O'HERN, J., concurring and dissenting.

Paradoxically, more victim impact evidence would pose less of a constitutional burden than that presented by the statute before us. Not more victim impact evidence in the cumulative sense in each case but more in the sense that the use of such evidence should not be limited to cases in which a defendant has pled the catch-all mitigating factor of N.J.S.A. 2C:11-3c(5)(h) as qualified by the method of implementation set forth in Laws 1995, chapter 123, N.J.S.A. 2C:11-3c(6). I reach this conclusion without meaning any criticism of the well-intended sponsors of the law. The Legislature was acting out of an excess of caution. However, the procedure for introducing victim impact evidence that it has selected imposes an impermissible burden on the right of a defendant to introduce logically relevant evidence. The price is that the jury will be instructed to consider a proposition that is instinctive to the human experience but illogical in law — that the worth of the victims' lives affects the weight to be given to the mitigating circumstances in the defendant's life.

I have no doubt that the constitutional amendment, article I, paragraph 22 of the New Jersey Constitution, should be read to permit the Legislature to effectuate to the fullest extent permissible under the Federal Constitution a reasonable respect for the rights of crime victims. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), establishes, as a matter of federal constitutional law, that in capital cases

[t]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society in particular to his family.

[ Id. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735 (quoting Booth v. Maryland, 482 U.S. 496, 517, 107 S.Ct. 2529, 2540, 96 L.Ed.2d 440, 457 (1987) (citations omitted) (White, J., dissenting)).]

In our capital cases we have concluded that even when not required by constitutional compulsion, our common sense of humanity would not permit a jury to sentence a person to death without ever hearing his or her voice spoken in a courtroom. State v. Zola, 112 N.J. 384 , 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989). I believe that we may say with equal conviction that a jury should never consider a sentence of death without having known who has died. In almost every capital case that we have considered, our juries have had an understanding of the unique human personalities of the victims and their families. We need consider but a few of those cases. In State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991), the defendant's innocent wife as victim and their two trusting children were all too well known to the jury. In State v. Harris, 141 N.J. 525 , 662 A.2d 333 (1995), the jury knew that Harris had inflicted lethal torture, not only on the murder victim but on the other members of the victim's family. In State v. Clausell, 121 N.J. 298 , 580 A.2d 221 (1990), witnesses described the victim's role as a high school basketball coach and his relationship with his child. In State v. Pennington, 119 N.J. 547 , 575 A.2d 816 (1990), there was testimony concerning the lives of the victim, Arlene Connors, her husband, Frank, and their children.

"We recognize that it is impossible to avoid referring to the victim in a capital trial." Id. at 570, 575 A.2d 816. What we have stressed is that "the prosecution may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury." Ibid. (quoting State v. Williams, 113 N.J. 393 , 451-52, 550 A.2d 1172 (1988)).

Under our system of capital punishment, the jury "forms the essential link between society and the defendant before the court. Each capital jury expresses the collective voice of society in making the individualized determination that a defendant shall live or die." Zola, supra, 112 N.J. at 429, 548 A.2d 1022. In the course of that decision, which allowed defendants to make unsworn pleas for mercy to the jury at the penalty phase, we said "we need not discard our common humanity in the process of decision." Id. at 431, 548 A.2d 1022. I therefore agree with those who argue that in view of our common humanity, the collective voice of society can best be pronounced when in fair measure the murder victim's identity is preserved and considered in the capital decisionmaking process. That is only human.

At the same time, we must always avoid an appeal for a verdict based on the worthier life. Our society is dedicated to the preservation of human life. We treasure every life, whether that of victim or of defendant. Hence, I would hold that the triggering and response mechanisms in the statute are invalid in that they unconstitutionally encumber the right of a capital defendant to present mitigating evidence to a jury.

If there is one constant in Supreme Court jurisprudence, it is that a defendant should be able to present to a jury every aspect of his character and personality for its consideration and assessment. Since Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court has repeatedly held that, consistent with the Eighth and Fourteenth Amendments, a sentencer in a capital case may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982) (finding that sentencer's refusal to consider defendant's youth and turbulent family history violated the Eighth and Fourteenth Amendments) (quoting Lockett, supra, 438 U.S. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990 ).

In State v. Davis, 96 N.J. 611 , 619, 477 A.2d 308 (1984), we noted that at a capital sentencing proceeding, "a defendant is entitled to the use of all reliable, helpful information." Indeed, sentencing deliberations may appropriately take into account factors that would not satisfy conventional evidential standards. "[T]he 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.'" Id. at 620, 477 A.2d 308 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592, 596 (1972)). Little will remain of the constitutional rights guaranteed by Eddings and Lockett if the State may encumber those rights by an illogical inference that the defendant's evidence in mitigation is less worthy of weight because the victim in the matter before the court is more worthy than another.

There are two additional problems. First, the statute mandates that only those members of the jury that find the catch-all mitigating factor may consider the victim impact evidence and that the other jurors must disregard it. Such an instruction is almost fatuous. There is little chance that members of a jury that hear evidence about who was murdered and the effect of the murder on the victim's family will be able to put that evidence out of their minds merely because they do not find the catch-all mitigating factor. For this Court to sustain a statute that depends on that kind of jury instruction undermines much of the credibility that we have earned in the course of our diligent efforts to ensure that death penalty prosecutions are fair to both the State and the defense. I do not believe that we should give a jury instruction that is all but impossible to follow. To do so discredits the legitimacy of the capital punishment process that we have erected.

A second concern is that the statute will virtually compel defense attorneys to shoehorn the mitigating evidence that previously was introduced under the catch-all factor into one of the other mitigating factors, most likely factors c(5)(a), c(5)(d), and c(5)(e). Those factors read as follows:

c(5)(a) The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution;

. . . .

c(5)(d) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution[.];

c(5)(e) The defendant was under unusual and substantial duress insufficient to constitute a defense to prosecution.

[N.J.S.A. 2C:11-3c(5) (emphasis added).]

Inevitably, defense counsel will attempt to use evidence about the defendant's upbringing and background to prove that the defendant's emotional condition was such as to fit within the broad confines of those three mitigating factors to avoid the effect of the statute. Defense counsel who do not make that effort will be questioned because the consequences of relying on the c(5)(h) factor could be so potentially devastating. And even more paradoxically, the Court itself may have to take steps to ensure that the c(5)(h) evidence is introduced on the trial court's own initiative, not the defendant's. See State v. Hightower, 120 N.J. 378 , 415, 577 A.2d 99 (1990) (mandating that mitigating factors be presented in every capital case, even over defendant's objection, to ensure reliability of sentencing process). In short, following the statute may result in less victim impact evidence, not more.

I would not resist enforcement of the statute so strongly if there were no alternative. But there is an alternative, and it is simple, relatively uncontroversial and consistent with the Court's opinion in State v. Williams, 113 N.J. 393 , 550 A.2d 1172 (1988), the only case in which the Court heretofore has spoken at length about victim impact evidence. We said in Williams: "Any capital trial will necessarily involve testimony and physical evidence pertaining to the victim. This evidence, though admissible, cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence." Id. at 451, 550 A.2d 1172.

Accordingly, I would hold that properly qualified and limited victim impact evidence should be admissible in every capital prosecution. Its use reinforces the bonds of common humanity that link the jury, the collective conscience of the community, to the administration of the death penalty. A necessary corollary to the general admission of victim impact evidence is that the jury should understand that no victim's life is more worthy than that of another but that each victim's life, and that of the defendant, is unique. I therefore would hold invalid that portion of N.J.S.A. 2C:11-3c(6) that would instruct the jury that it should consider the victim impact evidence "in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection [the catch-all factor]." What possible logical relevance can the status of the victim have to the probative weight to be given to the circumstances of a defendant's life? Does an abused childhood become less so because the child become man has killed a Nobel Prize winner? Or, put the other way, would an abused childhood be any more of a mitigating factor because the defendant had killed a prostitute or a homeless vagrant? The illogic of the proposition is obvious.

We should follow what the people of the State of New Jersey have, through the constitutional amendment, stated to be the clear expression of State policy — to allow to the fullest extent possible the use of victim impact evidence in capital cases when it is used to present to the jury, not the worthier status of the victim's life, but rather only the unique personality of the victim and the victim's family as sharers in the common humanity that links the administration of the death penalty to the "evolving standard[s] of decency" that define cruel and unusual punishment. Spaziano v. Florida, 468 U.S. 447, 483, 104 S.Ct. 3154, 3174, 82 L.Ed.2d 340, 368 (1984) (Stevens, J., concurring in part and dissenting in part) (quotation omitted). Without the distortion created by the statute, juries would understand the valid purpose of such evidence, that is, to gain an understanding of the unique personality of the victim as well as that of the defendant. Payne, supra, 501 U.S. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735.

