dissenting.
Despite the fact that the nature of the crime together with the aggravating factors make this ease one where, if ever the death penalty is to be imposed, it should be here, I must dissent.
I would remand for utilization of proper sentencing procedures because the precedent the majority sets here, if followed in future cases, will do great violence to two very basic tenets of the criminal justice system of this state:
(1) the right to trial by jury and
(2) the right of the accused to confront the witnesses against him.
*376I
The Idaho Constitution, as first approved on July 3, 1890, and as it reads today, provides in Art. 1, § 7:
“Right to trial by jury. — The right of trial by jury shall remain inviolate .... ” That right of trial by jury as it existed at the time our constitution was adopted provided for jury participation in the capital sentencing process. Section 17 of the Criminal Practice Act of 1864 provided in pertinent part:
“[A]nd the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly. Every person convicted of murder of the first degree, shall suffer death; and every person convicted of murder in the second degree, shall suffer imprisonment in the territorial prison for a term not less than ten years, and which may be extended to life.”
In other words, the jury, by determining whether the party was guilty of either first or second degree murder, determined whether or not the death penalty would be imposed.
In Blue Note Inc. v. Hopper, 85 Idaho 152, 157, 377 P.2d 373 (1962), we stated:
“The provisions of the constitution pertaining to the right to trial by jury are construed to apply as it existed at the date of the adoption of the constitution.”
Accord: Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351 (1951); Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211 (1898); Comish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975).
Idaho continued to employ the jury in the capital sentencing process during all of the intervening years until the Supreme Court of the United States struck down the death penalty statutes of most states through its 1972 decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
At the time of Furman, I.C. § 18 — 4004 read:
“Punishment for murder. — Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall be inflicted. Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonment may extend to life.”
In its first post-Furman session (1973), the Idaho legislature deleted the jury function from I.C. § 18-4004 and made all convictions of first degree murder subject to the death penalty.' This was done in an attempt to remove the “cruel and unusual punishment” aspects disapproved in Fur-man. I.C. § 18 — 4004 was amended by striking out the words as lined out below:
“18-4004. PUNISHMENT FOR MURDER. — Every person guilty of murder in the first degree shall suffer death or — be punished by imprisonment in the-state prison for life, and the-jury may decide which punishment shall-be inflictedT Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonmént may extend to life.”
The 1973 amendment restored the law to its 1864 standing.
After the United States Supreme Court in a series of cases declared statutes of other states which were similar to Idaho’s
1973 version unconstitutional, the Idaho legislature responded in 1977 with the present statutory scheme providing for inquiry into mitigating or aggravating circumstances as set forth in I.C. § 19-2515 et seq. That amendment changed the statute back to its pre-1973 language except that it omitted restoring the jury function and added the reference to I.C. § 19-2515:
“18-4004. PUNISHMENT FOR MURDER. Every Subject to the provisions of 19-2515, Idaho Code, every person guilty *377of murder in of the first degree shall suffer be punished by death or by imprisonment for life. Every person guilty of murder in of the second degree is punishable by imprisonment in the state prison not less than ten (10) years and the imprisonment may extend to life.”
Except for four states which entirely abolished capital punishment in the nineteenth century, every American jurisdiction has at least at some time employed jury sentencing in capital cases. McGautha v. California, 402 U.S. 183, 200 n. 11, 91 S.Ct. 1454, 1463 n. 11, 28 L.Ed.2d 711 (1971). During a period of over a century, beginning in 1838, jurisdiction after jurisdiction that retained the death penalty replaced its mandatory capital punishment law with discretionary jury sentencing, Woodson v. North Carolina, 428 U.S. 280, 291-92, 96 S.Ct. 2978, 2985, 49 L.Ed.2d 944 (1976) (plurality opinion). By the time of the Furman decision in 1972, Colorado was the only state in the nation to impose capital punishment without jury involvement in the sentencing process.
Despite the long history at common law and under statutory law of the states throughout this nation of involving the jury in the capital sentencing process, the Idaho legislature in the present statute enacted in 1977 totally excluded the jury from its traditional function. The legislative history shows that the legislature was not even presented with a bill which provided for jury participation. The only bill presented, was one drafted by the attorney general, Senate Bill 1082, which was presented to the legislature with the following statement of purpose:
“RS 1954
S 1082
STATEMENT OF PURPOSE
Only a few years ago, the United States Supreme Court made new “rules” concerning the imposition of the death penalty for serious crimes. So that we conformed with this U.S. Supreme Court interpretation of the federal Constitution, the Idaho Legislature enacted in 1973 our present death penalty Sections 18^4003 and 18-4004, Idaho Code.
