dissenting
The Court for the third time affirms both the murder conviction and death sentence of a defendant prosecuted for capital murder. It does so despite the fact that this prosecution abounds with major trial-level errors and deficiencies. Those relate to the failure to qualify properly the jury, the refusal to allow the jury to consider a mitigating factor that was supported by evidence, the restriction on the use of mitigating defense-expert evidence to disprove the existence of aggravating factors, the inadequacy of instructions with respect to both aggravating and mitigating factors, and the failure to instruct the jury on likely sentencing alternatives other than the death sentence. Those errors impugn this prosecution and justify the reversal of the conviction and sentence. Further, this capital-murder prosecution underscores the infirmity and weakness of the constitutional support on which capital-murder prosecutions and the death penalty rest. See e.g., State v. Marshall, 123 N.J. 1, 256-57, 586 A.2d 85 (1991) (Handler, J., dissenting). I *325remain of the view that the capital conviction and death sentence are indefensible under our state constitution.
I
The jury voir dire in this case was extended, but nonetheless seriously deficient in several respects. Through the resort to leading questions, the voir dire foreclosed a full exposition of the attitudes of jurors concerning the death penalty. Further, it failed to explore the possible effect on the attitudes of prospective jurors of the two alleged aggravating factors. The factors had the clear potential for triggering possible bias and impairing the ability to consider and weigh the mitigating factors. To find the voir dire constitutionally adequate, the Court considers the vóir dire sufficiently thorough and discounts these deficiencies. Ante at 212, 221-222, 619 A.2d at 1225, 1230-1231. I believe that close scrutiny of the record establishes that the voir dire did not assure that the jury in this capital case was properly qualified. This grave shortcoming requires reversal of defendant’s conviction and capital sentence.
Capital defendants are constitutionally entitled to a comprehensive voir dire. Following and elaborating on the United States Supreme Court decisions in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), this Court has held that jurors may not serve in capital cases if their personal views on capital punishment “prevent or substantially impair” the performance of their duties as jurors in accordance with their oaths and the court’s instructions. See, e.g., State v. Williams, 113 N.J. 393, 415, 550 A.2d 1172 (1988) (Williams II) (quoting Adams, supra, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589).
This Court on several occasions has emphasized “the critical importance of the voir dire in exposing potential and latent bias” of jurors. E.g., Williams II, supra, 113 N.J. at 409-10, 550 A.2d 1172. Unless the defendant is afforded a voir dire *326sufficiently “thorough and probing” to ensure that the Adams/ Witt test is satisfied, the defendant’s death sentence must be overturned. State v. Biegenwald, 126 N.J. 1, 34, 594 A.2d 172 (1991) (Biegenwald IV).
In assessing the adequacy of a voir dire, the Court should examine the juror selection process “as a whole.” State v. Dixon, 125 N.J. 223, 244, 593 A.2d 266 (1991). Among the most important factors the court should consider are the scope and the method of questioning. Each potential juror’s feelings about the death penalty should be probed to ensure that the juror would be both able and willing to follow the court’s instructions. To that end, open-ended questions are favored and leading questions are discouraged.
-A-
Much of the voir dire in this case was dominated by the sort of leading questions criticized in Biegenwald IV. The Court there reviewed what it found to have been an inadequate voir dire:
The suggestion in the colloquy [between defense counsel and trial judge] that there is a "correct” answer to the open ended question “what are your views on the death penalty?” is most troubling. Although such an open-ended question is undeniably a proper jumping-off point for death qualification, the vapid response "it depends on the circumstances” in no way reduces the need for additional probing of a venireperson’s views on the appropriateness of the sentence of death. The purpose of voir dire is not to elicit from a potential juror the correct answer; it is to draw out the potential juror’s views, biases, and inclinations and to provide both counsel and the court the opportunity to assess the venire-person’s demeanor____ The court’s initial open-ended question and variations on the "it depends” response were too often followed by closed-ended, suggestive questions that, not surprisingly, elicited the obvious "correct” response.
[126 N.J. at 39, 594 A.2d 172.]
In this case, as in Biegenwald IV, initial open-ended questions elicited equivocal responses, which were in turn followed by a series of leading questions that ultimately induced obviously preferred responses. In some instances, the court asked *327open-ended questions only after suggesting, through leading questions, the preferred response. More than half of the jurors who actually served were qualified on the basis of their answers to leading questions regarding the imposition of the death penalty.1 Some of the juror responses indicating a will*328ingness to weigh aggravating and mitigating factors appear to have been prompted and influenced by the form of the precipitating questions. This form of questioning not only failed to delve deeply into juror attitudes about the death penalty but indeed masked actual attitudes.
I recognize that the Court defers to strategic decisions made at trial regarding the method of conducting voir dire. When the record reveals that the lawyer has made a conscious decision not to investigate the attitudes of jurors toward the death penalty, this Court has deferred to the trial attorney’s calculated choice. E.g., Dixon, supra, 125 N.J. at 247, 593 A.2d 266; Marshall, supra, 123 N.J. at 93, 586 A.2d 85; State v. Long, 119 N.J. 439, 480, 575 A.2d 435 (1990). However, the trial court cannot employ procedures that would allow a biased jury to sit simply because trial counsel seems not to care. In Biegenwald IV, the Court acknowledged “the paucity of objection by defense counsel” but stated that “whatever lack of zealousness and vigor one might ascribe to defense counsel in no way diminishes our duty to ensure that defendant is sentenced by a fair and impartial jury.” 126 N.J. at 42, 594 A.2d 172. Further, the Court concluded that it could not “attribute that inadequacy [of the voir dire ] to a strategic decision by trial counsel.” Id. at 43, 594 A.2d 172. “[T]he primary responsibility for the conduct of voir dire rests with the trial court.” State v. Pennington, 119 N.J. 547, 591, 575 A.2d 816 (1990). When the Court reversed the death sentence in Williams II, it said that “the lack of significant information regarding jurors’ attitudes on a host of issues denied both parties the ability to challenge jurors for cause, and perhaps most importantly left the trial court unable to fairly evaluate the-fitness of many of the jurors to serve.” 113 N.J. at 408, 550 A.2d 1172 (emphasis added). Today the Court simply sidesteps the problem.
*329There is no indication in this case that defense counsel affirmatively wished to limit vigorous questioning on juror attitudes toward the death penalty. He never expressed concern that the court was “overemphasizing” death qualification. Nor did he indicate that he wanted to minimize death qualification to maximize defendant’s chances of prevailing at the guilt phase. On the contrary, the record is full of instances in which defense counsel pursued the topic and objected to potential jurors who appeared to favor the death penalty. In my view, if defense counsel failed to probe thoroughly into the attitudes toward the death penalty of many jurors, as it appears he did, that failure should not be attributed to a desire on his part to limit questioning. Any doubts in this regard must be resolved to favor a thorough probing of juror attitudes, for the possibility that an unqualified jury will impose a death sentence is too grave a risk to accept. See State v. Marshall, supra, 123 N.J. at 224, 586 A.2d 85 (Handler, J., dissenting) (holding that defense counsel does not have prerogative to decide whether to death-qualify a jury in capital cases because risk of unfair conviction of death poses too grave a constitutional offense).
-B-
In addition to its failure to explore fully the jurors’ views of the death penalty in general, the voir dire failed to account for juror attitudes about the specific aggravating factors in the case. The two aggravating factors were kidnap murder and murder to escape apprehension. Prospective jurors were never asked how they felt about those specific aggravating factors, nor how proof of those circumstances would affect their abilities to weigh aggravating and mitigating factors. (Only two jurors who heard the case, Paul Edson and Loretta Olsommer, were asked whether they would vote for the death penalty in a kidnap-murder case. Olsommer actually indicated that she would vote for the death penalty automatically unless the defendant had not intended to kill.)
*330This Court has acknowledged that some jurors who would not vote for the death penalty automatically in all murder cases might be unwilling to impose a life sentence given the presence of certain aggravating factors. In Williams II, supra, 113 N.J. 393, 550 A.2d 1172, the Court suggested that questioning of potential jurors on specific aggravating factors may be required. In that case, which involved the aggravating factor of murder committed in conjunction with rape, the Court stated that
a juror who will not, or cannot, consider relevant mitigating evidence pertaining to the defendant because the crime involves rape and murder is “substantially impaired” under the Adams-Witt test. Therefore, the failure to inquire into whether any juror could consider the mitigation evidence if it was established that the defendant was guilty of rape and murder denied counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role in this case.
[Id. at 417, 550 A.2d 1172.]
In Biegenwald IV, supra, 126 N.J. 1, 594 A.2d 172, the Court applied the same reasoning to a case involving the aggravating factor of a prior murder committed by a person charged with capital murder. The reasoning of Williams II was found to be “equally applicable” to cases involving the prior-murder aggravating factor because prior murder convictions, like rape-murders, “could blind venirepersons in the performance of their duties as jurors.” Id. at 31, 594 A.2d 172. Thus, broadening the rule to apply to all such inflammatory aggravating factors, the Court concluded that the “voir dire should include questioning about evidence of aggravating factors that will be presented during the sentencing proceeding and that may with reasonable likelihood have such an effect on a prospective juror as to render him or her ‘substantially impaired’ under the Adams-Witt standard.” Id. at 32, 594 A.2d 172.
A case involving a kidnapping that ends in the killing of the victim so that the defendant may escape detection and capture surely presents a highly inflammatory and disturbing situation, one that could readily engender intense outrage toward the *331defendant and deep sympathy for the victim. The Court acknowledges that the rule on aggravating factors enunciated in Williams II and reaffirmed in Biegenwald IV should apply to kidnap murders, and that the voir dire should have explored the potential that this aggravating factor might unfairly sway the verdict toward death. Ante at 212, 619 A.2d at 1225. The Court concludes that the kidnapping factor meets the more exclusive standard articulated by Justice Garibaldi in her dissent in Biegenwald IV, whereby voir dire would address only those factors which could cause “excessive, and deserved, sympathy for the victim.” 126 N.J. at 93, 594 A.2d 172.2
Nonetheless, the Court concludes that, considering the voir dire as a whole, this flaw does not rise to the level of reversible error. I believe that it does, for the circumstances of a kidnapping murder are certain to evoke sympathy not only for the victim, but his family as well. Prosecutorial strategy throughout the trial emphasized the impact of defendant’s intimidation upon Mrs. Flax, and the terror which she experienced. It is precisely in these cases where such evidence is admissible to establish the existence of an aggravating factor that the voir dire must account for juror sentiments and attitudes which would blind them to mitigating evidence. While the use of such evidence may not be so inflammatory as to preclude its admissibility under Evidence Rule 4, in a capital prosecution the voir *332dire must ensure that the effect of the evidence is confined to establishing the aggravating factor and does not serve to distort the jury’s deliberations.
