dissenting.
This capital-murder prosecution was rife with errors that strike at the core of our system of capital punishment. The errors serve to undermine the fundamental procedures that the Court has determined to be essential and has painstakingly established as the basis for the constitutional imposition of a death sentence. By minimizing and disregarding these errors, the Court sanctions the continued imposition of death sentences unmoored to any firm constitutional anchor. It retrenches on its commitment to a system that strives to guard against the arbitrary and discriminatory imposition of the death penalty.
I
This case demonstrates with a shameful clarity, this Court’s acquiescence in the unbounded and undisciplined use of a recurrent aggravating factor — a murder to avoid apprehension. It thereby converts common-place, albeit tragic, homicides into capital murder. By bestowing such an overbroad interpretation on this aggravating factor, N.J.S.A 2C:ll-3c(4)(f) (“c(4)(f)”) (murder to escape apprehension for another offense) here, where the State offered no substantive evidence of defendant’s purpose, the Court ignores its own established and principled limiting standards designed to screen out murders that are not truly deathworthy.
I have repeatedly written of the dangers of expanding the c(4)(f) factor. State v. Hightower, 146 N.J. 239, 280-94, 680 A.2d 649, 669-76 (1996) (Hightower II) (Handler, J., dissenting); State v. Hightower, 120 N.J. 378, 434-38, 577 A.2d 99 (1990) (Hightower I) (Handler, J., dissenting). The present case compellingly confirms that the Court’s interpretation of the e(4)(f) factor condones an application of that factor that violates the federal and New Jersey *399constitutions in failing “to reasonably justify the imposition of the death penalty” on a defendant.
Similar to the wanton, vile aggravating factor, N.J.S.A. 2C:11-3c(4)(c), the c(4)(f) factor is facially, unconstitutionally broad. See Hightower II, supra, 146 N.J. at 286-88, 680 A.2d at 672-73 (Handler, J., dissenting); see State v. Ramseur, 106 N.J. 123, 200-09, 524 A.2d 188 (1987). The United States Supreme Court has unequivocally stated that “[t]o pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568, 581 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50 (1983)). In New Jersey, aggravating factors perform the function of both guiding juiy discretion in the determination of blameworthiness and narrowing the class of offenders to guard against arbitrary application of the sanction. Ramseur, supra, 106 N.J. at 186, 524 A.2d 188. However, every murder committed during the course of a rape, robbery, or other felony listed in c(4)(g), also automatically falls within the scope of the c(4)(f) factor because every criminal hopes to avoid detection. Ante at 378-79, 680 A.2d at 717-18. Therefore, the channeling function of the c(4)(f) aggravating factor is thwarted if the broad statutory language is not tempered by this Court’s interpretation.
Although the factor is facially overbroad, the United States Supreme Court has ruled that the constitutional overbreadth analysis considers the specific interpretation that the state supreme court imposes on the factor rather than the possible interpretations of the factor. Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859, 890 (1976). Until recently, this Court has attempted to enforce a standard of sufficiency of the evidence to prevent automatic duplication and unconstitutional application of the factors.
*400Now, the Court completely abandons the requirement that the c(4)(f) and e(4)(g) factors each must cover some situation not covered by the other. Indeed, “the c(4)(g) factor has evolved into a completely contained subset of the c(4)(f) factor, such that every c(4)(g) case is also a c(4)(f) case.” See Hightower II, supra, 146 N.J. at 286, 680 A.2d at 672 (Handler, J., dissenting). Though the Court professes to require the State to “produce ample evidence” that the defendant killed the victim because the defendant desired to escape prosecution, ante at 377, 680 A.2d at 717, the nature of the evidence relied on by this Court to affirm the finding of the c(4)(f) factor, within the context of this case and in comparison with other cases, demonstrates that the State’s burden of establishing the factor beyond a reasonable doubt requires no more than speculative and equivocal evidence. This case sadly reveals the unprincipled and contradictory manner in which the State applies the factor, and, as well, the pretextual nature of this Court’s standards for limiting the factor.
A.
It is appallingly obvious that the State failed to introduce evidence from which the jury could rationally conclude beyond a reasonable doubt that the c(4)(f) factor existed. Indeed, the Court can point to no specific evidence of the formation of a pre-murder intent to eliminate a witness to some underlying felony. Defendant made no statement confessing that the reason for the murder was to escape detection. Cf. State v. DiFrisco II, 137 N.J. 434, 500-02, 645 A.2d 734 (1994) (DiFrisco II) (noting defendant’s statement that he killed victim to eliminate witness to procurer’s criminal activity), cert, denied, _ U.S. _, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996); State v. Rose, 112 N.J. 454, 531, 548 A.2d 1058 (1988) (finding evidence of defendant’s motive in defendant’s own statement that he panicked and did not want to be caught with shotgun). There was no evidence indicating that if defendant did not shoot Gary Marsh, Marsh would identify defendant. In fact, the evidence strongly suggested that Marsh would and could *401never be able to identify defendant because defendant did not know his victim. Cf. State v. Martini, 131 N.J. 176, 283, 619 A.2d 1208 (1993) (Martini I) (rejecting defendant’s claim of insufficient evidence to support the c(4)(f) factor and finding “most persuasive the fact that the victim had been acquainted with defendant and was in his presence for an extended period of time during which defendant’s identity was not disguised”). There was no extended period of time prior to the shooting during which defendant and Marsh were in contact, and defendant wore a mask and army fatigues so that Marsh would have no ability to identify defendant in the future. Cf. Hightower II, supra, 146 N.J. at 267-68, 680 A.2d at 662-63 (noting evidence of opportunity in course of robbery-murder to identify defendant as supporting c(4)(f) factor).
Still further, there is no evidence of the type cited by this Court in State v. Harris, 141 N.J. 525, 535-36, 573, 662 A.2d 333 (1995), in which the Court recognized and relied on the fact that the victim was shot in an apparent escape attempt. No evidence demonstrated that Marsh attempted to attract attention to the scene of the robbery, or escape for help. Finally, defendant fired only one shot, and the victim was still alive when defendant left the station premises. State v. Mejia, 141 N.J. 475, 490, 662 A.2d 308 (1995) (finding rational basis for a finding of intent to commit serious bodily injury where defendant only shot victim one time and the victim survived long enough to speak with his girlfriend).
B.
Not only is there a complete absence of circumstances previously relied on by this Court to demonstrate intent to avoid apprehension, but the circumstances on which the Court does rely indicate only an intent to kill or intent to rob, and not an intent to avoid apprehension. Because the Court finds evidence of the most generalized nature to be sufficient in this case, the clear and inescapable import of the Court’s ruling is that evidence of an intent to avoid apprehension, no matter how vague, ambiguous, and tenuous, will easily be gleaned from virtually any felony *402murder. One is hard-pressed to envisage a felony murder in which the State will be unable to use the c(4)(f) factor.
1.
Examples are at hand. The hollowness of the Court’s standard for sufficiency of the evidence is flagrantly exposed when the State’s arguments supporting the c(4)(f) factor in this case and in Hightower, are viewed together.1 In Hightower, the State argued that the c(4)(f) factor was supported by the fact that defendant robbed a local convenience store in broad daylight. The fact that the store was local implied that there would be an increased likelihood that someone would recognize defendant. The fact that it was a convenience store and the robbery occurred in the daytime implied that defendant would be aware that there was a strong potential for customer traffic and he therefore had to eliminate the witness to keep her quiet and avoid the potential that the clerk might draw the attention of a passerby. The State also argued that Hightower’s failure to wear a disguise made the elimination of the witness all the more necessary because it increased the likelihood and ease of identification.
Here, the State now argues that the c(4)(f) factor is supported by the fact that defendant planned to rob a gas station that was not local, and further planned to commit the offense in the predawn hours when no one was on the road. The State finds further support for its argument in the fact that defendant wore a disguise. While in Hightower it was the actual exposure of the *403defendant that supported the c(4)(f) factor, in this case it is the contrary set of facts, the extreme precautions taken to conceal defendant’s identity from any potential witness, that supports the same inference. Additionally, in this case, the prosecutor supported the c(4)(f) factor by pointing to the fact that Loftin did not know his victim, while in Martini I, supra, 131 N.J. at 280, 619 A.2d 1208, the State argued that the defendant’s, prior relationship with the victim supported a finding of c(4)(f).
2.