Then, last year, the United States Supreme Court again changed the rules relating to capital punishment — after many states, like Idaho, had acted in response to its previous decision. The Court, in five cases, set forth new, more definitive rules concerning sentencing where the death penalty was sought to be imposed.
The purpose of this bill is to codify into Idaho law these present requirements imposed on the states by these most recent United States Supreme Court decisions on capital punishment so that we will conform with this latest expression of the law.” (Emphasis supplied.)
The statement of purpose is misleading insofar as it suggests that the Supreme Court decisions mandated the removal of the jury from its traditional powers and functions; the United States Supreme Court never at an earlier time or in this “latest expression of the law” required jury non-involvement.
This dissent would be incomplete without a statement of some of the reasons why jury participation in the capital sentencing process is required, not only upon the basis of historical practice, but also from the standpoint of compliance with the mandates of the constitutions of the United States and the State of Idaho. An excellent presentation of these matters is set forth in appellant’s brief, at pp. 69 through 80, which I adopt by reference and affix hereto as Appendix A.
Since jury participation in the capital sentencing process is part of the right to “trial by jury” as guaranteed inviolate by Art. 1, § 7 of the Idaho Constitution, I would reverse and remand for proper sentencing and would urge the legislature to amend the statutes to provide for proper jury participation in order that future capital punishment cases will not be subject to this serious defect.
II
Idaho Code § 19-2516 requires that the hearing to determine aggravating and miti*378gating circumstances during the sentencing process must be presented by the testimony of live witnesses, that section reading in pertinent part:
“The circumstances must be presented by the testimony of witnesses examined in open court ...”
The attorneys for Mr. Creech made timely and appropriate motion to have the proceeding conducted through the use of live witnesses. The court denied the motion and took “judicial notice” of its file. The file contained letters with no foundation, a presentence report containing a mass of information (much of which was uncorroborated or unattributed), and newspaper clippings. The court also considered a transcript of a preliminary hearing which was conducted before discovery had been completed.
The position asserted by the majority that the only way to reconcile I.C. § 19-2516 (providing for witnesses) with I.C. § 19-2515 (requiring that a presentence investigation report be ordered) is illogical and a fallacious syllogism.
The two sections can be read together with the following meaning:
(1) A presentence report shall be ordered in every capital case; § 19-2515(c);
(2) Findings of aggravating and mitigating circumstances can be based upon the presentence report and representations of counsel unless either party demands a formal hearing;
(3) If requested by either party, the court must make findings of statutory aggravating and mitigating circumstances based only on a live record. § 19-2516;
(4) All evidence and the presentence report can be relied on during the weighing process.
In Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975), the United States Supreme Court stated:
“Where proof of specified facts may determine whether a defendant will live or die, the constitutional requirement for the procedure controlling the proof cannot depend on the state’s choice of the stage of the litigation at which the proof is to occur. If, as here, the determination of. certain statutorily defined facts ‘may be of greater importance than the difference between guilt or innocence for many lesser crimes,’ the state cannot avoid the constitutional requirements for proof of those facts ‘by characterizing them as factors that bear solely on' the extent of the punishment.’ ”
Capital sentencing is qualitatively different from other sentencing proceedings, and there is therefore a need for special reliability in the proceedings. This was recognized by the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976):
“[T]he penalty of death is qualitatively different from a sentence of imprisonment however long. Death, in its finality, differs more from life imprisonment than a 100 year term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”
The result flowing from the majority decision today is rather a curious anomaly in Idaho law. I know of no other proceeding in district court, presided over by a district judge, and presented by attorneys, wherein hearsay and other incompetent and unreliable evidence is permitted. The one exception we now carve out for relaxed and non-professional evidentiary standards is in capital sentencing proceedings.
Perhaps to some the capital sentencing proceeding is not as important as other matters routinely conducted in our district courts — I prefer to believe that the proceedings rank very high on the scale of importance — both to the concerned defendant and to all of those who believe that one important measure of the quality of a society is the standard of fairness and procedural safeguards provided by the criminal justice system.
