounding the failure to remand the ease for factual findings is the deficiency in the evidence regarding several of defendant’s claims. Despite the inadequacy of the record, the Court clears its own fact-finding path. Indeed, in many instances, the majority recognizes how incomplete the record is, but nevertheless charges that deficiency to defendant. See, e.g., ante at 195, 690 A.2d at 54 (“The State denies that such a report exists, and defendant has made no showing to contradict that representation.”); ante at 200, 690 A.2d 56 (“However, there has been no showing that such a report ever existed or that any chemical analysis was ever prepared.”); ante at 206, 690 A.2d at 59 (“In our view, the allegation is insufficiently substantiated____”). I believe that the deficiencies in the record can much more readily be traced to the trial court’s refusal to permit hearings. In such instances, the appropriate remedy is to remand the case. See State v. Purnell, 126 N.J. 518, 537, 601 A.2d 175 (1992) (remanding case because “[t]he record is insufficient to determine whether any prejudice ensued from the foregoing circumstance [alleged by defendant as a basis for his ineffective-assistance claim]”); State v. Dixon, 125 N.J. 223, 593 A.2d 266 (1991) (finding record of appeal to be inadequate to evaluate allegations of ineffective assistance of counsel and ruling that post-convietion-relief proceeding would have to address issue of whether counsel’s conduct was the product of a strategic decision).
Several of defendant’s claims require factual hearings because defendant has made out a prima facie case. Preciose, supra, 129 N.J. at 462, 609 A.2d 1280. Courts must “view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim.” Id. at 462-63, 609 A.2d 1280. Certainly, defendant’s allegations, if accepted as true, would require the Court to grant relief.
The Court, however, does not accept defendant’s allegations. For example, the majority fills in the inadequate factual record regarding trial counsel’s motivations despite the fact that defendant was not permitted to question counsel on most of those issues *302at a hearing, and despite the fact that trial counsel refused even to speak with defendant. Notwithstanding the absence of evidence, the Court imputes strategic reasons for counsel’s actions, whether or not those were counsel’s reasons, and then draws the foregone conclusion that the claims are without merit. E.g., ante at 197, 690 A.2d at 55 (“[D]eciding not to call her would be a reasonable tactical choice.”); ante at 212, 690 A.2d at 62 (“[C]ounsel’s decision not to offer direct evidence ... may have reflected counsel’s prudent recognition that such evidence would have been unpersuasive____”); ante at 222, 690 A.2d 67 (“[C]ounsel justifiably could have concluded that there was no need to tell the witnesses----”); ante at 224, 690 A.2d at 68 (“In our view,' defense counsel may reasonably have decided that he could best represent his client by concentrating on other areas of his case....”); ante at 241, 690 A.2d at 76 (“We find that counsel’s examination ... was a legitimate strategic choice.”). With no hearing and no factual findings below, blindly attributing motivations to defendant’s counsel is insupportable.
Another set of claims dismissed with nary an inquiry into their evidentiary support were defendant’s Brady claims. For example, after establishing nearly one-hundred instances of discovery violations and obtaining hundreds of pages of documents wrongfully withheld, defendant alleged that numerous documents and information still had not been turned over. In one specific claim, defendant asserted that the State had failed to advise him before or during trial that a key witness, McKinnon, had been investigated by federal authorities for criminal acts unrelated to this case. Supporting such a claim was an affidavit by a law enforcement agent, Churchill, that McKinnon had provided information to the F.B.I. regarding bank robberies in which eodefendant Thompson may have been involved. Unable to obtain McKinnon’s consent and unable to interview government agents and witnesses, defendant asked the court to conduct a hearing to determine what information related to McKinnon’s criminal acts had been known by the government and not disclosed to the defense. The trial court denied the request explaining that any hearing on the issue “would be to venture into a legal morass essentially in the nature *303of a discovery proceeding with no ascertainable parameters and limits.” Thus, for essentially convenience sake, the trial court denied defendant the ability to defend his serious allegations. The majority now adds insult to injury by finding that defendant is at fault for failing to establish his claims.
D.
In sum, the majority correctly ascertains error in the trial court’s blanket dismissal of most of defendant’s claims. The majority, however, errs in not concluding its inquiry at that point and remanding the action for the trial court to undertake the necessary hearings and to make the requisite findings. Although the Court is correct to reverse the trial court’s decision applying procedural bars to the vast majority of defendant’s claims, defendant’s victory is pyrrhic. The Court fails adequately to address this class of errors when it opts not to remand the case, but instead attempts to make important factual findings itself. Further, not in the slightest deterred from usurping the trial court’s fact-finding responsibilities, the majority compounds its error by engaging in independent fact-finding based on an impoverished record and by utterly failing to recognize the need for additional hearings.
II
Although the failings of the penalty phase were explored on direct appeal based on the available record, the PCR hearings revealed numerous new facts all of which serve to highlight just how deficient the penalty phase truly was. The majority’s description of what occurred, ante at 243-258, 690 A.2d at 77-85, is incomplete and inadequate.
A.
At approximately 11:30 a.m. on March 5, 1986, the jury returned a verdict of guilt for procuring the murder of Mrs. Mar*304shall. Immediately after the jury announced that defendant was guilty of capital murder, he was escorted out of the courtroom by Sheriffs officers. As he exited the courtroom, he felt “lightheaded,” he tried to sit down, his eyes rolled back, and he collapsed. Sheriffs officers caught him before he hit the floor. The next thing defendant remembered was having smelling salts in his face. He was escorted downstairs to the holding area and placed on a couch where the officers attempted to administer oxygen. Emergency Medical Technicians (“EMTs”) soon arrived and checked defendant’s vital signs. He was clammy to the touch — diaphoretic — but otherwise appeared all right. The EMTs placed defendant in a stretcher and brought him by ambulance to a hospital. He was first examined at the hospital at 12:25 p.m. He was diagnosed as having had “syncope,” which is a fainting spell related to an emotional situation. After determining that defendant was alert and well, the treating physician discharged him from the hospital at 1:15 p.m.
Meanwhile, defense counsel, although informed of the fact that defendant had been hospitalized, proceeded to meet with the prosecutor and the trial judge to discuss “how we were going to proceed in the penalty phase of the case.” He told the trial court only that “some type of medical situation” had occurred, but he neither informed the court that defendant had been taken to the hospital nor did he express any desire to delay the start of the penalty phase.
Without having conferred with defendant — indeed, while defendant was being examined at the hospital — defense counsel agreed to certain “ground rules” with the prosecutor. They agreed that the State would proceed on only one of the three aggravating factors of which it had filed notice, while defense counsel would rely on only the two mitigating factors of which he prematurely had filed notice. Counsel also “agreed that the lawyers would waive their opening speeches; [and] that neither side would call any witnesses in the penalty phase.” In fact, defense counsel obtained from the prosecutor a commitment that the State would *305not “strenuously” seek the death penalty (although counsel later acknowledged that any advocacy in favor of the death penalty could be said to be strenuous advocacy). In return, defense counsel agreed that during the penalty phase, he would “make a very limited closing argument.” His argument would be followed by the prosecutor’s closing statement. The prosecutor agreed that his argument would “be very, very limited” if defense counsel “honored [the] commitment” to have a “closing ... of a limited nature.” None of the discussions of these agreements were made on the record or with defendant’s participation, consultation, or input.
Only after defense counsel had made his pact with the prosecutor did he meet with defendant. In fact, counsel met with defendant only once between the guilt phase and penalty phase and this was a very brief meeting held sometime after defendant had returned from the hospital. Defendant, who was not discharged from the hospital until 1:15 p.m., then had to be transported back to the courthouse, which according to the Sheriffs officers took between fifteen and twenty-five minutes.2 The penalty phase commenced at 1:45 p.m. During the five to fifteen minutes that defendant was in the courthouse prior to the start of the penalty phase, he had to be moved from one holding cell to another and then escorted into the courtroom. In some of the brief remaining moments, defendant and defense counsel met. A Sheriffs officer testified that the discussion between counsel and defendant “wasn’t long” and lasted only “several minutes.”3
Defense counsel’s only recollection of the meeting was that he may have asked defendant how he felt and that he advised *306defendant of the terms of the agreement with the prosecutor. Specifically, counsel informed defendant that the State was proceeding on only one aggravating factor and that neither the State nor he would introduce any new evidence at the penalty phase. Defendant seemingly acquiesced in the decision not to call any witnesses, but his discussion with counsel was obviously not in-depth — or from defendant’s perspective especially informed. Even defense counsel admitted as much: “We basically were discussing whether or not, now knowing that [the prosecutors] were dropping these other two [aggravating] factors, and now knowing that we could proceed in this fashion, whether we wanted to go in this route.” One Sheriffs officer who observed the conversation testified that although there was some back and forth between defendant and counsel, defendant was basically “just listening to whatever the lawyer was telling him and basically nodding, you know, his head.”
Defendant asserts that his conversation with counsel prior to the penalty phase was very brief. There was no extended discussion of legal strategy or full consideration of the options for handling the penalty-phase presentation. According to defendant, counsel merely asked him what had happened, to which defendant responded that he had fainted. Counsel did not suggest that there be any delay. Rather, he asked whether defendant wanted to go ahead, to which defendant responded, “[l]et’s get it over with.” Counsel then informed defendant that the attorneys had come to an agreement regarding the penalty phase. Counsel described the “agreement” simply as a decision that no witnesses would be called and that counsel would simply sum up: “That would be it,” defendant recalls counsel saying. Defendant received no advice from counsel. He claims that counsel “didn’t ask me anything. He didn’t ask for my feelings or contributions in the matter. He gave me no options.”4
*307Defense counsel asserted that prior to March 5, 1986, he had discussed with defendant the procedures he wanted to follow in the event of a penalty trial. Counsel recalled only one conversation in which he and defendant had discussed whether to call defendant’s sons as witnesses. Defendant did not want to put his sons through the ordeal, although defense counsel advocated that they be witnesses. Other than that, counsel admitted that “it was not a situation where we spent hours, you know, on end mulling over each and every issue.”
Although defense counsel alleged that prior to March 5,1986, he had discussed the penalty phase with defendant, none of his detailed notes reflect that. Moreover, defendant denied that any such conversation had occurred. In fact, counsel did not even maintain that he had explained to defendant the nature and purpose of the penalty phase and what types of evidence they could submit. Nor did counsel explain the importance of having defendant’s sons testify and what the effect of that testimony likely would be, although counsel admitted that they “would have been very compelling witnesses at the penalty phase.” Importantly, even though defense counsel knew defendant was reluctant to have his sons testify on his behalf in the penalty phase, nowhere does it appear that counsel thought to have a mitigation specialist or other family member testify in lieu of the sons.
At the end of the brief meeting between defense counsel and defendant, counsel informed the court that he was ready to proceed and announced that “I’ve explained to my client, in *308essence, that this is a procedure that I would like to adopt and follow at this stage. And it’s my understanding that he is in agreement with this procedure.” The court was not aware that defendant had returned from the hospital only a few’ minutes earlier. The court did not explore whether defendant understood the rights he was waiving by this stipulated penalty phase.
The proceeding itself was incredibly short. The entire penalty phase, including the trial court’s opening remarks and closing instructions, lasted only twenty minutes and fills only seventeen transcript pages. Most striking, are the four pages of arguments advanced by defense counsel. In the three sentences devoted to the no-significant-criminal-history mitigating factor, he made only one argument, that defendant should have a “credit” for having lived a law-abiding life up until the point that he had murdered his wife:
The reason why I believe, when you look to the legislative history of the death penalty when it came into New Jersey that that clearly is a mitigating factor, is because, if you will, people feel, and I think quite rightly, that if you live a law-abiding life, that at some point in time you may be in a position where you may have to ask people to allow you to draw, if you will, maybe a credit because of the fact that you’ve led such a life. There are people obviously who have not led law-abiding lives and have been in situations where they’ve been in front of a jury and the jury has convicted them of a capital offense, and the jury will hear that this person has led a life, not law-abiding, but, in fact, has had a juvenile record, has had a record of other offenses and, for the most part, has lived a life that in all ways, shapes, and forms never conformed to what our society at least requires.
In this particular case it’s been agreed that Rob Marshall has led a law-abiding life, and that you must consider that as a mitigating factor.