We need look no further than the four corners of this case to observe the standardless and unprincipled manner in which this factor will be pursued by the State if granted such unlimited discretion. In opposition to the defense’s pre-trial motion to dismiss the c(4)(f) factor, the State argued that the factor could be established because “there will be no evidence to show that Mr. Loftin had concealed his identification____” Therefore, the State contended, the only possible reason for the murder was “to conceal [Loftin’s] identity as the armed robber.” Nevertheless, at the penalty phase, a significant basis for the prosecutor’s argument was refuted when two State’s witnesses testified that defendant was wearing a mask at the time of the murder. Though forced to abandon its guilt-phase argument that the lack of effort to conceal defendant’s identity proved the intent to murder to escape apprehension, the State was undaunted. The State performed a complete about-face in the penalty phase, arguing that the effort to conceal his identity proved defendant’s intent to avoid apprehension.
The majority accepts the State’s inconsistent argument without question and attempts to justify its affirmance of the factor in this case by pointing to vague, emotive evidence of intent to rob and intent to kill as indicative of an intent to avoid apprehension. The majority fails, however, to identify any evidence, or plausible inferences from evidence, of intent to escape detection. It resorts instead to evidence of the planning that went into the robbery and the absence in the record of any other apparent motive to kill as *404support for the conclusion that defendant intended to murder to avoid future identification and apprehension. Ante at 377-78, 680 A.2d at 717-18. Ultimately, the facts relied on by the majority are attenuated and speculative.
Furthermore, contrary to the State’s assertions, the stronger inferences are that defendant would not reasonably have been concerned about the gas station attendant identifying defendant through his plastic mask, army fatigues, or gun holster. There is additionally no reason to believe defendant feared Marsh would track defendant down by defendant’s shoes or his car. Ante at 378, 680 A2d at 718. Indeed, there is no evidence that defendant parked at the gas station rather than hiding his car on the street behind the station. Further, the arguments that defendant would kill the station attendant because of a fear that the victim would identify defendant’s voice or his size and weight is worth mentioning only to expose the incredible lengths that the majority will travel to sustain the factor. Ibid. Neither defendant’s voice nor height were distinctive. Hence, circumstances cited by the majority obviously are present almost in every robbery and cannot serve to limit the class of death eligible defendants.
Nor is defendant’s prior experience with guns or his use of a gun during the robbery indicative of intent to eliminate a witness to avoid apprehension. This Court has recognized that the use of a loaded gun creates a permissible inference of intent to kill or to commit serious-bodily injury. E.g., Martini I, supra, 131 N.J. at 271, 619 A.2d 1208 (quoting State v. Thomas, 76 N.J. 344, 387 A.2d 1187 (1978)); State v. Bucanis, 26 N.J. 45, 138 A.2d 739, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958). However, that inference has not been extended to an intent to eliminate a witness to avoid detection. If the latter inference arose whenever did the former, the impermissible duplication this Court proscribed would occur. In any event, the use of a gun does not indicate intent to avoid detection because the noise from the gun shot actually has the potential to attract attention. The absence of a silencer on defendant’s gun flies in the face of the *405State’s argument that defendant was a serious planner with an extensive knowledge of guns, acting out a firm intent of avoiding apprehension.2
In sum, more robbers will carefully plan their robbery than will intend to eliminate a witness for the purpose of avoiding prosecution. Similarly, defendant’s experience with a gun, his use of the gun, and the location of the wound, while suggesting an intent to kill, do not provide any information as to why that intent exists.
The majority also attempts to support the c(4)(f) factor by arguing that there is no evidence supporting any additional motive for killing Marsh. The fact is that there is no evidence about what actually did set off that trigger. Marsh was shot in the side of the head. Defendant may have raised his gun in response to Marsh turning away, or Marsh may have turned as defendant raised his gun. Defendant may have thought Marsh was reaching for a weapon and Marsh may have been searching for one. Or, Marsh may have said something to defendant, inciting thé act. In sum, it is not only that there is a lack of evidence about any other motive, but there is a lack of any evidence as to what happened at all.
Moreover, the basis of the State’s argument that Marsh was cooperative and did not incite defendant is not supported by any evidence except the lack of evidence of struggle. Though Marsh was unarmed and may not have had access to a defensive weapon, defendant was not aware of this fact. Further, Marsh was standing when shot and did not have his back to defendant. There is no evidence that Marsh was in an especially vulnerable *406position and no affirmative evidence that Marsh did not act to provoke the attack.
The majority also finds support for the intent to avoid apprehension by arguing that defendant shot Marsh at close range. That highly equivocal fact does not speak to defendant’s motive. A close range shot may argue for an intent to kill, but is silent as co underlying motive.
Moreover, it is not at all clear that the shot was fired at close range. The majority draws this conclusion from a number of facts. Because the room was so small — 13'5" by 9'7" — the parties were standing close, out of necessity. However, the police found Marsh lying on his back in the station office; Marsh’s head lay three feet from the door and his feet were nearly nine feet from the door. Thus, a logical deduction is that Marsh was standing well inside the office; the spent shell near Marsh’s head does not prove otherwise. The State’s ballistics expert testified that the casing could be thrown between two and ten feet away from the gun if it did not hit any obstructions. The evidence does not prove that Marsh was shot from a very close range, and thus certainly not point blank. As the majority suggests, defendant was standing between the door and Marsh — defendant could easily have been standing at the door when he pulled the trigger.
C.
The evidence offered in support of the c(4)(f) aggravating factor thus truly boils down to the fact that there is no other apparent motive for the murder. In light of the State’s burden to prove the aggravating factor beyond a reasonable doubt and defendant’s Fifth Amendment right to remain silent and not present any evidence, the argument that defendant has not demonstrated another potential motive is not sufficient to sustain submission of the factor to the jury.
Although the State has made a strong case for an intent to rob without being identifiable, that does not advance the argument that the killing was based on that intent. As the Court recog*407nizes, all robbers will attempt to avoid future identification. If the majority relies on the fact that defendant was careful and, in the planning, made efforts to avoid identification during the robbery, then the Court’s decision in Hightower is unjustifiable.
Where an aggravating factor is applicable to antithetic scenarios, it is clear that the factor is not serving the purpose of narrowing the class of defendants or distinguishing the more blameworthy defendants. Although the Court repeats its conclusion that “every murder -will not be a murder to escape detection,” the Court does not suggest why that is so. Every story of a murder committed during the course of a crime will contain a factual background from which to harvest a generic argument for this factor. Rather, if the aggravating factor is to have any limiting and channeling function, the Court must demand more specific evidence supporting the State’s contention that a direct motivating purposes for the act of murder was intent to escape detection.- As presently applied, the c(4)(f) factor clearly violates the constitutional limitations imposed by the Eighth Amendment.
Our proportionality review studies demonstrate beyond question the deadly effect that the use of the e(4)(f) factor can have on the frequency with which the death sentence will be imposed. The consequences of the expansion of this factor are dramatic — and in the context of capital punishment tragic. When the c(4)(g) felony murder factor is charged alone, without any other aggravating factor, the rate of death sentencing is 9.5 percent. However, when the c(4)(f) factor is charged along with the c(4)(g) factor the rate of death sentence imposition is 11.9 percent higher — more than double — than when c(4)(g) is alone present.3 Thus, by sanctioning the charge of the c(4)(f) factor in all cases in which the c(4)(g) factor is raised, without demanding more specific evidence of intent to murder for the purpose of escaping detection, the *408Court invites and, indeed, renders inevitable, a very high risk of arbitrary and capricious death sentencing.
Because the totality of the circumstances, and specifically the fact that defendant wore a mask and did not know the victim personally, suggest that defendant would not have a motive to eliminate a witness to avoid apprehension, I dissent from the Court’s affirmance of the application of the c(4)(f) factor in this ease.
II
Donald Loftin comes to this prosecution with a prior murder conviction. That prior murder conviction formed the basis of aggravating factor N.J.S.A. 2C:11-3c(4)(a), and could be used by the jury during the penalty phase as a basis for imposing the death penalty. This Court previously held that two juries are necessary in a capital prosecution in which the State intends to use the defendant’s prior-murder conviction as an aggravating factor. State v. Biegenwald, 126 N.J. 1, 43-44, 594 A.2d 172 (1991) (Biegenwald IV). The rationale underlying that ruling is that the prior murder conviction is not ordinarily admissible at the guilt phase of the trial, but the guilt-phase jury would nonetheless be exposed during the death-qualification process to the existence and potential use of the prior-murder aggravating factor. Ibid. In light of the Court’s recognition that a prior murder conviction would have a “blinding impact” on a jury weighing a defendant’s guilt, the trial court here empaneled two separate juries, one for the guilt phase and one for the penalty phase.