Just as we would not accept in Zola, supra, the argument that the briefest statement by the defendant would inject a fatal emotionalism into the jury's deliberations, so too, a measured statement from the murder victim's family as to how the killing has affected their lives need not be prejudicially emotional. The common law has always sought a reasoned judgment from juries. Thus, we have developed over time the rules of evidence that laypersons at times find counterintuitive. (For example, we do not tell guilt juries that an accused is a previous offender.) There is always a danger in departing from those settled rules of law. There is a danger that victim impact evidence might degenerate, as we have observed in sentencing statements, into vitriolic emotional attacks upon the character and, sometimes, upon the humanity of the defendant. It is that danger against which courts must guard. Justice Frankfurter once wrote that "[l]aw triumphs when the natural impulses aroused by a shocking crime yield to the safeguards which our civilization has evolved for an administration of criminal justice at once rational and effective." Watts v. Indiana, 338 U.S. 49, 55, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801, 1807 (1949).

I thus believe that a delicate balance between an understanding by the jury of the common humanity of victims and defendant and the strict procedures of the common law can be fairly accomplished. In all of our cases we have emphasized that balance. In Williams, supra, 113 N.J. at 447, 550 A.2d 1172, we condemned emotional appeals based on the victim's character. The victim's hopes and plans were characterized as having been brutally destroyed by the defendant. The Court said that the prosecutor's "overzealous advocacy" had the "same effect as would a deliberate plan to induce the jury to reach a verdict based on the victim's virtuous character." Ibid. Despite the inherent emotion in a capital case, to avoid the arbitrary and capricious imposition of the death penalty is fundamental. Id. at 454, 550 A.2d 1172. "It is constitutionally required that juries in capital trials reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary." Id. at 453, 550 A.2d 1172. The established parameters within which the status of the victim in a capital case may be presented to a jury are established by our tradition and laws.

In State v. Coyle, 119 N.J. 194 , 231-32, 574 A.2d 951 (1990), we recognized the prejudice inherent in arguments that suggest that a verdict be returned out of sympathy for the surviving members of the victim's family. The Court then found improper and prejudicial an appeal to juror sympathy in penalty phase comments concerning the victim's children and their loss of a father's love and guidance. See also Pennington, supra, 119 N.J. at 568-69, 575 A.2d 816 (disapproving prosecutor's emphasis on victim's family relationship and appeal not to dishonor her memory); State v. Harvey, 121 N.J. 407 , 425, 581 A.2d 483 (1990) (disapproving references to victim's recent widowhood and importance of trial to her family), cert. den., 499 U.S. 931, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); Clausell, supra, 121 N.J. at 339-41, 580 A.2d 221 (disapproving contrast of defendant's lifestyle with family activities of victim and his children).

From those cases, we may derive the constant theme that our trial judges must protect jurors from illegitimate influences that threaten to taint their verdict. In re Kozlov, 79 N.J. 232, 239-40, 398 A.2d 882 (1979).

Thus circumscribed, I would permit victim impact evidence in every capital case. I would not condition the use of that evidence on the defendant's exercise of a constitutional right to present mitigating evidence. I would not unconstitutionally distort the limited purpose for which that evidence may be offered — an expression of the unique personality of the victim — by instructing the jury that the defendant's evidence in mitigation is rebutted by some aspect of the character and personality of the victim.

In State v. Ramseur, 106 N.J. 123 , 190, 524 A.2d 188 (1987), we said that Article I, paragraph 12 of the New Jersey Constitution requires "consistency and reliability" in the enforcement of the death penalty. We undermine that consistency and reliability when we unnecessarily inject into capital trials an unconstitutional inference that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Such considerations "effectively devalue the deaths of those victims who have no family or those whose relatives are `less articulate in describing their feelings even though their sense of loss is equally severe.'" Pennington, supra, 119 N.J. at 570, 575 A.2d 816 (quoting Booth, supra, 482 U.S. at 505, 107 S.Ct. at 2534, 96 L.Ed.2d at 450 ).

The United States Supreme Court has never held that victim impact evidence should be admitted specifically and only to counter one aspect of a defendant's life offered in mitigation. Quite to the contrary, the Court has repeatedly emphasized that

victim impact evidence is not offered to encourage comparative judgments of this kind-for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim's "uniqueness as an individual human being," whatever the jury might think the loss to the community resulting from his death might be.

. . . .

Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.

[ Payne, supra, 501 U.S. at 823, 825, 111 S.Ct. at 2607-08, 115 L.Ed.2d at 734-35 (emphasis added).]

Remember that in Payne the totality of the "evidence of the impact of Payne's offenses during the sentencing phase was [a] grandmother's description — in response to a single question — that the child [of the victim] misses his mother and baby sister [who was also killed]." Id. at 826, 111 S.Ct. at 2609, 115 L.Ed.2d at 735.

We should not create another cloud over the death penalty by asking victim impact evidence to shoulder the unconstitutional assignment of creating an impermissible inference that defendants "whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy." Id. at 823, 111 S.Ct. at 2607, 115 L.Ed.2d at 734 .

HANDLER, J., dissenting.

The Court now decides that, in a capital prosecution, evidence about a murder victim's character and background and the effect of the murder on the victim's survivors may be used to decide whether a defendant should be executed. Such "victim-impact" evidence destroys any possibility that the death penalty will be administered in a fair and just manner. I, therefore, dissent from the Court's opinion.

There are compelling reasons of constitutional dimension that foreclose the use of victim-impact evidence to determine the death penalty:

First, expanding "relevant evidence" to include victim-impact evidence will effectively prevent a jury from rendering a death penalty verdict based on the defendant's character and the circumstances of the crime. Evidence about the crime victim has always been admissible in a capital prosecution when it is relevant to guilt or innocence. Victim-impact evidence, as now authorized, however, is not relevant to criminal guilt or innocence. A death sentence must be based on a determination of the defendant's deathworthiness in terms of his or her character and the circumstances of the case. The constitutionality of the death penalty based on that determination hinges on the requirement that clear standards guide jury discretion. A jury's consideration of victim-impact evidence, as now authorized by the Court, cannot be controlled by any standards. Jurors will not be capable of disregarding victim-impact evidence's extreme prejudicial effects or avoiding its distorting and devastating impact. Thus, victim-impact evidence will inevitably derail the jury's function and purpose, resulting in the unconstitutional imposition of the death penalty.

Additionally, as presently envisaged under the statute, the procedural scheme for admission and consideration of the evidence is illogical and confusing. The evidence may be admitted only if the defendant introduces a specific type of mitigating evidence and must be used for the limited purpose of evaluating or weighing that specific mitigating evidence. However, victim-impact evidence is not in any sense relevant to the mitigating factors and, therefore, cannot realistically or rationally aid a juror's particularized evaluation of mitigating evidence. Moreover, because victim-impact evidence may be introduced if a defendant presents certain mitigating evidence, it will discourage, and impermissibly burden, a defendant from proffering mitigating evidence.

The injection of victim-impact evidence into the determination of whether a defendant lives or dies will render proportionality review unmanageable and incomprehensible. That ultimate constitutional check against the disparate and arbitrary imposition of the death penalty becomes meaningless with the use of victim-impact evidence.

The status of the victim is a major factor that engenders invidious discrimination in the administration of the death penalty. Inevitably, the statute will have the insidious effect of creating an unacceptable risk that the death penalty will be imposed in an invidious and discriminatory manner.

I explain my views by outlining the statute that authorizes the use of victim-impact evidence in light of state constitutional principles and standards as well as the fundamental principles of death sentencing that are indispensable in the administration of a constitutional system of capital prosecution and punishment. I conclude that victim-impact evidence is incompatible with those principles and is, therefore, unconstitutional. Further, the use of victim-impact evidence should be rejected because it will destroy proportionality review as a statutory and constitutional safeguard. Finally, and most importantly, victim-impact evidence cannot be tolerated because of its powerful and corrosive potential for invidious discrimination. In sum, victim-impact evidence will destroy a capital defendant's right to a fair determination of his sentence.