The only other mitigating factor advocated by defense counsel was the catch-all mitigating factor. Counsel mentioned briefly, almost off-handedly and without detail or emphasis, a few of defendant’s charitable and community activities:
The other mitigating factor that Judge Greenberg referred to deals with other circumstances and factors which a jury may consider in mitigating with regard to the death penalty. In this particular case, in addition to the fact that Rob Marshall has no prior criminal record, there’s certain things, at least with regard to his life, that he has done, which he is entitled for you to consider.
He was involved in, among other things, with the Ocean County Businessmen’s Association. You’ve heard that. He was campaign chairman for the United Way, and for a number of years worked with them in community affairs, raising money *309for United Way. In addition to that, he served with his family on various social activities, involving the swim leagues and certain other things of a community nature.
I don’t want to stand here and go through the whole litany of things that he’s done in forty-six years that — either for other people or for his family or of a civic nature. Suffice it to say, the record is substantial in that area, and you have an absolute right to consider that as a mitigating factor.
While merely asking the jurors to consider defendant’s community activities, counsel conceded the existence of the sole aggravating factor and did not suggest that its weight should be counterbalanced by the mitigating factors:
The State has one aggravating factor which they are going to ask you to consider, and that is the fact that, under the statute, this offense as you have found — and at this point, as a lawyer, I have to accept that you have found that— was procured by the payment or the thought of payment for some pecuniary gain.
In concluding, defense counsel urged the jurors to make an individualized decision and to “reach whatever opinion you find in your own heart.” Counsel did not ask the jurors not to impose the death penalty, and, in fact, he invited a death verdict: “whatever you feel is the just thing to do, we can live ivith it."
Defense counsel never discussed defendant’s family and defendant’s support for his sons. He never discussed defendant’s background and life. He never gave the jury any reason to view defendant as a person. He never even asked the jury to spare defendant’s life. Ninety minutes after the jury began its deliberations, it returned a sentence of death.
B.
The majority analyzes all of defendant’s ineffective-assistance claims under the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987). Ante at 156-158, 690 A.2d at 34-35. For the first time though, the majority recognizes that the special considerations present in capital cases demand a more stringent evaluation of those standards. Ante at 244-251, 690 A.2d at 78-82. Thus, the Court seemingly has responded to the repeated criticisms that the *310Strickland standard is not sufficiently protective in capital proceedings. See State v. DiFrisco, 137 N.J. 434, 530, 645 A.2d 734 (1994) (DiFrisco II) (Handler, J., dissenting), cert. denied, — U.S.— , 116 S.Ct. 949, 133 L.Ed.2d 873 (1996); State v. Davis, 116 N.J. 341, 400-13, 561 A.2d 1082 (1989) (Handler, J., dissenting). See generally, Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capital Trials, 107 Harv. L.Rev. 1923 (1994) (arguing that the Eighth Amendment requires higher standard of effectiveness in death-penalty cases). As I noted in DiFrisco II,
I remain convinced of the wisdom of Justice Marshall, who dissenting in Strickland stated:
The importance of the process of counsel’s efforts, combined with the severity and irrevocability of the sanction at stake, require that the standards for determining what constitutes “effective assistance” be applied especially stringently in capital proceedings.
[137 N.J. at 530, 645 A.2d 734 (Handler, J., dissenting) (quoting Strickland, supra, 466 U.S. at 715-16, 104 S.Ct. at 2079, 80 L.Ed.2d at 711-12 (Marshall, J., dissenting)).]
Unfortunately, the Court’s new pronouncement neither alters the standard by which to measure the performance of capital counsel nor defines sufficiently the meaning of prejudice in the capital context. The Court’s new test for determining prejudice— “whether there is a reasonable probability that, but for counsel’s unprofessional errors, the jury’s penalty-phase deliberations would have been affected substantially,” ante at 250, 690 A.2d at 81 — is far too amorphous a test to be applied with any degree of consistency. In fact, its application to this very case demonstrates the inherent unworkability of the test as well as its indeterminateness.
The majority declines to discuss what meaning it attaches to its “affected substantially” interpretation of Strickland’s prejudice prong. As with the old standards, “[tjhese definitions carry no intrinsic meaning or objective guidance.” Davis, supra, 116 N.J. at 402, 561 A.2d 1082 (Handler, J., concurring in part and dissenting in part). Certainly, noncumulative, material mitigating evidence generates the real possibility that it would “affect substantially” “penalty-phase deliberations.” I would suggest that if a reasonable juror would have considered the material in his or her *311deliberative process, then vacation of the death sentence is required. Only under this standard can the Court avoid usurping the penalty jury’s role in determining the existence and then balancing the mitigating and aggravating factors.
The Court then succumbs to contradiction. After appearing to accept the proposition that the likely influence on a single juror’s deliberative process will demonstrate prejudice, the Court indicates that the only substantial effect on deliberations that would cause the Court to find counsel’s performance to be prejudicially ineffective is where the ultimate result of the deliberations would have been different. The Court is back where it began. In its own words, such an evaluation would require “a reviewing court [to] stray[ ] from its traditional function [because it would have] to predict the probability that a penalty-phase jury would have changed its verdict if counsel had not been deficient.” Ante at 250, 690 A.2d at 81. Thus, the Court’s application of its own “new” standard violates the very purpose the Court ascribes for having a new standard in capital cases in the first place.
Further, the Court even now refuses to recognize the deficiencies in the deficient-performance prong of Strickland. As I have noted previously, “we must recognize that counsel representing a defendant in a capital-murder prosecution must demonstrate the competence of a specialist and expert, not simply the skills of an average practitioner.” Davis, supra, 116 N.J. at 405, 561 A.2d 1082 (Handler, J., concurring in part and dissenting in part).
In any event, to establish a federal constitutional claim of ineffectiveness of counsel, a defendant must establish that “counsel’s performance was deficient” and that “the deficient performance prejudiced defendant.” Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see Fritz, supra, 105 N.J. at 58, 519 A.2d 336. Counsel’s performance is deficient when “counsel’s representation [falls] below an objective standard of reasonableness,” Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693, and is not within the “wide range of professionally *312competent assistance.” Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
In certain circumstances, the prejudice prong of the Strickland test is presumed to have been met. Where there are “egregious shortcomings in the professional performance of counsel” a presumption of prejudice arises without inquiry into the actual conduct of the trial. Fritz, supra, 105 N.J. at 61, 519 A.2d 336 (citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), a companion case to Strickland). That aspect of the Strickland/Fritz standard presumably still applies even, and, indeed, especially, in the context of a capital prosecution and, most particularly, in the penalty phase of such a prosecution.
On the other hand, “[mjatters of strategy or trial tactics are almost always unassailable when they are based on a proper understanding of the law and evaluation of all the facts in a case.” Purnell, supra, 126 N.J. at 536, 601 A.2d 175 (citing Marshall I, supra, 123 N.J. at 165, 586 A.2d 85). Nevertheless, a failure to investigate, “ ‘so undermine[s] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” State v. Savage, 120 N.J. 594, 624, 577 A.2d 455 (1990) (quoting Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed.2d at 692-93).
Against this background counsel was utterly ineffective, under any standard, during the penalty phase. “Capital defendants are guaranteed competent capital counsel,” Davis, supra, 116 N.J. at 356, 561 A.2d 1082, but here, defense counsel totally abandoned his role as an advocate for life, and thus cannot be considered to have provided competent legal advocacy.
C.
The record conclusively establishes that absolutely no preparation went into the penalty phase. Defense counsel called no witnesses, he entered no exhibits, and he advanced only the most cursory and superficial arguments. He did not prepare any requests to charge and did not raise even one objection to the trial *313court’s instructions or the prosecutor’s arguments, despite the presence of serious errors in both. Moreover, counsel did not provide reasons as to why the jury should find the catch-all mitigating factor. Even if believed, defense counsel’s brief conversations with defendant about the penalty phase were hardly a sufficient basis on which defendant could have made a voluntary and knowing waiver of his rights. Certainly, counsel’s failure to provide meaningful advice, to investigate the most basic aspects of the penalty phase, and to present a case must be considered ineffective.
The role of counsel at the penalty phase of a capital trial is far different from the traditional role of defense counsel because it requires counsel to construct a sympathetic picture of a defendant’s character:
American lawyers — even the best — operate in an adversary system concerned primarily with describing past events, not with portraying people. Adversary presentation ordinarily resolves questions of historical fact — What happened? Who did it? In what state of mind? — that only incidentally require inquiry into character. When a defendant’s character is proved, it is usually because his character provides circumstantial evidence of his deeds, not for its intrinsic interest. The traditional issue is “Did he do the crime?” not “Is he otherwise worthy of life?”
[James Doyle, The Lawyers’ Art: “Representation" in Capital Cases, 8 Yale J.L. & Human. 417, 420 (1996).]
Defense counsel must present a psychohistory of the defendant to humanize him before the penalty jury. See Vivian Berger, The Chiropractor as Brain Surgeon: Defense Lawyering in Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 245, 250 (1990-1991) (“[CJapital defense involves what some attorneys view as an alien unlawyerly task. Constructing ... a ‘dramatic psychohistory’ of the client and presenting it at the penalty phase smacks more of social work than of law.”); Welch White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. Ill;. L.Rev. 323, 361 (“In every case, the capital defendant’s attorney should seek to ‘humanize’ the defendant.”).
The crafting of a personal history for each capital defendant is not just what commentators view as appropriate advocacy, but is *314specifically required by the Federal and State Constitutions. Individualized consideration is the cornerstone of a constitutional death-penalty scheme. Gregg v. Georgia, 428 U.S. 153, 189, 197-98, 96 S.Ct. 2909, 2932-33, 2936-37, 49 L.Ed.2d 859, 883, 888 (1976); Ramseur, supra, 106 N.J. at 182-97, 524 A.2d 188; see also Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 3162, 82 L.Ed.2d 340, 352 (1984) (“If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.”); Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978) (plurality opinion) (noting that a death sentence is “so profoundly different from all other penalties ... that an individualized decision is essential in capital eases”). Because of this requirement,' the United States Supreme Court has repeatedly struck down limitations on what mitigating evidence a capital defendant can introduce. Parker v. Dugger, 498 U.S. 308, 315, 111 S.Ct. 731, 736, 112 L.Ed.2d 812, 822 (1991) (ruling that a codefendant’s life sentence is a nonstatutory mitigating factor that must be weighed in balancing aggravating and mitigating factors); Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347, 352-53 (1987) (holding that jurors had to be permitted to consider even nonstatutory mitigating evidence); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (finding reversible error in exclusion of mitigating evidence related to defendant’s good behavior in prison); Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1, 10 (1982) (finding reversible error in trial court’s refusal to consider defendant’s family history as a mitigating factor: A “senteneer [may not] refuse to consider, as a matter of law, any relevant mitigating evidence.”) (emphasis in original); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (holding that defendant must be permitted to introduce hearsay evidence at penalty phase); Lockett, supra, 438 U.S. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990 (plurality opinion) (“[T]he Eighth and Fourteenth Amendments require that the *315sentencer ... 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.”) (emphasis in original); Jurek v. Texas, 428 U.S. 262, 271, 276, 96 S.Ct. 2950, 2956, 2958, 49 L.Ed.2d 929, 938, 941 (1976) (plurality opinion) (“A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed____ What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.”); cf. Riggins v. Nevada, 504 U.S. 127, 133, 112 S.Ct. 1810, 1814, 118 L.Ed.2d 479, 488 (1992) (not reaching question of whether forced administration of drugs to a capital defendant during penalty phase denied the defendant the opportunity to show jurors his true mental condition).
The clear and unequivocal import of this sea of cases is that the penalty-phase jury must have the information necessary to make an individualized sentencing determination; otherwise, the death sentence is unconstitutional. Counsel here did nothing to enable the jury to make that individualized determination.
It is almost insulting for the majority to suggest that because defense counsel was retained privately and was well-paid, he was effective. Ante at 252, 690 A.2d at 82. The inference that in this case well-paid, but inexperienced, private counsel was effective is not only not “inescapable,” ibid., it is ludicrous and totally belied by the record; indeed, the opposite inference is inescapable.
Defense counsel gambled, with defendant’s life, that if he presented little or no evidence and if the State reciprocated by not “strenuously” arguing for the death penalty, the jury would understand that this case was not an appropriate one in which to impose the ultimate punishment. Capital punishment cannot be premised on a gamble. Cf. DiFrisco II, supra, 137 N.J. at 527, 645 A.2d 734 (Handler, J., dissenting) (arguing for the rejection of guilty pleas in capital eases when such pleas are based on the gamble that the death penalty will' not be imposed if the defendant pleads guilty). *316Certainly, a death sentence that is derived from purposefully withheld, pertinent information cannot be sustained.