Because the guilt-phase jury would not sit during the penalty phase of defendant’s trial, the trial court did not “death-qualify” the guilt-jury, nor did the court conduct the extensive individualized voir dire of those jurors that this Court has repeatedly required in death penalty cases. E.g., State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988) (Williams II). In short, the trial court treated the guilt-phase jury as if it were a jury empaneled only to determine criminal guilt in a non-capital prosecution.
*409Unlike the majority, I find the error in the trial court’s failure properly to qualify and prepare the guilt-phase jury for the death-potential decision it was called on to make to be fundamental and reversible, and non-waivable. Even though it did not fix the ultimate penalty, the guilt-phase jury should have been apprised of the life-and-death consequences of its decision because in the bifurcated trial of this capital prosecution the jury was responsible for the critical finding of death eligibility. The requirement that the jury be fully informed and be responsible for its verdict through an awareness and appreciation of ramifications is not waivable. Furthermore, the voir dire of the guilt phase jury was utterly insufficient because it was not only grossly over-generalized and unfocused, it was not individualized or under oath and, therefore, violated Rule l:8-3(a).
A.
In deciding not to inform the guilt-phase jury that this was a death-penalty case and in not death-qualifying the jury, the trial court relied on our decisions in State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991), and Biegenwald IV, supra, 126 N.J. 1, 594 A.2d 172. In Biegenwald IV, we suggested that in certain circumstances, evidence that is admitted in either the guilt or the penalty phase would be so prejudicial in the other phase that two juries would be necessary. 126 N.J. at 43-44, 594 A.2d 172. In Erazo, we went further and suggested in dicta that an attendant benefit of having a separate jury for the penalty phase is that it “would obviate death qualification of the guilt-phase jury.” 126 N.J. at 132-33, 594 A.2d 232 (citing State v. Hunt, 115 N.J. 330, 396-99, 558 A.2d 1259 (1989) (Handler, J., dissenting) (discussing the use of two juries throughout the trial)).
More recently, however, this Court emphasized the need for death-qualification, finding that a jury making the guilt determination must be informed of the life-or-death impact of its decisions. Mejia, supra, 141 N.J. 475, 662 A.2d 308. Specifically, we required that the jury be informed that a finding of an intent to kill *410rather than an intent to commit serious bodily injury would expose the defendant to the death penalty. Id. at 483-86, 662 A.2d 308. The Court noted that the failure to inform the jury of the legal effect of its findings — that its determination would render the defendant death eligible — could dilute the jury’s sense of responsibility for the imposition of the death sentence. Id. at 485-86, 662 A.2d 308 (citing State v. Bey, 112 N.J. 123, 162, 548 A.2d 887 (1988) (Bey II)).
The Mejia ruling highlights a tension inherent in our capital sentencing scheme. On the one hand, the Court has repeatedly recognized that “[i]n no other determination in the criminal law is it more important to make absolutely certain the jury is aware, not simply of the consequences of its actions, but of its total responsibility for the judgment.” Ramseur, supra, 106 N.J. at 316-17 & n. 80, 524 A.2d 188. Indeed, this Court has stated that “[t]o hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence.” Id. at 311, 524 A.2d 188. In Bey II, supra, the Court explained the importance of the jury’s awareness of its role in the capital-punishment process in the context of an error in the penalty phase. The Court held that “in its charge to the jury in the sentencing phase of a capital trial, a trial court must be careful not to dilute the jury’s sense of responsibility for determining the appropriateness of the death penalty.” 112 N.J. at 162, 548 A.2d 887.
On the other hand, there is considerable support for the argument that death-qualification renders guilt-phase juries more prone to convict. See Buchanan v. Kentucky, 483 U.S. 402, 415 n. 16, 107 S.Ct. 2906, 2913 n. 16, 97 L.Ed.2d 336, 350 n. 16 (1987) (assuming that “studies were ‘both methodologically valid and adequate to establish that “death qualification” in fact produces juries somewhat more “conviction-prone” than “non-death-qualified” juries’ ”) (quoting Lockhart v. McCree, 476 U.S. 162, 173, 106 *411S.Ct. 1758, 1764, 90 L.Ed.2d 137, 147 (1986)); McCree, supra, 476 U.S. at 188, 106 S.Ct. at 1772, 90 L.Ed.2d at 157 (Marshall, J., dissenting) (arguing that “the very process of death qualification— which focuses attention on the death penalty before the trial has even begun — has been found to predispose the jurors that survive it to believe that the defendant is guilty”); Rose, supra, 112 N.J. at 477, 548 A.2d 1058 (noting that “trial courts ... may take into account defendant’s concerns about the collateral effects of the death qualification process”); Ramseur, supra, 106 N.J. at 428-35, 524 A.2d 188 (Handler, J., dissenting) (observing that the issue of guilt of capital defendants should not be determined by a death-qualified jury); id. at 335-41, 524 A.2d 188 (O’Hern, J., concurring) (observing that death-qualification may prejudice jury’s ability to determine criminal guilt and, therefore, it is necessary to employ a separate, non-death-qualified guilt-phase jury); see also State v. Marshall, 123 N.J. 1, 216-24, 586 A.2d 85 (1991) (Marshall I) (Handler, J., dissenting) (arguing that the use of a death-qualified jury for the guilt-phase determination is unconstitutional).
The tension between the two interests — the right to a fair and impartial guilt-phase jury and the right to a jury that is fully informed of the consequences of its decision — further demonstrates the unworkability of the death-penalty scheme. The Court’s compromise in the present case — mandating a restricted death-qualification yet making the requirement waivable — highlights the problem. See Ante at 336, 680 A.2d at 697 (“[I]f defense counsel objects to the death-qualification of the guilt-phase jury ... a trial court shall deem such an objection to be a waiver of the defendant’s right to a death-qualified jury in the guilt-phase. However, in the absence of any [objection by defense counsel], trial courts will give guilt-phase jurors a severely restricted death qualification, specifically not informing them of defendant’s prior conviction for murder.”).
I concur with the majority’s recommendation that the death qualification of a guilt-phase jury in a double-jury capital trial *412need not be as expansive as that provided for the penalty-phase jury. Indeed, the only concern will be whether those jurors can lawfully fulfill their responsibility in determining guilt, with the knowledge that their determination may permit another group of jurors to find that the defendant deserves the death penalty.
The majority errs, however, in finding that defendant is precluded from raising this issue on appeal because of the contrary stance he took at trial. Defendant cannot waive his right to a fair and impartial jury that is informed and capable of rendering a responsible verdict. Moreover, it is clear that neither the defense nor the trial court anticipated this Court’s ruling in Mejia.
The majority is wrong to equate this situation with that in Marshall I, supra, 123 N.J. at 93, 586 A.2d 85, where we reviewed the voir dire under the standard for invited error because trial counsel requested a limited death-qualification. Ante at 336, 680 A.2d at 696. The prejudice resulting from the failure to inform the jury of the consequences of its verdict extends far beyond the prejudice resulting from the limited death-qualification in Marshall. At issue here is one of defendant’s fundamental rights — a right to an accurate jury instruction. We have repeatedly noted that trial courts have a sua sponte obligation to provide correct charges. State v. Robinson, 136 N.J. 476, 489, 643 A.2d 591 (1994); State v. Green, 86 N.J. 281, 289, 430 A.2d 914 (1981); see State v. Loftin, 287 N.J.Super. 76, 97, 670 A.2d 557 (App.Div.), certif. denied, 144 N.J. 175, 675 A.2d 1123 (1996). “[S]o critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error.” State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990). Indeed, erroneous instructions “are ordinarily considered ‘poor candidates for rehabilitation under the harmless error philosophy.’ ” State v. Harmon, 104 N.J. 189, 213, 516 A.2d 1047 (1986) (quoting State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979)); see State v. Vick, 117 N.J. 288, 289, 566 A.2d 531 (1989). In a remarkably similar context, this Court held that the failure to instruct the jury that it need not be unanimous in determining whether a capital defendant committed *413murder by his own conduct warranted reversal of the death sentence. State v. Brown, 138 N.J. 481, 509-28, 651 A.2d 19 (1994). No different result is acceptable here.