I

The imposition of a sentence of death is the most solemn judicial act that government can take. It marks that moment when society decides that one of its members no longer deserves the constitutional right to live. The severity and irreversible nature of the punishment dictates heightened concern about fairness in capital sentencing. Thus, under the New Jersey capital punishment statute, N.J.S.A. 2C:11-3, the jury's discretion is carefully circumscribed to generate the greatest assurance that death sentences will be justly imposed.

After a defendant is charged by the State with capital murder and unanimously found by a jury to have committed murder in circumstances that potentially warrant the imposition of the death penalty, a separate sentencing hearing is held. The jury must determine whether certain statutorily-defined aggravating and mitigating factors exist. Each juror individually must determine the existence of each aggravating factor. Only if each and every juror has found an aggravating factor may that factor thereafter be considered in the determination of the sentence. Each juror must then individually decide whether each mitigating factor exists. Mitigating factors may be found to exist by a single juror even though other jurors do not so find. Thereafter, each juror must determine whether the aggravating factors that all jurors have found to exist outweigh beyond a reasonable doubt the mitigating factors as found by that juror. The death penalty is imposed only if all jurors agree, after performing their independent weighing of the factors, that each of them individually is convinced beyond a reasonable doubt that the proven aggravating factors outweigh the mitigating factors. See generally State v. Ramseur, 106 N.J. 123 , 156-60, 524 A.2d 188 (1987).

One mitigating factor is N.J.S.A. 2C:11-3c(5)(h) ("c(5)(h)"). It is the "catch-all" factor, which can be based on any mitigating evidence not encompassed in the other enumerated mitigating factors. It can additionally be based on evidence already submitted for the other mitigating factors or for any other purpose at trial or sentencing. This factor is, in many cases, critically important.

In 1995, the Legislature approved N.J.S.A. 2C:11-3c(6), now generally referred to as "the victim-impact statute." The statute permits the State to present victim-impact evidence during the penalty-phase of a capital trial whenever a defendant presents evidence pursuant to mitigating factor c(5)(h). N.J.S.A. 2C:11-3c(6) provides that:

When a defendant at a sentencing proceeding presents evidence of the defendant's character or record pursuant to subparagraph (h) of paragraph (5) of this subsection, the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors. If the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds the existence of a mitigating factor pursuant to subparagraph (h) of paragraph (5) of this subsection, the jury may consider the victim and survivor evidence presented by the State pursuant to this paragraph in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection.

The statute both authorizes and limits the use of victim-impact evidence. Under the statute, the introduction of c(5)(h) evidence is the trigger for the admission of victim-impact evidence. That admission, however, does not automatically authorize a juror to consider such evidence. There are two conditions that limit jury consideration of admissible victim-impact evidence. An individual juror must first find that the c(5)(h) factor exists in order to enable that individual juror to consider victim-impact evidence. Then, the juror may use the victim-impact evidence only to determine the weight of evidence presented pursuant to c(5)(h).

The proposed statutory use of victim-impact evidence is extremely complicated and difficult because it is so counter-intuitive. In many situations, victim-impact evidence consists of the victim's family members testifying about their emotional suffering. That kind of evidence will be admissible even though it is not remotely related to the evidence that a defendant has proffered under the c(5)(h) mitigating factor. For example, a defendant may introduce evidence under c(5)(h) that he had a difficult childhood. In "rebuttal," a victim's spouse may testify about the victim's family's suffering. Jurors are instructed to weigh one against the other.

The facts in this case will surely generate substantial evidence of the impact of the murder on the victim and her survivors. Defendant allegedly murdered an eight-year old child who had been visiting a friend. Defendant apparently knew his victim and her mother. The Court anticipates that this capital prosecution will present virtually all of the profound concerns raised by victim-impact evidence.

II

A.

The primary issue in this case is whether victim-impact evidence can constitutionally be permitted in the penalty-phase of a capital trial. We need not spend much time contemplating whether the statute is constitutional under the recently enacted Victim's Rights Amendment. It is constitutional in the sense that the statute was passed by the Legislature and concerns victims' rights. Thus, the statute falls within the broad dictates of the Victim's Rights Amendment. N.J. Const., art. I, ¶ 22 ("A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature."). The important question is whether the victim-impact statute is constitutional under the due process and cruel and unusual punishment clauses of the Constitution.

The majority's approach accepts as a fact that the Victim's Rights Amendment meant to subsume New Jersey's constitutional prohibition against cruel and unusual punishment, N.J. Const., art I, ¶ 12, when considering victim-impact legislation. See ante at 41, 678 A.2d at 173 ("Even if we were inclined to . . . interpret the Cruel and Unusual Punishment Clause of our State Constitution as providing greater protections [than the federal Constitution], the text of the New Jersey Constitution demands that we not pursue such an independent course."). The majority's three justifications are simplistic and erroneous. First, the majority incorrectly believes that the Victim's Rights Amendment "is intended to afford victims whatever rights could be afforded to them without violating the United States Constitution." Ante at 44, 678 A.2d at 175. Second, the decision to provide greater rights to crime victims does not implicitly repeal rights provided to criminal defendants. Third, the overwhelming legislative support for the victim-impact statute does not foreclose Constitutional review.

The key issue is whether the Legislature and the populace meant to limit the other rights protected by the State Constitution when they enacted the Victim's Rights Amendment. If they did not, then a statute passed pursuant to the amendment that clearly intends to limit other constitutional protections is surely not immune from constitutional challenge. Indeed, the statute would be constitutionally suspect. A review of the history of the Victim's Rights Amendment and the rules governing constitutional construction demonstrate that the amendment was not meant to so limit other constitutional rights.

The history of the amendment unequivocally shows that it was not meant to limit other state constitutional rights. The statement accompanying and supporting the legislative bill makes this clear: "[T]his amendment is not intended in any way to deny or infringe upon the constitutional rights of any person accused of a crime." Senate Judiciary Committee, Statement to Assembly Committee Substitute for Assembly Concurrent Resolution No. 85 (May 13, 1991). The Legislature could not have drafted the amendment based on the United States Supreme Court's ruling in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), which removed the per se bar against the admissibility of victim-impact evidence based on the Eighth Amendment to the federal Constitution. Payne was decided after both the State Senate and the General Assembly had passed the amendment. In addition, had the amendment meant to limit either the due process clause or the prohibition against cruel and unusual punishment, one would logically expect some debate. No public hearings for the amendment or debate took place after Payne was decided and before the public voted overwhelmingly in favor of the amendment.

The primary purpose of the Victim's Rights Amendment was to provide "the right of victims to be present at public judicial proceedings." Assemblyman Alex DeCroce, Public Hearing to Assembly Concurrent Resolution No. 85, at 3 (Dec. 17, 1990). Other people testifying at the hearing focused on the right to be present at trials rather than any right to participate in trials. Witnesses testified about actual experiences of mistreatment: a victim was not informed of her attacker's release, a relative was barred from observing a trial, relatives were not provided a place to wait during jury deliberations, trial postponements inconvenienced a victim, and victims were not notified when hearings were delayed. The New Jersey Coalition of Crime Victims' Organizations's ("NJCCVO") statement supporting the amendment never mentioned victims' participation in trials. It considered the amendment's primary aim to be "to strengthen the rights of victims in public judicial proceedings to be present at appropriate criminal justice proceedings." NJCCVO Statement at 22 (Dec. 5, 1990).

Not only does the history of the amendment support the conclusion that the amendment did not mean to limit other rights protected by New Jersey's Constitution, but general rules of construction support the conclusion as well. In general, different sections of the Constitution should be read to be in harmony, not in conflict. See National Mut. Ins. v. Tidewater Transfer Co., 337 U.S. 582, 618 n. 11, 69 S.Ct. 1173, 1191 n. 11, 93 L.Ed. 1556 (1949) (Rutledge, J., concurring) ("[The Constitution's] provisions [are] to be read not with the narrow literalism of a municipal code or a penal statute, but so that its high purposes should illumine every sentence and phrase of the document and be given effect as part of a harmonious framework of government."); Myers v. United States, 272 U.S. 52, 151, 47 S.Ct. 21, 37, 71 L.Ed. 160 (1926) ("[When interpreting the Constitution,] real effect should be given to all the words it uses."); Marbury v. Madison, 1 Cranch 137, 174, 5 U.S. 137, 174, 2 L.Ed. 60 (1803) ("It cannot be presumed that any clause in the Constitution is intended to be without effect."); The Federalist No. 40 (James Madison) ("[E]very part of the expression ought, if possible, be made to conspire to some common end."). The appropriate way to harmonize the Victim's Rights Amendment and to give effect to each section of the New Jersey Constitution is not to jump to "whatever rights could be afforded . . . without violating the United States Constitution." Ante at 44, 678 A.2d at 175.