In Koedatich I, we found “persuasive policy reasons ... for not allowing a defendant in a capital ease to execute even a knowing and voluntary waiver of his right to present mitigating evidence during the penalty phase.” 112 N.J. at 329-30, 548 A.2d 939. Justice O’Hern aptly reminded us that
[w]hat is required at the capital sentencing stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime____ The record before us does not disclose how or whether the jury was informed of the essential information concerning the character of the defendant that should precede the jury’s judgment.
[Koedatich, supra, 98 N.J. at 554, 489 A.2d 659 (Order) (O’Hem, J., concurring in part and dissenting in part).]
Thus, the Court concluded that “[i]t is self-evident that the state and its citizens have an overwhelming interest in insuring that there is no mistake in the imposition of the death penalty.... Hence, [without the presentation of mitigating evidence] we would be unable to discharge our constitutional and statutory requirement to review a judgment, and, therefore, we would fail to safeguard the state’s interest in insuring the reliability of death-penalty decisions.” Koedatich I, supra, 112 N.J. at 332, 548 A.2d 939; see also Hightower I, supra, 120 N.J. at 415, 577 A.2d 99 (“[C]ounsel must provide evidence of mitigating circumstances even over the defendant’s objection.”).
Koedatich and Hightower stand for the proposition that only a fully informed jury can fulfill its important function at the penalty phase. The effect of the majority’s conclusion is to create an exception to that rule for defendants whose counsel wrongly believe that there is sound strategic reason to entrust the defendant’s fate to an uninformed jury by forgoing a full penalty phase. I do not understand how the majority can interpose a different rule for a defendant who, when misadvised by his counsel, opts not to contest the penalty phase, from a defendant who purposefully embraces a death sentence by not actively contesting the penalty phase. The bases of the Hightower and Koedatich decisions are clear: a fully informed penalty phase is essential. Nothing less is *317required by United States Supreme Court precedent. See supra at 154-155, 690 A.2d at 32-33. Defense counsel denied the penalty-phase jury an opportunity to carry out its responsibility to make an individualized decision about whether defendant deserved to die, and for that reason alone defendant’s death sentence must be vacated.
Worse though, defense counsel explicitly invited a death sentence even though defendant actively sought to contest it. Counsel inexplicably told the jurors that, “whatever you do, we can live with it.” An attorney represents the client to the jury. Thus, any juror who listened to defense counsel’s statement readily could have assumed that defendant himself believed that reasonable people could conclude that he deserved to die and that he simply did not care. Obviously, if jurors reached such a conclusion, they would find it much easier to vote for a death sentence. Precisely for this reason, experienced capital counsel as a general practice specifically ask jurors to spare the defendant’s life. See Gary Goodpaster, The Trial For Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N Y. U. L.Rev. 299, 335 (1983). Counsel’s duty is to appeal to conscience, not to ease the exercise of conscience.
Moreover, defense counsel stipulated to the existence of the sole aggravating factor. We explicitly have refused to permit such stipulations when a defendant is seeking not to contest a death sentence. See Koedatich I, supra, 112 N.J. at 327-28, 548 A.2d 939 (noting favorably that trial court had refused to permit the defendant to stipulate to any aggravating factor aside from the existence of a prior-murder conviction). Again the majority, without discussion, draws an untenable distinction, based solely on counsel’s supposed “strategic” choice.
Even if such a strategic choice is permissible, which I doubt, certainly such an option requires the informed consent of the capital defendant. Informed consent can only be found where the defendant has knowledge of the pertinent facts. Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938) (holding that the validity of a waiver “depend[s], in each *318case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused”). But see Koedatich I, supra, 112 N.J. at 330, 548 A.2d 939 (“[A] defendant in a capital ease [is not permitted] to execute even a knowing and voluntary waiver of his right to present mitigating evidence during the penalty phase.”). At most, counsel spoke with defendant for ten minutes about the far-reaching arrangement counsel had made with the prosecutor to forgo a full penalty phase. Ten minutes can never be long enough to discuss such weighty issues and was certainly insufficient here where defendant was recovering from an acute episode that had resulted in his hospitalization and where he could not have been fully focused and coherent. See Savage, supra, 120 N.J. at 620, 577 A.2d 455 (“In a capital trial, where strategy is crucial to the life- or-death determination, the need for adequate pretrial consultation becomes paramount.”).
Further, counsel here did not actively seek out mitigating evidence, thus leaving the penalty-phase jury with something less than a complete picture of defendant. A mitigation specialist who reviewed the trial transcripts, defense counsel’s files, and defense counsel’s copious notes concluded that “the mitigation phase investigation in State v. Marshall did not meet the accepted practice standards for proper trial level mitigation investigation, and was deficient in many respects.” Specifically, “the defense attorney failed to develop a comprehensive social history through interviews with the client, his family or significant others.” Moreover, “the attorney failed to collect the necessary records of documentary evidence to support the social history and he failed to integrate background materials as presented through the records, interviews with the defendant or collateral interviews.”
Counsel’s lack of preparation was confirmed by PCR counsel. PCR counsel reviewed all of the contents of defense counsel’s trial file and the materials in the hands of counsel’s investigator. The files contained complete notes of interviews with defendant and all correspondence. PCR counsel’s findings are astounding:
*319There are no materials in [counsel’s] file that reflect any legal research into any aspects of the death penalty. There is nothing relating to the nature and scope of aggravating or mitigating factors. There is nothing related to jury instructions governing capital cases. Nor is there anything to indicate that [counsel] researched, or discussed with anyone, any motions or requests to charge that might be filed with respect to the death penalty aspect of this case.
... [TJhere were no records, reports or correspondence relating to any background investigation in preparation for a mitigation case. There is nothing to indicate that he consulted with or attempted to retain a social worker or investigator qualified to serve as a capital mitigation specialist. Nor are there any records from any of the schools Mr. Marshall attended, or any childhood medical records. In addition, there are no notes, statements, reports or other indication that [counsel] or [his investigator] spoke with any family members, teachers or longtime friends regarding the defendant’s background.
Shockingly, defense counsel never even consulted with a psychiatrist or psychologist or had defendant examined by a mental-health professional despite the fact that the record contains ample indications that defendant suffered from mental problems. After all, we know that defendant attempted to commit suicide. See ante at 181-200, 690 A.2d at 47-56 (discussing defendant’s “suicide tape”); see also PCR Counsel’s affidavit (“Other than the report of Elliot Atkins, dated February 14,1986, there are no reports from, correspondence with or notes indicating that [counsel] consulted any mental health professionals to evaluate the defendant. From the Atkins report, it is clear that his consultation was limited to an evaluation of the mental status of the defendant on the night he attempted suicide.”).
Moreover, even without such evidence of mental imbalances, the failure to consult a mental-health expert was ineffective. The reason is simple — many capital defendants have issues relevant to mental condition, and the law explicitly permits those defendants to argue that evidence in mitigation. White, supra, 1993 U. Ill. L.Rev. at 339 (“[I]t’s a rare case in which the capital defendant has no mental problems.”). In fact, two out of the seven delineated mitigating factors concern a defendant’s mental capacity. N.J.S.A. 2C:11-3c(5)(a) (“The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution.”); N.J.S.A. 2C:11-3c(5)(d) (“The defendant’s capacity to appreciate the wrongfulness of his conduct *320or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution.”). Further, evidence of psychiatric problems is frequently used by defendants in support of the catch-all mitigating factor, and explicitly has been permitted by this Court. See State v. Martini, 181 N.J. 176, 301-08, 619 A.2d 1208 (1993) (Martini I), cert. denied, — U.S. — , 116 S.Ct. 203, 133 L.Ed.2d 137 (1995).
For counsel to be effective, this evidence must be investigated and presented. “In our view, counsel’s decision to forgo a psychiatric examination when defendant had admittedly participated in such bizarre conduct, and possibly had a history of mental illness and drug abuse, is contrary to professional norms of competent assistance. ‘The usefulness of a thorough evaluation in a case where the capital defendant has problems of this kind is obvious.’ ” Savage, supra, 120 N.J. at 619, 577 A.2d 455 (quoting Burger v. Kemp, 483 U.S. 776, 813, 107 S.Ct. 3114, 3135, 97 L.Ed.2d 638, 669 (1987) (Blackmun, J., concurring)); see also Brewer v. Aiken, 935 F.2d 850, 857 (7th Cir.1991) (finding that “defense counsel’s failure to investigate the mental histories of a [capital] defendant with low intelligence” was ineffective); Stephens v. Kemp, 846 F.2d 642, 652 (11th Cir.) (“[T]rial counsel’s failure to investigate, present and argue to the jury at sentencing any evidence of appellant’s mental history and condition constituted error ‘so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ”) (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); People v. Perez, 148 Ill.2d 168, 170 Ill.Dec. 304, 592 N.E.2d 984 (finding counsel ineffective for failing to present evidence of a capital defendant’s mental history), cert. denied, 506 U.S. 1002, 113 S.Ct. 608, 121 L.Ed.2d 543 (1992).
Not to pursue possible and plausible defenses is the mark of ineffectiveness. Counsel failed to develop not only psychiatric *321mitigation evidence, but he even failed to develop the most common of all mitigation evidence — family circumstances. Robert Marshall’s sister, Oakleigh De Carlo, who was very close to her brother, who moved into his house and cared for his family and personal affairs after his arrest, and who handed defense counsel his payments, was not even interviewed about defendant’s childhood and life. In fact, in a sworn affidavit, Ms. De Carlo stated that defense counsel,
never spoke with me, or to my knowledge, other family members, regarding the possibility of our testifying in the penalty trial. At one point I took it upon myself to give over 100 family photographs to [counsel] to use, in some manner, in my brother’s defense. They were returned to me unused. I would have been prepared to testify about our family history, up-bringing, the relationship of my brother with our parents and other family members, the relationship of my brother with his sons and the effect my brother’s incarceration was having on his sons, especially John, for whom I was caring.
Moreover, defendant’s father, in a pretrial letter, highlighted the powerful role defendant had in the upbringing of his sons: “The boys desperately need [defendant’s] guidance, understanding, moral support and most importantly paternal love.” Even defense counsel understood the strength of this mitigating evidence and noted that defendant’s children “would have been very compelling witnesses at the penalty phase.” That evidence needed to be presented to the penalty-phase jury. See Mak v. Blodgett, 754 F.Supp. 1490 (W.D.Wash.1991) (finding counsel ineffective for failing to offer testimony of family members and others at penalty phase), aff'd, 970 F.2d 614 (9th Cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993); see also Middleton v. Dugger, 849 F.2d 491 (11th Cir.1988) (finding that failure to conduct investigation into defendant’s background to uncover mitigating evidence amounted to ineffective assistance of counsel); Tyler v. Kemp, 755 F.2d 741 (11th Cir.) (finding counsel ineffective for failing to present evidence of spousal abuse and defendant’s care of his children), cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986).
*322Even if we credit counsel’s claims that defendant did not want his sons to testify for fear of how that experience might affect them, there was no reason not to call other family members to testify or to lay out the other options for defendant to decide how to proceed. “Counsel has the obligation, even after receiving such instructions, to ‘evalúate potential avenues and advise the client of those offering potential merit.’ ” White, supra, 1993 U. Ill. L.Rev. at 349 (quoting Blanco v. Singletary, 943 F.2d 1477, 1502 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992)). One of those options was hiring a mitigation expert to review and to testify about defendant’s care for his sons and his general family obligations. Cf. Curry v. Zant, 258 Ga. 527, 371 S.E.2d 647, 648 (1988) (finding counsel ineffective for failing to hire psychiatrist to testify in mitigation at penalty phase). I share the mitigation expert’s opinion “that information concerning Robert O. Marshall exists which could have served as a basis for productive mitigation. However, defense counsel’s failure to investigate properly resulted in this information being unavailable to the sentencing jury.”