*379Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), noting that the United States Supreme Court has not directly ruled on the issue, held that the capital sentencing proceeding, even though in a hearing bifurcated from the trial on guilt or innocence, is an integral part of the trial and that therefore it is required that the defendant have a right to confront and cross-examine witnesses, Proffitt, 685 F.2d at 1253, reading as follows:
“Although the [Supreme] Court has held capital sentencing proceedings must meet certain procedural requirements, it has not yet delineated the exact scope of constitutional procedural protection to which capital defendants are entitled. See Gardner v. Florida, 430 U.S. [349] at 358 n. 9, 97 S.Ct. [1197] at 1204 n. 9 [51 L.Ed.2d 393]. Whether the right to cross-examine adverse witnesses extends to capital sentencing proceedings has not been specifically addressed by the Supreme Court and is an issue of first impression in this Circuit. We must therefore decide this question in accord with the general principles articulated by the Supreme Court in its recent death penalty decisions.
The focus of the Court’s current capital sentencing decisions has been toward minimizing the risk of arbitrary decision-making. [Citations omitted.] Whereas earlier cases had focused on the quantity of information before the sentencing tribunal, recently the Court has shown greater concern for the quality of such information. Gardner v. Florida, 430 U.S. at 359, 97 S.Ct. at 1205. Thus, it has recognized the defendant’s interest both in presenting evidence in his favor, Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, supra, and in being afforded the opportunity to explain or rebut evidence offered against him. Gardner v. Florida, 430 U.S. at 362, 97 S.Ct. at 1207. Reliability in the factfinding aspect of sentencing has been a cornerstone of these decisions. Id. at 359-60, 362, 97 S.Ct. at 1205; Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991.
In Gardner v. Florida supra, the Supreme Court held that a judge’s reliance, in imposing the death penalty, on information not disclosed to the defendant or his attorney violated the defendant’s rights to due process and freedom from cruel and unusual punishment. Gardner is premised on the principle that death sentences may not constitutionally be imposed on the basis of information that the capital defendant has been afforded no opportunity to rebut[1] See id. at 362, 97 S.Ct. at 1206. The holding in Gardner narrowly viewed, simply prohibits the use of ‘secret information’; the Court did not in that case address the scope of the capital defendant’s procedural rights in attempting to rebut information that has openly been presented to the sentencing tribunal. In reaching its decision in Gardner, however, the Court emphasized the unacceptability of the ‘risk that some information accepted in confidence may be erroneous, or may be misinterpreted, by the .. . sentencing judge.’ Id. at 359, 97 S.Ct. at 1205. Moreover, the Court expressly recognized the importance of participation by counsel and adversarial debate to eliciting the truth and ‘evaluating the relevance and significance of aggravating and mitigating’ evidence. Id. at 360, 97 S.Ct. at 1205. The Supreme Court’s emphasis in Gardner and other capital sentencing cases on the reliability of the factfinding underlying the decision whether to impose the death penalty convinces us that the right to cross-examine adverse witnesses applies to capital sentencing hearings. The Supreme Court has recognized the cross-examination as ‘the “greatest legal engine ever invented for the discovery of truth” ’ California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)).
*380‘The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the custodial right of confrontation, and helps assure the “accuracy of the truth-determining process.” It is, indeed, “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accomodate other legitimate interests in the criminal process. But its denial or significant dimunition calls into question the ultimate “ ‘integrity of the fact-finding process’ ” [emphasis in original] and requires that the competing interest be closely examined.’ Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) (citations omitted).
Where expert witnesses are employed, cross-examination is even more crucial to ensuring accurate fact-finding. Since, as in this case ... information submitted by an expert witness generally consists of opinions, cross-examination is necessary not only to test the witness’s knowledge and competence in the field to which his testimony relates but also to elicit the facts on which he relied in forming his opinions.
Finally, we note that the decision of the former Fifth Circuit in Smith v. Estelle, 602 F.2d 694 (5th Cir.1979), aff’d, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), buttresses our conclusion that appellant had a constitutional right to cross-examine Dr. Sprehe before the doctor’s report could be used in determining sentence. In Smith, we reversed a death sentence that was based in part on the testimony of a psychiatrist whose name the prosecution had intentionally omitted from its witness list. A primary basis for the decision in that case was that the prosecution’s failure to disclose its intent to call the doctor prevented the defendant’s counsel from conducting effective cross-examination. See id. at 699-701 & n. 7. Although the court did not specifically address whether the defendant had a constitutional right to cross-examine the psychiatrist, it concluded that his testimony, ‘not effectively cross-examined by the [defense attorneys,] carries no assurance of reliability whatever,’ id. at 701, and hence that its use in sentencing the defendant violated the principles set forth in Gardner v. Florida. The reasoning in Smith clearly supports the view that the right to cross-examine adverse witnesses applies to capital sentencing proceedings, at least where necessary to ensure the reliability of the witnesses’ testimony.” [2] (Emphasis supplied.)