The Court’s adoption of the waiver analysis in this context is possibly understood as the Court’s attempt to reconcile the irreconcilable — the real and inescapable potential that death-qualification renders a jury conviction prone and the constitutional imperative that capital guilt and punishment can be determined only by a death-qualified jury. Indeed, the majority recognizes that potential today in finding that defense counsel’s decision to oppose death-qualification of the guilt-phase jury was “a sound strategic decision.” Ante at 337, 680 A.2d at 697; see also Marshall I, supra, 123 N.J. at 223, 586 A.2d 85 (Handler, J., dissenting) (arguing that “the Court implicitly acknowledges the validity of the position it has professed to reject. It thus characterizes defense counsel’s request to limit death qualification as ‘a well considered strategic attempt to limit juror exposure to questions concerning capital punishment’ ”). Nonetheless, without explanation or justification, the majority declares that it need not determine whether death-qualification poses the alarming, fundamental prejudice that defendant asserts. The Court, I submit, cannot escape that it sacrifices, through defense counsel’s waiver, the assurances that only a death-qualified jury can reliably determine whether the death penalty should be imposed. Even if the Court rules that death-qualification is only a waivable, and not a constitutional-fundamental right, the Court has an obligation to confront the potential prejudice that exists in the capital punishment system as a result of a procedure mandated by this Court’s own jurisprudence. E.g., Ramseur, supra, 106 N.J. at 248-57, 524 A.2d 188. At some juncture, this Court will recognize that the many competing and sharply conflicting fundamental interests that collide in the administration of our capital-punishment regime and constantly require illogical and unsatisfactory compromises, justify, if not compel, the abandonment of the death penalty. Without abandoning the death-penalty scheme entirely, however, the Court must continue to confront the impossible task of inte*414grating irreconcilable values, a process that riddles the system with hopeless contradictions.
Nor was the failure to inform the guilt-phase jury that it was deciding a capital case harmless. There was a rational basis on the record for finding that defendant had a mental state less than an intent to kill. Post at 435, 680 A.2d at 746 (O’Hern, J., dissenting). Therefore, the information had the clear possibility of affecting the outcome of the case.
Thus, Mejia requires that defendant’s death sentence be reversed. The fact that defendant became death-eligible, based on a decision made by a jury that was entirely unaware of the legal effect of its actions, deprived defendant of his rights to Due Process, a fair jury trial, and freedom from cruel and unusual punishment. U.S. Const. Amends. VI, VIII, XIV; N.J. Const. art. I, ¶¶ 1, 10, 12.
B.
The procedure employed for the guilt-phase voir dire violated both the requirement of Rule l:8-3(a) that the voir dire of jurors in death cases be conducted individually and under oath, and our recognition of a heightened need for juror impartiality in capital cases. State v. Williams, 93 N.J. 39, 61, 459 A.2d 641 (1983) (Williams I).
Moreover, the circumstances of this case — the murder of a white working class person by an unemployed African-American — obligated the court to conduct a scrupulous and searching review of potential juror prejudices. Shockingly, rather than expanding the scope of the inquiry, the trial court only lightly touched on the subject of racial bias. Its cursory questioning provided no insight into the feelings and attitudes of potential jurors; the voir dire provided absolutely no guidance to the court or counsel in judging the impartiality and quality of jurors and in intelligently exercising peremptory and cause challenges. The deficient voir dire does not even conform to our standards for non-capital cases.
*415The right to an impartial jury is guaranteed by the Sixth Amendment of the Federal Constitution as well as by the New Jersey Constitution. Williams I, supra, 93 N.J. at 60-61, 459 A.2d 641. An impartial jury is essential to ensuring a defendant’s right to a fair trial. “This requirement of fairness — and particularly jury impartiality — is heightened in cases in which the defendant faces death.” Id. at 61, 459 A.2d 641; Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188 (1987). Recognizing the difficulty of exposing both “potential and latent bias,” the Court has stressed the importance of “more exhaustive and searching voir dire examinations” in capital cases to ensure the educated use of peremptory and cause challenges. Williams II, supra, 113 N.J. at 409-10, 550 A.2d 1172 (quoting Williams I, supra, 93 N.J. at 68-69, 459 A.2d 641 (footnotes omitted)); id. at 427, 550 A.2d 1172; State v. Biegenwald, 106 N.J. 13, 27-30, 524 A.2d 130 (1987) (Biegenwald II) (holding that capital defendants require greater freedom to explore potential bias and prejudice); Ramseur, supra, 106 N.J. at 243-48, 524 A.2d 188. A jury making life or death decisions must be “as nearly impartial as the lot of humanity will admit.” Williams I, supra, 93 N.J. at 60-61, 459 A.2d 641 (citations omitted).
There is no reason to relax these rules when two juries are used instead of just one. In State v. Moore, 122 N.J. 420, 585 A.2d 864 (1991), this Court recognized the deficiency of a single question such as the one posed in the present case. “It is not enough just to ask jurors in a capital case whether the nature of the crimes would affect their ability to be fair in deliberating on a death sentence versus a term of years. The question is correct so far as it goes, but it really invites only one answer. Will many say that they will be unfair?” Id. at 449, 585 A.2d 864. Thus, one question posed to a panel of jurors inviting an admission that a juror is prejudiced or unfair, is not sufficient.
Nor do the rules governing the selection of jurors in criminal cases provide for a relaxation of the voir dire requirements when two juries are used. Arguing a distinction between a guilt-phase *416jury in a double-jury capital trial and a jury in a trial of a crime punishable for death, the majority cites Rule l:8-3(a) as a basis for abandoning the more thorough and comprehensive voir dire for the guilt phase of a capital double-jury trial. Ante at 338-40, 680 A.2d at 697-68. Rule 1:8-3(a) provides for a less extensive and less probing voir dire in non-capital trials. Specifically, the Rule provides:
For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court’s interrogation in its discretion. At trials of dimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath.
[R. l:8-3(a) (emphasis added).]
Defendant was undeniably tried for a crime “punishable by death.” Under the plain language of the rule, defendant’s jury should have been subjected to an individualized voir dire. The majority asserts that in requiring individual voir dire “[a]t trials of crimes punishable by death,” the authors of the Rule intended for the individualized voir dire to apply exclusively to the penalty phase of capital cases. Ante at 398, 680 A.2d at 698. The majority’s distinction finds no support in the plain language of the rule, in the commentary to the rule, or in prior case precedents. Its only support is derived from a proposed amendment to the rule which would make guilt-phase juries in double-jury capital trials subject to the traditional en banc voir dire. Ante at 339, 680 A.2d at 698 n. 1. Legislative intent cannot be inferred from proposed amendments not yet adopted. An individualized and probing voir dire is required.
In this case, the trial court’s two-day collective voir dire was insufficient to ensure defendant’s right to a fair and impartial jury. Even in non-capital cases, we require an extensive and probing voir dire when the issue of race dangerously pervades the case.
To avoid the possibility of impermissible considerations infecting jury deliberations and tainting the verdict, a trial court has a duty to explore potential juror prejudice and bias. That duty is height*417ened in cases with overt racial overtones. State v. Horcey, 266 N.J.Super. 415, 629 A.2d 1367 (App.Div.1993) (holding that counsel may directly raise the issue of racism or prejudice during voir dire when issue is clearly present in the case); see Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Moore, supra, 122 N.J. at 449, 585 A.2d 864 (noting the need for a searching inquiry into jurors’ beliefs and biases).
The trial court’s questions were posed to the entire panel, sitting in open court. Jurors were expected to raise their hands if they had a response to a question or harbored a personal concern. Jurors in the larger venire were instructed to listen carefully to the entire proceedings. When a juror was excused for cause, or as a result of a peremptory challenge, another potential juror selected from the larger pool was asked whether, after having “an opportunity to hear the Court’s opening remarks and questions .... [he or she had] any responses so far with respect to any of the questions.” On the second day, the trial court did not review its questions from the first day. None of the original sixteen people selected, nor any of the additional jurors brought into the pool, were sworn prior to the questioning.
The court conducted limited, individualized questioning of jurors when the court considered it necessary, such as when jurors indicated prior knowledge of the case or volunteered that they had personal experience with the criminal justice system. However, on the critical issue of racial bias, the court asked no individual questions and elicited no responses.
On the first day of the voir dire, the trial court did ask the panel of prospective jurors whether they would be influenced by the fact that defendant was African-American and the victim was white. Specifically, the court stated:
Ladies and gentlemen, as you can see, Mr. Loftin is an African-American. The alleged victim in this matter, Mr. Marsh, is white. Would the fact that the defendant is an African-American and the deceased in this matter is white, would that affect your ability to keep an open mind about this case and make a decision based on the evidence rather than the racial makeup of the defendant and the deceased in this matter? If so, please indicate by raising your hand.