The failure to investigate, assemble, and present mitigating evidence is the most basic form of ineffectiveness of capital counsel. “By failing to inquire into the very facts that could support his case in mitigation, counsel’s performance ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” Savage, supra, 120 N.J. at 624, 577 A.2d 455 (quoting Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93). In fact, federal courts have not hesitated to invalidate death sentences for exactly the type of fadings evident here. See, e.g., Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991) (“Mitigating evidence, when available, is appropriate in every case where the defendant is placed in jeopardy of receiving the death penalty. To fail to do any investigation because of the mistaken notion that mitigating evidence is inappropriate is indisputably below reasonable professional norms.”), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992); Jones v. Thigpen, 788 F.2d 1101 *323(5th Cir.1986) (finding capital defense attorney ineffective for presenting no mitigating evidence), cert. denied, 479 U.S. 1087, 107 S.Ct. 1292, 94 L.Ed.2d 148 (1987); Thomas v. Kemp, 796 F.2d 1322 (11th Cir.) (finding capital attorney ineffective because he made no effort to investigate possible sources of mitigating evidence aside from interviewing defendant’s mother), cert. denied, 479 U.S. 996, 107 S.Ct. 602, 93 L.Ed.2d 601 (1986); King v. Strickland, 748 F.2d 1462 (11th Cir.1984) (finding counsel, who had no capital experience, ineffective because he did not search for mitigating evidence, humanize defendant, or present available character witnesses), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985); Osborn v. Schillinger, 639 F.Supp. 610 (D.Wyo.1986) (finding counsel ineffective because he was unprepared for the penalty phase, presented no mitigating evidence, and made a poor closing argument), aff'd, 861 F.2d 612 (10th Cir.1988); see also State ex rel. Busby v. Butler, 538 So.2d 164 (La.1988) (holding that counsel was ineffective when he failed to make opening statement, failed to challenge plaintiffs case, and failed to introduce any mitigating evidence).
Further, the American Bar Association guidelines for capital defense counsel specifically state that counsel “should conduct independent investigations relating to the guilt/innoeenee phase and to the penalty phase of a capital trial.” ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(A) (1990) (emphasis added). Moreover, the guidelines provide that counsel should seek to “discover all reasonably available mitigating evidence.” Id. at Guideline 11.4.1(C); see also Doyle, supra, 8 Yale J.L. & Human, at 426 (“Good capital lawyers collect all of the information — school records, medical history, family memories, the defendant’s own accounts — that bear on the defendant’s humanity.”); Bruce A. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 Iowa L.Rev. 433, 502 (1993) (“[I]t is almost invariably a mistake to present no evidence at the sentencing proceeding.”); Andrea Lyon, Defending the Death Penalty Case: What Makes Death Different, 42 Mercer L.Rev. 695, 705 (1991) *324(explaining that effective capital lawyers “[g]et personal records and objects from the family such as photographs, report cards, favorite books, or even a baseball mitt”); White, supra, 1993 U. Ill. L.Rev. at 341 (“To find mitigating evidence, a capital defense attorney must construct the defendant’s complete social history, exploring all of the significant relationships and events in the client’s life. Experienced attorneys emphasize that the defendant’s social history must be constructed ‘from the ground up.’ ”).
The extent to which defense counsel ignored mitigation evidence is obvious from the record. He served premature notice of the mitigating factors on the State the very same day he filed his pretrial discovery request and only one week after receipt of the notice of death eligibility. Counsel could not plausibly have conducted adequate investigation into the mitigating factors within that one-week time period and prior to the receipt of the discovery materials. Counsel never amended or expanded the scope of mitigation from that originally served on the State, despite his opportunity to do so.
Counsel’s failure in respect of the penalty phase was not limited to his omissions. His superficiality and lack of preparation are evident from his handling of the sole statutory mitigating factor. He thoughtlessly asked that the jurors not be told that the c(5)(f) mitigating factor applied to any defendant with “no significant history of prior criminal activity.” (Emphasis added). Instead he asked that the jurors simply be told that it applied to defendants with no criminal history at all, and he asked that the jurors be told that they must find the factor. By doing this, counsel foreclosed a potentially telling argument — that the mitigating factor applied even to defendants with limited criminal histories and that the jurors should give even more weight to the circumstance that defendant had no criminal history at all. Moreover, by having the court tell the jurors that they must find this factor, defense counsel virtually ensured that the jurors would not discuss the factor. It is not simply the finding of the factor that is important, but also the process of weighing and evaluating the factor and *325then balancing it against any aggravating factors. Competent counsel would have thought through these issues prior to the penalty phase and would have devised far stronger arguments than counsel here raised. This type of error comes from having an attorney unskilled in penalty-phase advocacy. His advocacy fell far below an objective standard of reasonableness. See Davis, supra, 116 N.J. at 356, 561 A.2d 1082 (“We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases.”).
Counsel’s ineffectiveness was also evident in his handling of the difficult jury instructions. He suggested no charge, and he failed to suggest that any limitations be placed on the jury’s use of the guilt-phase evidence. Guilt-phase evidence is rarely applicable in its entirety to penalty-phase issues. Thus, courts must endeavor to explain which evidence is material and relevant and which evidence should be disregarded. State v. Erazo, 126 N.J. 112, 131-33, 594 A.2d 232 (1991). Counsel failed to recognize or deal with this issue. Moreover, he did not explain or ask to have explained to the jurors that they could consider the guilt-phase defenses and evidence in mitigation even though they had rejected that evidence during the guilt phase. Marshall I, supra, 123 N.J. at 139, 586 A.2d 85.
In addition to failing to suggest jury charges, counsel did not object to the erroneous charges that were delivered. He did not object when the trial court failed to instruct the jury that it should disregard its guilt verdict and deliberate anew as to the existence of the murder-for-hire aggravating factor. Marshall I, supra, 123 N.J. at 138-40, 586 A.2d 85. In fact, as previously noted, diametrically contrary to the purposes of this charge, defense- counsel conceded the existence of the aggravating factor. In addition, counsel suggested no charge and raised no objection when the trial court failed to explain or amplify the meaning and function of mitigating factors. See id. at 141-48, 586 A.2d 85; id. at 245-47, 586 A.2d 85 (Handler, J., dissenting). Moreover, he did not protest when the prosecutor blatantly and improperly argued *326victim-impact evidence during the penalty phase. Not a word was heard from defense counsel when the prosecutor stated that “Maria Marshall had no prior criminal history. Maria Marshall was civic-minded, and this defendant did not give her the option of thirty years.” That argument was “inappropriate.” Id. at 163-64, 586 A.2d 85.
Despite the total absence of preparation for the penalty phase and the dramatic occurrences in the brief time between the penalty and guilt phases, counsel never even asked for a continuance. He attempts to exonerate himself by professing to have adopted defendant’s suggestion to “get it over with.” “Getting-it-over-with” is not an acceptable strategy. It is that attitude which makes it imperative that there be a continuance between the guilt and penalty phases.
Most defense attorneys request continuances because they are emotionally and substantively unprepared to proceed with the penalty phase immediately following the guilt phase. The defendant, the jury, and the defense attorney need time to recover emotionally from the capital conviction and to focus on the issue of sentencing. On a substantive level, unless a court grants an attorney representing a capital defendant a continuance, the attorney essentially must prepare for two trials simultaneously. The complexity of the legal rules governing both the guilMnnoeenee and penalty phases of capital trials complicates this preparation and intensifies the need for time.
[Robin E. Abrams, Note, A Capital Defendant’s Right to a Continuance Between the Two Phases of a Death Penalty Trial, 64 N.Y. U. L.Rev. 579, 581-82 (1989).]
See also Berger, supra, 18 N.Y.U. Rev. L. & Soc. Change, at 250-51 (noting that defense attorneys “ ‘try to win ... rather than prepare for losing it,’ [and] are devastated when the client is convicted and afterward just throw in the towel. In one of my eases, the original lawyer, who had done an adequate job at the guilt trial, tried to convince the court to proceed to the penalty phase immediately after the verdict came in late at night — so that he could attend a football game the following day! Perhaps he was not so much callous toward the client as exhausted, depressed, and unattuned to the critical importance of the sentencing stage.”). Counsel emphasized the get-it-over-with approach by agreeing with the prosecution not to bear down in his advocacy that defendant’s life be spared and by not presenting any evidence and *327hardly arguing in mitigation. His final suggestion to the jury to do “whatever you feel is the just thing” illustrated his own disengagement from the penalty jury. His comment that “we can live with” any decision the jury made, assuredly eased the jury’s conscience and raised its comfort level in returning a death sentence; indeed, it was “a virtual invitation to impose the death penalty.” White, supra, 1993 U. Ill. L.Rev. at 341.
In sum, we have here an attorney who was so ineffective at the penalty stage, that Judge Bazelon undoubtedly would label him “a walking violation of the Sixth Amendment.” David L. Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L.Rev. 1, 2 (1975).
D.
The majority, by splintering counsel’s interrelated failings into tiny peccadillos and then weighing those minutiae against the heavy standard used in evaluating claims of ineffectiveness of counsel, not surprisingly finds that no single slip standing alone was significant or consequential enough to establish prejudice. The majority’s approach misses the forest: Defense counsel was grossly ineffective.
The majority characterizes defendant’s contentions as “generalized claims of counsel’s ineffectiveness in the penalty phase,” and dismisses them without even the benefit of a hearing because it is “convinced that defendant has failed to demonstrate a reasonable likelihood that those claims ultimately will succeed on the merits.” Ante at 251, 690 A.2d at 82. The Court does not come close to explaining or supporting the basis for its conviction. While noting that it is “disturb[ed]” about the allegation that defense counsel had no discussions with defendant about the penalty phase, ante at 251, 690 A.2d at 82, and while recognizing the evidence “that trial counsel’s penalty-phase preparation was less than that normally undertaken by experienced counsel,” ante at 251, 690 A.2d at 82, the Court nevertheless finds that defendant has failed to meet not only Strickland’s prejudice prong, but also the prejudice prong as the Court has redefined it. Ante at 251, 690 A.2d at 82.
*328The majority now concludes that “defendant has failed to demonstrate any likelihood that an evidentiary hearing would produce proof that would show that there is a reasonable probability that, but for counsel’s unprofessional errors, the jury’s penalty-phase deliberations would have been affected substantially.” Ante at 258, 690 A.2d at 83 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). The Court reaches this conclusion based on its finding that “the contention that proper investigation and preparation would have unearthed new mitigating evidence that probably would have affected substantially the penalty-phase deliberations is simply too speculative to warrant an evidentiary hearing.” Ante at 253, 690 A.2d at 83.
The Court’s conclusions are unacceptable. Even under its redefinition of the prejudice prong, I can find no case, and the majority cites not one, that stands for the proposition that a hearing can be denied even if a defendant establishes that his counsel fell far below an objective standard of reasonableness. Defendant had next to no opportunity to introduce evidence that counsel could or should have used in mitigation. Despite this, evidence does exist in the record now before the Court that flatly contradicts the majority’s rash conclusion. There is substantial evidence that defendant was a good father to his sons and that his execution would have a detrimental impact on them. Moreover, the majority fills over a page of its opinion by simply listing the evidence that defendant contends constituted mitigating evidence that should have been investigated, presented, and argued during the penalty phase. Ante at 255-256, 690 A.2d at 84-85. Then to pretend that defendant does not claim that such evidence exists is disingenuous. I find it hard to imagine that the majority seriously believes that no aspect of defendant’s life and character could have and should have been considered in mitigation of the punishment of death. Why is the Court afraid of giving defendant the opportunity to establish whether or not such mitigating evidence exists?
As for the little mitigating evidence upon which the majority stumbles, it actually concedes that such evidence could “possibly *329[have been] beneficial to defendant.” Ante at 256, 690 A.2d at 84. Yet, the Court, with no analysis, discussion, or factual basis, concludes that the evidence “posed the clear risk of an adverse jury reaction.” Ante at 256, 690 A.2d at 84. Thus, despite concluding that the evidence could be helpful to the defense, the Court falls back on the proposition that defendant did not show that counsel’s performance was unprofessional. Ante at 256-257, 690 A.2d at 84-85. Of course, the Court does not reconcile this holding with its earlier holding that counsel’s failure to investigate mitigating evidence was unprofessional. Moreover, one cannot consider counsel’s strategy reasonable, as the majority appears to do, because it was not “proceeded by a ‘thorough investigation of law and facts’ and a consideration of all ‘plausible options.’” Savage, supra, 120 N.J. at 618, 577 A.2d 455 (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; see also Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir.) (“[Strategy resulting from lack of diligence in preparation and investigation is not protected by the presumption in favor of counsel.”), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991).