In sum, the voir dire failed sufficiently to explore and expose juror attitudes concerning the death penalty in general and to explore such attitudes concerning the specific aggravating factors. The defects in the voir dire impugned the juror death-qualification process and justify the reversal of defendant’s conviction and death sentence.
II
Defense counsel sought to rely on mitigating factor c(5)(g). That factor is available if the “defendant rendered substantial assistance to the state in the prosecution of another person for the crime of murder.” According to the defense, at the meeting between defendant and Therese Afdahl on the evening of their arrest, defendant induced Afdahl to confess, thereby aiding the State in its prosecution of Afdahl. (In a separate trial, the State used Afdahl’s confession to convict her of Flax’s murder.) The trial court rejected defense counsel’s request for an instruction on the c(5)(g) factor. The Court now concludes that there was insufficient evidence to submit that factor to the jury, and even if the trial court’s ruling was an error, that error was harmless because the jury could consider the evidence under the catch-all mitigating factor c(5)(h). Ante at 299, 619 A. 2d at 1272. I strongly disagree with the Court’s analysis and resolution of this issue.
When defense counsel asked the trial court to instruct the jury on the mitigating c(5)(g) factor, the prosecutor objected because he could not “conceive of a basis in the evidence as I understand it, and any evidence that may be produced that could possibly substantiate that mitigating factor.” The prosecutor further observed that the State did not intend to call defendant in Afdahl’s trial.
*333In response, defense counsel pointed to defendant’s signed statement and observed that it “was made only after Mr. Martini went to Therese Afdahl and told her that, ‘I’m going to tell them what happened and what the participation is.’ ” Counsel continued, “Now, that, of course, is not part of that statement [Martini’s signed sworn confession] but that is part of Mr. Trahi’s [sic: Trahey’s] testimony and Mr. Carlino’s testimony and the F.B.I. agent’s testimony that that happened.” Counsel for the defendant emphasized, to the court below, that Afdahl’s confession came only after the defendant had confessed.
The trial court then ruled as follows:
Under the statute 2C:11-3(c)5(g), mitigating factor talking about defendant rendered substantial assistance to the State in the prosecution of another person for the crime of murder, I have to be satisfied that the defendant had rendered substantial assistance.
Substantial assistance means considerable assistance, assistance which played a fairly large or important role in the arrest or prosecution of the other person. And that has not happened here.
Mr. Martini’s short two to three minute discussion or statement to Therese Afdahl at approximately one a.m. on January 26, might have led Therese to then voluntarily give a statement as to her involvement in this, but certainly that in and of itself is not substantial assistance, meaning that it was considerable assistance, assistance which played a fairly large or important role in the arrest and prosecution of Therese Afdahl.
Defense may be able to utilize that testimonfy] on the catch-all mitigating factor and argue that, but as a separate mitigating factor I’m going to sustain the objection of the prosecutor.
However, if other evidence comes in that changes my mind on that, of course then we can always deal with that.
When the trial court made its ruling at the beginning of the penalty phase of the trial, the only evidence bearing on the issue of defendant’s “cooperation” that had been placed before the jury consisted of Officer Trahey’s testimony at the guilt phase of trial. That evidence was as follows:
A At that time [Martini] indicated that he would be more than willing to cooperate and talk with us and lay out his entire involvement in the case, but that he first wanted an opportunity to speak to Therese Afdahl. It was agreed to afford him that opportunity, and he did speak with Therese.
*334Q Before you gave him that opportunity, did he tell you what he wanted to say to Therese Afdahl?
A Only that he was going to cooperate with us and that he was going to tell us what had happened and that he wanted her to be aware of that fact.
Q Where was Therese Afdahl at this time?
A Therese was in what was Captain Denning’s office at that time, which was about ten feet down the hall.
Q Did you give him that opportunity to speak to her?
A Yes, I did.
Q Was that done in your presence?
A Yes, it was.
Q About how long did that conversation last?
A At best two to three minutes.
Q And did it consist of what John Martini told you it would consist of?
A Yes.
Nevertheless, the record indisputably shows that in addition to Trahey’s testimony before the jury at the guilt-phase of the trial, other evidence bearing on the issue of defendant’s cooperation had been adduced in the course of the prosecution. That evidence was clearly urged by defense counsel as a basis for the c(5)(g) mitigating factor.
The pretrial hearing on defendant’s motion to suppress his confessions included testimony concerning what had occurred at meetings between defendant and Afdahl on January 26 and 30. For example, Officer Trahey testified with respect to the January 26 meeting:
A John Martini, actually we allowed John Martini to tell her that he was going to cooperate with us and that she — he wanted her to know that he was going to cooperate with us, and that’s what he was allowed to tell her, that, “Therese, I’m now going to cooperate with them and I’m going to tell them what happened.”
Q What did Therese say in response if anything?
A I don’t recall what she said. I don’t know that she said anything because we told John that we weren’t going to allow him to engage in conversation, that we would only allow him to tell her specifically that he was going to cooperate with us, and then we told him we were going to remove him from the room and go back to the conference room.
*335A John had had the opportunity to tell Therese that he was going to cooperate with us and at that point we sat down and we started to get into the questioning of, you, about himself and what had happened.
Agent Petersen also testified about the January 26 meeting, stating that, though he was not present during the conversation between defendant and Afdahl, he heard defendant express his intent to encourage Afdahl to cooperate with the police. Specifically, Agent Petersen testified:
A Well, he had told us at one point in time that he’d be willing to cooperate and tell us exactly what had happened in this matter. He said but, first, he would like to consult with Therese Afdahl because he wanted to alert her to tell the whole truth as well and, basically, that’s what he had provided to us.
Q So did you discuss — you or Investigator Trahey in your presence discuss with Mr. Martini what he was going to say to Ms. Afdahl when they met?
A Well, basically he told us what he wanted to tell her, is that he wanted to tell her to just tell the truth of exactly what had happened and he would be doing the same to us.
********
A * ’ * What Mr. Martini said to us basically was that, you know, he wanted to talk to Ms. Afdahl to tell her to — you know, to tell the truth as to what had happened.
With respect to the January 26 meeting Officer Carlino, the police officer who questioned Afdahl, testified that Afdahl had signed the consent forms to search the apartment and the rooms at Days Inn prior to speaking to defendant, and that she had requested to speak to defendant. In his report, he stated that after Afdahl’s meeting with defendant,
[w]e then asked Ms. Afdahl if she was willing to cooperate with us at this time and tell us the truthful facts concerning her and Martini’s participation in Irving Flax’s murder. At this time, Ms. Afdahl was crying and said that she was willing to cooperate with us and she said that she could now tell us the truth regarding Mr. Flax’s murder, because Martini had told her to cooperate with the police, (emphasis added)
Those witnesses, as well as FBI Agent Hoyt Peavy, also testified on matters bearing on defendant’s cooperation with respect to the January 30 meeting. (Some of this testimony and a written report indicated that at the later meeting defendant had urged Afdahl to tell the police that she was the one who shot Flax.)
*336—A—
The Court now reasons that the only evidence before the trial court relevant to defendant’s substantial assistance to the State with respect to Afdahl was Officer Trahey’s testimony before the jury. Ante at 296, 619 A.2d at 1270. According to the Court, that evidence shows at best that defendant had merely informed Afdahl that he planned to confess, which, the Court concludes, does not satisfy a threshold finding of “substantial” assistance. Ante at 297, 619 A.2d at 1271.
I believe that the trial court erred by its apparent failure to consider fully the evidence of defendant’s cooperation that had been adduced at the pretrial phases of the prosecution when it then determined that there was insufficient evidence — trial or pretrial — to submit c(5)(g) to the jury. This Court, in my opinion, now errs in finding that the only testimony available to support the defense request was Trahey’s jury testimony. It compounds the error in concluding that even that testimony was insufficient to enable the jury to find that defendant had rendered substantial assistance in aid of Afdahl’s prosecution.
The trial court clearly erred in not giving due consideration of and full weight to the pretrial evidence relating to defendant’s cooperation. In the penalty-phase trial of a capital case, the defendant is entitled to “the use of all reliable, helpful information.” State v. Davis, 96 N.J. 611, 619-20, 477 A.2d 308 (1984). In Biegenwald IV, supra, 126 N.J. at 47, 594 A.2d 172, we concluded that a mitigating factor could be established “by some reliable evidence.” Clearly, the pretrial testimony of the interrogating officers was such reliable evidence.
Furthermore, defendant could proceed by way of a proffer; he was under no obligation to have adduced evidence of mitigating factors in advance of the penalty-phase of the trial. Under Rule 3:13-4, the defense’s obligation to notify the prosecutor of the mitigating factors upon which it will rely in the penalty phase arises only upon the verdict of guilt.3 By contrast, the *337prosecutor’s obligation to notify the defendant of the alleged aggravating factors arises when the defendant is arraigned. Mitigating factors as such are simply not relevant to the guilt phase and do not arise for consideration until after the conclusion of the guilt phase. See e.g., Skipper v. South Carolina, 476 US. 1, 4-5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 7 (1986) (holding that trial court erred in excluding evidence that defendant was capable of being rehabilitated as shown by cooperative attitude in jail). Thus the Court’s decision to hold against defendant the fact that there was no guilt phase testimony to support his sentencing phase contentions is indefensible.
In effect, the Court has approved a procedure whereby the trial court can look solely to the evidence adduced at the guilt phase of the trial to determine whether the defendant is entitled to submit specific mitigating factors in the penalty phase. That contradicts the logic of our death penalty statute N.J.S.A. 2C:11-3c(5) and the rules governing the courts of New Jersey. Rule 3:13-4. We expect defendants to ignore mitigating factors during the guilt phase. Indeed, as already noted, the duty of the defense to give notice of mitigating factors arises only after a verdict of guilt. Accordingly it is both unfair and illogical for a trial court — or this Court on appellate review — to reject a mitigating factor by looking at the evidence adduced at the guilt phase.
*338Undeniably, some evidence that is relevant to certain mitigating factors may be introduced during the guilt phase. There are instances in which underlying evidence adduced during the guilt phase serves a dual purpose of bolstering a defense against guilt and supporting a mitigating factor that will be germane during the penalty phase. Nevertheless, even when evidence that is probative of such overlapping issues is relied upon by the defendant in the penalty phase, that will not itself necessarily mean that all or most of the evidence that is probative of the mitigating factor will have been admitted during the guilt phase. E.g. State v. Biegenwald, 106 N.J. 13, 23-24, 524 A.2d 130 (1987) (during guilt phase, defendant claimed he was not guilty of murder and that a friend had killed victim; during penalty phase, defendant relied upon and introduced evidence to support mental disturbance mitigating factor c(5)(a) and impairment due to mental disease, mitigating factor c(5)(d)).