The majority is incorrect to liken the situation to State v. Harris, 141 N.J. 525 , 662 A.2d 333 (1995). There, the Court recognized that the Legislature and the public had expressly overridden the Court's ruling in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), and had limited the scope of the cruel and unusual punishment clause by amending the Constitution. Harris, supra, 141 N.J. at 548, 662 A.2d 333. The only plausible interpretation of that amendment was that it limited the broad reach this Court had attached to the cruel and unusual punishment clause of the State Constitution. Indeed, the amendment was written directly into the cruel and unusual punishment paragraph of the Constitution and stated that "It shall not be cruel and unusual punishment to impose the death penalty [in circumstances in which this Court had held in Gerald it was]." N.J. Const., art. I, ¶ 12. There was no need to harmonize different constitutional provisions or to give effect to competing clauses. Here, the Victim's Rights Amendment does not provide for the introduction of victim-impact evidence, nor does the amendment on its face limit the cruel and unusual punishment clause.

In sum, the Victim's Rights Amendment was not meant to limit the basic rights enshrined by our Constitution. Rather, the amendment provided much needed protections to crime victims. Therefore, the statute's constitutionality must be determined with an eye toward the entire Constitution.

B.

Because the Victim's Rights Amendment was not meant to limit the basic rights enshrined by New Jersey's Constitution, the appropriate constitutional inquiry is whether the victim-impact statute violates other constitutional rights. The statute does not violate any right protected by the federal Constitution. The crucial inquiry then is whether the statute violates any right protected by the State Constitution. There are sound reasons for providing rights to the capital defendant under the State Constitution that do not exist under the current interpretation of the federal Constitution.

Our Court is generally guided by the federal Constitution and we have acknowledged that the Court should not diverge from federal constitutional interpretation unless justified by "`[s]ound policy reasons.'" State v. Stever, 107 N.J. 543 , 557, 527 A.2d 408 (quoting State v. Hunt, 91 N.J. 338 , 450 A.2d 952 (1982)), cert. denied, 484 U.S. 954, 108 S.Ct. 348, 98 L.Ed.2d 373 (1987); see State v. Hempele, 120 N.J. 182, 226, 576 A.2d 793 (1990) (O'Hern, J., concurring and dissenting) (stating that the federal Constitution's interpretation cannot be justified simply because the Court disagrees with the United States Supreme Court). Not only are there compelling policy reasons here, but this Court has previously embraced those policy reasons in refusing to permit victim-impact evidence at capital trials.

The United States Supreme Court's treatment of victim-impact evidence under the federal constitution should not be followed because its analysis has been inconsistent and unsound; the Court's decisional authority has become unreliable as an indicator to measure state constitutional rights governing capital punishment. Before 1991, the United States Supreme Court on several occasions found victim-impact evidence to be improper in capital trials. South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989); Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). In 1991, the United States Supreme Court reversed itself. It held that such victim-impact evidence did not violate the federal Constitution. Payne, supra, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720.

The majority now assumes that the shift in constitutional thinking by the United States Supreme Court calls for a similar shift in our own understanding of the State Constitution. We declined to follow that route before. That precise sequence of decisional events took place when this Court determined that it was unconstitutional to permit capital sentencing for murder that was based on an intent to cause only serious bodily injury. The Court refused to follow the zig-zag course of federal constitutional doctrine that eventually came to a different conclusion. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court required a homicidal intent as a basis for capital murder. That decision was modified and restricted by the later decision of Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In State v. Moore, 113 N.J. 239 , 301, 550 A.2d 117 (1988), and Gerald, supra, 113 N.J. 40 , 549 A.2d 792, this Court adhered to the rationale of Enmund as being more consonant with state constitutional principles. In the area of victim-impact evidence in capital sentencing, the Court should likewise resist endorsing victim-impact evidence in capital sentencing when it is based solely on a recent about-face by the United States Supreme Court.

Our Court has independently adhered to the principles and rationale of the United States Supreme Court's determination in Gathers, supra, and Booth, supra. The principled doctrine that prohibits the use of victim-impact evidence was followed consistently and repeatedly. E.g., State v. Harvey, 121 N.J. 407, 425, 581 A.2d 483 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); State v. Pennington, 119 N.J. 547 , 566-75, 575 A.2d 816 (1990); State v. Coyle, 119 N.J. 194 , 231-32, 574 A.2d 951 (1990); State v. Williams, 113 N.J. 393 , 446-54, 550 A.2d 1172 (1988) ( Williams II). Thus, the ephemeral authority of the United States Supreme Court in this area is a weak reed against which to lean our own constitutional structure. It does not provide a firm basis on which we can, with any confidence, rest our own constitutional principles. In this context, the "federal decisions are unreliable authority in determining our own constitutional death-penalty jurisprudence." Williams II, supra, 113 N.J. at 465, 550 A.2d 1172 (Handler, J., concurring).

There are two independent bases, in this case, for recognizing state constitutional rights that do not exist under the federal Constitution. These bases are founded in tradition and preexisting state law. See State v. Hunt, 91 N.J. 338 , 365-68, 450 A.2d 952 (1982) (Handler, J., concurring). Both bases demonstrate that the statute violates the New Jersey Constitution.

Our prior decisional law clearly and firmly adopts under the State Constitution the rationale that disallows victim-impact evidence in the penalty trial of a capital case. E.g. Harvey, supra, 121 N.J. at 425, 581 A.2d 483; Pennington, supra, 119 N.J. at 566-75, 575 A.2d 816; Coyle, supra, 119 N.J. at 231-32, 574 A.2d 951; Williams II, supra, 113 N.J. at 446-54, 550 A.2d 1172. Thus, in Williams II, the Court wrote that other than allowing victim-impact statements in pre-sentence reports, New Jersey's "criminal laws focus on the culpability of the defendant rather than the virtue of the victim." 113 N.J. at 450, 550 A.2d 1172.

Since 1991, notwithstanding the United States Supreme Court's reversal of direction in Payne, this Court has twice considered and twice curtailed the use of victim-impact evidence. Thus, this Court has consistently found a constitutional bar to victim-impact evidence when unrelated to the substantive issue of guilt or to the penalty to be imposed. In State v. Bey, 129 N.J. 557, 597-98, 610 A.2d 814 (1992) ( Bey III), cert. denied, ___ U.S. ___, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995), the Court ruled that the prosecution should not have been allowed to introduce articles of the victim's clothing except items used to choke the victim, the victim's purse, and items with forensic evidence. The Court quoted Williams II in stating that victim-impact evidence carries the risk that a jury will "inappropriately intertwine irrelevant emotional considerations with relevant evidence." Id. at 598, 610 A.2d 814. In State v. Martini, 131 N.J. 176 , 619 A.2d 1208 (1993), cert. denied, ___ U.S. ___, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995), the Court permitted testimony about how the perpetrator terrorized the victim and his spouse while seeking ransom during a kidnapping because the victims' terror was part of the overall kidnapping plan, not simply victim-impact, which would be "an unintended and unforeseeable side effect on a victim's family member." Id. at 249, 619 A.2d 1208. The Court, nevertheless, "recognized that prosecutorial comments that tend to overemphasize the character of the victim or the impact of the murder on the victim's family are improper in Williams II and Pennington." Id. at 247, 619 A.2d 1208 (citations omitted). Justice Garibaldi further noted in State v. Biegenwald that Payne left open the possibility that victim-impact evidence would not be permitted under the state Constitutions. 126 N.J. 1, 92-93, 594 A.2d 172 (1991) ( Biegenwald III) (Garibaldi, J., dissenting) (citing State v. Clausell, 121 N.J. 298 , 341, 580 A.2d 221 (1990); Pennington, supra, 119 N.J. at 566-67, 575 A.2d 816; and Williams II, supra, 113 N.J. at 452, 550 A.2d 1172); see State v. Erazo, 126 N.J. 112 , 164, 594 A.2d 232 (1991) (Handler, J., concurring and dissenting) (explaining that the New Jersey Constitution requires more rigorous scrutiny of victim-impact evidence than under federal Constitution and bars such evidence); see also State v. Jackson, 128 N.J. 136 , 152, 607 A.2d 974 (1992) (Handler, J., dissenting) (stating that victim-impact evidence is not permitted because it could divert the jury's attention from the key to capital sentencing: identifying and weighing statutory aggravating and mitigating factors).