Since the sentencing procedure is an integral part of the trial, the defendant should be entitled in Idaho to both the participation of a jury and the right to confront and cross examine witnesses. This case should be remanded for a hearing which provides those two fundamental constitutionally mandated elements of due process and fair trial.
The magnitude and numerosity of Creech’s crimes makes it unpopular and therefore difficult for me to urge any further proceedings and delay in bringing this saga to its ultimate conclusion. Nevertheless, I think more important than any one case is the preservation of our judicial process.
BISTLINE, J., concurs.APPENDIX A
P. THE EIGHTH AMENDMENT’S PRINCIPLE THAT DEATH SENTENCES MUST SATISFY EVOLVING STANDARDS OF DECENCY AND THE DIGNITY OF MAN REQUIRES JURY PARTICIPATION IN CAPITAL SENTENCING.
In view of the “awesome finality of a capital case,” Kinsella v. Singleton, 361 U.S. *381234, 249 [80 S.Ct. 297, 305, 4 L.Ed.2d 268] (1960) (Harlan, J., concurring and dissenting), the Supreme Court has repeatedly recognized the crucial role juries play in the determination whether a capital defendant merits the death sentence. Gregg v. Georgia, supra, 428 U.S. at 181-82, 190-92 [96 S.Ct. at 2928-2929, 2933-2934]; see, Duncan v. Louisiana, 391 U.S. 145, 156 [88 S.Ct. 1444, 1451, 20 L.Ed.2d 491] (involvement of jury in capital cases reflects a “reluctance to entrust plenary powers over ... life [and death] ... to one judge or a group of judges.”25
That the Eighth Amendment requires at least some jury participation in capital sentencing can best be appreciated by reference to the substantive Eighth Amendment standards the Court has invoked in holding that the death penalty is not invariably' cruel and unusual punishment.
Basically, The Court has explained that a particular punishment is not cruel and unusual if it satisfies two criteria. First, the penalty must accord with contemporary moral and social values by reflecting “the evolving standards of decency that mark the progress of a maturing society.” Gregg v. Georgia, supra, 428 U.S. at 173 [96 S.Ct. at 2925], quoting Trop v. Dulles, 356 U.S. 86, 101 [78 S.Ct. 590, 598, 2 L.Ed.2d 630] (1958) (plurality opinion). Second, the punishment must respect “the dignity of man” by serving legitimate penological goals and by bearing a reasonably proportionate relationship to the crime for which it is imposed. Gregg v. Georgia, supra 428 U.S. at 173 [96 S.Ct. at 2925]. In holding that the penalty of death for murder does not necessarily violate these standards, the Gregg plurality’s unmistakable theme was that, under the Eighth Amendment, imposition of the death penalty on a defendant must find validation in the responsible moral and social values of the community that condemns him. An essential medium of those values is the jury.
To support its conclusion that imposition of the death penalty in some circumstances could accord with “evolving standards of decency,” the Gregg plurality looked to the two most reliable sources of responsible public attitudes and values: legislatures and juries.26 Thus, even with respect to the general question whether the death penalty comports with evolving social and moral standards, the plurality found it necessary to rely on patterns of jury behavior. The plurality’s emphasis on evolving standards, id. at 172-73 [96 S.Ct. at 2924-2925], suggests that this Eighth Amendment principle is organic, requiring the courts to continually refer to the moral development of American society. The courts cannot rely on legislatures alone as reflectors of responsible community values. Legislators confront capital punishment abstractly. They determine whether a society is willing to have a law permitting capital punishment, not whether the society, through the instru*382ment of the jury, is willing to carry out that law. Lockett v. Ohio, 438 U.S. 586, 625 [98 S.Ct. 2954, 2983, 57 L.Ed.2d 973] (1978) (White, J., concurring and dissenting).27 Moreover, a statute is static, and, as public values change, it may become a less reliable indicator than the judgment of a jury. Therefore, unless juries, one of the two essential barometers of social values, play some role in capital sentencing, the courts cannot confidently determine whether capital punishment does indeed continue to comport with responsible public views.28
The Eighth Amendment demands more, however, than general social approval of the death penalty as a permissible means of punishment. Because the death penalty is “so profoundly different from all other penalties,” Lockett v. Ohio, supra, 438 U.S. at 605 [98 S.Ct. at 2965] (plurality opinion), the Eighth Amendment also demands individualized consideration of the propriety of the death sentence in every capital case. Ibid. Given “[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual,” Ibid., state capital sentencing schemes must ensure that individual death sentences satisfy the moral demands of evolving standards of decency. See Woodson v. North Carolina, 428 U.S. 280, 303-305 [96 S.Ct. 2978, 2990-2991, 49 L.Ed.2d 944] (1976) (plurality opinion); Godfrey v. Georgia, 446 U.S. 420, 427-28 [100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398] (1980) (plurality opinion). Whatever partial role the legislature can play in reflecting responsible public sentiment on the general validity of the death penalty, only a jury can ensure that a particular death sentence meets this Eighth Amendment command. As the Gregg plurality stressed, “ ‘one of the most important functions any jury can perform in making ... a selection [between life imprisonment and death for a defendant convicted in a capital case] ... is to maintain a link between contemporary community values and the penal system.’ ” Gregg v. Georgia, supra 428 U.S., at 181 [96 S.Ct., at 2929] (plurality opinion), quoting Witherspoon v. Illinois, supra, 391 U.S. at 519 n. 15 [88 S.Ct. at 1775 n. 15]; see Proffitt v. Florida, 428 U.S. 242, 252 [96 S.Ct. 2960, 2966, 49 L.Ed.2d 913] (1976) (plurality opinion).