In any event, I maintain that counsel’s deficient performance had the clear capacity to affect both the deliberations and the ultimate imposition of the death sentence. What the Court appears to be saying is that given the heinous nature of this offense — a proposition that I fully recognize — no mitigating evidence could possibly have persuaded the jury to impose anything but the death penalty. See ante at 251, 690 A.2d at 82 (“The nature of the crime of which defendant was convicted diminishes the likelihood that the types of mitigation evidence commonly used in capital case would have had a positive impact on the jury.”). The Court, in effect, itself evaluates and weighs the omitted mitigating evidence that is now belatedly proffered and determines that it comes to naught. It is an arrogant arrogation of the *330jury’s own nondelegable responsibility to determine whether a defendant deserves to die. In the guise of appellate review, the Court engages in the most wolfish fact-finding. In launching its argument that introducing mitigating evidence in this case would have been futile, the majority verges perilously close to a holding that the death penalty was mandatory in this circumstance. Such a proposition violates fundamental principles of death-penalty jurisprudence. See Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
Prejudice must be presumed when counsel’s failings are as serious as these. “[W]hen the level of counsel’s participation makes the idea of a fair trial a nullity prejudice need not be shown, it is presumed.” State v. Jack, 144 N.J. 240, 249, 676 A.2d 545 (1996) (citing Cronic, supra, 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668); see Fritz, supra, 105 N.J. at 61, 519 A.2d 336. Counsel conducted no investigation, put on no evidence, made no legitimate arguments, and mounted no defense. When counsel fails to demonstrate minimal competence and when his decisions cannot be considered strategic because he failed to conduct any substantial investigation, prejudice is presumed. Savage, supra, 120 N.J. at 619, 577 A.2d 455. We have before us a case of counsel being so ineffective during the penalty phase that defendant might as well have had no counsel at all.
It no longer can be debated that capital trials call for professional experience and skill beyond that required of an attorney in the typical criminal case. It comes as little surprise to me that the first capital defendant facing execution in New Jersey since the resurrection of the death penalty was represented by an attorney untrained and inexperienced in capital cases. His handling of the ease — particularly the penalty phrase — was grossly incompetent and unprofessional. The prejudice that flows from that massively ineffective representation — the irremovable prospect that defendant’s life might have been spared — is patent.
*331III
Defendant was found guilty of capital murder and sentenced to death by a jury not qualified to render either decision. This ineluctable defect in the prosecution reverberated through every critical aspect of the trial of this case. Its significance on post-conviction review is that it exacerbated the prejudice that flowed from defense counsel’s gross incompetence and ineffectiveness.
During voir dire, defense counsel requested that the trial court qualify, for purposes of the guilt phase, prospective jurors who otherwise would be excludable because of their views on the death penalty; such jurors would be replaced by death-qualified jurors in the event of a penalty phase. He argued that this distinction between the guilt and penalty phases was the only way that defendant could receive a fair trial since a death-qualified guilt-phase jury would be conviction-prone. The court rejected the request. Counsel then requested that the court not engage in any death qualification of prospective jurors beyond their superficial voir dire questionnaire responses. Both the State and the court agreed to this second request.
Because of defense counsel’s “strategic decision” not to death-qualify the jury before the guilt phase, the jury was unaware of the full “legal effect” of its decisions. See State v. Mejia, 141 N.J. 475, 485, 662 A.2d 308 (1995). Even more disturbing, counsel’s decision to forgo death qualification at the outset of the trial resulted in a penalty-phase jury that was far from fully informed about the awesome task with which it was confronted. Furthermore, the jury may have included one or more death-prone jurors who were predisposed to sentence defendant to death. Additionally, because the jury may not have fully understood the differences between the guilt and penalty phases, it could have been, consciously or subconsciously, unduly influenced and induced by its recent guilt determination to impose the death sentence. Counsel’s ineffectiveness in this regard requires vacation of defendant’s death sentence.
*332A.
I begin with an obvious proposition, namely, that in any criminal prosecution, jurors must be fair and impartial. Williams I, supra, 93 N.J. at 60-62, 459 A.2d 641. Voir dire serves the essential function of culling potentially biased jurors from the jury venire. Id. at 69, 459 A.2d 641. During voir dire, either the court or the parties inquire into potential jurors’ views about a variety of subjects relevant to their ability to be impartial. For example, jurors are often asked about their attitude toward law enforcement, their comprehension of the presumption of innocence, and their ability to view graphic photos dispassionately. Indeed, a defendant may be constitutionally entitled to inquire during voir dire into a subject that is highly relevant to ensuring that he receive a fair trial. See, e.g., Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (holding that, because of interracial nature of case, defendant was entitled to inquire about prospective jurors’ racial attitudes).
Although jurors in all criminal cases must be able to follow the law regarding a variety of subjects, the requirement is enhanced when a defendant’s life is at stake. Williams I, supra, 93 N.J. at 61, 459 A.2d 641. Capital jurors must understand with unmistakable clarity the importance during a capital trial of adhering to their oath to consider the evidence fairly and impartially. Consequently, a capital jury, perhaps more than other juries, must be aware of the absolute impermissibility of racial bias, the improper use of photos, and the improper consideration of evidence admitted for a limited purpose. See id. at 68-69, 459 A.2d 641 (stating that trial courts must take extra care in capital cases to counteract juror exposure to pretrial publicity); see also Ramseur, supra, 106 N.J. at 427, 524 A.2d 188 (Handler, J., dissenting) (“A searching voir dire is especially critical in cases where the defendant is exposed to the death penalty.”). A trial court must ensure that jurors seated for a capital case, at either stage, are truly able to put aside their biases and to evaluate the evidence as instructed. Jurors must comprehend the formidable task facing them and the *333life-or-death consequences that their evaluation of the evidence will entail.
Jurors’ views about the death penalty are particularly relevant during voir dire in a capital case because a capital jury must be composed of jurors who are able and willing to impose a sentence as required by law and who are neither staunch opponents nor staunch proponents of the death penalty. Consequently, although jurors expressing qualms about capital punishment may not be excused simply for harboring such qualms, they must be removed if their reservations will “substantially impair” their ability to follow the law. Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980). Moreover, jurors biased in favor of the death penalty must be removed for cause at a defendant’s request. Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). In general, capital jurors must be able to follow the law regarding capital punishment, including both the determination of death eligibility as well as the actual imposition of the death penalty.
Adequate voir dire during capital cases thus serves the indispensable function of ensuring that the jury is neither predisposed regarding the death penalty generally (either pro or eon) nor biased regarding more specific trial issues that may arise in any criminal ease but that take on greater importance during a capital trial (e.g., the type of offense involved, the status of the victim, graphic photos, and racial issues). Such “death qualification” is essential to a fair trial.
B.
One component of the necessity that capital juries be as unbiased as possible is the requirement that juries understand the legal effect of their decisions. Mejia, supra, 141 N.J. at 485, 662 A.2d 308; Ramseur, supra, 106 N.J. at 311, 524 A.2d 188. Consistent with this principle, we have not hesitated to require trial courts to provide both guilt- and penalty-phase juries -with information critical to full knowledge of the impact of their various *334decisions. State v. Loftin, 146 N.J. 295, 370-72, 680 A.2d 677 (1996) (Loftin I) (requiring trial courts to inform juries of parole ineligibility in the event of a noncapital sentence); Mejia, supra, 141 N.J. at 485-87, 662 A.2d 308 (requiring that jury be informed of noncapital alternative sentences and be instructed that a non-unanimous verdict regarding theory of murder would result in noncapital sentence); State v. Brown, 138 N.J. 481, 511-14, 651 A.2d 19 (1994) (requiring that jury be informed of effect on death eligibility of nonunanimous decision about whether defendant was principal or accomplice); State v. Bey, 129 N.J. 557, 600-01, 610 A.2d 814 (1992) (Bey III) (similar holding to Loftin I), cert. denied, — U.S. — , 115 S.Ct 1131, 130 L.Ed.2d 1093 (1995).
Our insistence that capital juries be informed during both phases about the true consequences of their decisions reflects their role as the “conscience of the community.” State v. Perry, 124 N.J. 128, 166, 590 A.2d 624 (1991). It also reflects the reality that almost every decision that a capital jury makes at either phase has an impact on the ultimate determination of whether the defendant will live or die.
Death qualification is an indispensable condition and an essential element of ensuring that capital juries are willing and able to appreciate the legal effect of their decision. At the penalty phase, a defendant is entitled to a jury that is not predisposed to impose death and that fully understands the awesome task with which it is entrusted. At the guilt phase, a defendant is entitled to a jury that understands how its guilt-phase decisions will impact on the ultimate death determination and that will make its guilt decisions with such life-or-death ramifications in mind. Loftin I, supra, 146 N.J. at 409, 680 A.2d 677 (Handler, J., dissenting).
I continue to adhere to the view that capital defendants are constitutionally entitled to distinct guilt-phase and penalty-phase juries. Marshall I, supra, 123 N.J. at 222-23, 586 A.2d 85 (Handler, J., dissenting). Employing only one jury fails to account for the different forms of death qualification necessary at each stage to apprise the jury of the legal effect of its decisions, to *335emphasize the magnitude of those decisions, and thus to ensure that the jury is impartial. The guilt-phase jury must be “mildly” death-qualified so that it understands the legal effect of its guilt decisions without being so death-qualified as to be conviction-prone. By contrast, the penalty-phase jury must be fully death-qualified so that it understands, in no uncertain terms, the magnitude of its decision. See Lofbin I, supra, 146 N.J. at 411-12, 680 A.2d 677 (Handler, J., dissenting) (describing nature and purpose of limited guilt-phase death qualification).
To subject a defendant to a single jury effectively confronts him with a Hobson’s choice: either fully death-qualify the jury before the guilt phase, which may result in a conviction-prone guilt jury and an acceptable penalty jury, or do not fully death-qualify the jury before the guilt phase, thus increasing the odds of a fair guilt-phase jury, while allowing hanging jurors to be seated for the penalty phase. Id. at 410-12, 680 A.2d 677 (Handler, J., dissenting). As I stated in Marshall I:
[I]t is unconstitutional to determine the guilt of a capital defendant with a death-qualified jury. But the constitutional offense is infinitely greater if a death sentence is imposed on a capital defendant by a jury that is not death-qualified. The former risks an unfair conviction; the latter risks an unfair sentence of death.
[123 N.J. at 224, 586 A.2d 85 (Handler, J., dissenting).]
Despite my firm conviction that separate guilt- and penalty-phase juries are constitutionally required, I recognize that the Court does not share this position. Ante at 227-228, 690 A.2d at 69-70. Fortunately, however, several lesser options are available that alleviate, even if they do not eliminate, the constitutional harm occasioned by restricting a capital defendant to one jury. The first option is to empanel two juries from the outset of the trial, one mildly death-qualified and one fully death-qualified. The mildly death-qualified jury would deliberate at the conclusion of the guilt phase, while the fully death-qualified jury would deliberate at the conclusion of the penalty phase. This procedure would avoid forcing a defendant to choose between a tainted guilt-phase jury and a tainted penalty-phase jury. It also would avoid the expense and inconvenience of empaneling a penalty-phase jury *336after the guilt phase is concluded and requiring a rerun of the guilt-phase evidence during the penalty phase.
A second, related, option is to empanel one mildly death-qualified jury for the guilt phase with a significant number of alternates. Before the penalty phase, the trial court could fully death-qualify the jury, replacing any ineligible jurors with eligible alternates. Again, this would reduce the expense and inconvenience of qualifying a new penalty-phase jury and would go a long way in preserving a capital defendant’s constitutional rights.
There are alternatives to the present system, including the use of separate juries. In no event should we should abdicate our constitutional responsibility to provide capital defendants with fair, impartial, and fully informed juries by throwing up our hands because separately qualified juries are “too difficult” or “too expensive.” When a life is at stake, concerns about the time and expense of empaneling a separate jury become truly petty.
C.
Given the high degree of interdependence between the two phases and the current use of a single jury, capital counsel must make death-qualification decisions with both phases of the proceeding in mind. Failure to fulfill this requirement can be characterized only as ineffective.