In addition, there is strong justification grounded in New Jersey's traditions to provide broader State constitutional protections against the use of victim-impact evidence in capital trials. Victim-impact evidence is fundamentally inconsistent with New Jersey's history of criminal sentencing and, more generally, criminal punishment. Before Booth, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, nothing in the history of capital jurisprudence, either before or since the Declaration of Independence, considered or approved victim-impact evidence. Payne, supra, 501 U.S. at 857-58, 111 S.Ct. at 2626, 115 L.Ed.2d at 757 (Stevens, J., dissenting). The use of victim-impact evidence grows out of the contemporary victims' rights movement. Markus Dirk Dubber, Regulating the Tender Heart when the Axe is Ready to Strike, 41 Buff. L.Rev. 85 (1993) (noting primary areas for reform have been victim restitution and victims' participation in legal proceedings — particularly in sentencing); Patrick M. Fahey, Payne v. Tennessee: An Eye for an Eye and Then Some, 25 Conn. L.Rev. 205, 208 n. 14 (1992) (noting that with emergence of concept of "king's peace," criminal violations became viewed as having been committed against the State rather than the individual).

New Jersey's traditions embody a strong policy commitment to retributive punishment. That is exemplified by the requirements of uniformity and consistency reflected in the Code of Criminal Justice and our many decisions explaining our system as one based on "just desserts." See State v. Pillot, 115 N.J. 558 , 569-78, 560 A.2d 634 (1989); State v. Dunbar, 108 N.J. 80 , 86, 527 A.2d 1346 (1987); State v. Yarbough, 100 N.J. 627 , 637-38, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986); State v. Roth, 95 N.J. 334, 345-51, 471 A.2d 370 (1984). Only in unusual circumstances does that sentencing philosophy permit consideration of the defendant's character. E.g., State v. Jarbath, 114 N.J. 394 , 555 A.2d 559 (1989). Even though capital punishment entails "individualized" sentencing determinations, which require evidence of the defendant's character, it does not otherwise depart from the retributive goal of punishment. The use of victim-impact evidence contradicts that dominant philosophy because it focuses on the worth of the victim rather than the character or record of the defendant and the circumstances of the crime.

Moreover, our laws governing the imposition of the death sentence are distinctive, and reflect concerns that are of unique significance to this State's public policy in the administration of capital punishment. See discussion, infra at 84, 678 A.2d at 194-195. The Court has often turned to the New Jersey Constitution as the basis for its capital sentencing procedures. Its tradition has in many important respects evolved independently from the history of the death penalty under the federal Constitution. See, e.g., Biegenwald III, supra, 126 N.J. at 22-45, 594 A.2d 172 (imposing strict standards relating to pretrial publicity); State v. Kiett, 121 N.J. 483, 582 A.2d 630 (1990) (holding capital punishment may not be imposed on juvenile); Gerald, supra, 113 N.J. 40 , 549 A.2d 792 (requiring intent to commit murder as basis for capital punishment); State v. Koedatich, 112 N.J. 225 , 329-32, 548 A.2d 939 (1988) (mandating direct appeal), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989); Ramseur, supra, 106 N.J. at 299-304, 524 A.2d 188 (recognizing non-unanimous verdict). In particular, the Court has held that the New Jersey Constitution provides additional and more expansive protections against arbitrary, non-individualized death penalty sentencing. Koedatich, supra, 112 N.J. at 332, 548 A.2d 939.

Those principles inform our analysis of the constitutionality of victim-impact evidence. As already noted, this Court's decisions relating specifically to the use of victim-impact evidence were based equally and independently on state authority. E.g., Martini, supra, 131 N.J. at 247, 619 A.2d 1208 (noting that victim-impact evidence is inconsistent with New Jersey laws); Williams II, supra, 113 N.J. at 453-54, 550 A.2d 1172 (same). The consistent reference to a state basis for barring victim-impact evidence supports an interpretation of our State Constitution that adheres to the enhanced protections that must be afforded a capital defendant and requires a ban on victim-impact evidence, which will inevitably destroy any possibility that the death sentence can be justly and fairly imposed.

III

The indispensable principle that controls New Jersey's capital jurisprudence is that punishment be related to the blameworthiness of the defendant. Capital sentencing requires an individualized determination that reflects the defendant's blameworthiness. That determination is based on an exclusive focus on the character of the defendant and the circumstances of the crime. Biegenwald III, supra, 126 N.J. at 92, 594 A.2d 172 (Garibaldi, J., dissenting). This fundamental tenet is reflected in our decisions. E.g., Martini, supra, 131 N.J. at 247, 619 A.2d 1208; Pennington, supra, 119 N.J. at 571, 575 A.2d 816; Williams II, supra, 113 N.J. at 417, 550 A.2d 1172.

For a capital sentencing scheme to be constitutional, the punishment of death cannot be "wantonly and . . . freakishly imposed." Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring). Therefore, the United States Supreme Court has upheld only those death penalty schemes that provide at the penalty phase for an individualized determination of the propriety of the death sentence by focusing the jury's attention on the circumstances of the crime and the character of the defendant. Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235, 251 (1983); Gregg v. Georgia, 428 U.S. 153, 188-95, 96 S.Ct. 2909, 2932-36, 49 L.Ed.2d 859, 883-87 (1976). See generally Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910) ("[I]t is a precept of justice that punishment for crime should be graduated and proportioned to the offense."). Indeed, trial courts can exclude from the penalty phase, "as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense." Lockett v. Ohio, 438 U.S. 586, 604 n. 12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 973, 990 n. 12 (1978). The underlying principle is that "punishment should be directly related to the personal culpability of the criminal defendant." Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256, 278 (1989).

This Court has repeatedly recognized that our death penalty scheme is constitutional only because it provides the individualized determination of the character of the defendant and the circumstances of the offense that the United States Supreme Court has demanded. See State v. Hightower, 120 N.J. 378, 415, 577 A.2d 99 (1990) (holding that the introduction of mitigating evidence is necessary so that the jury can fulfill its role in making an individualized determination); Gerald, supra, 113 N.J. at 103, 549 A.2d 792 (finding evidence is only admissible if relevant to "defendant's character or record, or the circumstances of the offense"); see also Ramseur, supra, 106 N.J. at 294, 524 A.2d 188 (recognizing that jury was not precluded "`from considering as a mitigating factor, any aspect of a defendant's character or record and of the circumstances of the offense'" (quoting Lockett v. Ohio, supra, 438 U.S. at 604, 98 S.Ct. at 2964, 57 L.Ed.2d at 990 )). Indeed, these two characteristics are the key to proportionality review. State v. DiFrisco, 142 N.J. 148 , 165, 662 A.2d 442 (1995) ( DiFrisco II), cert. denied, ___ U.S. ___, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996).

Victim-impact evidence is not relevant to a defendant's character; the primary argument offered in support victim-impact evidence is that the impact of the murder on survivors is a circumstance of the crime. However, given the context in which victim-impact evidence is intended to be used, that argument is not tenable.

First, that analysis is not concerned with evidence that is an integral part of the criminal plan or is relevant to the determination of guilt. As discussed earlier, supra, at 40, 678 A.2d at 173, such evidence is admitted for a reason wholly unrelated to the basis for general victim-impact evidence. The proper analysis, therefore, focuses on whether evidence that is not "an essential component of the total integrated criminal plan" is truly relevant to the circumstances of the crime. Martini, supra, 131 N.J. at 246, 619 A.2d 1208.

The State argues that victim-impact evidence has probative value for sentencing purposes because criminal statutes can link sentencing to the harm inflicted by the commission of the crime. Under that approach, proponents cite two examples: drunk drivers who crash and kill a bystander are sentenced more harshly than drunk drivers who crash and merely injure a bystander; and people who attempt to kill and succeed can be sentenced more harshly than people who attempt to kill but fail. Payne, supra, 501 U.S. at 819, 111 S.Ct. at 2605, 115 L.Ed.2d at 731 ; Booth, supra, 482 U.S. at 516-17, 107 S.Ct. at 2540, 96 L.Ed.2d at 457 (White, J., dissenting).