In testing the death penalty against the second substantive Eighth Amendment requirement, the “dignity of man,” Gregg stated that one of the two legitimate penological goals justifying execution was retribution. Gregg v. Georgia, supra, 428 U.S. at 183 [96 S.Ct. at 2929]. Gregg thereby reinforced the principle that the proper infliction of the death penalty is an essentially communal decision requiring a reflection of responsible communal values.29 “Indeed, *383the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg v. Georgia, id., at 184 [96 S.Ct. at 2930] (footnote omitted) (emphasis added). Here again, jury involvement in capital sentencing is necessary to ensure as a general matter that the death penalty properly reflects the attitude of society toward a given class of crime. But as the same plurality noted on the same day in Woodson v. North Carolina, supra 428 U.S. at 304 [96 S.Ct. at 2991], “the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” (emphasis added).. Thus, a prevailing social belief in retribution must justify not only the general permissibility of the death penalty but also the infliction of the death sentence in particular cases. In this regard, the jury is indispensable in ensuring that society does indeed seek retribution against the particular defendant: “[A] jury that must choose between life imprisonment and capital punishment can do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, supra, 391 U.S. at 519-20 [88 S.Ct. at 1775-1776].
Q. JUDGES ALONE CANNOT ADEQUATELY REFLECT COMMUNITY VALUES IN THE SENTENCING PROCESS
The “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, supra, 438 U.S. at 604 [98 S.Ct. at 2964] (plurality opinion) (emphasis added). A death penalty procedure is unconstitutional if it is so unreliable that it “creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id. at 605 [98 S.Ct. at 2965]. Since the Court has held that death sentences must comport with the community’s sense of evolving standards of decency and its legitimate desire for moral retribution, an essential question is whether judges alone can reliably reflect the communal values that are the source of the constitutionality of capital punishment.
By definition, juries, not judges, are “the cross-section of the community,” reflecting community values. Duren v. Missouri, 439 U.S. 357, 359 [99 S.Ct. 664, 666, 58 L.Ed.2d 579] (1979). Only a representative jury assures “meaningful community participation.” Ballew v. Georgia, 435 U.S. 223, 235 [98 S.Ct. 1029, 1036, 55 L.Ed.2d 234] (1978) (plurality opinion). Jurors, unlike judges, are selected to enhance the likelihood that they represent the whole range of community beliefs and backgrounds, Taylor v. Louisiana, 419 U.S. 522, 531-33 [95 S.Ct. 692, 698-699, 42 L.Ed.2d 690] (1975); the different segments of the community bring to the representative jury “perspectives and values that influence both jury deliberation and result,” id, at 532 n. 12 [95 S.Ct. at 698 n. 12]. See Humphrey v. Cady, 405 U.S. 504, 509 [92 S.Ct. 1048,1052, 31 L.Ed.2d 394] (1972). Moreover the sheer difference in size between a twelve-member jury panel and a single judge may bear significantly on the validity of a sentencing decision under the Eighth Amendment. Canvassing expert empirical studies, the United States Supreme Court has concluded that the likelihood that a decision in a criminal case correctly applies “the common sense of the community to the facts” increases with the number of decisionmakers. Ballew v. Georgia, supra, 435 U.S. at 232 [98 S.Ct. at *3841035].30 Twelve individuals are obviously more likely to reflect the prevailing views of society than one person.31