*418Not surprisingly, no hands were raised. The trial court continued without any further individualized questioning on the issue. Though the court instructed the panel that members were free to raise controversial issues at sidebar at an inconspicuous juncture, on the first day of the voir dire the court proceeded directly from the single racial bias question posed to the panel to a questioning of the larger jury pool concerning hardship issues. Therefore, none of the sixteen jurors on the panel had the opportunity to raise their hands to a later, less controversial question in order privately to inform the court about potential racial biases.
The court revisited the issue of prejudice on the second and final day of the voir dire, stating:
But in deciding what the facts are, you are to do so without bias, without prejudice, without sympathy, passion or favor of any kind, and I’m going to talk a little bit more about bias and prejudice, because for most of us, when we hear the word bias and we hear the word prejudice, we get defensive because we don’t want anybody to think or accuse of being prejudiced. And that’s why I ask that question yesterday. I pointed out to you that the defendant in this case is an African-American and that the victim in this matter is white, and I asked would any of you make a decision in this case based on the racial make-up, and you all answered no.
The court then provided a simplistic example of the very critical responsibility it was imparting to the jurors. Indeed, by equating racial bias to the bias of a sports fan the court only trivialized the concerns over racial discrimination. Thus, the trial judge explained bias by referring to her own strong feelings about the Dallas Cowboys and her admittedly irrational instinct to express those biases by penalizing attorneys who do not share her football preferences. The court also recognized that in 1994, people do not generally admit to biases; instead of openly admitting the bias people silently act out their feelings. The court then instructed the jury not to act against the defendant and against the State of New Jersey, but to come forward to the court, at a less conspicuous time, “if you believe that you have any bias that could affect your ability to be fair and impartial.”
This limited and cursory voir dire could hardly be expected to uncover actual experiences, attitudes, or latent feelings that might suggest racial bias on the part of individual jurors. Because the *419case deals with an interracial murder, it is clear that defense counsel was entitled to have the jurors questioned on bias. Ramseur, supra, 106 N.J. at 243-48, 524 A.2d 188; Horcey, supra, 266 N.J.Super. 415, 629 A.2d 1367. The voir dire in this case was particularly problematic because it failed to elicit even one response from any juror touching on the strong racial themes that pervaded this case. Indeed the broad brush exploration of this critically important and sensitive area of juror qualification left defense counsel “insufficiently informed to make an intelligent and ■effective challenge of potential jurors for cause or peremptory.” Williams II, supra, 113 N.J. at 408, 550 A.2d 1172 (noting also how cursory nature of questioning affected prosecutor’s use of his peremptory challenges and “perhaps most importantly left the trial court unable to fairly evaluate the fitness of many of the jurors to serve”). Counsel’s own perception that the voir dire was adequate cannot redress the institutional requirement that the jury be adequately and correctly qualified to participate in a capital prosecution. As significant, the voir dire left the court itself totally unenlightened about whether it had empaneled a jury with the requisite level of impartiality for the determination of a capital prosecution involving an interracial murder.
The trial court’s procedure for jurors to reopen the issue of racial bias also failed to satisfy the high standards required in the context of this case. Significantly, the court placed the full responsibility and burden of revealing a juror’s prejudice on the juror. Just as it is unrealistic to assume that prospective jurors would reveal their prejudices in the open and spectator-filled courtroom, it is not realistic to expect that jurors will readily approach the bench to unburden themselves of personal experiences and feelings of racial bias. The question must be asked of individual jurors directly, discretely, persistently, and privately. The court must be able to evaluate the physical presentation of the spoken answer including the demeanor of the juror. Too much is at stake. The undisclosed prejudice that may go unchecked as a result of the trial court’s omission generates a potential for unfairness that cannot be tolerated.
*420The dangers of an inadequate voir dire were starkly highlighted in the present case. Juror M. was selected as one of the final sixteen jurors. On June 28, 1994, the fourth day of the trial, two of M.’s coworkers called the court and informed the court that M. had discussed the trial at work. The coworkers additionally alleged that M. was a racist. The court questioned M. in chambers. M. admitted telling his coworkers that he had made up his mind about the trial and was off to the hardware store to purchase some rope with which to hang defendant. M., however, claimed he did not mean what he said and only made the comments to stop the harassment from coworkers. M. never deliberated with the jury. However, the fact that M. slipped through the voir dire points to the dangers of such a restricted voir dire. “If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair juries. This result — or the possibility of this result— cannot be tolerated.” Williams II, supra, 113 N.J. at 409, 550 A.2d 1172 (emphasis added).
Whether the voir dire conducted here is considered under the rigorous standards governing the voir dire in capital cases or the more relaxed standard governing non-capital cases, the questioning of the potential jurors on their biases was wholly inadequate. The majority’s default on its responsibility to safeguard the death-penalty process from the discriminatory application of the ultimate punishment is particularly ominous.
Ill
Contrary to firmly-settled principles, the majority finds the restriction of defendant’s ability to proffer relevant mitigation evidence harmless. Further, the majority unduly restricts a capital defendant’s ability to proffer mitigating evidence. Specifically, the majority dismisses as harmless the trial court’s failure to inform the jury , that it may consider in mitigation of the death penalty the fact that a life sentence will result in defendant’s probable, if not certain, death in prison prior to becoming parole eligible. Additionally, the majority restricts the defendant’s abili*421ty to proffer the impact that the execution would have upon defendant’s family as relevant character mitigation evidence. Other additional restrictions sanctioned by the majority further distort this Court’s previously established scheme of guided discretion.
The Eighth Amendment guarantees that a capital defendant may submit all mitigating evidence to his sentencer that is relevant to “the character and record of the individual offender and the circumstances of the particular offense.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). The focus of the requirement is to ensure that the sentencer can make a reasoned, individualized decision regarding the deathworthiness of the defendant. The United States Supreme Court has also established “the corollary rule that the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ” Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 6 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 11 (1982)); see also id. at 8, 106 S.Ct. at 1673, 90 L.Ed.2d at 9 (finding trial court erred in excluding “credible evidence that petitioner was a good prisoner” even though the evidence did not directly pertain to defendant’s blameworthiness for the crime).
The United States Supreme Court stated that “full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a reasoned moral response to the defendant’s background, character, and crime.” Penry v. Lynaugh, 492 U.S. 302, 327-28, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256, 284 (1989) (quotation omitted). “Full consideration” has repeatedly been interpreted in an expansive manner:
[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, 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.
[Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978) (footnotes omitted).]
*422As a constitutionally necessary element of individualized capital sentencing, the New Jersey Legislature and this Court have expressed a strong commitment to recognizing mitigating factors, and further to favoring the admission of any reliable evidence relevant to mitigating factors at the penalty phase. N.J.S.A 2C:11-3c(2)(b) provides, in pertinent part, that “[t]he defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors.” In line with the legislative intent, this Court has adopted a “ ‘broad [test for relevance that] favors admissibility.’” State v. Davis, 96 N.J. 611, 619, 477 A.2d 308 (1984) (quoting State v. Deatore, 70 N.J. 100, 116, 358 A.2d 163 (1976)). When applying this test, the Court instructs that doubts be resolved in favor of admissibility. Davis, supra, 96 N.J. at 620, 477 A.2d 308 (citing Zant v. Stephens, supra, 462 U.S. at 886, 103 S.Ct. at 2748, 77 L.Ed.2d at 256 (citing Gregg v. Georgia, supra, 428 U.S. at 203-04, 96 S.Ct. at 2939, 49 L.Ed.2d at 891 (holding that “so long as the evidence introduced [at a capital-sentencing hearing does] not prejudice a defendant, it is preferable not to impose restrictions”))). This Court further held that “the sentencing process should embrace an evidential inquiry ‘broad in scope, largely unlimited either as to the kind of information that may be considered, or the source from which it may come.’” Davis, supra, 96 N.J. at 620, 477 A.2d 308 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592, 596 (1972)); see also Ramseur, supra, 106 N.J. at 187, 524 A.2d 188 (sustaining death-penalty statute and aggravating factor concerning felony murder in part because of defendant’s ability, under the statute, to introduce “almost limitless ... mitigating factors”). But see State v. Gerald, 113 N.J. 40, 103, 549 A.2d 792 (1988) (finding the scope of mitigating evidence is not unlimited; evidence must be relevant to defendant’s character, record, or the circumstances of the offense).