The two examples cited illuminate certain criteria necessary to use the effects of the offense in sentencing: the harm must be foreseeable to the defendant, the legislature must specify the harm defining the substantive measure of the crime, and the legislature must explicitly express its judgment that a class of harm deserves harsher punishment. Payne, supra, 501 U.S. at 863, 111 S.Ct. at 2629, 115 L.Ed.2d at 760 (Stevens, J., dissenting). Victim-impact evidence as it has been authorized does not meet any of those requirements for enhancing criminal culpability or punishment. Victim-impact evidence is not and will not be limited to situations in which the consequential harm was foreseeable to the defendant. The Legislature, moreover, has not identified or specified, nor has it posited, any kind of harm that must be demonstrated by victim-impact evidence in order to warrant harsher punishment. The statute and the majority place no limits on the type of impact on the victim's survivors that victim-impact evidence may demonstrate. The Legislature, through this statute, allows jurors unfettered discretion to use victim-impact evidence without any guidance in weighing whatever type of c(5)(h) evidence the defendant may have introduced.

The State also argues that victim-impact evidence is permissible because existing aggravating factors reflect a social judgment that a defendant's moral culpability can be assessed by the status and characteristics of the victim. The State refers to aggravating factors c(4)(h) (killing of a child) and c(4)(k) (killing of a public servant), as authority for the notion that a victim's status bears on a defendant's culpability.

Not only is there no analogy between those aggravating factors and victim-impact evidence, but the function of the c(4)(h) and c(4)(k) factors demonstrates the flaw in the attempt to interject victim-impact evidence into capital punishment. The Legislature itself has enacted the specific aggravating factors of c(4)(h) and c(4)(k). Moreover, it has narrowly defined the c(4)(h) and c(4)(k) characteristics. Victim-impact evidence is very different from other kinds of evidence relating to a victim that might otherwise and in other contexts become germane in defining criminal liability or assessing criminal punishment. Fahey, supra, 25 Conn. L.Rev. at 245 (remarking that aggravating factors permit no inquiry into the victim's status, society, family, or performance).

There is an equally compelling reason why victim-impact evidence undermines the constitutionality of the capital punishment scheme. Not only does victim-impact evidence have little or no relevance to the defendant's blameworthiness, victim-impact evidence turns the focus from the defendant's blameworthiness to the victim's worthiness. This shift in direction offends the fundamental constitutional requirement that capital sentencing provide an individualized determination of the defendant's blameworthiness.

The Court, however, ignores how victim-impact evidence can tend to establish the worthiness of the victim and tend to be used to compare the relative worth of the victim and the defendant.

The view of the Court is either naive or disingenuous. Prosecutors will not offer and jurors will not use victim-impact evidence only to humanize the victim. The undeniable effect of victim-impact evidence is that it will be used to demonstrate the value of the victim. See Jackson, supra, 128 N.J. at 153, 607 A.2d 974 (Handler, J., dissenting). An inescapable consequence is that jurors will compare the two sets of character testimony. Ibid. (noting danger that victim-impact evidence will create a "contest between the defendant and [his or her] victim"); State v. Marshall, 123 N.J. 1 , 238-39, 586 A.2d 85 (1991) (Handler, J., dissenting) (finding that State's improper references to victim's "civicmindedness" diverted the jury's attention from defendant's mitigating factors to victim's worthiness); Vivian Berger, Payne and Suffering: A Personal Reflection and a Victim-Centered Critique, 20 Fla.St.U. L.Rev. 21, 46 (1992) (stating the "paeans to the deceased's virtues [must surely be] aimed at inviting jurors to make some sort of comparative judgments (whether among various victims or between the victim and the defendant")). Moreover, prosecutors have never selected victim-impact evidence solely for the purpose of showing how the victim was a unique human being. Common sense and experience tell us that the purpose of using victim-impact evidence must be to show how a victim was a valuable person. The predictable effect of victim-impact evidence is "to enhance certain victims by identifying them as worthier than others of society's highest measure of concern." Berger, supra, 20 Fla.St.U. L.Rev. at 46.

Proponents of victim-impact evidence argue that it will level the playing field by introducing information about the victim that the jury hears about the defendant. The desire for a level playing field in the context of capital sentencing is inappropriate, unjustifiable, and facile. There are many fundamental differences between the defendant's rights and the State's rights in criminal prosecutions. Defendants are guaranteed rights that serve to protect them from possible State overzealousness and excesses. It is undisputed that: the State must prove guilt beyond a reasonable doubt yet defendants have no burden of proof; the State may not appeal acquittals but the defendants may appeal convictions; and capital sentencing can only involve narrowly defined aggravating factors but must not involve too narrowly defined mitigating factors. Capital sentencing is not a game that calls for a level playing field. Even in the context of victim-impact evidence, there is no level playing field. A capital defendant's character can constitute a mitigating circumstance. Nevertheless, "[t]he victim is not on trial; her character, whether good or bad, cannot therefore constitute either an aggravating or mitigating circumstance." Payne, supra, 501 U.S. at 859, 111 S.Ct. at 2627, 115 L.Ed.2d at 758 (Stevens, J., dissenting).

IV

Victim-impact evidence cannot be used for the purpose intended by the statute. The statute imposes an irrational requirement, one that is impossible of fulfillment and one that will be explosively prejudicial when it is attempted to be followed. The statute is grossly unfair for several other reasons: it hinders capital defendants' right to present mitigating evidence, it introduces a de facto aggravating factor, it is so confusing that it violates capital defendants' right to clear jury instructions, and it introduces unrebuttable evidence of the victim's worth.

A fundamental problem with the victim-impact statute is that there is no rational basis for using the evidence in the manner the statute requires. The majority concedes that victim-impact evidence must be "relevant and reliable." Ante at 47, 678 A.2d at 176. It fails, however, to explain in what way that evidence is relevant.

The victim-impact statute limits the use of victim-impact evidence to "determining the appropriate weight to give mitigating evidence presented pursuant to [the c(5)(h) factor]." N.J.S.A. 2C:11-3c(6). The statute yields no clue about how descriptions of the impact on the victim's family or descriptions of the victim's uniqueness as a human being contribute to deciding how much weight c(5)(h) mitigating evidence deserves. The majority's procedural restrictions to the statute also fail to provide any meaningful guidance.

Victim-impact evidence has no tendency to rebut the c(5)(h) factor, nor does it have any capacity to serve as a counterweight to c(5)(h) evidence. It could serve as rebuttal only if the c(5)(h) evidence focuses on the victim and argues that the victim was not unique or had no survivors. No capital defendant ever makes such arguments. In the most common situation, the c(5)(h) evidence relates to the defendant's abusive childhood environment. See, e.g., Bey III, supra, 129 N.J. at 586-88, 610 A.2d 814; Biegenwald III, supra, 126 N.J. at 14, 594 A.2d 172. Such evidence may also relate to parental neglect of the defendant, Bey III, supra, 129 N.J. at 588-89, 610 A.2d 814, the defendant's early substance abuse, id. at 590, 610 A.2d 814, and the defendant's limited education, DiFrisco II, supra, 142 N.J. at 197, 662 A.2d 442. Evidence of the defendant's abusive childhood and blighted life, however, would in no way be offset by evidence of the victim's social value or how much the victim's friends and family miss the victim and suffer from the victim's death. They are completely different subjects. Victim-impact evidence also has no ability to contradict such varied forms of c(5)(h) evidence as service in the armed forces, State v. Long, 119 N.J. 439 , 459, 575 A.2d 435 (1990), or singing in a church choir, DiFrisco II, supra, 142 N.J. at 197, 662 A.2d 442.

The majority argues for the rebuttal use of victim-impact evidence from an analogy based on the use of impeachment evidence. It states that "no one would claim that the State's right to challenge the defendant's credibility or to introduce his prior record [after he testifies] presents a constitutionally prohibited practice." Ante at 39, 678 A.2d at 172. That analogy does not apply, however, when there is no logical or substantive relationship between the rebuttal evidence and what it purportedly rebuts. There is little explanation of how descriptions of the impact on the victim's family and of the victim's uniqueness inform or guide a juror's discretion regarding how much weight to give the descriptions of, for example, the defendant's difficult childhood. Thus, the evidence offered ostensibly for the purpose of rebuttal does not have any traditional or genuine rebuttal purpose and no purpose as a counterweight. The victim's family's suffering and the victim's uniqueness do not undermine, contradict, or impugn the evidence of a defendant's lifetime of difficulties.

