(dissenting). While I aru in agreement with so much of the opinion of the Court as deals with the burden of proof of the defense of insanity and with the undesirability of perpetuating the "presumption of sanity” charge, I cannot join in the conclusion that the prosecutor’s remarks during trial and summation amount only to harmless excesses calling for no more than a mild expression of disapproval. Accordingly, I dissent.
The Appellate Division, in an unreported decision, held that the totality of the events here rendered the trial unfair and prejudiced the defendant’s rights. I agree with that ruling because in my view the cumulative effect of the prosecutorial misconduct in this case was such as to deny the defendant his constitutional rights. The majority’s toleration of that misconduct is neither appropriate to the excesses of the prosecutor in this case nor a deterrent to similar conduct by other prosecutors in future cases. See generally State v. Thornton, 38 N. J. 380, 400 (1962) cert. den. 374 U. S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963) and State v. Farrell, 61 N. J. 99, 104 (1972) for discussion of this Court’s repeated efforts to curb prosecutorial excesses. In Farrell specific attention was drawn to a "number of instances recently brought to our attention that improper comments by prosecutors are becoming much too prevalent.” The wistful expectation implicit in the reminder there furnished to prosecutors, “again, hopefully for the last time,” that their primary duty is “not to convict, but to see that justice is done” has not been realized — at least not in this case. Thus we have a situation not unlike that adverted to by Judge Jerome Frank in his dissenting opinion in United States v. Antonelli Fireworks Co., 155 F. 2d 631, 661 (2d Cir. 1946) :
This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to pre*299vent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, “Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.” Government counsel, employing such tactics, are the kind who, eager to wiu victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.
There follow here some of the particularly offensive examples of infractions occurring during summation. The prosecutor said:
Stripping away the camouflage, this is something that we must do and we must adjudicate. And yet I am sure it gives none of us any great pleasure. When this case started, of course, we never knew what the defense might throw up to us. Xou see, we present the fact situation, we present the truth to you and all the facts that we can muster. It is not for them to present the truth to you; it is rather for them to obstruct us in our presentation, or to show that there is something wrong with what we say.
MR. ISAAC: Pardon me.
THE COURT: I think it’s a poor choice of words, “to obstruct.” It’s for the defense counsel to put the State to its test.
MR. - [PROSECUTOR] : So you never know where they will try to throw up some kind of a defense.”
The only legitimate inference from these statements is a strong one that the defense was fabricated. Note, in passing, that the infraction was so glaring that no sooner did defense counsel begin to object than the trial court alertly and decisively undertook to instruct the prosecutor, who, undaunted, plunged ahead in obvious disregard of the court’s admonition.
Not only was the fabrication charge improper, it was contrary to the evidence. The defense presented expert witnesses who testified that the defendant was in fact insane, and lay witnesses from whose testimony could be drawn the legitimate conclusion that defendant’s mental and physical *300condition had been one of progressive deterioration. While the jury was not convinced, the argument was a respectable one, and defendant’s sanity was a sharply contested issue at trial. The implication that the defense was fabricated was simply unsupported by any view of the record. And one of the most serious charges that can be made against a lawyer is that he fabricated a defense. Annotation, “Attack on opposing counsel — effect,” 99 A. L. R. 2d 508, 577 (1965).
Likewise, the prosecutor’s observation that the defense’s role was to obstruct his presentation of “the truth” was prejudicially erroneous; obstruction of justice is a common law crime punishable as a misdemeanor- under the statute, ÍT. J. S. A. 2A:85-1; State v. Cassatly, 93 N. J. Super. 111 (App. Div. 1966), certif. den. 48 N. J. 448 (1967).
The jury was also told that defense counsel had hardly tried the case on the merits and had tried to “pull the wool over your eyes.” Coupled with the fabrication and obstruction charges this clearly amounts to an attack upon opposing counsel. Defendant’s motion for mistrial based on the abuses above, denied by the trial judge, was sufficient objection under the circumstances. See generally, State v. Farrell, supra, 61 N. J. at 106.
Later in summation the prosecutor characterized the defendant as a “leg breaker.” Dr. David Driscoll, a defense psychologist, testified that DiPaglia had revealed to him that while in the service he had had a fight with a man who had stolen his gambling winnings and had broken the man’s leg. That event, which took place many years prior to the trial, was certainly not a substantive issue in the case. The Appellate Division properly found this sweeping calumnious expression, ffieg breaker,” reminiscent of the “butcher boy” label criticized in State v. Siciliano, 21 N. J. 249, 262 (1956).
Subsequently, there came the following flourish:
This ease stands not only for the question of People of the State of New Jersey against Ploren DiPaglia. This case, X think stands *301for a very elemental question of justice, and that is, can a man, can a man who claims that he is too wealthy get away with robbery, with armed robbery, theft — '
A defense objection was overruled and the prosecutor continued :
This ease stands not only for the question of the State versus this defendant, but it stands for a loftier principle, it stands for the issue that the defense raises of whether or not a man can be so rich that he is insulated, he is immunized by a claim of insanity from criminal conviction.