Any restriction on the rights of defendants to present evidence in support of individualized consideration and in mitigation of death is troubling. See Muhammad, 145 N.J. 23, 108, 678 A.2d *423164, 207 (1996) (Handler, J., dissenting). Viewed cumulatively, the affirmation of the limitations on mitigating evidence imposed by the trial court in this case significantly undermine the protections that the United State Supreme Court and this Court have previously acknowledged as necessary to fair and consistent application of the death penalty.
A.
I concur with the majority’s conclusion that, when appropriate, a trial court should instruct the penalty-phase jury that the consequence of a life sentence is a minimum of thirty years of parole ineligibility imposed consecutive to defendant’s prior sentences. This holding is mandated by the United States Supreme Court decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and our decision in State v. Mejia, supra, 141 N.J. 475, 662 A.2d 308. I also maintain that defendant’s right to have the jury consider his prior sentence as mitigation of the death penalty is mandated by the Eighth Amendment. The failure to instruct the jury of defendant’s certain parole ineligibility in this case was not harmless.
1.
From the start of the penalty phase, it was virtually inconceivable that defendant would spend any less than the next fifty-seven years in prison without possibility of parole if he was not sentenced to die. Defendant was already serving a life sentence with a thirty-year parole disqualifier for the Atlantic County murder of Sophia Fetter. A logical and ultimately correct presumption was that the murder conviction in the Mercer County ease would result in consecutive life sentences under State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986). The defense sought to introduce in mitigation the fact that, with two consecutive sentences, defendant would not become parole eligible until he was eighty-six years old, and would probably die in prison.
*424The trial court agreed to instruct the jury in conformity with State v. Bey, 129 N.J. 557, 610 A.2d 814 (1992) (Bey III). Bey III provides that, if defendant requests, the trial court should: inform the jury of the prior sentence, including the fact that the sentence is not final while on appeal; inform the jury not to consider the prior sentence in determining the verdict; and inform the jury that the court has the sole responsibility for deciding whether the prior sentence runs concurrent or consecutive to the sentence the jury recommends. Id. at 603, 610 A.2d 814; see Biegenwald IV, supra, 126 N.J. at 45, 594 A.2d 172. The trial court, however, ruled that Bey III dictated that defendant’s parole ineligibility was irrelevant to defendant’s character or record. Thus, the court held that defendant could not submit his prior sentence as mitigating evidence under the c(5)(h) “catch-all” factor. The court also refused to instruct the jury that a life sentence would likely result in defendant spending the next sixty years in prison.
The majority now holds that in the vast majority of cases, where the trial court has found “a ‘realistic likelihood’ that it will impose a consecutive sentence,” the trial court should instruct the jury that it may consider that evidence in determining the appropriate, ultimate penalty. Ante at 372, 680 A.2d at 715 (finding that “in future cases, if the court, based on the evidence presented believes that there is a realistic likelihood that it will impose a sentence to be served consecutive to any of defendant’s prior sentences, in the event the jury does not return a death, sentence, the jury should be so informed”). This rule will satisfy defendant’s right to a fully informed jury in many, if not most, instances. See id. at 372, 680 A.2d at 715 (noting that “in most cases the courts will conclude that there is a ‘realistic likelihood’ that it will impose a consecutive sentence rather than a concurrent sentence in the event of a non-death verdict”). The majority, however, finds harmless error in the present case.
The decision to instruct the jury that a life sentence will be imposed consecutive to defendant’s prior sentence is mandated by the Due Process Clause as interpreted by Simmons and Mejia. *425Parole ineligibility must be admissible as mitigating evidence to rebut the c(4)(a) (prior murder) aggravating factor and to ensure that the jury is fully informed of the potential consequences of its verdict.
Simmons v. South Carolina was decided by a divided Court, a five-two plurality opinion, with five separate opinions filed. • The actual boundaries of the holding are debatable. The majority correctly asserts that the narrowest holding of Simmons dictates that when defendant’s future dangerousness is at issue and state law prohibits defendant’s release on parole if a life sentence is rendered, the Due Process Clause of the United States Constitution requires that a jury be informed of defendant’s parole ineligibility. Ante at 372, 680 A.2d at 715. The opinion of the Simmons Court, however, was based on Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393, 404 (1977) (plurality opinion), and Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), two cases not raising future dangerousness, in which the Court found that defendants were constitutionally entitled to answer the State’s case. Only three members of the Court, Justice O’Connor, Chief Justice Rehnquist, and Justice Kennedy, specifically limited their concurrence to cases in which the State argued future dangerousness. Simmons, supra, 512 U.S. at _, 114 S.Ct. at 2200, 129 L.Ed.2d at 151. This narrow holding in Simmons neither demands nor precludes defendant’s claim.
Indeed, the Supreme Court’s narrowest holding in Simmons cannot be detached from its underlying reasoning and from its Due Process analysis, focussing on defendant’s right of rebuttal. Simmons, supra, 512 U.S. at _ n. 4, 114 S.Ct. at 2193 n. 4, 129 L.Ed.2d at 141 n. 4. The right of rebuttal is essential because it ensures that both sides of the issue will be fairly presented to the fact-finder and, therefore, the most reliable determination about the blameworthiness of defendant and the suitability of death will be rendered. Thus, the Court recognizes the essential right of *426capital defendants to answer and deny the allegations made against them during the penalty phase.
The majority implicitly recognizes that it would be arbitrary and illogical to limit the Due Process right to rebut the State’s evidence with defendant’s parole ineligibility, arising from a cumulation of defendant’s prior and present sentences, to circumstances in which defendant faces a life sentence without parole and the threat of future dangerousness as an aggravating factor. Rather, common sense compels that defendant’s extended period of parole ineligibility should equally rebut the c(4)(a) prior murder aggravating factor. In both situations, the need for rebuttal and the strength of rebuttal evidence are equivalent. After all, the future dangerousness factor and the c(4)(a) factor serve overlapping functions and raise common concerns. See Harris v. State, 312 Md. 225, 539 A.2d 637, 650 (1988) (“Separate punishment would address the greater need for retribution for one who had killed twice, and the long parole ineligibility period if defendant were to receive consecutive sentences would address the sentencer’s potential concern that a person who had killed twice might kill again.”). This Court’s recognition in Bey III, supra, 129 N.J. at 603, 610 A.2d 814, that it is most important to instruct the jury on the nature of a defendant’s prior punishment when the State seeks the death penalty by the c(4)(a) factor, further demonstrates that a defendant’s parole ineligibility rebuts the effect of the c(4)(a) factor.
Critically, Justice Blackmun cited significant evidence of juror confusion about the length of time served on a life sentence. Simmons, supra, 512 U.S. at _ & n. 9, 114 S.Ct. at 2197 & n. 9, 129 L.Ed.2d at 146 & n. 9 (citations omitted) (recognizing that “[i]t can hardly be questioned that most juries lack accurate information about the precise meaning of ‘life imprisonment’ as defined by the States”); id. at _, 114 S.Ct. at 2198, 129 L.Ed.2d at 147 (Souter, J., concurring) (finding reversible error when trial court denies a defense request to clarify a sentencing term or issue and when evidence of ambiguity exists). That confusion seriously *427threatens to prejudice defendants. See Anthony Paduano & Clive A. Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum.Hum.Rts.L.Rev. 211, 211-12 (1987) (explaining the effect of juror misperceptions of the meaning of a life sentence is that jurors “feel[ ] constrained to vote for a penalty of death” to avoid providing the defendant with a “ ‘get out of jail free’ on parole” card). Moreover, as suggested in Simmons, supra, 512 U.S. at _, 114 S.Ct. at 2192, 129 L.Ed.2d at 147, instructing the jury that the defendant labored under a prior life sentence with a thirty-year parole disqualifier, yet insisting that the jury ignore this fact, has the effect of informing the jury of the availability of parole, yet telling them to be “blind” to this fact. The Simmons Court noted the frustrating nature of such an instruction and further implied that a jury might not be capable of following such guidance. Id. at _, 114 S.Ct. at 2197, 129 L.Ed.2d at 147. By ensuring that juries will be aware of the legal effect of their findings, Mejia, supra, 141 N.J. at 485, 662 A.2d 308, this Court’s ruling -will cure much of the dangerous jury confusion that threatens the sentencing determination.