Capital defendants have a right to introduce all relevant mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1, 11 (1982). Indeed, this Court insists that a capital defendant provide mitigating evidence. Hightower, supra, 120 N.J. at 415, 577 A.2d 99; Koedatich, supra, 112 N.J. at 331-32, 548 A.2d 939. The capital-punishment statute, by its inclusion of the catch-all factor c(5)(h), and this Court's interpretation and application of its provisions reflect the understanding that mitigating evidence must be generously allowed. E.g. State v. Davis, 96 N.J. 611 , 620, 477 A.2d 308 (1984). The authorization to use victim-impact evidence that is triggered by a defendant's introduction of certain mitigating evidence completely upsets the free admissibility of the defendant's redeeming qualities that is essential in a constitutional capital punishment scheme.

The State is entitled to rebut that evidence with proof of its own. Dawson v. Delaware, 503 U.S. 159, 168, 112 S.Ct. 1093, 1099, 117 L.Ed.2d 309, 319 (1992) (accepting "[t]he principle of broad rebuttal" that would permit any bad character evidence); State v. Rose, 112 N.J. 454 , 503, 548 A.2d 1058 (1988). Nevertheless, the State's evidence may not be as freely admitted as that proffered by a defendant. See, e.g., Davis, supra, 96 N.J. 611, 477 A.2d 308 (indicating that evidence offered by State must adhere to rules of evidence).

The majority asserts that "the defendant is no more restricted from introducing evidence relevant to the catch-all evidence than he would in introducing evidence relevant to any other mitigating factor." Ante at 40, 678 A.2d at 173. Clearly, however, the victim-impact statute restricts defendant's use of c(5)(h) evidence more than his resort to other mitigating evidence.

Defendants are faced with the danger of rebuttal evidence whenever they present evidence under any mitigating factor. See Dawson v. Delaware, supra, 503 U.S. at 167-68, 112 S.Ct. at 1099, 117 L.Ed.2d at 318-19 . As the majority points out, defendants are constantly forced to make difficult choices and the rights they sacrifice are monumental. Ante at 40, 678 A.2d at 173. However, the use of victim-impact evidence in rebuttal exposes defendants to the danger of a form of rebuttal that is not in any way related to the evidence and, worse, goes well beyond the defendant's mitigating evidence.

Victim-impact evidence impermissibly serves as a de facto aggravating factor that will counterbalance all mitigating factors. Under lawful capital punishment procedures, the jurors' only step after determining the aggravating and mitigating factors is to weigh them. The victim-impact statute attempts to create a new intermediate deliberative step: the weighing of the c(5)(h) mitigating evidence. The sole purpose of that step is to influence the ultimate weighing of the aggravating and mitigating factors. The jurors are not permitted to rescind their finding of the c(5)(h) factor, although a juror may find that the c(5)(h) evidence is totally outweighed by the victim-impact evidence. It is inevitable that jurors will therefore discuss the weight of all the aggravating and mitigating evidence in considering the weight of the c(5)(h) evidence and the victim-impact evidence. After all, the weight of the c(5)(h) evidence has no meaning in a vacuum but derives its meaning only when compared with the other aggravating and mitigating factors.

In addition, jurors will often face evidence that supports the c(5)(h) factor, but whose weight must not be affected by the victim-impact evidence. Defendants have the right to ask the jurors to consider mitigating evidence submitted pursuant to any other mitigating factor when they weigh the c(5)(h) factor. Bey III, supra, 129 N.J. at 613-16, 610 A.2d 814. The victim-impact evidence may not be used to counter the weight of such evidence because the defendant did not submit it "pursuant to [c(5)(h)]." N.J.S.A. 2C:11-3c(6). The jurors' analysis of the weight of the c(5)(h) evidence must, therefore, be excruciatingly splintered: they must consider victim-impact evidence in weighing the evidence submitted pursuant to c(5)(h) in a vacuum that ignores all other aggravating and mitigating factors and also ignores the c(5)(h) factor itself because that factor encompasses mitigating evidence submitted pursuant to other mitigating factors. Not only does that procedure require complex mental gymnastics but it puts grave doubts on the capital defendant's right to clear and accurate jury instructions and carefully guided jury deliberations.

Defendants will have no practical opportunity for rebuttal. In theory, defendants' rebuttal should be extremely broad because they have a right to present all relevant evidence that may have a mitigating effect. Mitigating evidence that besmirches the victim's personal, familial, and social worth should be deemed relevant by any court that deems victim-impact evidence relevant. Berger, supra, 20 Fla.St.U. L.Rev. at 50. Courts, however, might well limit the defendant's rebuttal evidence only to evidence that counters the very facts the State presents rather than evidence also showing the victim's uniqueness that may tangentially mitigate the sentence. See, e.g., Goff v. State, No. 71,404, 1996 WL 269199, at [*]16, ___ S.W.2d ___, ___ (Tex.Crim.App. May 22, 1996) (refusing defendant's rebuttal evidence of victim's homosexuality because considered not relevant despite ruling prosecutor's victim-impact evidence relevant under Payne).

In any event, the opportunity for defendants to rebut victim-impact evidence is illusory. Presenting such rebuttal testimony risks creating a "mini-trial" that distracts the jurors from providing the defendant with individualized sentencing. In addition, defendants run the risk of offending the jurors. Booth, supra, 482 U.S. at 518 n. 3, 107 S.Ct. at 2541 n. 3, 96 L.Ed.2d at 458 n. 3 (White, J., dissenting). The task of rebutting victim-impact evidence is a practical and logical impossibility.

There is no escape from the conclusion that victim-impact evidence serves only to establish the "worthiness" of the victim and not the "blameworthiness" of the defendant. In practical effect, victim worth becomes an additional aggravating factor. The victim-impact statute will impermissibly compel defendants to forego their constitutional right to present catch-all mitigating evidence. If victim-impact evidence will affect a juror's consideration of other mitigating evidence, it will chill the defendant's constitutional right to present mitigating evidence. Moreover, the statute is so confusing that clear jury instructions will be impossible. These effects, alone or in combination, serve to deny capital defendants of their constitutional right to a fair trial and their right to a just and informed determination of deathworthiness.

V

The victim-impact statute forces the jury to enter a maze with no exit. There are simply too many intricate and conflicting directions that a juror must follow. Death penalty sentencing requires jurors individually to identify whether mitigating factors exist. As a result, some jurors may not find that factor c(5)(h) exists although fellow jurors may find that it does. As a consequence, although the statute authorizes the State to present victim-impact evidence to all the jurors, the victim-impact evidence could then be considered by only some of the jurors.

Trial courts cannot possibly construct clear jury instructions for the victim-impact statute. The difficulty in formulating adequate limiting instructions increases the risk that jurors will disobey or be unable to follow them. Jury instructions must explain the purpose for which the evidence may be used and clearly delineate the process by which victim-impact evidence may be considered. Jurors must confine their use of the evidence not only to proper purposes (the uniqueness of the victim as a human being and the impact on survivors) but also condition their analysis of that evidence on an independent finding (whether mitigating factor c(5)(h) exists). Thus, the trial court must admonish the jurors not to use that evidence if they do not find the c(5)(h) factor. The court must instruct the jury not to consider that evidence in weighing any aggravating factor or in weighing the c(5)(h) factor insofar as it is based on evidence submitted pursuant to a mitigating factor other than c(5)(h). Nor can jurors use the evidence in weighing any mitigating factor other than c(5)(h).

In addition, jurors must be instructed that victim-impact evidence can be considered only in evaluating the weight to attach evidence submitted pursuant to c(5)(h) and that the victim-impact evidence cannot be considered after they finish discounting the weight of the evidence submitted pursuant to c(5)(h). Jurors must be instructed that the victim-impact evidence cannot be used to demonstrate the survivors' thoughts on the defendant or on the proper punishment. The trial court must further admonish jurors not to use the evidence to compare the value of the defendant to the value of the victim, to determine the victim's value to any degree greater than any other person's value as a unique human being, or to consider the resulting loss to the community. Certainly, the jurors must not use the evidence to affix impermissible values to the victim based on age, race, ethnicity, gender, alienage, religion, patriotism, wealth, intelligence, literacy, occupation, sexual orientation, or physical disability.

Further, even if suitable instructions could be constructed, they would not work. Jurors would still use the victim-impact evidence improperly because the traditional methods of considering rebuttal evidence cannot be applied to this evidence. Traditionally, jurors either take rebuttal evidence as independent proof of a new fact or as evidence to be compared with the defendant's evidence to determine the value of the defendant's evidence. Jurors will, therefore, either take victim-impact evidence as proof of a new aggravating factor or create a contest of worth by comparing it with the defendant's character evidence. Both uses are unconstitutional.