Ladies and gentlemen of the jury, if he gets away with this defense, justice has been mocked.
The Appellate Division correctly ruled that this was an attempt to broaden the issue for which the defendant was on trial beyond those for which he was indicted. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8(d) (Approved Draft, 1971) [hereinafter cited as ABA Prosecution Function Standards]; Code of Professional Responsibility DR7-106 (C) (1).
The final sortie in the prosecutor’s summation was “He is a criminal. We know it. Let’s do our duty.” The reference to the defendant as a “criminal” was, I suggest, so improper as not to need any further comment. The statement also expresses the personal opinion of the prosecutor on the merits of the case, and this for the second time. In the very beginning of the summation there appears the following:
You know that the defendant is guilty and I do, and we know that the only kind of craziness, is crazy like a fox. And we know that he knows he is not crazy and is balancing, even as he tells the psychiatrist, the question of whether or not to plead guilty or plead craziness.
See State v. Farrell, supra, 61 N. J. at 103; ABA Prosecution Function Standards § 5.8(b). The trial judge instructed the jury properly on the first, of these infractions *302when defense counsel called it to his attention; neither counsel nor the court commented on the second.
In addition to these examples culled from the prosecutor’s summation there were other instances of misconduct unjustified in the course of even a hard-fought trial. Illustrative of these are two situations, the first of which arose during the cross-examination of defendant’s brother on the subject of defendant’s having ever been barred from a golf club for gambling:
Q. I asked you about his being barred.
A. I am not aware of it. Let’s put it that way.
MR. ISAAC: May I inquire through the Court and counsel whether these innuendoes and inferences are going to be proved by counsel.
THE COURT: Yes, sir.
■ MR.- [PROSECUTOR] : Your Honor, I can make a statement in front of the jury, if the Court wants.
MR. ISAAC: I am asking for proof.
THE COURT: Well, do you have such proof, yes or no?
MR. - [PROSECUTOR] : Your Honor, I spoke to the pro at the club yesterday.
MR. ISAAC: Pardon me. That’s hearsay.
THE COURT: Well, yes. Can you bring him here?
MR. - [PROSECUTOR] : He cannot be subpoenaed.
THE COURT: Well, then you do not have the proof, and you should not ask questions that the State cannot back up. Innuendoes would be unfair.
I will sustain the objection.
The jury will disregard the answer, the question and the answer.
The second situation occurred during the cross-examination of Charles Cardoman, an Iowa attorney who acted as lawyer for the defendant’s business organizations. This inquiry too revolved around defendant’s gambling activities and particularly his gambling with his sister Olga:
Q. I-Ie also shoots dice at the golf club, aren’t you aware of that, sir?
A. No, I am not aware of that.
Q. Do you know his sister?
A. I do.
Q. What’s her name?
*303A. Olga.
Q. Do you know if she also shoots dice with him?
A. I don’t know that. I know that Olga likes to play cards, but I don’t know if Olga ever participated in any other game, Mr. -- [Prosecutor].
Q. She also gambles?
A. I don’t know. She plays regularly with some gals. Maybe a night a week or so, and what they play or how they play I have no personal knowledge of that. It’s all hearsay.
Q. Did he ever tell you about a time that he and his sister were in a dice game in Omaha where he won over a thousand and she also won quite a bit?
A. I know of no such thing and don’t know that to be true at all.
MR. ISAAC: Is counsel prepared to prove these things, or is he just making these things up?
MR. - [PROSECUTOR] : I am prepared to prove it.
THE COURT: All right.
MR. -- [PROSECUTOR] : If your Honor please, I am pre-
pared to make an offer of proof at this moment.
THE COURT: That won’t be necessary. I will accept your representation.
In the first instance above the trial court resorted to the customary remedy of instructing the jury to ignore that which they had just heard — perhaps the only measure available short of a mistrial, but hardly an effective one in light of the potential damage caused by the prosecutor’s inexcusable reference to his telephone conversation with an unavailable witness. In the second situation referred to the trial judge relied upon the prosecutor’s representation, by clear implication if not express, that he would prove the gambling activities of defendant with his sister. That reliance was ill-placed, as it eventuated, for evidence to support the truth of the facts upon which the witness had been examined was never forthcoming.*
*304Such improper behavior, as illustrated by the above, should not be countenanced by this Court. See People v. Di Paolo, 366 Mich. 394, 115 N. W. 2d 78 (Sup. Ct. 1962); State v. Flowers, 262 Minn. 164, 114 N. W. 2d 78 (Sup. Ct. 1962); ABA Prosecution Function Standards § 5.7(d); Code of Professional Responsibility DR7-106 (C) (1). See generally State v. Orecchio, 16 N. J. 125, 141 (1954); 6 Wigmore, Evidence § 1808 (2) (3 ed. 1940). Particularly should it not be condoned in this case, inasmuch as the State’s brief informs us that this trial was a bitterly-fought contest between “two outstanding trial attorneys.” All the more reason exists, then, for adherence by counsel to certain recognized standards of trial conduct and for the observance of fundamental fairness on the part of the prosecutor, who is, as the majority opinion observes, “a constitutional officer representing the sovereign power of the people * *
The prosecutor in a criminal case occupies a rather distinctive role in our system of justice. He is both an administrator of justice and an advocate. His duty is to seek justice, not merely to convict the accused. ABA Prosecution Function Standards § 1 (b), (c) at 43. His special responsibilities are as set forth by Mr. Justice' Sutherland in Berger v. United States, 295 U. S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935) :
The * * * [prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
*305It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.