A review of our death-penalty statute makes clear that there are mitigating factors that are not relevant to or have no bearing on guilt as such. The very nature of such mitigating factors dictates that guilt phase evidence will not ordinarily touch upon them. For example, the defendant’s age c(5)(c), absence of prior criminal record c(5)(f), unusual and substantial duress insufficient to constitute a defense to prosecution c(5)(e), substantial assistance rendered to the State c(5)(g), and generally mitigating evidence under the catch-all factor c(5)(h) often would not be relevant in the guilt phase. For the Court, then, to suggest that a mitigating factor can only be submitted to the jury if the guilt phase record supports it is inconsistent with the structure of a capital trial; it fundamentally alters the bifurcated nature of capital prosecutions and defeats one of the essential goals of bifurcation — to allow a separate and more expansive trial to determine whether death is an appropriate sentence; and it imposes an impossible task, for the defense, in most cases.
*339Most of the testimony regarding defendant’s cooperation emerged during the pretrial hearings. Defendant’s proffer referred to Trahey’s testimony, which was given at the pretrial hearing as well as at the guilt trial itself. The proffer also referred to Petersen’s and Carlino’s testimony. Because Petersen did not testify at the guilt phase, defendant was obviously referring to his pretrial testimony. Moreover, Carlino’s guilt-phase testimony was limited to an inventory of the items seized after a search of the hotel rooms, and therefore defendant’s reference to Carlino’s testimony relating to defendant’s cooperation could only have been to that elicited at the pretrial hearings. Thus, the proffer necessarily incorporated the pretrial evidence. Moreover, the prosecutor apparently understood that defense counsel was referring to more than guilt-phase trial evidence. The prosecutor observed: “I can’t conceive of a basis in the evidence as I understand it, and any evidence that may be produced that could possibly substantiate that mitigating factor.” (emphasis added).
Furthermore, the trial court was on notice that defendant was relying on such pretrial evidence. The defense counsel listed each of the agents as showing that the conversation between defendant and Afdahl had taken place, and he specifically identified the testimony of each of the agents as relevant evidence supporting the mitigating factor. The trial court was fully aware that the pretrial evidence had a bearing on defendant’s claim that he had rendered substantial assistance. The same judge presided over the motions hearings and guilt trial. Having ruled on objections concerning the appropriateness of referring to the officers’ written reports, he knew they existed. He heard the pretrial testimony of Peterson that defendant had wanted to speak to Afdahl to tell her to tell the truth about exactly what happened.
Thus, it is clear that defense counsel’s proffer included the pretrial evidence. To the extent that the trial court’s ruling at the outset of the penalty trial that the jury would not be instructed on the c(5)(g) factor was confined to the trial evi*340dence, that ruling was mistaken. The critical inquiry then is whether defendant proffered sufficient evidence to submit the factor to the jury, not whether the jury had already heard evidence that was sufficient to support the submission of the factor for its consideration in setting the punishment.
To reiterate, testimony at the guilt phase established that before defendant gave his oral and written statements on the morning of January 26, 1989, following his arrest, he had asked for and had received permission to speak to Therese Afdahl. Trahey testified during the suppression hearings that he had been in the room during the conversation. As noted, he stated that defendant “wanted [Afdahl] to know he was going to cooperate” and that he was “going to tell [the police] what [had] happened.” Peterson testified during the pretrial hearings that defendant had told Peterson and Trahey that he had intended to tell Afdahl that he was going to cooperate and that Afdahl should tell the officers “the whole truth” and that “he would like to consult with Therese Afdahl because he wanted to alert her to tell the whole truth as well.” And that “basically he told us what he wanted to tell her, is that he wanted to tell her to just tell the truth of exactly what had happened and he would be doing the same to us.” He did not recall hearing the conversation. Carlino also testified that before either Afdahl or defendant had given a statement, Afdahl had wanted to speak to defendant. Shortly after speaking with defendant, Afdahl made an incriminating statement.
Moreover, at the hearings below, all parties involved seemed to assume that defendant had encouraged Afdahl to cooperate. The investigators’ written reports, which summarize Trahey’s interrogation of defendant and Carlino’s interrogation of Afdahl, corroborate the defense position that defendant told Afdahl that she should cooperate. For example, the Carlino report states that after defendant spoke to Afdahl, “Afdahl was crying and said that she was willing to cooperate with us and she said that she could now tell us the truth regarding Mr. Flax’s murder, because Martini had told her to cooperate with *341the police.” In fact, Trahey’s written report, which is dated two months after the interrogation, states that “John Martini, Sr. told Afdahl that he was going to cooperate with the police and that she should tell the investigators the truth about the kidnapping and murder of Irving Flax.” Indeed, when defendant asked to speak to Afdahl, the detectives met in the hall to discuss whether they would grant the request. Carlino protested because he did not want defendant and Afdahl to create matching stories. It is significant that the others supported the meeting because defendant might get Afdahl to cooperate. (“[I]f he told her it was all right to speak to us, she would tell the truth”).
Only on appeal does the State press the issue whether defendant told Afdahl “I am going to tell the truth” or “You should tell the truth.” Even if defendant actually told Afdahl only that he was going to cooperate, without any encouragement for her to cooperate, given the relationship between the two, the jury could have also found that that statement constituted substantial assistance. Afdahl was a young woman with a substantial drug addiction and was dependent on defendant for care and support. Following the conversation, both Martini and Afdahl confessed to their respective involvement in the crime, signed consent to search forms, and signed sworn statements. Thus the jury could reasonably have found that the knowledge that her protector would confess would have been enough to induce her to cooperate.
—B—
The Court also finds that the trial court’s ruling that defendant’s proffered evidence was insufficient was not prejudicial, even if in error. Ante at 290, 619 A.2d at 1267. According to the Court, the trial court did not prevent defense counsel from submitting any evidence on factor c(5)(g). The Court reasons that this is not a case like Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed. 2d 1 (1982), in which the trial court *342prevented the defense counsel from presenting evidence of a mitigating factor. Ante at 290, 619 A.2d at 1267.
However, the Court fails to appreciate that the trial court’s ruling was in effect an exclusionary ruling. When the trial court ruled on the request for the c(5)(g) instruction at the beginning of the penalty phase, as noted, it explicitly stated that “if other evidence comes in that changes my mind, on that, of course, then we can always deal with that.” (emphasis added) The court’s invitation to defense counsel to produce more evidence was not and could not have been understood to have referred to the pretrial evidence of defendant’s cooperation. The pretrial evidence had already been presented to the trial court in defendant’s proffer and had been rejected by the court as insufficient. Hence, the court’s ruling could have meant only that the court had determined that that evidence— the pretrial evidence — as well as the evidence before the jury was insufficient and inadmissible. That ruling was wrong and the trial court’s invitation to produce “more evidence” to counsel only confirmed that error.
At the end of the penalty phase, the jury still had before it, as evidence of defendant’s substantial assistance to the State, only Officer Trahey’s testimony that defendant had told Afdahl, “[ojnly that he was going to cooperate with us and that he was going to tell us what happened and that he wanted her to be aware of that fact.” In my opinion, that evidence was itself adequate to support a finding that defendant encouraged Afdahl to cooperate with authorities.
Under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, paragraph 12 of the New Jersey Constitution, the jury in a capital case must consider all evidence proffered by a defendant that is relevant to defendant’s record or character or to the circumstances of the offense. Eddings v. Oklahoma, supra, 455 US. at 113-14, 102 S.Ct. at 876-77, 71 L.Ed.2d at 10-11; Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978); State *343v. Ramseur, 106 N.J. 123, 191-92, 524 A.2d 188 (1987). A defendant has the burden to produce evidence of any mitigating factor. N.J.S.A. 2C:11-3c(2)(a). Although the statute does not specify the quantum of evidence needed to justify jury consideration of a mitigating factor, N.J.S.A. 2C:11-3c(b) provides that a defendant “may offer evidence relevant to any of the mitigating factors.”
This Court has, in the past, recognized its “extraordinarily tolerant” practice in allowing evidence to be considered in determining the sentence of convicted defendants. Davis, supra, 96 N.J. at 622, 477 A.2d 308. “Even more so is judicial tolerance required in the sentencing of a capital case.” Ibid. In those instances in which the State seeks to take the life of a criminal defendant, as punishment for a crime, the Court is confronted by a situation “ ‘profoundly different from all other penalties.’ ” Ibid, (quoting Lockett, supra, 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990). In Davis, supra, we wrote:
It must be acknowledged that in the sentencing phase of a capital proceeding— a life or death contest — a defendant is entitled to the use of all reliable, helpful information. The determinative discretion that is invoked in criminal sentencing is extremely sensitive. A sentencing judge may exercise a far-ranging discretion as to the sources and types of evidence used to assist him or her in determining the kind and extent of punishment to be imposed____ In short, 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.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592, 596 (1972).
We must ascribe to the Legislature full appreciation of the singular nature of the penalty phase of a capital proceeding and the ineluctable conclusion that doubts must be resolved in favor of admission when evidence of a mitigating factor is offered by the defendant. “So long as the evidence [introduced at a capital sentencing hearing] * * * does not prejudice the defendant, it is preferable not to impose restrictions.” Zant v. Stephens, 462 U.S. 862, 886, 103 S.Ct. 2733, 2748, 77 L.Ed.2d 235, 256 (1983) (quoting Gregg v. Georgia, 428 U.S. 153, 203-04, 96 SCt. 2909, 2939, 49 L.Ed.2d 859, 891 (1976)).
[96 N.J. at 620-21, 477 A.2d 308 (emphasis added).]
Logic dictates that the same “extraordinary tolerance” used in resolving doubts about evidence of mitigating factors in favor of the defendant, should also apply to the decision wheth*344er to grant a capital defendant’s request that a jury be charged on a specific mitigating factor under N.J.S.A. 2C:11-3c(5).
A “margin of error” attends all litigation and courts are enjoined to reduce that margin of error “where one party has at stake an interest of transcending value.” The interest at stake of a capital defendant is of “transcending value.” Humanik v. Beyer, 871 F.2d 432, 437 (3rd Cir.1989) (quoting Speiser v. Randall, 357 US. 513, 525-26, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1472-73 (1958). The interest at stake of a capital defendant is of “transcending value.” Hence, in the penalty phase of a capital trial we strain to reduce the “margin of error.” It is reduced not only by imposing upon the State the burden of demonstrating aggravating factors beyond a reasonable doubt, see N.J.S.A. 2C:11-3c(2)(a), but by freeing the defendant, in making the case for mitigating factors, from the “rules governing the admission of evidence at criminal trials.” N.J.S.A. 2C:11-3c(2)(b). In cases where, as in defendant’s case, the “transcending value” at stake is the defendant’s life, the court should be all the more vigilant in “reducing the margin of error” and, accordingly, allow the defendant the widest latitude in placing mitigating factors before the jury.