This Court has repeatedly stressed that the jury must be aware of the “practical effect” of its sentence. Martini I, supra, 131 N.J. at 311-13, 619 A.2d 1208 (recognizing need to inform juries of the practical effect of their verdict, especially when defendant is not likely to survive to parole eligibility); Bey III, supra, 129 N.J. at 601, 606, 610 A.2d 814 (finding failure to inform the jury that a life sentence would result in the defendant spending the next seventy years in prison “harmless error because the jury already knew the practical effect of a life sentence”); cf. Biegenwald IV, supra, 126 N.J. at 49, 594 A.2d 172 (noting that “the argument that defendant will never be eligible for parole in his lifetime can be made based on the current proceeding”).4
*428I continue to maintain that a defendant’s prior sentence is also admissible mitigating evidence under the Eighth Amendment and New Jersey’s constitutional counterpart.
The requested instruction should be construed as mitigating evidence because an assurance that defendant would die in prison if sentenced to life would weigh against the jury’s sentencing defendant to death. That arguably would be relevant to defendant’s ‘record’ or ‘background’ pursuant to mitigating factor c(5)(h).
[Bey III, supra, 129 N.J. at 656-57, 610 A.2d 814 (Handler, J., dissenting) (citing Hunt v. State, 321 Md. 387, 583 A.2d 218 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991)); Davis v. State, 512 So.2d 1291, 1293 (Miss. 1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1088, 99 L.Ed.2d 247 (1988); State v. Henderson, 109 N.M. 655, 789 P.2d 603, 607 (1990).]
Consideration of a defendant’s parole ineligibility under the Eighth Amendment is supported by this Court’s decision in Davis, supra, 96 N.J. at 617, 477 A.2d 308, in which the Court held that statistical evidence demonstrating that a parolee over the age of fifty-five was unlikely to recidivate was relevant mitigation evidence. See Bey III, supra, 129 N.J. at 657, 610 A.2d 814 (Handler, J., dissenting). If the Court finds that defendant’s age upon release from prison is relevant to the jury’s sentencing calculation, then it inevitably follows that the cumulative length of defendant’s prior and potential sentence are relevant.5
*429Although the opinion of the Simmons Court specifically declined to address whether the result was mandated by the Eighth Amendment, preferring instead to focus on defendant’s Due Process right of rebuttal, 512 U.S. at _ n. 4, 114 S.Ct. at 2193 n. 4, 129 L.Ed.2d at 141 n. 4, Justice Souter’s concurrence, joined by Justice Stevens, argued that the result is also compelled by the Eighth Amendment’s promise of “a jury capable of a reasoned moral judgment about whether death, rather than some lesser sentence, ought to be imposed.” Id. at _, 114 S.Ct. at 2198, 129 L.Ed.2d at 147 (Souter, J., concurring); see also Henderson, supra, 789 P.2d at 607 (admitting evidence of parole ineligibility under Eighth and Fourteenth Amendments where future dangerousness was not raised as an aggravating factor).6
2.
In the case at bar, the failure fully to inform the jury about defendant’s parole ineligibility was prejudicial and was not rendered harmless by the argument of counsel. In an area of such grave importance as a capital jury’s comprehension of its sentencing role, the arguments of counsel cannot substitute for the direct *430guidance of the trial court. Simmons, supra, 512 U.S. at _, 114 S.Ct. at 2198-99, 129 L.Ed.2d at 148 (Souter, J. concurring); see also Taylor v. Kentucky, supra, 436 U.S. at 488, 98 S.Ct. at 1936, 56 L.Ed. 2d at 477 (“arguments by counsel cannot substitute for instructions by the court”); Bey III, supra, 129 N.J. at 656-57, 610 A.2d 814 (Handler, J., dissenting) (arguments of counsel cannot substitute for trial court’s instruction). But see Simmons, supra, 512 U.S. at _, 114 S.Ct. at 2199, 129 L.Ed.2d at 149 (Ginsburg, J., concurring) (stating that if “the relevant information is intelligently conveyed to the jury, Due Process does not dictate that the judge herself, rather than defense counsel, provide the instruction”); id. at _, 114 S.Ct. at 2200-201, 129 L.Ed.2d at 151 (O’Connor, J., concurring) (finding judicial instruction was unnecessary, despite the fact that even “common sense” dictates that juries are confused about the consequence of a life sentence); Bey III, supra, 129 N.J. at 615, 610 A.2d 814 (relying on arguments of counsel as substitutes for court instruction).
Here, the jury was clearly told that if sentenced to life, defendant may serve as few as thirty years before being released. On at least five separate occasions the trial court framed the jury’s decision as one between thirty years to life and the death penalty. Though trial defense counsel argued that defendant would likely die in prison, trial counsel also informed the jury that its choice was between thirty years and death. Cf. Bey III, supra, 129 N.J. at 615, 610 A.2d 814 (relying on argument of counsel where the defense and prosecution informed the jury that Bey would definitely not be eligible for parole for seventy years, and the court also explained the sentencing in this fashion at least one time). Moreover, the jury was instructed that the remarks of counsel are argument and not testimony, evidence, or the definitive version of the law. The court firmly admonished the jury to disregard the argument of counsel when it diverged from the law as set out by the court, and the arguments of counsel did not conform to the court’s charge. It is very likely, therefore, that the jury did not have a complete understanding of the life sentence alternative, and m$y have harbored significant doubts about the likelihood of *431defendant getting out of jail after thirty years. That fact had a strong potential to affect the verdict.
Thus, Loftin’s jury was never informed that, if sentenced to life, defendant would not face parole at age fifty, but at ninety years of age. There is a clear, substantive distinction in the punishment. In the former scenario, defendant could anticipate the freedom to travel, educate himself, and enjoy the benefits of society. The jury may have also considered that defendant may recidivate if released at fifty years of age. In the latter scenario, the concern disappears because defendant dies in jail. Instructing the jury about the effect of defendant’s prior sentence ensures that the jury is equipped to make a fully informed, sound, and confident determination of punishment. The absence of such instructions can only decrease the reliability of any death sentence that is imposed. See Bey III, supra, 129 N.J. at 602, 610 A.2d 814. Indeed, the jury is more apt to attempt to compensate for an apparently insufficient punishment when the prior murder aggravating factor is charged. Id. at 603, 610 A.2d 814 (quoting Harris v. State, supra, 539 A.2d at 650). Thus, the denial of defendant’s right to submit his parole ineligibility to rebut the c(4)(a) factor was harmful error.
B.
The majority further restricts the right of defendants to proffer relevant mitigating evidence by denying defendant the ability to introduce the impact of the execution on his family as relevant character evidence, under mitigating factor N.J.S.A. 2C:11-3c(5)(h), ante at 367-69, 680 A.2d at 712-13, and by severely minimizing the import of individualized consideration of the c(5)(a) mitigating factor. Ante at 373-76, 680 A.2d at 715-17. The deleterious effect of those improper restrictions of the jury’s ability to consider mitigating evidence is exacerbated by the recent expansion of jury discretion to consider aggravating factors that are irrelevant to defendant’s blameworthiness. See State v. Muhammad, 145 N.J. 23, 678 A.2d 164 (1996).
*432As evidenced by our recent decision in Muhammad, as well as the scope and manner of non-capital sentencing in New Jersey, it is clear that defendant’s proffered family impact evidence is relevant character mitigating evidence.
There is precedent for concluding that a family member’s testimony about the death of a relative is relevant to the character of the decedent. Cf. Muhammad, supra, 145 N.J. at 47, 678 A.2d 164 (ruling evidence of impact of loss of the victim on close friends and family members, about victim’s character and uniqueness as an individual, is information relevant). If the impact of the loss of the victim on the victim’s survivors is relevant, clearly the impact of the execution of defendant on defendant’s family is relevant to the uniqueness of defendant as an individual. No other conclusion can be reasonably asserted. Indeed, although there are cogent— in fact, unanswerable — objections to the relevance of the victim’s character in determining a defendant’s death worthiness, id. at 102-03, 678 A.2d 164 (Handler, J., dissenting), the family-impact evidence is deemed relevant to character because it evinces the strength of the bond between the victim and his or her family. The contribution and connection the victim or defendant makes to his or her family is thus indicative of his or her character and relevant in mitigation or, arguably, rebuttal of mitigation.