A jury need not engage in questionable speculation to determine what community sentiment would say in a particular case. Its very function is to bespeak that community sentiment by exercising its own judgment. The jury’s response is society’s response. Witherspoon v. Illinois, supra, 391 U.S. at 519-20 [88 S.Ct. at 1775-1776]. “The jury ... is a significant and reliable objective index of contemporary values because it is so directly involved,” Gregg v. Georgia, supra, 428 U.S. at 181 [96 S.Ct. at 2928]. By contrast, judges cannot themselves speak for community sentiment. If they are to fulfill the demands of the Eighth Amendment by bringing evolving standards of decency and principles of retribution to bear in a capital punishment case, they can do so only indirectly since
“[C]ourts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits.” Dennis v. United States, 341 U.S. 494, 525 [71 S.Ct. 857, 875, 95 L.Ed. 1137] (1951) (Frankfurter, J., concurring). Unable to represent community sentiment, a judge must undertake to ascertain it. That is necessarily a difficult task,32 made even more difficult because judges — whether considered in terms of race, sex, or economic class — do not reflect the wide range of backgrounds or beliefs within the community.33 “[T]he reluctance of juries in many cases to impose the sentence [of death] may well reflect the humane feeling that this most irrevocable sanction should be reserved for a small number of extreme cases,” Gregg v. Georgia, supra, 428 U.S. at 182 [96 S.Ct. at 2929]. For a variety of reasons, judges appear less likely to reflect that same reluctance.34
*385As a means of reliably reflecting community sentiment on capital punishment, bringing lay jurors into the sentencing process “ ‘places the real direction of society in the hands of the governed ... and not in ... the government.’ ” Powell, Jury Trial of Crimes, 23 Wash. <6 Lee L.Rev. 1, 5 (1966) quoting De Tocquevilie, Democracy in America 282 (Reeve Tran.1948). Quintessentially, the right to a jury “is granted to criminal defendants in order to prevent oppression by the government,” Duncan v. Louisiana, 391 U.S. 145, 155 [88 S.Ct. 1444, 1450, 20 L.Ed.2d 491] (1968), and to protect against “arbitrary action” by the complaint, biased, or eccentric judge. Id., at 156 [88 S.Ct. at 1451]. It “reflects a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizens to one judge or to a group of judges.” Ibid.35 *386These concerns are even more compelling where life stands immediately in the balance.
. Since the persons supplying most of the presentence information were not in court, Creech could not “rebut” through the device of cross-examination. (The presentence report was thirteen pages long with attachments of hearsay measuring 25/s inches in depth.)
. The Creech presentence report contained reports of several Idaho psychiatrists and psychologists, a presentence report with attachments from Ohio, including psychiatric evaluations from Ohio physicians and psychologists, numerous newspaper stories, psychiatric evaluations from Oregon doctors and numerous other materials supplied by persons not presented for cross-examination.
. Dictum in Proffitt v. Florida, 428 U.S. 242, 252 [96 S.Ct. 2960, 2966, 49 L.Ed.2d 913] (1976) (plurality opinion), notes that the Court has never expressly stated that the Constitution requires jury sentencing in capital cases. Proffitt, however, approved a capital sentencing scheme very different from Idaho’s. In contrast to the complete exclusion of the jury in Idaho, the Florida scheme entitles the defendant to an advisory jury verdict on penalty, id., at 249, 251-53 [96 S.Ct. at 2965, 2966-2967], and the sentencing judge must abide by a jury recommendation of mercy unless “the facts suggesting a death sentence [are] ... so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 ([Fla.] 1975), quoted in Proffitt v. Florida, supra, 428 U.S., at 249 [96 S.Ct., at 2965]. Plainly, Proffitt in no way resolved the constitutionality of all-judge capital sentencing; indeed, in two post-Proffitt cases a majority of the Supreme Court has expressly reserved any decision on that issue. Bell v. Ohio, 438 U.S. 637, 642 n. * [98 S.Ct. 2977, 2980 n. *, 57 L.Ed.2d 1010] (1978); Lockett v. Ohio, 438 U.S., 586, 609 n. 16 [98 S.Ct. 2954, 2967 n. 16, 57 L.Ed.2d 973].