The statute does not specify the quantum of evidence needed to justify jury consideration of a mitigating factor. A defendant need produce only some evidence of the existence of a mitigating factor to bring it into play. The trial court must determine whether the proffered evidence would render the desired inference more probable than it would be without the evidence. Davis, supra, 96 N.J. at 619, 477 A.2d 308. For example, the North Carolina Supreme Court analyzes “whether the record reveals any evidence to support a reasonable finding by the jury” on the mitigating factor and requires “that any reasonable doubt concerning the submission of a statutory or requested mitigating factor be resolved in the defendant’s favor.” State v. Bacon, 326 N.C. 404, 390 S.E.2d 327, 334-36 (1990).
*345The record supported the submission of the c(5)(g) mitigating factor to the jury. In this case there is no warrant for the Court to treat Afdahl’s confession as though it were a worthless or picayune prosecutorial event. The importance of a confession, a knowing admission of guilt to the elements of a criminal charge, is significant both to the jury’s assessment of the case and the prosecution’s burden to prove the offense. Colorado v. Connelly, 479 U.S. 157, 182, 107 S.Ct. 515, 529-30, 93 L.Ed.2d 473, 494 (Brennan, J., dissenting) (holding that a confession has “decisive impact” on a trial and “makes the other aspects of a trial in court superfluous”). We have recognized the enormous significance of a confession in a capital-murder prosecution. See e.g., State v. Di Frisco, 118 N.J. 253, 571 A.2d 914 (1990). It is possible that Afdahl would have confessed without defendant’s intervention. But, even if this were true, it would affect only the relative weight which the jury gave the evidence of the defendant’s cooperation, not whether the evidence of the defendant’s cooperation should have been admitted. Defendant’s statement to Afdahl that he was going to tell the police what had happened was sufficient to trigger the assistance factor. A jury could have reasonably concluded, from the very fact that the man who had taken care of her for so long was about to tell the police the whole story, that that was enough without more to induce Afdahl to follow defendant’s example.
I believe that encouraging an accomplice to confess is sufficient evidence to present a jury issue on the substantial-assistance mitigating factor. Whether the jury would find defendant’s assistance substantial is not the issue, it is what the jury could find. The trial court went too far when it determined that substantial assistance “has not happened here.” That factual question belonged to the jury. Persuading a criminal suspect to confess is of considerable value to a police investigation. The parties would be free to argue the import of the evidence, but the jury would determine its weight.
*346On this point, I draw attention to the Appendices to the Baldus Study (Appendix B, “Penalty-Trial Cases, With a Thumbnail Sketch”), which identify five4 cases in which the e(5)(g) mitigating circumstance was found. These were:
1. Felix Diaz (sentence: life)
2. Anthony Di Frisco (sentence:
death)
3. Miguel Melendez (sentence: life)
4. Richard Joseph Redden (sentence: life)
5. Michael Rose (sentence: life)
(hung jury)
Of these cases, only Di Frisco is reported, 118 N.J. 253, 571 A.2d 914 (1990), though narrative summaries of each case appear in the appendices to the Baldus study. See Appendix I “Trial Cases Involving c(5)(g) Mitigating Factor.”
In trying to distinguish the defendants in Melendez, Rose, and DiFrisco from defendant in this case, the Court has endorsed a commendably generous interpretation of substantial cooperation which, ironically, if applied to the instant case, would compel the conclusion that the c(5)(g) factor should have been submitted to the jury.
As I note in the appendix, infra at 368, 619 A.2d at 1308, a careful review of the records of those cases supports the contention that on evidence that is comparable to that presented by defendant in this case, courts have charged and juries have found mitigating factor c(5)(g).
The Di Frisco case, standing alone, argues that the Court here errs in concluding that the evidence presented by defendant failed to “satisf[y] the threshold requirement.” Ante at 297, 619 A.2d at 1271. If Di Frisco’s ambivalent game of “cat and mouse” with the police — which elicited absolutely no reliable evidence — was sufficient for a trier of fact to find substan*347tial assistance, surely defendant’s willingness to talk to Afdahl, tell her that he would confess and (expressly or impliedly) that she should tell the truth, followed by her actual confession, provides an adequate basis for concluding that the mitigating factor of substantial assistance could have been found by a reasonable trier of fact.
As I have already observed, the record indicates that there was real disagreement among the police officers about allowing defendant to speak to Afdahl. At least one police officer objected that allowing defendant to speak with Afdahl would provide them with the opportunity to create matching stories and thereby impair the progress of the police investigation.
Significantly, the officers overcame that objection and determined that the benefit of allowing defendant to talk with Afdahl outweighed the risks of their coordinating their stories. Because no one disputes that the collusion of defendant and Afdahl, in coordinating their stories, was a significant threat to the progress of the police investigation, it follows logically that the police found the benefit — Martini’s cooperation — outweighed and was more significant than the threat itself. Subsequent events confirmed that the police made the correct strategic decision. The value of defendant’s assistance had to have been — at least in the minds of the police — reasonably substantial.
Moreover, following his brief conversation with Afdahl, defendant (for the first time) discussed the crime extensively, consented to the search of his apartment and his hotel room, and authorized the telephone company to release the toll records of his telephones. Although questions may arise about whether the practical effect of these measures by defendant was only to have saved the State some inconvenience, they nevertheless bespeak a subjective desire to assist the State and undoubtedly constitute cooperation with and assistance to the State’s investigation.
*348What is beyond question is that the degree of assistance afforded to the State by defendant was comparable to. the assistance demonstrated by the records of Di Frisco, Melendez, and Rose. Yet in each of those cases, unlike the case before the Court, the defendant was afforded the benefit of a charge on the mitigating factor of substantial assistance to the State. In two of those cases, the jury did not return a sentence of death.
There is also inconsistency, in the Court's view of defendant’s conversation with Afdahl, between the Court’s discussion of the admissibility of defendant’s confession, and the Court’s treatment of defendant’s cooperation with the State. Ante at 228-233, 289-301, 619 A.2d at 1266-1273, 1234-1236.
In finding defendant’s confession admissible, the Court notes that:
Trahey, the only law-enforcement officer at the meeting (between defendant and Afdahl) testified at the pre-trial hearing that Martini told Afdahl, 'Theresa, I’m now going to cooperate with them (the police) and I’m going to tell them what happened.
[Ante at 230, 619 A.2d at 1235]
Distinguishing defendant’s case from Harvey, supra, 121 N.J. at 407, 581 A.2d 483, the Court notes:
Defendant’s request to speak to Afdahl prior to talking to officers is materially different from the request made in Harvey in several respects. Prior to his request, defendant did not show a continued reluctance to talk to police. To the contrary, Martini signed forms indicating that he waived his right to remain silent____ Instead he voluntarily told Trahey and Petersen that if he could speak to Afdahl, he would tell them about his “complete involvement” in the kidnapping and murder of Flax.
[Ante at 232, 619 A.2d at 1236]
The Court then proceeds to describe Afdahl as “[a] major participant in the kidnapping and murder about which defendant was to be questioned. She was not an outside advisor but a likely co-defendant, potential informant, and possible alibi witness.” Ante at 232, 619 A.2d at 1236.
When accepting the State’s contention that defendant’s confession was properly admitted into evidence, the Court paints a picture of a complaint defendant, showing no reluctance to talk *349with police about his crime, who tells “a major participant in the kidnapping and murder ... a likely co-defendant, potential informant, and possible alibi witness” that he intends to confess. Yet when rejecting defendant’s claim that the c(5)(g) mitigating factor should have been submitted to the jury, the Court sketches an image of defendant as “at best ... merely informing) Afdahl that he planned to confess.” Ante at 299, 619 A.2d at 1272.
The rhetorical inconsistency, alone, raises troubling questions about the internal coherence of the Court’s analysis of defendant’s multiple claims. Apparently, the Court finds consolation and support for its conclusions about defendant’s cooperation with the State from the fact that there was some evidence that defendant may have attempted to persuade Afdahl to take the blame for the murder. Ante at 295-297, 619 A.2d at 1270-1271. The Court then declares that defense counsel did not introduce further evidence of defendant’s cooperation during the penalty phase because counsel “wisely realized that to do so would allow the State to introduce” damaging rebuttal testimony. Ante at 297, 619 A.2d at 1271. The Court concludes, definitively, that the reason no further evidence of defendant’s cooperation was introduced was because of a strategic decision by defense counsel, claiming that only an unrealistic reading and “tortured analysis” of the record would suggest otherwise. Ante at 296-297, 619 A.2d at 1270-1271.
The Court’s assumption about why the defense counsel did not introduce further evidence of defendant’s cooperation is admittedly plausible. It is also indisputably conjectural. And that conjecture misses completely the nature of the review required by defendant’s claim that the trial court should have submitted a statutorily established mitigating factor to the jury. Accordingly, the Court skirts its obligation to determine whether a reasonable jury could have found that defendant’s telling his partner in crime that he was going to confess constituted substantial assistance.
Had the Court applied the same spirit of its analysis of the State’s submission of the c(4)(f) aggravating factor to the *350defendant’s submission of the c(5)(g) factor, the Court would have found the trial court in error in refusing to submit the c(5)(g) factor for the jury’s consideration.
In its discussion of the adequacy of the evidence supporting aggravating factor c(4)(f) (that the murder had been committed for the purpose of escaping detection, trial, punishment, or confinement for another offense committed by defendant), ante at 279-289, 619 A.2d at 1261-1266, the Court refuses to adopt a “circumscribed” reading of the factor. Ante at 282, 619 A.2d at 1262. The Court then proceeds to inquire whether the State provided sufficient evidence — “either direct or circumstantial” — upon which a reasonable jury could have concluded that the factor applied to defendant. As the Court observes, such a conclusion, by the jury, would be a “reasonable inference” based upon all the circumstances presented to the jury. Ante at 284-285, 619 A.2d at 1263-1264.
In its analysis of the trial court’s refusal to submit mitigating factor c(5)(g), the Court weighs the evidence, assesses the credibility of conflicting accounts, speculates about defense strategy, and concludes that the defendant had not offered substantial assistance to the State. Those activities, however, are the province and duty of a jury, not this Court. The jury should have been allowed to draw a “reasonable inference” from all the circumstances of the defendant’s telling his partner in the kidnapping and murder, a “likely co-defendant, potential informant, and possible alibi witness” that he was going to cooperate with police by confessing his involvement in the crime.