In State v. Davis, supra, 96 N.J. 611, 477 A.2d 308, this Court recognized the relevance of less direct and more generalized character evidence than that offered in the present case. There, the Court held that circumstantial statistical evidence relating to the likelihood that people will recidivate' after a certain age is relevant to understanding the character of the particular defendant because it “embraces those individual qualities that distinguish a particular person.” Id. at 618, 477 A.2d 308. If a generalized statistical estimate that defendants are less likely to recidivate after a certain age is probative of “those individual qualities that distinguish a particular person,” it is beyond comprehension on what basis the Court now concludes that the impact of defendant’s death on people with whom his life is most intimate*433ly entwined, is irrelevant to defendant’s character. See also State v. Stevens, 319 Or. 573, 879 P.2d 162, 167-68 (1994) (en banc) (concluding that the use of circumstantial evidence to establish the defendant’s character or the factors establishing character was sufficient).
The consideration of the impact of the execution upon defendant’s family is also supported by N.J.S.A 2C:44-1b(11), which requires the sentencer in a non-capital case to consider the effect of a sentence on a defendant’s dependents. See State v. Mirakaj, 268 N.J.Super. 48, 51-52, 632 A.2d 850 (App.Div.1993) (finding failure to consider impact of sentence on defendant’s children in non-capital case was harmful error). Because the death penalty is “profoundly different from all other penalties----[a]nd a lowered threshold of admissibility for evidence proffered in mitigation of [sentence] ... is consistent with this recognition,” Davis, supra, 96 N.J. at 622, 477 A.2d 308 (citation omitted), it would be fundamentally unfair to prevent a defendant in a capital case from presenting mitigating evidence that would be a statutorily required consideration in any other sentencing proceeding. See also Davis, supra, 96 N.J. at 619-20, 477 A.2d 308 (recognizing the strong analogy between the tasks of a sentencing judge and a capital penalty-phase jury, and suggesting that the penalty-phase jury operates under similarly relaxed rules of evidence with similar discretion); Moore, supra, 122 N.J. at 521, 585 A.2d 864 (Handler, J., concurring in part and dissenting in part) (citation omitted) (arguing that “a defendant confronting the death penalty should not for purposes of punishment be placed in a less advantageous position than a defendant convicted of a non-capital crime”).
Finally, it is noteworthy that other jurisdictions recognize the relevance of similar family-impact evidence offered by a defendant in mitigation of death. See Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (noting Arizona’s practice of accepting evidence of the effect of the execution upon defendant’s family in mitigation of death); Cardona v. State, 641 So.2d 361, 365 (Fla.1994) (while not allowing such evidence from children’s *434guardian ad litem, court would allow the children themselves to testify and the defense to argue that it would be in the children’s best interest if their father was not executed), cert. denied, _ U.S. _, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995); Stevens, supra, 879 P.2d at 167-68 (reversing trial court’s exclusion of wife’s testimony relating that “daughter would be affected adversely by defendant’s execution [because the testimony evidenced that there was] something positive about his relationship with his daughter ... something positive about defendant’s character or background. Put differently, [the testimony becomes relevant in its tendency to] demonstrate that defendant has the capacity to be of emotional value to others”) (citing Skipper v. South Carolina, supra, 476 U.S. at 5-7, 106 S.Ct. at 1671-72, 90 L.Ed.2d at 7-8 (holding that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination”)); State v. Benn, 120 Wash.2d 631, 845 P.2d 289, 316 (en banc) (recognizing loss suffered by family if defendant is executed as relevant mitigating evidence) cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993); cf. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L. Ed.2d 720 (1991) (finding that testimony by victim’s family and close relations regarding the impact of the loss of victim is informative of victim’s uniqueness as an individual).
Thus, the broad standards for admissibility of mitigating evidence under the Eighth and Fourteenth Amendments compel consideration of the effect of the execution on defendant’s family as mitigating character evidence. Each mitigating factor found by the jury tips the scale towards life imprisonment and away from death. The effect that defendant had on his children, as evidenced by the impact of his execution, is relevant because, as the Stevens Court found, it demonstrates defendant’s ability to have an emotional impact on others and positively to engage and influence another human life. See Stevens, supra, 879 P.2d at 167-68. It demonstrates defendant’s human worth at the moment that the jury is to decide life or death. Indeed, the fact that Donald *435Loftin’s children were aware of their father, were influenced in a positive and loving way by their father, and depended on their father, is clearly as relevant to defendant’s character as the fact that he attended Bucks County Community College.
IV
In addition to the foregoing errors, I note that there were further errors that independently, or cumulatively, mandate reversal including, in particular, the trial court’s admission of testimony relating to defendant’s lack of mental defense to the Atlantic County murder. These errors require no further elaboration at this time.
I also join in the separate dissenting opinion of Justice O’Hern regarding the Mejia issue.
For the foregoing reasons, I dissent from the Court’s opinion and judgment.
The State's frequent resort to the c(4)(f) factor has a similar " 'chameleon-like way of adapting to any particular set of [facts]' ” similar to the drug profiles challenged in United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), where the United States Supreme Court noted the various application of the profiles. The characteristics proffered in various cases included: suspect was first to deplane, last to deplane, deplaned from the middle, one-way tickets, round-trip tickets, nonstop flight, changed planes, no luggage, gym bag, new suitcases, traveled alone, traveled with companion, acted nervously, and acted too calmly. Id. at 13-14, 109 S.Ct. at 1588-89, 104 L.Ed.2d at 14-15 (Marshall, J., dissenting). Repeated employment of the c(4)(f) factor also reveals arbitrary, contradictory, and irrational application.
The State argued that defendant fired only once in the head in order to limit the noise of the gunfire. The tenuous nature of the State's argument — and of the nature of this evidence in general — is apparent when one considers the argument that a silencer on a gun would not establish purpose to avoid apprehension or every murder committed with a knife would have the same purpose because a knife is quieter than a gun. Menendez v. State, 368 So.2d 1278, 1282 (Fla.1979). Clearly, also, a second or third shot would not have been more time expensive, and would have ensured that Marsh was dead.
This statistic includes those cases in which c(4)(f) was found to be present as well as those where notice of c(4)(f) was served and charged to the jury or urged on the court but was not found to be present.
Because the jury should know the "practical effect" of its sentence, if possible the court should determine whether defendant’s sentence will run concurrently with or consecutive to his prior sentence prior to the penalty-phase *428trial. Martini I, supra, 131 N.J. at 366, 619 A.2d 1208 (Handler, J., dissenting) (arguing that the "concern for the reliability of the juiy’s verdict____is no less vital when the sentences are ... to be imposed for contemporaneous convictions”). To the extent that this Court held otherwise in Martini I, supra, 131 N.J. at 312, 619 A.2d 1208, this holding should be reconsidered in light of Mejia, supra, 141 N.J. at 485, 662 A.2d 308 (citations omitted) (holding that "particularly in capital cases, [trial courts] must inform juries of the legal effect of their findings”) and Simmons, supra, 512 U.S. _, 114 S.Ct. 2187, 129 L.Ed.2d 133. A pre-penalty-phase determination of the potential non-capital charge would neither threaten the integrity of the process nor burden judicial economy. See Clark v. Tansy, 118 N.M. 486, 882 P.2d 527, 534 (1994) (requiring the determination of non-capital charges prior to penalty-phase jury deliberations in order to inform the juty of defendant's parole eligibility date, if the defendant so requests).
Biegenwald IV, supra, 126 N.J. 1, 594 A.2d 172, cited by the majority, ante at 370, 680 A.2d at 714, is distinguishable. There, the Court found the prior sentences irrelevant to the defendant's blameworthiness in the context of an *429instruction to compare the reasoning of the prior juiy, or a suggestion that the prior sentence should instruct the juiy in their deliberations on the present sentence. Here, however, Loftin presents the prior sentence only to make the argument to which the Court found that Biegenwald was entitled: that he "will never be eligible for parole in his lifetime.” Biegenwald IV, supra, 126 N.J. at 49, 594 A.2d 172. Unlike in Biegenwald IV, the jury here would not be fully informed of the consequence of their verdict without considering the prior sentence. In other words, without the knowledge that Loftin was previously sentenced to life, and the knowledge that another life sentence would run consecutively, the jury would inevitably believe that despite the two murder convictions, there was a possibility of parole within thirty years.
Four years after Henderson, supra, in Clark v. Tansy, 118 N.M. 486, 493, 882 P.2d 527 (1994), the New Mexico Supreme Court held that once the length of incarceration is asserted as mitigating evidence, a trial court cannot choose between providing the juiy with the possible range of sentences or instructing the juiy on the sentence that is the alternative to death. Rather, the Tansy court held that the trial court must impose the sentence on non-capital charges prior to jury deliberations on the capital charge sentence and then inform the capital jury of the total potential sentence.