This classic statement has been resorted to by this Court in State v. Bogen, 13 N. J. 137, 139-140 (1953) (Brennan, J.), cert. den. Lieberman v. New Jersey, 346 U. S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953); State v. D’Ippoliio, 19 N. J. 540, 549-50 (1955) (Vanderbilt, C. J.); State v. Farrell, supra, 61 N. J. at 104, 105 (Proctor, J.).
Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented. State v. Johnson, 31 N. J. 489, 510-511 (1960), cert. den. 368 U. S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961); State v. Mayberry, 52 N. J. 413, 437 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969) ; State v. Wilson, 57 N. J. 39, 50 (1970).
Nevertheless, the accused has a constitutional right to a fair trial. U. S. Const., amend. VI; N. J. Const., Art. 1, ¶ 10. Where the conduct of the prosecutor is so prejudicial to the accused as to deny him a fair trial, this Court formerly undertook to reverse and remand for a new trial. See, State v. D’Ippoliio, supra; State v. Landeros, 20 N. J. 69 (1955), cert. den. 351 U. S. 966, 76 S. Ct. 1025, 100 L. Ed. 1486 (1956); State v. Siciliano, supra; State v. West, 29 N. J. 327 (1959); State v. Welsch, 29 N. J. 152 (1959); State v. Farrell, supra.
The majority opinion disapproves of the prosecutorial excesses in this case but appears to excuse them on the ground that they were made in response to the defendant’s theory of the case and his trial tactics. The proper avenue of relief in case of improprieties of defense counsel (which I do not *306perceive from my own reading of the entire trial record) is to object and seek a ruling from the trial judge, not to indulge in retaliation. State v. Welsch, supra, 29 N. J. at 158; Dugan Drug Stores, Inc. v. United States, 326 F. 2d 835, 837 (5th Cir. 1964). See Singer, “Forensic Misconduct by Federal Prosecutors — And How it Grew,” 20 Ala. L. Rev. 227, 246 (1968).
In State v. West, supra, 29 N. J. at 338, Chief Justice Weintraub stated the correct rule on prosecutorial retaliation :
We have repeatedly stressed the obligation of a prosecutor to seek a fair trial [citations omitted.] He is not an ordinary adversary; he represents the State whose interest is served by an untainted judgment firmly rooted in facts alone. There is no room for unfair advantage clever or bald. I-Ie may parry impropriety by the defense and seek the ruling of the trial court to eradicate it, but he may not retaliate with improprieties of his own.
While the trial judge in these lengthy proceedings ruled firmly and did not permit the trial to get out of hand, it is my view that the circumstances created by the tactics of the prosecutor did not lend themselves to remedial .instruction, where given, sufficient to avoid the potential for harm. While I would not go so far as to adopt, in this context, Mr. Justice Jackson’s statement in his concurring opinion in Krulewitch v. United States, 336 U. S. 440, 453, 69 S. Ct. 716, 723, 93 L. Ed. 790 (1949), that “[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury [citations omitted] all practicing lawyers know to be unmitigated fiction”, I am nevertheless satisfied that the cumulative effect of those deplorable tactics was such that “[t]he impact was too great, the imprint too deep, the influence too persuasive, to be erased by the court’s directive, no matter how explicitly given.” State v. Caccavale, 58 N. J. Super. 560, 574 (App. Div. 1959).
The first trial in this case resulted in a hung jury. The weaker the State’s case is against the defendant, the more — not the less — it is the prosecutor’s obligation to stajr within *307proper bounds in order that no man be convicted unjustly, State v. Bogen, supra, 13 N. J. at 141. I believe those bounds to have been crossed here. Accordingly, I would affirm the Appellate Division’s reversal of the judgment of conviction and remand for a new trial.
Mountain and Passman, JJ., join in this dissent.
For reversal—Chief Justice Hughes and Justices Jacobs, Hall and Sullivan—4.
For affirmance—Justices Mountain, Pashman and Clieeord—3.
:T would add parenthetically that it is not clear to me how the prosecutor proposed to go about introducing the necessary proof, i. e., whether he was representing to the court that he was prepared to prove Cardoman was in fact aware of defendant’s gambling with his sister, or, more likely, that he intended to prove the substance of such gambling quite apart from any knowledge Cardoman might have of it. If the latter, the trial court might well have ruled such evi*304dence inadmissible and not proper rebuttal in the present state of the record and in light of the defendant’s not taking the stand to testify himself.