To my mind, the conclusion is inescapable that, in refusing to allow defendant to submit evidence of the c(5)(g) factor to the jury, the trial court usurped a proper function of the jury. That error increased the likelihood that defendant would be sentenced to death and, accordingly, rendered the penalty phase of defendant’s trial unfair.
*351—c—
The Court concedes that
[t]he court should have withheld its ruling until the end of the penalty phase when all the evidence was before the jury and just prior to the time when the court actually charged the jury with respect to the mitigating factors.
[Ante at 294, 619 A.2d at 1269-1270],
The Court states, however, that this trial error “made little difference” for three reasons: (1) “defendant was given the unlimited right to introduce evidence on factor c(5)(g).” Ante at 295, 619 A.2d at 1270; (2) defendant chose to present no other evidence to the jury on factor c(5)(g); and (3) the trial court “suggested to defense counsel that evidence of that mitigating factor could be used in the catch-all factor.” Ibid.
But as already shown, defendant’s proffer clearly incorporated all pre-trial and guilt-phase evidence on defendant’s cooperation. Accordingly, the “unlimited right to introduce evidence” on the question of mitigation was an empty right — the trial court had already denied the defense proffer that incorporated all the evidence on mitigation available to the defendant. Thus, the first two reasons offered by the Court to explain why the trial court’s error made “little difference” to the defendant are simply untenable.
With respect to the third reason, the Court accepts the State’s argument that any prejudice to defendant was negated because the trial court permitted defense counsel to present the issue of defendant’s cooperation under the catch-all mitigating factor. Ante at 296, 619 A.2d at 1270.
Giving the defense the unlimited right to argue the strength of relevant mitigating evidence cannot compensate for the trial court’s failure to inform the jury that it must consider that evidence in deciding the appropriate punishment. Proper jury instructions are essential in ensuring that the jury in fact considers all relevant mitigating evidence proffered by a capital defendant. The jury will not necessarily infer from instructions which do not address the use of evidence in the catch-all factor, that they may consider mitigating evidence as a whole. Cf. *352Taylor v. Kentucky, 436 U.S. 478, 488, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468, 477 (1978) (holding that a jury instruction on burden of proof does not convey presumption of innocence instruction). Such an instruction is essential, because the jury will treat arguments by counsel as statements of advocacy, but will consider instructions from the trial judge as definitive statements of the law. Statements of counsel cannot substitute for precise, adequate instructions by the court. Taylor v. Kentucky, supra, 436 U.S. at 488-89, 98 S.Ct. at 1930, 56 L.Ed. at 477.
The unique and indispensable role played by the trial court in instructing the jury was recognized by the trial court itself in this case. At the close of the penalty phase, the trial court instructed the jury:
Now, again in this phase the witnesses, the prosecutor, defense counsel have concluded their part of the trial. Again, it’s my job to instruct you as to the law that you are to apply in this phase of the trial. And again you must accept the law as I state it to be even if you personally believe that I’m wrong or if you personally believe the law is wrong and it should be changed.
[(emphasis added)]
The failure of the trial court, to instruct specifically on the catch-all mitigating factor, cannot be cured by affording defense counsel an opportunity to comment upon the catch-all factor.
Accordingly, the jury instruction on the catch-all mitigating factor was insufficient because it did not make an express reference to that evidence as a non-specific statutory mitigating factor. Biegenwald IV, supra, 126 N.J. at 45-49, 594 A.2d 172. The instruction given simply repeated the statutory language but did not refer to any specific non-statutory mitigating factors.
In Bacon, supra, 390 S.E.2d at 335, the court held that in order to show that a trial court’s omission of a statutory mitigating circumstances was harmful, defendant must establish three things:
*353(1) that the particular factor was one which the jury could have reasonably deemed to have mitigating value (this is presumed to be so when the factor is listed in G.S. 15A-2000(f)); (2) that there was sufficient evidence of the existence of the factor; and (3) that, considering the case as a whole, the exclusion of the factor from the jury’s consideration resulted in ascertainable prejudice to the defendant.
[State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, 223-24, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982).]
The Court reasons that under the Bacon test, condition one is certainly met in this case, and assuming that condition two is met, condition three is not met. Ante at 299, 619 A.2d at 1272.
As the Court observes, the trial court did instruct the jurors that they could consider any evidence presented in mitigation of a death sentence. Thus, the jurors were not literally “precluded from considering, as a mitigating factor, any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffer[ed] as a basis for a sentence less than death.” Lockett, supra, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978); see, Boyde v. California, 494 U.S. 370, 386, 110 S.Ct. 1190, 1201, 108 L.Ed.2d 316, 333 (1990); Skipper, supra, 476 U.S. at 4, 106 S.Ct. at 1671, 90 L.Ed.2d at 6 (1986); Eddings, supra, 455 U.S. at 110, 102 S.Ct. at 874, 71 L.Ed.2d at 8; Marshall I, supra, 123 N.J. at 141-42, 147, 586 A.2d 85. Ante at 301, 619 A.2d at 1273.
Although it is literally true that the trial court did not preclude the jury from considering mitigating factors, it is also true that after each injunction to consider all the available evidence, the trial court also commented on restrictions that had been placed on that evidence. Typical of the trial court’s instruction is the following excerpt from the penalty phase:
Now, the evidence to be considered by you includes that material presented by both sides at both phases of the trial, all of the witnesses and all of the physical evidence. But if you recall, certain evidence was admitted for limited purposes.
The trial court then went on to explain that the statements made by defendant to defense experts could be used only in the jury’s assessment of the mitigating factors. See discussion infra at 227-232, 619 A.2d at 1233-1235.
*354Similarly, the statement of the trial court quoted by the Court, in support of its contention that the jury was permitted to consider any evidence in mitigation, was followed immediately by a limiting instruction. The Court notes, ante at 305, 619 A.2d at 1275, that the trial court told the jury:
You can use anything you’ve heard, even if it’s not presented by counsel as a mitigating factor, if you believe it’s there.
The Court does not note that this particular remark of the trial court was followed immediately by a restriction:
But as I indicated, statements made by the defendant, and some of the other evidence I’ve just gone over, cannot be utilized to establish or to corroborate other evidence that may establish the aggravating factors that will [sic: we’ll] go over.”
Granting, arguendo, that the trial court’s restrictions on the use of evidence by the jury were correct, the point of these excerpts is that the jury was not — as the Court suggests— repeatedly extended a carte blanche to find evidence of mitigation. Rather, each invitation to use evidence in mitigation was followed by a restrictive qualifier that, even if correct and favorable to defendant, nevertheless may have created in the minds of the jurors the expectation that the trial court was exhaustively identifying the uses to which each piece of mitigating evidence could be put.
The explicit nature of the trial court’s instructions in some areas casts into even greater and more troubling relief the failure of the trial court ever to make explicit that the catch-all factor could accommodate evidence bearing on defendant’s cooperation with the State.
In a trial that spanned, from jury selection to determination of sentence, more than two months; produced a record of more than a thousand pages; and eventuated in a sentence of death for a criminal defendant; the jury charge in the penalty phase contained a total of 127 words on the catch-all factor, c(5)(h). The trial court provided no discussion of factors that although not meeting specific statutory requirements, could be used in the catch-all factor. That omission, I believe, undermined the *355jury’s sentencing determination, see Jeffers v. Lewis, 974 F.2d 1075 (9th Cir.1992), and denied the defendant a fair adjudication of the sentence of death.
Ill
The failure of the trial court to instruct the jury more thoroughly on the catch-all factor, combined with the Court’s reliance on the catch-all factor as an antidote for other errors in restricting the presentation of mitigating evidence by the defendant, makes other errors that occurred in the sentencing-phase trial all the more serious. Several of those relate specifically to the trial court’s instructions on the standards governing the jury’s determination and balancing of the aggravating and mitigating factors.
—A—
The defense sought to show that during the criminal episode defendant had been suffering from a mental or emotional disturbance and intoxication. Defendant relied specifically on mitigating factor c(5)(a), namely, that “[t]he defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution.” He also relied on c(5)(d): “[t]he defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of the law was significantly impaired as a result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution.” The evidence supporting those mitigating factors was derived from defendant’s history of cocaine addiction.
Defendant contends that the trial court improperly restricted his ability to present mitigating evidence and his right to have the jury consider that evidence when it instructed the jury that evidence of his mental disturbance or intoxication must be “extreme,” “substantial,” or “great in degree.” Defendant asserts that the trial court’s error unconstitutionally circum*356scribed the jury’s evaluation of the mitigating factors c(5)(a) and e(5)(d). The Court rejects that contention. Ante at 303-304, 619 A.2d at 1274-1275.
On the mental-disturbance mitigating factor, e(5)(a), the trial court’s instruction to the jury included the following comments:
This mitigating factor is established by evidence showing that defendant was suffering from an extreme mental or emotional disturbance and that such disturbance influenced him to commit the murder.
... [Y]ou must consider whether his thoughts or feelings constituted extreme mental or emotional disturbance, and if they did, whether he was under their influence or power.
****##*#
... But in order to find this factor present you must be satisfied that the mental or emotional disturbance was extreme, that is that it was great in degree.
Similarly, on the intoxication mitigating factor, c(5)(d), the trial court informed the jury:
Mitigating factor [e(5)(d) ] is about disease or defect or intoxication and the effect of such condition upon the defendant during the murder. To find this mitigating factor you must be satisfied the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired by reason of mental disease or defect or intoxication.
To appreciate means to understand. By “significantly impaired” the statute means made worse, weakened or deteriorated, not slightly but to an important, meaningful or substantial degree.
The trial court also instructed the jury on the catch-all mitigating factor, c(5)(h), namely, “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense,” as follows:
Mitigating factor [c(5)(h) ] is not merely a single factor. Rather it requires that you consider all the evidence received as it relates to or concerns the defendant’s life, his characteristics or background and the totality of the circumstances of the crime as well as the defendant’s potential for rehabilitation.
According to Lockett, supra, 438 U.S. at 604, 98 S.Ct. at 2964-65, 57 L.Ed. 2d at 990, “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a *357mitigating 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.” See Biegenwald IV, supra, 126 N.J. at 46, 594 A.2d 172; accord Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824, 95 L.Ed. 347, 353 (1987); Skipper, supra, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1; Eddings, supra, 455 U.S. at 112-15, 102 S.Ct. at 875-77, 71 L.Ed.2d at 9-11.