In this case, the trial court initiated the constitutionally defective process during voir dire by denying defense counsel’s motion for a separate penalty-phase jury; defense counsel completed the error-laden process by then requesting that the court not engage in any death qualification apart from the superficial juror questionnaires. The court thus committed reversible error by refusing to empanel dual juries, and counsel compounded the court’s error by his elimination of all death qualification, an act that clearly constituted ineffective assistance of counsel.
The Court terms defense counsel’s decision “a debatable yet reasonable gambit designed to avoid a ‘conviction-prone jury’----” *337Ante at 227, 690 A.2d at 69. As I have observed previously, to the extent that the Court views such a decision as reasonable, it embraces the contention that fully death-qualified guilt-phase juries are conviction-prone. Marshall I, supra, 123 N.J. at 222-23, 586 A.2d 85 (Handler, J., dissenting). Obviously, if such juries are conviction-prone, then full death qualification can never be allowed before the guilt phase because the process will yield biased juries. Conversely, to the extent that the Court rejects the contention that fully death-qualified guilt-phase juries are conviction-prone, it .affirms the proposition that defense counsel’s failure to request death-qualification in this case was abjectly ineffective because, assuming that such juries are not conviction-prone, death qualification before the guilt phase would have had no effect on the guilt phase and would have ensured a more impartial penalty-phase jury. The Court cannot have it both ways, but, in its grim desire to nail down this death sentence, it attempts to do precisely that. I would require a hearing to have counsel explain his “strategy” in forgoing all death qualification rather than have this Court impute to counsel its own flawed conception of proper strategy.
Even if the Court somehow engages in sufficient logical acrobatics to overcome (at least superficially) the paradox inherent in its disposition of this portion of the claim, it must admit that defense counsel’s failure before the penalty phase to request that the jury be death-qualified was ineffective. The Court implicitly concedes that this choice was unreasonable by skipping to the prejudice prong of the Strickland/'Fritz test. Ante at 227-228, 690 A.2d at 69-70. Such a concession of unreasonableness is unavoidable because no possible strategic choice could justify counsel’s failure. While his request that the jury not be death-qualified before the guilt phase arguably may have been “strategic” in its avoidance of a conviction-prone jury, his failure to request that the jury be death-qualified before the penalty phase can only indicate incompetence.
The Court avoids even discussing defense counsel’s embarrassingly deficient performance in this respect by arguing that defendant was not prejudiced because the trial court would not and *338should not have granted the request. The trial court should have granted the motion had it been made because separate juries, or at least fully death-qualified penalty-phase juries, are constitutionally required. Certainly, at a minimum, the trial court, if requested, would have been compelled to question the penalty-phase jurors to determine that no death-prone jurors were sitting at the penalty phase.
Counsel’s request that the trial court not death-qualify the jury before the guilt phase and his failure to request death qualification of the penalty-phase jury both constituted ineffective assistance of counsel. Guilt-phase juries must appreciate the legal effect and moral significance of their decisions, while penalty-phase juries must be impartial regarding the death penalty. In particular, defendant was prejudiced by the possibility that jurors predisposed toward capital punishment or otherwise-biased jurors remained on the panel during the penalty phase. Penalty-phase jurors must be able to evaluate aggravating and mitigating factors and to balance them fairly. Morgan, supra, 504 U.S. at 728, 112 S.Ct. at 2229, 119 L.Ed.2d at 502-03. Yet, we will never know whether one or more of the jurors who sentenced defendant to die were unwilling or unable to perform this task, because defense counsel did not think to ask them.
D.
The ineffectiveness of defense counsel’s failure to request that the penalty-phase jury be death-qualified takes on even greater significance when viewed in the overall context of this case. Counsel’s decision not to death-qualify the jury prior to the guilt phase allowed jurors biased in favor of the death penalty to remain on the jury. Those jurors subsequently convicted defendant of capital murder (implicitly concluding that he had lied in his testimony) and then immediately — without more than a short break and without any type of death qualification — proceeded to the penalty phase. Pro-death jurors were thus propelled by several factors, including their recent and vivid decision to convict, *339the lack of adequate voir dire to impress on them the magnitude of the penalty-phase decision, and the lack of instructions about the importance of mitigating evidence. On the flip side, jurors with qualms about the death penalty received absolutely no support from either counsel or the court to strengthen their resolve to hold out during penalty deliberations and not to cave in to pressure from pro-death jurors who had the momentum of a fresh murder conviction to aid them in their efforts to persuade. Cf. Ramseur, supra, 106 N.J. at 300-18, 524 A.2d 188 (predicating analysis on the permissibility of pro-life holdout jurors).
Counsel could have attempted to stem this morbid tidal wave and to provide ammunition to jurors with qualms about capital punishment. He could have done so via death qualification before the penalty phase; he could have done so by requesting a continuance — a “cooling off period” of sorts — between the two phases; he could have done so by presenting adequate mitigating evidence and presenting the jury with more than a superficial summation; and he could have done so by encouraging the trial court to provide the jury with adequate instructions on the importance of mitigating evidence. Yet he took none of these steps.
Counsel’s utter failure to distinguish between the two phases in his “strategic” death-qualification decisions and his allegedly “strategic” failure to appreciate the impact of the guilt phase on the penalty phase can only be described as a classic case of ineffective assistance of counsel.
IV
The history of this case is a history of discovery violations. These violations are so numerous, continuing, and serious that one must wonder whether the prosecutor purposefully withheld vital information from the defense in an effort to assure a conviction. Over one-hundred separate discovery violations have been identified so far. The violations have so permeated this prosecution that even before the direct appeal, we felt compelled to remand for hearings on the matter. Marshall I, supra, 123 N.J. at 171-207, *340586 A.2d 85. Despite this rather astounding background, the Court masterfully avoids disturbing defendant’s conviction and death sentence by considering each separate violation in a vacuum, thereby dispelling their cumulative effects and minimizing the impact of the State’s persistent course of conduct in violating its discovery obligations.
Admittedly, many of the discovery violations, when viewed in isolation, provide no basis on which to upset defendant’s conviction and death sentence. However, several of the specific items not timely disclosed do rise to the level of constitutional violations. Further, the frequency with which our discovery rules were violated in this case generates the strong implication of prosecutorial misconduct. Even more disturbing, the Court’s short-shrifting of these rampant discovery derelictions, in a death-penalty case no less, raises the ugly specter of the State bending rules in an effort to obtain a person’s execution, and the Court’s acquiescence in that effort. The majority’s approach, a complete rejection of defendant’s claims without any opportunity for an examination of the prosecutors’ motives, is unsatisfying and ensures that we will never learn whether these fears — plausibly expressed — are grounded and justified. Its ruling eviscerates post-conviction relief.
A.
For nearly a decade now, documents have come to light that were in the prosecutor’s possession, that were discoverable under New Jersey’s broad discovery rules, and that were not turned over to the defense in this case. It seems that with every new hearing on the issue and with every new press report about the case, more information is unearthed establishing the State’s violations of its discovery obligations.
Even prior to trial, it was clear that prosecutors were resisting the disclosure of information that was material to the defense. For example, the State refused to supply notes of interviews with the codefendant’s alibi witnesses until the month of trial. The *341prosecutors even refused to turn over notes regarding defendant’s statements to State witnesses until ordered to do so by the trial court. Moreover, reams of documents related to the Marshalls’ financial situation were never produced.
During the trial, it became abundantly clear that the State had utterly failed to meet its obligations. Not only did the prosecution use undisclosed notes of its interviews with defense witnesses to cross-examine defendant and his sister, but it used defendant’s own statements against him, even though those statements previously had not been disclosed. In one incident, the trial court was forced to preclude the State from eliciting testimony from Sarann Kraushaar regarding defendant’s statements to her because the State had not disclosed those statements until the morning of her direct examination. Repeatedly, the State failed to turn over curriculum vitae for expert witnesses and bases of the opinions that those witnesses had formed. For example, the State did not provide a report by George Hickman, the State’s tire expert, including statements of all facts and opinions to which Hickman would testify and a summary of the grounds for those opinions as required by Rule 3:13-8. The State relied on his testimony to establish that defendant’s assertion that he had pulled over to the side of the road because of a flat tire had been false. Moreover, the State did not turn over any of the handwritten notes regarding the examinations conducted by Hickman and his assistant, Gail Tighe.
The extent of the discovery violations and the seriousness of those violations became clear soon after the trial had concluded in this case. In 1989, the New York Times ran an article revealing that prosecutors had promised not to prosecute one of the State’s most important witnesses — Sarann Kraushaar — in return for her testimony. This Court ordered a remand to determine the scope and impact of the nondisclosures. During the remand hearing, the State conceded that the immunity agreement had been discoverable and had been in the State’s possession. The State, however, maintained that the failure to disclose the documents had not *342been willful, and it argued that the prosecutor and investigators who had come into contact with the immunity correspondence had not been involved in the discovery process in this case. Further, the State argued that the documents had been misfiled and placed in the “correspondence file,” not the “discovery file.” The State contended that all discoverable documents were supposed to be placed in a discovery folder and that the principal case agent then, with the assistance of the prosecutor, would disclose the items to the defense. Appearing to accept the State’s explanation, the trial court ordered that the entire contents of the State’s discovery and correspondence folders be turned over to the defense. The next day, the State announced that “[t]here was no discovery file.” In reviewing the correspondence folder, the defense located two further discoverable documents that had never been turned over. Those documents related to payments made to another key witness, Billy Wayne McKinnon.
Despite the unearthing of yet another violation and the State’s misrepresentation regarding the existence of a discovery file, the trial court concluded that the State’s actions had not been willful. The court pointed to the State’s evidence establishing that Edward Murphy had been the principal ease agent responsible for discovery. It concluded that only the county prosecutor and Investigator Mahoney had been aware of the immunity agreement and that the agreement had been misfiled. It also refused to consider any issue regarding the McKinnon financial letters, emphasizing the limited scope of the remand. Moreover, despite the violations, the court declined to order the State to turn over all of its files. This Court upheld those rulings and concluded that the Kraushaar immunity agreement realistically could not have affected the results had it been properly disclosed. Marshall I, supra, 123 N.J. at 171-207, 586 A.2d 85. But see id. at 209-11, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part) (finding that nondisclosure of immunity agreement had violated Brady because of the possibility “that had the promise been disclosed to the defense, the result of the proceeding would have been different in the sentencing phase”); id. at 228-31, 586 A.2d 85 (Handler, *343J., dissenting) (finding that nondisclosure was material and potentially affected the verdict).
Many more discovery violations have been uncovered by the defense since the direct appeal, including several that directly impact the testimony of the State’s witnesses at the remand hearing just discussed. For example, in an entirely different capital case, the State disclosed the existence of a “death ledger.” This ledger listed the principal investigator responsible for each homicide in Ocean County. Investigator Mahoney was named as the investigator responsible for managing the investigation, the evidence file, and all discovery matters in the Marshall case. This flatly contradicted Mahoney’s testimony at the remand hearing when he stated that he was neither involved with nor responsible for discovery in this case. The trial court substantially relied on this testimony in determining that the nondisclosure of the Kraushaar immunity agreement was not willful. It should be recalled that Mahoney knew about the immunity agreement, but that the trial court determined that Murphy, not Mahoney, was responsible for discovery in the case.
The defense also unearthed other blatant discovery violations. For example, in 1995, defendant’s PCR counsel located an eight-page typewritten statement that State witness James Davis had made to police on December 20, 1984, when Davis was under indictment for the murder of Mrs. Marshall. Despite the fact that this statement was undoubtedly the basis on which the prosecution, on the very same day of Davis’s statement, changed Davis’s status from a murder defendant to a material witness, the statement was never turned over to the defense. In fact, the statement was not even mentioned during Davis’s testimony, and during trial, the prosecutor maintained that Davis’s status had been changed only as a result of McKinnon’s statement to the police.
Based on this glut of discovery violations, defendant moved prior to the PCR hearing for further discovery. The defense sought specific items that it had come to believe had been withheld *344as well as complete discovery of the State’s file based on the State’s track record of dissembling and nondisclosure. Although the trial court entertained defendant’s specific requests for documents, the court repeatedly denied his request for disclosure of the entire file. Basing his requests on interviews with those witnesses who agreed to speak with the defense, documents previously disclosed, testimony adduced at the trial, and statements made by officials in other trials and on “The Phil Donahue Show,” defendant was able to identify stacks of undisclosed items. In the end, the State was forced to turn over approximately one-hundred items. However, the trial court refused to permit discovery into alleged attorney work-product and only permitted disclosure of items that the defense could establish likely existed and were material.