. The plurality noted that a majority of the state legislatures had reenacted the death penalty after the Court’s 1972 Furman decision, Gregg v. Georgia, 428 U.S. 153, 179-81 [96 S.Ct. 2909, 2928-2929, 49 L.Ed.2d 859] (1976) (plurality opinion), and that since Furman American juries, though imposing the death penalty infrequently, had done so often enough to suggest that they did not categorically disapprove of the penalty. Id., at 181-82 [96 S.Ct. at 2928-2929],
. The tendency of juries to nullify the legislative intent of some criminal laws indicates that the legislature alone cannot represent the evolution of community sentiment in criminal matters. Examples are abundant. American juries regularly refused to convict for liquor violations during Prohibition, and continue to refuse. H. Kalven & H. Zeisel, The American Jury, 292 n. 10 (1966). A survey of traffic law enforcement studies concludes that increasing the penalties for drunken driving changes jury behavior in such cases so as to minimize or even annul, the increase. Ross, The Neutralization of Severe Penalties: Some Traffic Studies, 10 L. & Soc.Rev. 403, 410 1976). And as sentiment against the Vietnam War rose from 1968 to 1971, so did jury acquittals in draft-evasion cases. Kritzer, Enforcing the Selective Service Act: Deterrence of Potential Violators, 30 Stan. L.Rev. 1149, 1156 n. 31 (1978).
. Indeed, in the last 9 years, 8 of the Justices have written or joined opinions that look to the pattern of jury verdicts in support of a conclusion about the constitutionality of the death penalty, either generally, or for particular crimes. Lockett v. Ohio, 438 U.S. 586, 624-25 [98 S.Ct. 2954, 2983-2984, 57 L.Ed.2d 973] (1978) (White, J., concurring and dissenting); Coker v. Georgia, 433 U.S. 584, 596 [97 S.Ct. 2861, 53 L.Ed.2d 982] (1977) (White, J., joined by Stewart, Blackmun, & Stevens, JJ.); Woodson v. North Carolina, supra, 428 U.S., at 293 [96 S.Ct., at 2986] (Stewart, Powell & Stevens, JJ.); Furman [Gregg] v. Georgia, supra, 428 U.S., at 181 [96 S.Ct., at 2928] (Stewart, Powell & Stevens, JJ.); Furman v. Georgia, supra, 408 U.S. at 439-40 [92 S.Ct. at 2828-2829] (Powell, J., dissenting, joined by Burger, C.J., and Black-mun & Rehnquist, JJ.); id., at 299-300 [92 S.Ct. at 2757-2758] (Brennan, J.).
.The plurality stressed that “capital punishment is an expression of society’s moral outrage at particularly offensive conduct,” and that “[t]he instinct for retribution is part of the nature of man, and channeling that instinct in *383the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law’ ” Gregg v. Georgia, 428 U.S. 153, 183 [96 S.Ct. 2909, 2929, 49 L.Ed.2d 859] (1976) (plurality opinion), quoting Furman v. Georgia, 408 U.S., at 308 [92 S.Ct., at 2761] (Stewart, J., concurring).
. Ballew also amassed considerable empirical evidence to prove that reducing the number of decisionmakers in a criminal case impairs the accuracy, fairness, thoroughness and consistency of the decision, generally to the detriment of the defendant. Ballew v. Georgia, 435 U.S. 223, 232-39 [98 S.Ct. 1029, 1035-1038, 55 L.Ed.2d 234] (1978) (plurality opinion).
. Significantly, every state authorizing jury involvement in capital sentencing appears to require a jury of twelve persons. Gillers, supra note 22, at 63 n. 298.
. Judges may theoretically have access to community sentiment through social contact, as well as through such sources as polls, editorials, journals, and newspaper reports. Cook, Public Opinion and Federal Judicial Policy, 21 Am.J.Pol.Sci. 567, 576 (1977). Unfortunately, these sources greatly overstate the willingness of members of the community to impose the death penalty on specific defendants for specific crimes. Research on jury behavior reveals that jurors are substantially more lenient when trying an actual case and sitting through deliberations than they will otherwise indicate. Zeisel & Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 Stan.L.Rev. 491 511-12 (1978) (shadow juries drawn randomly and not subject to peremptory challenges vote guilty far more often than real juries; probably because the defendant’s liberty was not in their hands). People who favor the death penalty in the abstract are more lenient when presented with descriptions of actual cases.