Defendant argues that the jury instructions, taken as a whole, violated those concepts by precluding the jury from considering mitigating evidence of mental or emotional disturbance and intoxication unless the evidence of those conditions showed them to be “extreme” or “substantial.” By then failing to inform the jury that they could consider non-extreme mental or emotional disturbance or intoxication under the catch-all mitigating factor, the trial court precluded the jury’s consideration of mitigating evidence.
The catch-all factor acts as a safety net, and in order for it to function properly, specific instructions are required. Hargrave v. Dugger, 832 F.2d 1528, 1534-35 (11th Cir.1987), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989); Cheshire v. State, 568 So.2d 908, 912 (Fla.1990) (holding that when trial court found that defendant’s proffered emotional disturbance evidence did not support statutory mitigating factor of mental disturbance because disturbance was not extreme, trial court’s failure to consider his non-extreme emotional disturbance as non-statutory mitigating factor had violated Lockett principles because “any emotional disturbance relevant to the crime must be considered and weighed by the sentencer”). Here, the jury could have understood that it was permitted to consider any relevant mitigating evidence except that which it had already determined was specifically related to, but insufficient to establish, the specific factors mentioned by the court: c(5)(a) and c(5)(d). Contra People v. Benson, 52 Cal.3d 754, 276 Cal.Rptr. 827, 802 P.2d 330 (1990) (holding that trial court’s refusal to delete modifier “extreme” from the mental or emotional distur*358bance mitigating factor did not preclude jury from considering mitigating evidence of non-extreme mental or emotional disturbance under instruction on the catch-all mitigating factor), cert. denied, — U.S. -, 112 S.Ct. 336, 116 L.Ed.2d 277 (1991). Accord People v. Cox, supra, 280 Cal.Rptr. at 729, 809 P.2d at 388 (using same analysis on substantial domination of another person mitigating factor); People v. Medina, 51 Cal.3d 870, 274 Cal.Rptr. 849, 799 P.2d 1282, 1306-07 (1990), cert. granted in part, — U.S. -, 112 S.Ct. 336, 116 L.Ed.2d 276 (1991); People v. Brown, 46 Cal.3d 432, 250 Cal.Rptr. 604, 758 P.2d 1135, 1152 (1988) (holding that “instructions and counsel’s arguments thereon viewed as a whole, sufficiently informed the penalty phase jury it could consider a mental condition of the defendant which, though not characterized as extreme, would potentially mitigate the circumstances of the offense”), cert. denied, 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989).
The Ninth Circuit recently considered a situation strongly analogous to the case at bar. Jeffers, supra, 974 F.2d 1075. In Jeffers, the court considered a death sentence imposed by a trial court in Arizona. During the penalty trial, the defendant had sought to introduce evidence satisfying a statutory mitigating factor under Arizona law. Id. at 1078. The relevant statute provided a mitigating circumstance if “[t]he defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” Ibid, (citing Ariz.Rev.Stat. § 13-703(G)(1)). The sentencing court, applying the standard established by the statute, found that the defendant’s impairment did not meet the threshold requirement for application of the mitigating factor. Ibid. The Supreme Court of Arizona upheld this finding of the sentencing court. State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, 1132 (1983). The sentencing court failed, however, to consider the defendant’s evidence of psychological impairment as a nonstatutory mitigating circumstance. Jeffers, supra, 974 F.2d at 1078. The Arizona Supreme Court upheld defendant's *359sentence of death after performing what it termed an “independent review” of the record. Id. at 1080.
The Ninth Circuit reversed, finding that “[b]ecause there is a risk that mitigating evidence in this case was not fully considered, Jeffers’ sentence of death cannot stand.” Id. at 1084.
The Ninth Circuit relied on Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990) (holding that mitigating evidence of mental impairment could not be excluded from penalty phase of capital trial simply because it was not sufficiently substantial to meet state statutory requirement), to reverse and remand Jeffers’ death sentence. Id. 974 F.2d at 1078-79. Citing Smith, the court noted that it is “not permitted to presume that because evidence was admitted before the factfinder, it was necessarily given consideration.” Id. at 1079 (quoting Smith, supra, 914 F.2d at 1166).
In my opinion the failure of the trial court to instruct specifically that the jury could consider non-extreme mental or emotional disturbance and intoxication under the catch-all factor created a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, supra, 494 U.S. at 380, 110 S.Ct. at 1198, 108 L.Ed.2d at 329. Moreover, state constitutional principles do not allow the risk that a jury might misunderstand the function and meaning of mitigating factors. Williams II, supra, 113 N.J. at 457, 550 A.2d 1172. Here, the jury could have disregarded relevant mitigating evidence relating to defendant’s addiction simply because it did not understand and was not informed that those were in fact aspects of his character under the c(5)(h) factor. The error had a clear capacity for producing an unjust result because the incomplete instructions denied defendant a reliable determination of sentence.
—B—
Another serious error relating to aggravating factors involves the trial court’s response to a jury inquiry that limited *360the jury’s consideration of defense experts’ testimony when determining whether the alleged aggravating factors existed. The Court admits that “at best, the (trial) court’s instruction was ambiguous” and “may have caused prejudice.” Ante at 315, 619 A.2d at 1281. Nevertheless, the Court concludes that, reading this response in the context of the penalty phase instructions, any error was harmless. Ante at 316, 619 A.2d at 1281.
During its deliberations on the appropriate sentence, the jury sent the following note to the trial court: “(A) Are the expert witnesses’ written reports available or (B) are we only to consider their testimony for mitigating factors?” The court met with counsel to frame a response.
THE COURT: With counsel’s approval I will advise the jurors that only those items that were marked into evidence are available, and two, that as to “b” that the testimony of Dr. Musikoff, Dr. Greenfield and Ms. Aviv is to be considered for mitigating factors. Any objections?
[THE PROSECUTOR]: No.
[DEFENSE COUNSEL]: Judge, wait, if I can. I have a question on that aspect. When I first heard the question I had a different assumption on it. But if they’re asking if it can only be interpreted for mitigating factors maybe they’re still trying to determine if there’s an existence of an aggravating factor and they’re looking to weigh the testimony in opposition of an aggravating factor instead of in favor of an aggravating factor [sic: a mitigating factor]. THE COURT: I can’t speculate as to what they might have in mind. All I can do is answer the questions they pose to us.
[DEFENSE COUNSEL]: Understandable. But the response that it’s only going to be utilized for a mitigating factor, what happens if the proofs that were being utilized, meaning that thought process in the beginning, because they’re still asking to differentiate between the guilt phase and the penalty phase, that as to the diminished capacity aspect of it, whether or not that existed. Because we do have case law that has told us if they had a lingering doubt in the first trial, that that could be utilized as well as another factor, as a mitigating factor.
THE COURT: Mr. Van Rye, you’re reading more into it than the question itself asks. They want to know are they totally to use the testimony for mitigating factors, and I’m only going to answer the questions they’ve asked.
The court then brought in the jury and instructed it as follows:
You have a question at 3:18, “(A) are the expert witnesses’ written reports available?”
Ladies and gentlemen, they’re not available. Only those items that were admitted into evidence are available to you. You’ll have to rely on your *361recollection of the testimony with reference to what was contained in the reports.
“(B) Are we only to consider their testimony for mitigating factors?”
They were presented as far as Ms. Aviv, Dr. Musikoff, their testimony was presented to establish mitigating factors. You can utilize also Dr. Greenfield’s testimony if you see that as supporting any mitigating factor. That’s what they were presented for and that’s how you’re to consider their testimony for those purposes.
The jury then continued its deliberations.
The question expressed a concern with the purpose for which the evidence could have been considered, and not merely whether testimonial or written reports were available. Juries should be informed that evidence offered at any phase of the trial that they view as mitigating can be considered not only to establish mitigating factors but also to determine the existence or the weight of alleged aggravating factors. The trial court’s instruction was in error because it instructed the jury that the testimony of defendant’s expert witnesses could be used only to establish mitigating factors because “that’s what they were presented for.” The expert testimony was not presented merely to establish mitigating factors; it was presented also to affect the jury’s deliberations on the existence and more importantly, the weight of the aggravating factors alleged.
In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Supreme Court reversed a death sentence because the Texas special issues system for penalty phases did not allow the jury to consider and give effect to mitigating evidence of defendant’s mental retardation and abusive upbringing in the absence of requested instructions allowing it to do so. The Court agreed that the proffered evidence was relevant and admissible to affect the jury’s consideration of the first special issue, that is, whether the killing had been committed deliberately. Id. at 322, 109 S.Ct. at 2948, 106 L.Ed.2d at 280. Similarly, argues defendant, the Eighth and Fourteenth Amendments would have been violated had the court instructed the jury that the mitigating evidence could be used to establish a mitigating factor but was entirely irrelevant *362on the question of whether the first special issue should be answered in the affirmative. The same situation exists here because defendant’s mental mitigation evidence, as articulated by Aviv, Greenfield, and Musikoff, was equally relevant to the existence of the aggravating factors. The trial court, however, restricted the jury’s use of the mitigating evidence. Here, as in Penry, the effect is that the jury was “unable to express its ‘reasoned moral response’ to that evidence in determining whether death was the appropriate punishment.” Id. at 322, 109 S.Ct. at 2948, 106 L.Ed. at 280.
In addition, limiting the use of mitigating evidence solely to determine and weigh mitigating factors when that evidence might neutralize the aggravating factors violates Skipper, supra, 476 U.S. at 5 n. 1, 106 S.Ct. at 1671 n. 1, 90 L.Ed.2d at 7 n. 1 (holding that, under Lockett and Eddings, defendant must be afforded opportunity to introduce evidence to rebut prosecutor’s argument and under due process principles allowing defendant an opportunity to explain or deny prosecutor’s information).
In this case, the prosecutor’s penalty-trial summation concentrated on the theme that the sheer amount of planning that had gone into the kidnapping and murder of Flax proved the intent elements of the two aggravating factors. Defense counsel’s argument relied on his experts' testimony to rebut the prosecutor’s allegation of calculated planning by showing that, because of defendant’s drug addiction, his thoughts and actions were too random and chaotic to establish the aggravating factors beyond a reasonable doubt. Accordingly, allowing the State to rely on evidence of deliberation adduced during the guilt phase to establish the aggravating factors without allowing defendant to rebut that evidence or diminish the weight of the aggravating factors by reference to the expert testimony raises the due process problems addressed in Skipper.
The Court appears to accept the State’s argument. It rejects the distinction pressed by defendant that the weighing process *363mandated by statute could not have begun until after the jurors had first found that the State had proven the existence of at least one aggravating factor beyond a reasonable doubt. Ante at 315-316, 619 A.2d at 1281-1282.