Despite the revelation of the State’s obdurate refusal to honor its discovery duties, ample evidence exists that the prosecutors to this day have withheld information. For example, the State requested that the FBI compare latent prints lifted from the murder scene with those of a “James Otis Howard.” Obviously, any information inculpating another person in the offense must be considered exculpatory of defendant, yet no information on James Otis Howard has been produced.
Included within the newly disclosed items were many vital pieces of information. The belatedly released documents detailed McKinnon’s role as an informant for the FBI and the FBI’s investigation of him for federal offenses; information related to the investigation of Steve Thompson as a suspect and his alibi in Atlantic City; information and search warrant applications pertaining to Sarann Kraushaar; and information and documents related to the seizure of the “suicide tape.” Although all of these documents are potentially Brady material, I will only detail here the discovery violations related to the suicide-tape claim.
A key piece of trial evidence against defendant was the so-called “suicide tape,” in which he made several statements linking him to McKinnon and expressing his belief that he would be indicted for *345his wife’s murder. Defendant cheeked into a motel and attempted to mail the tape to his attorney. He placed the tape in an envelope, on the front of which, he wrote that the envelope was “[t]o be opened only in the event of my death.” The police, upon discovering that defendant was at the motel, entered the lobby and seized the envelope containing the tape without having obtained a warrant.
At the suppression hearing for the tape, the main issue was whether defendant had placed it into a closed mailbox in the motel lobby or whether he had left it on an open mail tray. If the tape was exposed on a tray, then the police could have seized it under the plain-view exception to the warrant requirement, because they would have seen the statement printed on the envelope. However, if it was in. a closed mailbox, then the plain-view exception would not apply and the seizure would be invalid. Cf. State v. Hempele, 120 N.J. 182, 203, 576 A.2d 793 (1990) (“The critical issue is whether the container conceals its contents from plain view.”).
The nature of the mail receptacle was thus the key issue on the motion to suppress. At the hearing, Investigator Mohel, and Zillah Hahn, the front desk manager, testified that the mail depository had been an open box that sat on the counter. The open box was even admitted into evidence at the suppression hearing. Also testifying was Paul Rokoczy, the motel’s night manager. He stated that the only mailbox had been a closed box with a slot. Defendant’s testimony conformed with Mr. Rokoczy’s. The trial court, however, concluded that the mail receptacle had been an open tray.
During the PCR hearings, defense counsel uncovered an August 23, 1985 memorandum written by Investigator Murphy that detailed statements made by the State’s witnesses. The memorandum in question strongly supported the defense’s position during the suppression hearing and flatly contradicted the statements of the prosecution witnesses. It was prepared by the investigators one year after the incident in question but prior to the suppression *346hearing. In it, the officers stated that they had spoken with Hahn, who had stated that the mailbox currently being used by the motel was a closed box with “a slot in the top and a hindged [sic] door in the bottom to remove the mail.” Prior to the installation of the box, the motel had used a tray. Hahn could not recall the date when the tray had ceased being used and the new mailbox had gone into operation. This flatly contradicted Hahn’s testimony at the suppression hearing at which she had stated that the tray had been used on the night in question.
The memorandum also stated that the investigators had spoken with the owner of the motel, Mr. Tajfel. Tajfel also had stated that the hotel was then using a closed box but previously had used an open tray. He “stated that to the best of his knowledge the present [closed] mailbox had been in use for approximately 2 years.” To confirm that information, the investigators spoke with the person who actually had built the closed box. He stated that he had built it two years earlier and one year before the date in question.
Thus, the only witnesses who consistently professed that the mail receptacle was an open tray were the two officers who had seized the tape. By contrast, defendant and every employee of the hotel had stated, at least initially, that the receptacle was closed. The PCR court nevertheless concluded that the violation was not material.
It is with this litany of unending discovery violations, only a very few of which I have mentioned or detailed, that we must evaluate defendant’s PCR claims and defendant’s right to review the State’s files.
B.
As a preliminary matter, I take issue with the Court’s reformulation of the materiality test for constitutional discovery violations in capital cases to require that there be a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Ante at 156, 690 A.2d *347at 34 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985)). In Marshall I, because defendant specifically had requested the withheld information, the Court applied the lower standard enunciated in United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342, 350 (1976), namely, that a discovery violation would be deemed reversible error if the violation “might have affected the outcome of the trial.” Marshall I, supra, 123 N.J. at 199-200, 586 A.2d 85. The Court equated this standard with harmless-error analysis. Id. at 200, 586 A.2d 85 (citing State v. Carter, 91 N.J. 86, 114, 449 A.2d 1280 (1982)). Of particular importance, this Court in Marshall I specifically rejected the State’s suggestion that it apply the higher Bagley “reasonable probability” test to situations in which the defendant specifically had requested the withheld information, instead reserving that standard for unrequested information. Ibid.
Recently, we implicitly held in State v. Knight, 145 N.J. 233, 678 A.2d 642 (1996), that the Bagley “reasonable probability” standard applied to all discovery violations. Id. at 247, 678 A.2d 642. Of course, Knight was not a capital case, thus justifying its simplification of materiality analysis. However, the Court engaged in a hypothetical discussion of the relevance of Marshall I’s rejection of the Bagley standard:
To the extent that Marshall [I] is inconsistent with that recognition [i.e., that the Bagley standard is simpler and thus preferable], Marshall [I] may be understood to reflect our view that the defendant in that case had not established the materiality of the Brady violation even under the less demanding standard imposed by Agurs in specific-request situations.
[Ibid.]
The Court now converts this dictum into a broad rule governing all materiality inquiries in both capital and noncapital cases. Ante at 154-156, 690 A.2d at 33-34.
However, despite Knight’s hypothetical treatment of Marshall I, nothing in Knight dictates that the higher Bagley standard apply in this case because, unlike Knight, this is a capital case. I have stressed on numerous occasions that because capital cases *348are qualitatively different from other criminal matters, courts must afford capital defendants heightened procedural protections. E.g., DiFrisco II, supra, 137 N.J. at 530, 645 A.2d 734 (Handler, J., dissenting) (advocating heightened capital standard for ineffeetive-assistanee-of-counsel claims in capital cases); Davis, supra, 116 N.J. at 400-13, 561 A.2d 1082 (Handler, J., concurring in part and dissenting in part) (same); Ramseur, supra, 106 N.J. at 409, 427-28, 444-45, 524 A.2d 188 (Handler, J., dissenting) (urging heightened standard in various contexts in capital cases). I believe that the same rationale applies in the context of constitutional discovery violations by the State. I thus would hold explicitly that although the higher Bagley “reasonable probability” standard applies to all noncapital cases, the lower Agurs “reasonable possibility” standard applies to capital cases, at least where, as here, the defendant specifically requested the withheld information.
The Court errs by haphazardly extending Bagley’s almost insurmountable standard to the capital context. When a life is at stake, we should be truly hesitant to condone prosecutorial withholding of relevant and potentially exculpatory evidence.
C.
In addition to applying a materiality standard that is too high, the Court underestimates the effect of the nondisclosure of at least two pieces of evidence and disregards the cumulative effect of all of the discovery violations. Both Justice O’Hern and I have already had the opportunity to discuss the impact of the Kraushaar immunity agreement, see Marshall I, supra, 123 N.J. at 209-11, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part), 228-31, 586 A.2d 85 (Handler, J., dissenting), and I will not repeat that discussion here except to note that items uncovered since that decision, like the “death-ledger,” cast grave doubts on the State’s position that the withholding of the agreement was not willful.
*349As serious as the failure to disclose the immunity agreement was the failure to disclose the “suicide tape” memorandum. The Court is forced to engage in logical gymnastics to avoid concluding that the memorandum, which flagrantly contradicts the State’s witnesses and positions regarding the type of mailbox, was not material. The Court today applies a new extra-high standard of deference to the PCR court’s finding of nonmateriality, according it “special weight” because “[w]e are ... faced with an unusual situation in which the original finder of fact has the opportunity to rule on the materiality of the withheld information____” Ante at 186-187, 690 A.2d at 49-50.
I strongly disagree with the Court’s “special” deference to the PCR court’s factual finding. First, the fact that the PCR court was the same court that decided the suppression issue is not cause for extra deference; to the contrary, it may merit less deference because the court may lack the perspective necessary to make a reliably objective decision. Here, the trial court erroneously denied the defense request to view the memorandum before trial and subsequently discredited the defense witnesses regarding this very subject. The trial court now maintains that credible evidence undermining every aspect of the State’s case would not have altered its legal conclusion. That determination is not the type of fact-finding that warrants such special deference because the trial court’s finding goes solely to the issue of materiality, a partially legal issue that we are quite capable of evaluating. See Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir.1987) (“Materiality of evidence under Brady is a mixed question of law and fact”), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988); State v. Landano, 271 N.J.Super. 1, 36 n. 13, 637 A.2d 1270 (App.Div.) (citing Carter v. Rafferty for proposition that “the Law Division’s resolution of questions pertaining to materiality are not entitled to the same degree of deference that is to be accorded its determination of factual issues”), certif. denied, 137 N.J. 164, 644 A.2d 612 (1994); see also Cornell v. Nix, 976 F.2d 376, 382-83 (8th Cir.1992) (same as Carter v. Rafferty), cert. denied, 507 U.S. 1020, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993); United States v. Rivalta, 925 F.2d *350596, 598 (2d Cir.) (same), cert. denied, 502 U.S. 875, 112 S.Ct. 215, 116 L.Ed.2d 173 (1991); United States v. Buchanan, 891 F.2d 1436, 1440 (10th Cir.1989) (same), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990).
Second, under any standard, the PCR court’s finding was clearly erroneous. The Court’s new materiality standard, mistakenly applied in this capital case, is whether a “reasonable probability” existed that the discovery violation affected the result of the proceeding. Ante at 155-156, 690 A.2d at 33-34. This standard does not require a defendant to show that the violation did in fact alter the outcome, but rather that it simply “undermine[d] confidence in the outcome” of the case. Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494.
It baffles me how the PCR court could have deemed this violation not material under this standard. The information in the memorandum directly contradicted the testimony of the motel employees regarding the mail receptacle. Because impeachment evidence is clearly within the purview of the Brady rule, id. at 676, 105 S.Ct. at 3380, 87 L.Ed.2d at 490; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108 (1972), and because this impeachment evidence would have severely undermined the State’s attempt to prove that the receptacle was an open tray, the Court should reject the PCR court’s self-serving finding of nonmateriality. In fact, the memorandum establishes that one of the State’s witnesses either lied to the police or lied to the court. That evidence is the most basic form of impeachment material.
The Court’s reliance on the existence of other testimony that the memorandum did not impeach is misplaced. Although it is true that, with the production of the memorandum, the State could have presented other uncontradicted testimony relevant to the plain-view inquiry — namely, testimony that the tape would not have fit into the closed mail slot, thus requiring defendant to have placed it on top of the box — this evidence was indirect and not nearly as important as the State’s direct (and unimpeached, *351because of the discovery violation) testimony that the only receptacle had been a tray. Moreover, the Court’s reliance on unchallenged, yet hotly contested, evidence is severely warped when viewed in conjunction with the sharp limitations placed on hearings and fact-findings during the PCR hearings. The PCR court’s finding that it still would have admitted the evidence because the memorandum “could not have” affected the decision is simply contrary to reality and should be reversed.
Apart from the materiality of the individual Brady violations that I have described, the State’s aggregate discovery violations lead to the ultimate conclusion that defendant was denied due process and a fair trial. As the United States Supreme Court recently reminded us,
the established rule that the state’s obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2& 215 (1963), to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and ... the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor’s attention. [Where] the net effect of the evidence withheld by the State ... raises a reasonable probability that its disclosure would have produced a different result, [the petitioner] is entitled to a new trial.
[Kyles v. Whitley, 514 U.S. 419,-, 115 S.Ct. 1555, 1560, 131 L.Ed.2d 490, 498 (1995).]
See also Landano, supra, 271 N.J.Super, at 36 n. 13, 637 A.2d 1270 (“[Ijnstances of prosecutorial suppression in this case must be viewed collectively.”). Although I agree with the majority that “[tjhe task of assessing the cumulative effect of numerous, assorted claims of error ... is daunting,” ante at 267, 690 A.2d at 90, I cannot agree that the State’s multitudinous discovery violations did not create a reasonable probability of affecting the outcome.