. As of 1979 judges in state courts of general trial jurisdiction earned salaries ranging from $24,400 in Oklahoma to $54,205 in California, with a mean of approximately $41,000. Nat’l Center for St. Cts., Survey of Judicial Salaries 1 (Sept. 1979). As of 1977 in these general jurisdiction courts, only 2.5 percent of the 5,155 judges were women, and 20 states had no women at all on these courts. Cook, Women Judges: The End of Tokenism, in Women in the Courts, 84, 87-88 (Nat’l Center for St. Cts. 1978). It appears that as of 1977 only 2.6 percent of the judges on these general trial courts were black. G.W. Crockett, Number and Distribution of Black Judges (March 1977) (unpublished charts on file with Nat’l Center for St. Cts.). Finally, the rigorous educational requirements for admission to the bar make it inevitable that the average educational attainment of judges will far exceed that of the community in general.
. Kalven and Zeisel’s classic report shows that judges and juries disagree in a substantial number of cases. In a study of 3576 trials, judge and jury reached the same decision about a criminal defendant only 72 percent of the time. H. Kalven & H. Zeisel, supra note 27, at 68. In their specific study of the death penalty, the authors report that judge and jury disagreed about the imposition of a death sentence in 19 percent of the cases, id., at 436. To view the results yet another way, in those cases *385where one or both recommended death, judge and jury disagreed 60 percent of the time. In those cases in which either the judge or jury or both would have voted for the death penalty, in 40 percent, judge and jury agreed, and in 40 percent only the judge would have voted for the death penalty, yet in only 20 percent of the cases would the jury but not the judge vote for execution. Thus, the juries were essentially twice as lenient as the judges. Ibid. As a United Nations Report concludes:
“[A]mong the leading authorities in penal science, the supporters of abolition appreciably outnumber those who favour the retention of capital punishment. The specialists of the social sciences, penologists, doctors and writers on social science or criminology are, in their great majority, abolitionists. The supporters of capital punishment, apart from a number of political figures and persons holding high public office, are generally jurists with a traditional training and judges.”
United Nations, Dept, of Economic and Social Affairs, Capital Punishment (ST/SOA/SD/9-10-64 (1968).
The reason for these differences may lie in the greater reluctance of judges to depart from what they perceive to be the letter of the law. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 [71 L.Ed.2d 1] (1982). Kalven and Zeisel discovered in more than one judge “a kind of envy of the freedom of the jury to reach a decision which he as a judge could not reach” Kalven & Zeisel, supra, at 428. The judge’s role as a strict enforcer even restricts his discretion in sentencing decisions where that discretion would seem to be wholly lawful. As one judge said of draft evasion cases: “1 am opposed to conscription. I also believe that the war in Vietnam is both immoral and impractical. My sentencing policies are based upon the fact that as long as law exists, it should be imposed to effectuate its intent and purpose.” Cook, Sentencing Behavior of Federal Judges: Draft Cases — 1972, 42 Cinn.L.Rev. 597, 623 (1973). At the same time, Cook’s study also reveals that as judges (unlike individual jurors) accrue experience in a given type of case, their sentencing settles into distinct and regular patterns of severity or leniency, id., at 602-03, so that the judge’s first decision whether a person lives or dies may inspire far more deliberation and consideration than subsequent decisions. For individual jurors, however, the gravity with which they approach their decisions in capital cases will rarely be affected by such routinization.
Florida studies cited in Gillers, supra note 22, at 67-68 n. 318, report that sentencing judges were significantly more inclined to impose death than the juries that recommended sentences to them. The studies also show that the judges’ decisions seem to correlate with the race, sex, and social background of the defendant and victim, while the juries showed no evidence of any such biases.
. The Proffitt plurality’s speculation that “judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury and therefore is better able to impose sentences similar to those imposed in analogous cases,” Proffitt v. Florida, supra, note 25, 428 U.S., at 252 [96 S.Ct., at 2966], must, of course, be read in the context in which it was made: as a statement of the probable result of the Florida system in which an advisory jury sentence may be mitigated at the discretion of the trial judge, or increased from life imprisonment to death only where a life sentence would be manifestly unreasonable. Id., at 249-50 [96 S.Ct. at 2965-2966]; See, note 25, supra. Moreover, empirical evidence suggests that individual state trial judges are not likely to achieve consistency among death sentences meted out across the state. Gillers, supra note 22, at 58-59; Cook, supra note 32, at 623. Rather the state can better take advantage of the purported ability of judges to ensure consistency in capital sentencing, at no cost to the defendant’s right to jury sentencing, by relying on the automatic appeal procedure by which this Court must review each death sentence in comparison to other cases involving similar crimes or defendants. I.C. § 19-2827. See, Gregg v. Georgia, 428 U.S., at 204-06 [96 S.Ct., at 2939-2940]; id., at 211-12, [96 S.Ct. at 2942-2943] (White, J., concurring).