For that proposition, the State relies on the statutory provision that “[i]f the jury or the court finds that no aggravating factors exist, or that all of the aggravating factors which exist do not outweigh all of the mitigating factors, the court shall sentence the defendant pursuant to subsection b [life sentence].” N.J.S.A. 2C:11-3c(3)(b). Apparently the State construes the provision as requiring the jury to deliberate in an ordered fashion. Consequently, the State concludes that “although evidence supporting the existence of mitigating factors may be utilized by defendant, as it was here, to rebut the State’s evidence of aggravating factors, it cannot affect the weight of the aggravating factors found; as the death-penalty statute makes clear, it is mitigating factors, if any, which the jury must weigh against any aggravating factors found, not mitigating evidence.” (citing N.J.S.A. 2C:11-3c(3)(a), (b)). The State’s curious position is unsupportable.
In addition, the trial court did not stop after the first instruction, explaining that the expert’s reports were “not available.” It went on to tell the jury that it was “only to consider their testimony for mitigating factors” because “[t]hat’s what they were presented for and that’s how you’re to consider their testimony for those purposes.” That instruction is clearly in error because it improperly limited the use of mitigating evidence.
The prejudice is amplified given the context in which the instruction was given — during deliberations and in response to a specific inquiry by the jury. Thus, the trial court’s response to the jury’s note established a highly artificial distinction in the manner that mitigating evidence operates because the ultimate decision of the penalty phase is whether death is an appropriate punishment. Bey II, supra, 112 N.J. at 163, 548 A.2d 887 *364(holding that jury instructions serve to make the jury aware “that it is not merely to decide the existence of aggravating and mitigating factors, but to evaluate the evidence supporting those factors in making the ‘unique, individualized judgment’ regarding the appropriateness of the death penalty”). Mitigating evidence does not invariably or even necessarily have to establish a mitigating factor in order to be the basis for a sentence less than death. Evidence that affects the jury’s consideration of the strength of aggravating factors in a way that is favorable to a defendant is just as relevant to the jury’s normative judgment of the appropriateness of the penalty.
IV
The court’s failure to charge the jury on the sentencing possibilities also constitutes reversible error. Defendant was convicted of several crimes, including both kidnapping and first degree murder. For the kidnapping conviction, defendant would be sentenced to a term of imprisonment between fifteen and thirty years. N.J.S.A. 2C:13-1(c). For the murder conviction, if defendant did not receive a death sentence, he would serve a prison term between thirty years and life, with a minimum period of thirty years to be served before he would become eligible for parole. N.J.S.A. 2C:11-3(b). Ultimately, in addition to his death sentence, defendant received the maximum sentence for kidnapping5 to run consecutive to his sentence for murder.
Prior to the introduction of testimony at the penalty-phase proceeding the trial court failed to inform the jurors that a *365fifteen to thirty year term of imprisonment would be imposed for the kidnapping conviction. Instead, the court instructed the jury only on the penalty for the homicide conviction, charging the jurors that
having found defendant guilty of murder, you now have the added responsibility of determining what penalty for that crime is to [be] imposefd] on Mr. Martini. Under the law as enacted by our Legislature the 'penalty may be either death or a term of imprisonment between thirty years and life, of which thirty years must be served before the defendant is eligible for parole.
The Court stated similarly during the penalty-phase instructions:
[T]he Legislature of the State of New Jersey has given to you as a jury and to each of you individually the responsibility of deciding whether John Martini, Sr., is to be put to death or be subjected to imprisonment in the New Jersey State Prison for from thirty years to the end of his life, and in any event without any possibility of parole for a minimum of thirty years.
On at least four occasions during the instructions, the trial court referred to the fact that if the jury did not impose a death sentence, the alternative punishment would be imprisonment, which meant “a term of years between thirty years without possibility of parole and life.”
Defendant asserts that the court’s instruction disaffirmed the notion that defendant never would get out of prison in his lifetime. As a consequence, the jury became more inclined to sentence him to death.
At a minimum, the trial court should have told the jury, as requested by defense counsel, that defendant’s parole ineligibility period could range from thirty to forty-five years, depending on whether the court decided to impose concurrent or consecutive sentences.
Recently the Court confronted the issue of how trial courts should instruct juries when the defendant already is under life sentence for a prior, unrelated, murder conviction and the trial court had not determined whether to run the sentences consecutively or concurrently when the penalty phases began and when the sentencing juries were given their final instructions. State v. Bey, 129 N.J. 557, 610 A.2d 814 (1992) (Bey III). We there
*366noted that a death sentence should reflect the “jury’s normative judgment that death is the fitting and appropriate punishment, rather than its unwarranted fear of the defendant’s premature release from prison.” Id. at 602, 610 A.2d 814. In light of that concern for the reliability of the jury’s verdict, we held that the court, either on defendant’s request or in the event of a jury inquiry, should instruct the jury that the court will decide whether a sentence is to be served concurrently or consecutively to any prior sentences. Id. at 603, 610 A.2d 814.
That concern is no less vital when the sentences are to be imposed for contemporaneous convictions. The Court would dismiss this as speculative, because defendant was not yet sentenced for the kidnapping offense. Ante at 312, 619 A.2d at 1279. Here the trial court failed to inform the jury that a sentence of imprisonment for kidnapping would be imposed, which at the least would involve fifteen years of imprisonment. While the court should not be required to apprise the jury of uncertainties, it is required to inform the jury of those results which are certain, or, indeed, probable, and of the court’s power to impose those sentences concurrently or consecutively as an aggregate term. “To hide from the jury the full range of 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.” State v. Ramseur, supra, 106 N.J. at 311, 524 A.2d 188.
The trial court’s failure in this case fully to apprise the jury of the probable penal consequences alternative to a death sentence cannot be glossed over by the assumption that the jury acted as though it were fully informed and specifically instructed on those alternatives. The failure irremediably discredits the verdict of the death sentence.
V
The errors that occurred in the course of the voir dire gravely undermined the reliability of the death-qualification of *367the jury. Jury death qualification is a critical beginning to a capital-punishment prosecution. Without minimally qualified jurors no confidence can be invested in any ensuing conviction for capital murder and sentence of death.
Other errors permeated the trial. Those errors effectively prevented the jury from appropriately assessing whether the State had met its burden in establishing the existence of aggravating factors. This further prevented the jury from properly evaluating the significance of the aggravating factors in relation to mitigating factors. Moreover, these errors clouded the jury’s ability to determine the existence and relative significance of mitigating factors and circumstances. Deliberations on the death sentence that are not fully informed and ventilated by all relevant information that may enable jurors to decide in favor of life cannot be the basis for the decision that death is the appropriate punishment.
Today’s decision underscores a painful and ironic anomaly in our criminal jurisprudence. This Court professes in case after case to understand that nothing on the spectrum of criminal punishment is comparable to death, and that this immutable truth mandates the most scrupulous and comprehensive qualification of jurors in capital cases and importunes the fairest and most generous tolerance of evidence by the defendant that his or her life should be spared. And yet, in case after ease — and in this case — the Court refuses to apply those principles when the record demonstrates that an objective and reasonable application would not abide the capital conviction and death sentence. This gap between theory and practice is reflective of a capital punishment jurisprudence that is internally inconsistent and of an administration of criminal justice that is markedly uneven. In the context of capital-murder prosecutions these profound defects are magnified.
Everyone loses and the loss for all concerned is immeasurable. The judiciary loses credibility and integrity in failing to apply those safeguards — however unpopular — which it knows *368to be essential to the administration of justice in capital cases. In temporizing the application of needed legal safeguards, society loses the salutary and civilizing effect of the rule of law, with its necessary although often difficult restraint on the retributive impulse in human nature. And the defendant, tragically, loses his life, through a failed system of justice.
We are not here to decide as individuals or even collectively that in some moral or intuitive or primal sense that defendant deserves to die for his terrible crime. Rather, we are to decide only that under our system of justice, under scrupulously developed principles of law, the jury fairly determined that the defendant should pay with his life. Respectfully, I do not think the Court has done so.
Justice O’HERN concurs in Point II of this opinion.
APPENDIX
PENALTY TRIAL CASES INVOLVING c(5)(g) MITIGATING FACTOR
The Baldus Report indicates that the c(5)(g) factor has been charged in five cases prior to the defendant in Martini.
The summaries of Felix Diaz’ and Richard Redden’s cases give no indication of why mitigating factor c(5)(g) was submitted to or found by the jury. In the other cases, however, the records clearly indicate that the threshold requirement of mitigating factor c(5)(g) was satisfied on evidence comparable to that present in the case before the Court.
In State v. Miguel Melendez, the defendant was convicted of a contract killing. The defendant had been paid $5,000 for the murder. The victim was killed, in midday, in the presence of his ten year old daughter. Baldus Report, Detailed Narrative Summaries of Death Eligible Cases, Appendix B at 191.
In April of 1986, the Essex County Prosecutor’s Office had a lead on a suspect in the Cruz (Melendez’s victim) murder. The Office contacted Investigator Velazquez and it was arranged *369for an informant (Luis) to bail out Melendez and engage him in conversation about the murder. Luis was wired to record the conversation. The plan worked and, in conversation with Luis, the defendant incriminated himself. The defendant also provided the first name, ethnicity, and general whereabouts of his partner, Lazaro Trimino.
Immediately upon concluding these incriminating remarks, Melendez was placed arrested and placed in custody. At trial, the defense moved for a suppression of the taped conversation and April 11th confession of the defendant. Had the defense succeeded, the State would have been deprived of an “assistance” the statement provided.
The defendant pled not guilty, but called no witnesses at his trial (nor did he testify for himself). There was some argument over the submission of factor c(5)(g). The defense urged a very liberal reading of substantial assistance — the sort of reading rejected by the Court today — including anything that helped in the arrest or indictment of a co-defendant. The State initially resisted, arguing that prosecution was the key to assistance, and Melendez had not assisted in the prosecution of the person who hired him, Trimino.
Eventually a stipulation was made about the extent of Melendez’s cooperation.
Based on the information contained in the April 11, 1986 statement made by Miguel Melendez to Investigator William Velezquez, Lazaro Claro Trimino was arrested and indicted.
The defendant, on April 11,1986, also pointed out to law enforcement officers the apartment building where Mr. Trimino lived in East Orange.
Lazaro Claro Trimino subsequently pled guilty to a criminal offense.
As to the “pointing out” of Trimino’s house, there is no evidence, in the record, of what this means.
Melendez had given the full name of his co-defendant. He did not know the address. The police, however, had a photo of Trimino, who had earlier been held in custody on an unrelated matter. Moreover, the tape recorded conversation with the informant had revealed that the man who had been Melendez’s *370“partner” was a Cuban named Lazaro. Melendez told the informant that Lazaro lived in “East Orange. You know, where unemployment is at____ Up Central Avenue.”