The State’s discovery violations went to every aspect of the case. Only two witnesses — McKinnon and Kraushaar — were able to testify that defendant had spoken about murdering his wife. Yet, the State failed to fulfill its discovery obligations with respect to both of them. The undisclosed documents would have permitted the defense to impeach McKinnon not only by showing he had received financial benefits in exchange for his cooperation, a fact *352he denied at trial, but they also would have permitted the defense to cross-examine him on his role as an informant for the FBI and as the target of a federal investigation. See R. 3:13 — 3(c)(6), (8); State v. Florez, 134 N.J. 570, 592-94, 636 A.2d 1040 (1994) (requiring disclosure of fact that material witness was a government informant); State v. Spano, 69 N.J. 231, 353 A.2d 97 (1976) (requiring disclosure of criminal history of material witnesses); State v. Taylor, 49 N.J. 440, 447-48, 231 A.2d 212 (1967) (requiring disclosure of promise of leniency to government witness); State v. Satkin, 127 N.J.Super. 306, 317 A.2d 379 (App.Div.1974) (requiring disclosure of monies paid to material witness). Moreover, by failing to disclose information regarding other suspects who had been investigated but found to have alibis, the State precluded the defense from impeaching McKinnon with his statements inculpating those individuals. See R. 3:13-3(c)(6), (7); Landano, supra, 271 N.J.Super. 1, 637 A.2d 1270 (finding Brady violation where State withheld evidence linking others to crime). Further, as discussed above, significant impeachment evidence regarding Sarann Kraushaar was withheld. See Taylor, supra, 49 N.J. at 447-48, 231 A.2d 212 (reversing conviction because prosecutor failed to disclose leniency promise made to material witness); State v. Blue, 124 N.J.Super. 276, 306 A.2d 469 (App.Div.1973) (same).
The State’s failures infected much of the other evidence as well. As noted, the admissibility of the “suicide type” was rendered suspect by the withholding of a key memorandum. Moreover, many documents related to defendant’s supposed financial motive were withheld, including documents apparently in the • victim’s handwriting that evinced her knowledge of the insurance policies. See R. 3:13-3(c)(l), (5). Worse, though, the State withheld documents subpoenaed from defendant’s bank that were then used to great effect in impeaching him on the stand. See R. 3:13 — 3(c)(5). The failure to disclose those documents left defendant ill-prepared for cross examination and subject to unfair surprise. See State v. Zola, 112 N.J. 384, 418, 548 A.2d 1022 (1988) (“By enabling each party to be informed of the other’s case, our rules of discovery *353ensure fairness and avoid unfair surprise.”), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989).
The State’s violations of its discovery obligations also affected the defense theory of the case. The defense asserted that defendant had pulled his car over because of a flat tire and that he too had been assaulted. Despite the State’s knowledge of this theory, prosecutors did not turn over the emergency room report, a medical examiner’s report, and the names of persons whom the State knew supported defendant’s assertion of injuries. See R. 3:13 — 3(c)(1), (3), (6). Moreover, the State failed to comply with its discovery obligations regarding all of the experts whom it called including the ballistics, firearms, and pathology experts. See R. 3:13(c)(9); Zola, supra, 112 N.J. at 410-12, 548 A.2d 1022 (providing broad discovery of documents, materials, and opinions underlying State expert’s testimony in capital case). Without obtaining that information pretrial, the defense was seriously hamstrung and did not know whether to hire and to consult its own experts.
The State also impeached defendant on cross examination using information that it had improperly withheld. Marshall I, supra, 123 N.J. at 133-34, 586 A.2d 85 (finding discovery violation, but holding that violation in isolation did not warrant reversal of trial court’s refusal to declare mistrial); see R. 3:13-3(c)(2) (mandating disclosure of all of defendant’s statements), (7) (same for witnesses’ statements), (8) (same for police reports and interview notes); State v. Blake, 234 N.J.Super. 166, 560 A.2d 702 (App.Div. 1989) (reversing conviction based on State’s failure to disclose defendant’s alleged inculpatory statement prior to defendant taking the stand); id. at 173-74, 560 A.2d 702 (collecting cases holding same).
In sum, by disregarding its discovery obligations, the State converted the trial into an ambush. Our broad discovery rules do not permit such a result. Ramseur, supra, 106 N.J. at 338, 524 A.2d 188 (O’Hern, J., concurring in judgment) (“Our goal has been to produce trials that are fair and result in substantial justice. Thus we have perhaps the broadest discovery rules extant.”); *354Sylvia Pressler, Current N.J. Court Rules, comment 1 on R. 3:13-3 (1997) (“The import of [Rule 3:13-3] is, in effect, to make the prosecutor’s entire file available to the defendant as a matter of the defendant’s right and upon the defendant’s demand----”). The only limitations on the State’s obligation to furnish material to the defense concern attorney work-product, R. 3:13-3(e), and material for which the party has obtained a court order of protection. R. 3:13-3(f). The latter exception was never invoked here and the former is not applicable to the hundreds of pages of material discussed in this opinion.
The State continuously and flagrantly violated our discovery rules. As Justice Clifford noted in a different case,
A more egregious Brady violation than the one presented by this case is difficult to imagine. One need not go so far as to impugn the motives of the prosecution in order to reach that conclusion, for it can just as easily be attributed to an appalling lack of basic communicative skills on the part of the ... various members of the prosecution team. But whether the circumstances originate in unworthy motives, colossal bungling, or plain dullness of comprehension, the fact remains that the misunderstandings thus created have proven to be costly indeed —
[Carter, supra, 91 N.J. at 133, 449 A.2d 1280 (Clifford, J., dissenting) (footnote omitted).]
Whether or not the infractions amount to a Brady violation — I firmly believe that they do — this course of conduct so infected the trial that the principle of fundamental fairness was certainly traduced. Ramseur, supra, 106 N.J. at 338, 524 A.2d 188 (O’Hern, J., concurring in judgment) (explaining that our discovery rules are so broad “out of a fundamental sense of fairness— that this is not a game that is being played but is truly a quest for justice — and because we believe that a criminal trial ‘although inevitably an adversarial proceeding, is above all else a search for truth’ ”) (quoting State v. Fort, 101 N.J. 123, 131, 501 A.2d 140 (1985)). Thus, I would reverse defendant’s conviction and vacate his death sentence based on.the discovery violations.
D.
I join with Justice O’Hern in concluding that the Court should order the State to disclose its entire file. To be blunt, the Ocean County Prosecutor’s Office has proven conclusively that it is not to *355be trusted — either because of lack of diligence or due to willfulness — to abide by the discovery rules and to produce relevant, exculpatory material for the defense. Given the State’s track record in this case, we can only guess what else lies in its file. And, guess we must, since the Court, displaying an exhausted patience, inexplicably refuses to remand the case to the trial court for proper factual findings, thereby allowing its stamp of approval to be placed on this death sentence.
Justice O’Hern is surely correct in arguing that to allow defendant access only to those documents that he can identify as being in the State’s possession has a certain Kafkaesque feel to it. Ante at 292, 690 A.2d at 103 (O’Hern, J., concurring in part and dissenting in part). That observation is especially apt where the State has displayed such bad faith in producing exculpatory material that defendant specifically requested, let alone exculpatory material that he did not request and about which he could not know.
Although I recognize that the State does not have a federal constitutional obligation to turn over its entire file to defendant, Bagley, supra, 473 U.S. at 675, 105 S.Ct. at 3380, 87 L.Ed.2d at 489; Agurs, supra, 427 U.S. at 111, 96 S.Ct. at 2401, 49 L.Ed.2d at 354, the Court should hold as a matter of state law — either under the doctrine of fundamental fairness or our general supervisory power — that when the State has engaged in a pattern of discovery violations, it must produce its entire file for inspection by the defense. Of course, such an order properly could be subject to in camera proceedings to protect work-product and confidential information. See R. 3:13-3(e), (f). Requiring disclosure is the only way that we can be assured that the State has complied with its discovery obligations. Cf. People v. Feerick, — A.D.2d — , — , 646 N.Y.S.2d 810, 811 (1996) (holding that when prosecutor allegedly denies required discovery, trial court can order production of entire file).
V
Today the Court reaffirms Robert Marshall’s death sentence. It does so despite the failings of counsel during the penalty phase, *356the absence of a death-qualified jury, and the State’s abrogation of its discovery obligations. Many other errors infected this case as well; errors that warrant much closer scrutiny than that to which this Court, or I for that matter, have subjected them.
I have previously remarked, for example, that “[pjrosecutorial misconduct was rampant throughout the trial” of this case. Marshall I, supra, 123 N.J. at 232, 586 A.2d 85 (Handler, J., dissenting). Even before we learned of the State’s disregard of our discovery rules and its manipulation of the penalty phase, I maintained that “[t]he record reveal[ed] a pattern of calculation on the part of the prosecutor that underscore^] the offensiveness of his conduct.” Ibid. That observation rings even truer now that the record is more complete. Interestingly, though, the record is far from being totally complete as the State apparently failed to comply with a court order to preserve evidence and the trial 'court erred in not conducting full hearings on the claims. Despite those limitations, examples of misconduct abound. Those shortcomings must be reconsidered on post-conviction review in light of their influence on the prejudicial impact of defense counsel’s ineffective representations.
Defense counsel’s failings, moreover, were not limited to the penalty phase. Specifically, he failed adequately to prepare to cross-examine McKinnon and Kraushaar; he failed to investigate or introduce evidence corroborating the defense; he erred in hiring and retaining Kolins as an investigator despite his alleged involvement in tampering with a vehicle belonging to New Jersey law enforcement authorities in an attempt to hinder their investigation and despite his rather dubious credibility as a witness; he failed to interview and prepare witnesses for the suppression hearing; he failed to argue that the suicide tape was a confidential and protected attorney-client communication; he failed to demand compliance with the State’s discovery obligations when noncompliance had become obvious; he failed to consult and utilize experts to offer rebuttal to the State’s witnesses; and he failed to advise defense witnesses not to disclose defendant’s early retention of *357counsel. Those failings lend credence to the conclusion that a hearing on defense counsel’s ineffectiveness is likely to produce evidence justifying post-conviction relief.
Although I am deeply disturbed by the State executing anyone under the current constitutionally deficient capital-punishment statute, I am particularly anguished by the Court’s stubborn and intractable effort to push Robert Marshall into the execution chamber at the cost of our post-conviction relief jurisprudence. I remarked in the direct appeal that I was stunned by the majority’s recognition of so many errors and its conclusion that the acknowledged errors, separately or cumulatively, did not amount to grounds for reversal. Id. at 253, 586 A.2d 85 (Handler, J., dissenting). I am now dumbfounded that the Court has the temerity to state that this — a capital prosecution — passes muster. Concededly, a trial need not be perfect, but it cannot be reduced to shambles. The majority identified at least a dozen errors during the direct appeal. Many more errors have now been acknowledged, errors that virtually blanket every part of this capital trial.
I cannot and will not join in this Court’s conclusion that Robert Marshall can lawfully and constitutionally be executed.
For affirmance — Justices POLLOCK, GARIBALDI, STEIN and COLEMAN — 4.
For reversal and remandment — Justices HANDLER and O’HERN — 2.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
One officer testified that the trip took between fifteen and twenty minutes. The other officer testified it took twenty-five minutes. An EMT stated it normally took between twenty and twenty-five minutes.
Another officer testified that it had lasted "less than ten minutes." Defense counsel asserted that it must have lasted more than ten minutes, although he could not recall clearly.
Defendant asserts that he was feeling "numb” during this conversation and "weak" in court, although he is unable to ascertain whether that was the result of the trial or of his having fainted. PCR counsel notes that some evidence *307indicates that defendant was not fully competent at the time. Defendant told the medical personnel that he had never before had any medical problems, yet during the hearing, defendant recounted a fainting episode shortly before trial. Moreover, defendant misinformed the doctor by telling him he was taking no medication; his prison records show that he was on Fulvicin (an antifungal medication for athlete’s foot). In addition, defendant told the doctor he did not have any allergies, but other medical records show defendant is allergic to lactose. Defendant, however, conceded that he understood what counsel was saying to him, and the Sheriff's officers testified that defendant appeared alert and normal.