During Melendez’ formal statement to1 the police, when asked about Trimino’s whereabouts, the following colloquy ensued:
Q What’s the number of the house and the block?
A The number, the add ..., I know where he lives, but the number or the name of the street I don’t know it.
Q You’re telling me that you don’t know the number or the street where he lives. Do you know how to get to where he lives?
A Yes.
Presumably, because of the inadequacy of this statement, police thought it necessary to have the defendant “show” them where Trimino lived. One can only speculate that, at some point on the day of his statement, Melendez was driven up Central Avenue and pointed out Trimino’s apartment building. But the question remains, given what they already knew, how much more did this actually add to the police efforts to identify where Trimino lived?
The State did not agree, in fact it hotly disputed, the inference that Trimino pled guilty because of the assistance that Melendez had rendered.
The trial court submitted factor c(5)(g) to the jury.
The defense did not make much of the assistance. In its summation during the penalty phase, the defense effectively repeated the terms of the stipulation and argued that, whatever the motive, this constituted substantial assistance.
The prosecutor characterized Melendez’s assistance this way:
As for any assistance rendered by Mr. Melendez to the State, the assistance rendered is what you got in the stipulation. When the State had him that night, he told on the man who owed him money. He ratted on him that night because he was mad at him. That’s it. That’s the extent of it. You want to find that that substantially aided the State? That’s up to you. The State submits to you that it’s not.
The transcript of the conversation between the defendant and the informant supports this reading. The defendant was *371caught red-handed, so angry at Trimino that he was plotting to tie him up and rob him. When caught, he informed on Trimino. Hardly a picture of a compliant defendant aiding the State.
In short, the only assistance Melendez rendered was to break down under questioning and admit to the facts presented by the police. Nevertheless, mitigating factor c(5)(g) was presented to and found by the jury.
In State v. Michael Rose, A-4874-84T4 (Dec. 18, 1984), transcripts microformed at State Law Library, Box 4551, Reel 6263, the defendant was convicted of the brutal murder of a pregnant woman. Baldus, supra, Appendix B at 265-66. The defendant was convicted after a jury trial.
At the penalty phase, the defense argued that Rose had offered substantial assistance to the State in the form of his agreement to aid in the prosecution of another person involved in the crime. That assistance consisted entirely of Rose’s confession in which he identified Zoran Cveticanin as the person who had hired him to kill the victim. To the extent that Rose relied on the undue influence of Zoran Cveticanin as an integral part of his defense, the identification of Cveticanin hardly amounted to a major concession on the part of the defendant. Moreover, on the stand, Rose contradicted or retracted much of his confession.
Nevertheless, the trial court in Rose permitted a c(5)(g) mitigating factor to go to the jury. In instructing the jury on that factor, the trial court described the relevant inquiry as whether “Michael Rose voluntarily agreed to render assistance to the State to aid in the prosecution of other persons involved in the crime.” [A-4874-84T4 (Dec. 18, 1984), transcripts microformed at State Law Library, Box 4551, Reel 6263.]
Today, the Court, after asserting that Rose “rendered substantially greater cooperation to the State than did Martini” then proceeds to cite from the record several appealing facts about Rose’s personal history, (ante at 297, 619 A.2d at 1271) *372These are utterly irrelevant to the issue of cooperation to the State, though they do mention Rose being “helpful” to neighbors.
It is important to remember that, in Rose, the defendant was convicted of the brutal murder of a female victim. The victim was in an advanced state of pregnancy at the time and had died from a total of eighty-three stab wounds. The defendant had been paid $60 to murder his victim.
How “far different a person” (Ante at 298, 619 A.2d at 1271) was Michael Rose from John Martini? Regardless of how one answers that question, it is totally irrelevant to the issue of defendant’s cooperation to the State under the c(5)(g) factor. A review of the record in Rose supports the contention that defendant’s assistance in this case was comparable to that provided by Rose.
In State v. Di Frisco, 118 N.J. 253, 571 A.2d 914, the defendant had been arrested, in New York, for various street crimes. While handcuffed to a railing, the defendant asked the arresting officer if there was anything that could be done to avoid jail time. The officer suggested turning over information on other crimes that the defendant might possess. Defendant asked who would be more guilty, “the guy who shoots a guy or the guy who pays him to shoot a guy?” The officer replied, “the guy who pays him to shoot the guy.” Defendant then waived his rights and confessed to the murder. DiFrisco pled guilty to murder and waived his right to a jury for the penalty trial. The trial court, finding that aggravating factors outweighed mitigating factors, sentenced the defendant to death.
This Court, in reversing the defendant’s death sentence, did so based on the absence of extrinsic evidence corroborating defendant’s confession that he had been hired by a third party, and remanded the matter for retrial.
In assessing mitigating factors, the trial court found that the defendant had rendered substantial assistance to the State. *373The “assistance” rendered by the defendant consisted of his implicating the person who had paid him (a Mr. Franciotti). The prosecutor suggested that the defendant call Franciotti. Defendant initially agreed but, after speaking with his father, decided not to make the call until defendant spoke with counsel.
The prosecutor told the defendant that this was his “last chance to cooperate” because his arrest would be made public and he would not be given the chance to cooperate. The defendant decided not to cooperate and remained in jail.
At the penalty phase, the State indicated that it had not presented a case against Franciotti to a grand jury. It did not have a pending prosecution against Franciotti and had not sought the cooperation of the defendant in prosecuting Franciotti. The trial court expressed “perplexity” at that, but the prosecutor explained that the evidence was insufficient and that the defendant had refused to cooperate.
Although the prosecutor insisted that the defendant had refused further cooperation, although there was no corroborating evidence of the Franciotti’s involvement, although no indictment ever issued from the information the defendant had-provided, still the finder of fact was able to conclude that the threshold for mitigating factor e(5)(g) had been met. Justice O’Hern described the defendant’s “cooperation” with the State as a “play[ing] cat and mouse with the police. He would lead them to the bait, then withdraw it.” Di Frisco, supra, 118 N.J. at 280, 571 A.2d at 928.
For affirmance in part; for vacation and remandment in part; for reversal in part — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, GARIBALDI and STEIN — 5.
For reversal — Justices HANDLER and O’HERN — 2.
The questioning of jurors De Simon, Edson, Kruse, Marchito, Olsommer, Salerno, and Swagger all fell into the proscribed pattern. The questioning of juror Gina Marchito provides an example of the common questioning sequence, in which the potential juror gave noncommittal answers to open-ended questions followed by leading questions that elicited more definitive answers:
THE COURT: What are your feelings about the death penalty? Do you have any beliefs or feelings?
MR. MARCHITTO: Well, I believe that in extreme cases I don't think it’s wrong.
THE COURT: What types of cases do you mean?
MS. MARCHITTO: Well, I think in anything — I don’t know how to define extreme. I mean extremely brutal.
THE COURT: Let me ask you this. If the defendant were found guilty of murder, you would be presented with aggravating factors by the State and mitigating factors by the defense, and I would tell you what the legal principles are that you have to work with.
MS. MARCHITTO: Uh-huh.
THE COURT: And your function would then be to weigh the aggravating and mitigating factors and make a determination is it life imprisonment with thirty years without parole or is it death?
Would you be able to, in all good conscience, weigh those factors, keeping in mind the duty that you’ve taken upon your oath? Would you be able to weigh the factors, and if the facts warrant it, vote to impose death? MS. MARCHITTO: If everything weighed that way, yes.
THE COURT: And if the facts warrant it would you.be able to, instead of imposing the death penalty, if the facts warrant it, impose life imprisonment with thirty years without parole?
MS. MARCHITTO: Yes.
********
THE COURT: Could you weigh those against the aggravating factors and then decide based on all of this, and the weighing process, whether or nor defendant should be put to death or whether or not he should be placed in prison for life without parole for thirty years?
MS. MARCHITTO: Yes.
THE COURT: And you’d be sworn to perform that function, do you understand that?
MS. MARCHITTO: Yes, I do.
*328THE COURT: And is there anything in your background, in your conscience that would prevent you from doing either one of the two?
MS. MARCHITTO: No.
In the past year, a number of cases involving kidnapping have been widely publicized, showing the public outrage, and a consequential prosecutorial fervor, that this issue evokes. See Star Ledger, April 30, 1991, at 1; June 20, 1992, at 1; June 29, 1992, at 1 (recounting the kidnapping and murder of Exxon executive and illustrating intense public interest in kidnap murder); "Michael Chertoff — Justice on the Jersey Side,” N.J.L.J., Oct. 5, 1992, at 4 (describing United States Attorney relentless prosecution of that case); see also, New York Times, Jan. 14, 1993, at A1, B6 (describing the kidnapping of ten-year-old Katie Beers, held in an underground cell for sixteen days); Lucinda Franks, "Annals of Surveillance," New Yorker, Dec. 14, 1992, at 58 (describing widely publicized case of New York judge arrested for allegedly making kidnapping threats as part of extortion scheme; U.S. attorney determined not to "allow this case to slip away").
Rule 3:13-4 provides:
*337(b) The defendant shall provide the prosecuting attorney with an itemization setting forth the mitigating factors he intends to rely upon at the sentencing hearing together with any discovery he may have in his possession to support same. Such discovery shall be transmitted to the prosecuting attorney, forthwith upon a verdict of guilt, or plea of guilty, to a crime punishable by death, (emphasis added)
The Committee Comment on Rule 3:13-4 explained:
[T]he defendant's reciprocal obligation with respect to discovery would commence "forthwith upon a verdict of guilty or a plea of guilty to a crime punishable by death." In such a way, the defense would not be required to disclose information which might prejudice him with respect to guilt or innocence having a bearing only upon the appropriate sentence. [Pressler, Current N.J. Court Rules, comment 1 on R. 3:13-4 (1993).]
A sixth, State v. Oglesby, 122 N.J. 522, 585 A.2d 916 (1991), is also identified. The narrative summary, produced by Baldus, however, does not mention c(5)(g) as a mitigating factor in the trial, nor does this Court's decision in Oglesby. Accordingly, I have not included it.
The trial court mistakenly believed that the maximum term for kidnapping was a life sentence with a parole disqualification period of twenty-five years. It appears that the court improperly relied upon the sentencing range under N.J.S.A. 2C:13-1(2). The Court has vacated and remanded the sentence for kidnapping. Ante at 324, 619 A.2d at 1285. As the State acknowledges, the maximum sentence was thirty years with a parole disqualification period of fifteen years. See N.J.S.A. 2C:13-1c(1); N.J.S.A. 2C:43-6b.