The root of the problems is the highly prejudicial nature of victim-impact evidence. For example, in State v. Erazo, victim-impact evidence was presented about how the victim was a "religious" and "wonderful" woman. The jury sentenced the defendant to death. 126 N.J. 112, 160-66, 594 A.2d 232 (1991) (Handler, J., concurring and dissenting). At the subsequent penalty trial for resentencing following the reversal of the death sentence, the victim-impact evidence was excluded; the defendant was not sentenced to death. The prejudicial effect of victim-impact evidence cannot be minimized; it will be extremely difficult for jurors to escape its influence. The Court's simplistic answer to this concern is to trust jurors to meet their responsibilities. Ante at 52, 678 A.2d at 173.

Courts have consistently expressed confidence in jurors to resolve important emotional issues in criminal and civil cases. Examples of judicial trust of juries include admitting other-crime evidence, prior-convictions evidence, and crime-scene or autopsy photographs. There are, however, areas in which the highly prejudicial nature of the evidence makes such blind trust unwise. See, e.g., Bruton v. United States, 391 U.S. 123, 131, 88 S.Ct. 1620, 1625, 20 L.Ed.2d 476, 482 (1968) (rejecting admission of codefendant's confession in joint trial when jury could not be trusted to disregard confession as it related to defendant; noting that "a jury cannot `segregate evidence into separate intellectual boxes.'"); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (rejecting submission of factual issue of voluntariness of confession to jury when it could not be trusted to make preliminary factual finding of voluntariness as condition to considering veracity and weight of actual confession); State v. Brunson, 132 N.J. 377 , 385-87, 625 A.2d 1085 (1993) (recognizing difficulty of preventing jurors from improperly considering similar prior criminal conviction only for impeachment, so limiting evidence to date and degree of offense).

The fundamental dilemma created by the statute is that victim-impact evidence will be presented to all jurors. Yet all jurors will be asked to disregard that evidence in some way: jurors who do not find factor c(5)(h) must disregard it for all purposes while jurors who find factor c(5)(h) must disregard it for all purposes except to determine the weight of evidence submitted pursuant to c(5)(h). As the trial court recognized, victim-impact evidence is so inflammatory that it is impractical to ask jurors to ignore that evidence. The trial court said that any expectations that jurors could ignore such evidence "unrealistically ignores human nature." State v. Muhammad, No. 2285-6-95, at 4 (Law Div. Nov. 17, 1995). It stated that "[t]o avoid being overwhelmed by the weeping and bitter family members of a homicide victim and the highly charged comments thereon by the prosecutor would test the limits of conscience [of] even the most experienced and hardened judge. There is no gainsaying the emotive power of such evidence upon the jurors." Id. at 7.

The majority treats those concerns dismissively by relying on jurors' presumed ability to follow limiting instructions. It also suggests that Justice O'Connor's concurrence in Payne supports the view that the danger that jurors will misuse victim-impact evidence does not justify barring it. Ante at 52-53, 678 A.2d at 178-179. Justice O'Connor, however, refers not to the danger of juror misuse or juror confusion but only considers "[t]he possibility that this evidence may in some cases be unduly inflammatory." Payne, 501 U.S. at 831, 111 S.Ct. at 2612, 115 L.Ed.2d at 720.

In his separate opinion, Justice O'Hern believes these intractable problems can be avoided simply by permitting victim-impact evidence in every capital prosecution. Ante at 65, 678 A.2d at 185. Justice O'Hern bases his suggestion on the Court's observation in Williams II, supra, that capital trials "will necessarily involve testimony and physical evidence pertaining to the victim." Ibid. However, the Court in Williams II limited its discussion to evidence that was admissible because it was "probative of critical aspects of the trial, e.g., defendant's assertion of self-defense or provocation." 113 N.J. at 451, 550 A.2d 1172; see discussion, supra at 44, 678 A.2d at 175. Clearly, the Court was not suggesting that victim-impact evidence should be allowed in every capital prosecution.

As discussed earlier, victim-impact evidence has no relevance if considered to rebut evidence submitted pursuant to c(5)(h). See discussion, supra at 48-50, 678 A.2d at 177-178. Victim-impact evidence may not be used in direct rebuttal but only to weigh evidence submitted pursuant to c(5)(h). Put another way, evidence directly rebutting the existence of a mitigating factor is relevant before the juror concludes whether the mitigating factor exists; in fact, it is relevant because it will be considered while the juror determines whether the mitigating factor exists. However, victim-impact evidence under the victim-impact statute is not relevant until after the juror concludes that mitigating factor c(5)(h) exists; in fact, the jury may not consider victim-impact evidence unless "the jury finds the existence of a mitigating factor pursuant to [c(5)(h)]." N.J.S.A. 2C:11-3c(6). Once a capital defendant introduces evidence of a mitigating factor, evidence directly rebutting it has immediate probative value and every juror should consider it. See, e.g., State v. Rose, 112 N.J. 454, 501-05, 548 A.2d 1058 (1988) (determining that evidence of defendant's misconduct could rebut mitigating evidence of good character). In sharp contrast, the victim-impact evidence will have no probative value for jurors not finding the c(5)(h) factor. Those jurors would not consider victim-impact evidence at any time, either when rejecting the c(5)(h) factor or when weighing the aggravating and mitigating factors they found. The fallacy of the statute is that victim-impact evidence is, nevertheless, presented to those jurors. As Justice O'Hern aptly points out, "[t]here is little chance that members of a jury that hear evidence about who was murdered and the effect of the murder on the victim's family will be able to put that evidence out of their minds merely because they do not find the catch-all mitigating factor." Ante at 63-64, 678 A.2d at 184-185 (O'Hern, J., concurring and dissenting). I agree, then, with Justice Stein's observation that the statute requires a jury instruction that "[n]o court could expect jury members to obey." Post at 109, 678 A.2d at 207 (Stein, J., dissenting).

In addition, the majority acknowledges a necessary gatekeeping function of the trial court under N.J.R.E. 403. Ante at 55, 678 A.2d at 180. Although the majority notes that the danger of prejudice should be examined in making the N.J.R.E. 403 determination, the majority contradicts the N.J.R.E. 403 standard by declaring that "there is a strong presumption that victim-impact evidence that demonstrates that the victim was a unique human being is admissible." Ante at 55, 678 A.2d at 180. There is no reason to deviate from the evidentiary standard of N.J.R.E. 403 by creating a strong presumption of admissibility.

Finally, such N.J.R.E. 403 determinations will escape judicial review because judicial review will be an intellectual impossibility. There is simply no way that the discretionary decision of the trial court to admit victim-impact evidence can be evaluated. In determining the probative value of victim-impact evidence for N.J.R.E. 403 purposes, trial courts must assess the chance that jurors will find that the c(5)(h) factor exists. That determination can be nothing but speculative. It consequently cannot be tested on review.

VI

The use of victim-impact evidence portends the loss of another constitutional or fundamental right: proportionality review. The addition of victim-impact evidence to the mix of factors weighing in on a jury's decision to sentence a defendant to death presages the loss from the proportionality review database of all previous cases where such evidence was not included and where its inclusion may have affected the jury's decision. In addition, the inclusion of this new factor unimaginably increases the subjectivity of proportionality review and will render such review standardless.

The purpose of comparative proportionality review is "to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency." Marshall II, supra, 130 N.J. at 131, 613 A.2d 1059. Comparative proportionality review is both offender-oriented and offense-oriented. Id. at 126-27, 613 A.2d 1059. One component of proportionality review involves precedent-seeking review, under which the Court undertakes a "more traditional case-by-case comparison of similar death-eligible cases." State v. Bey, 137 N.J. 334 , 366, 645 A.2d 685 (1994) ( Bey IV). The case-by-case comparison requires the Court to identify "all relevant aggravating and mitigating factors, both statutory and non-statutory, that are `rooted in traditional sentencing guidelines.'" Martini II, supra, 139 N.J. at 48, 651 A.2d 949 (quoting Marshall II, supra, 130 N.J. at 159, 613 A.2d 1059).

One criterion used in that analysis of criminal culpability involves the defendant's moral blameworthiness. The elements of blameworthiness used in proportionality review do not involve victim-impact evidence in the sense contemplated by the statute. Rather, this criterion includes factors such as motive or premeditation. To the extent blameworthiness involves harm to the victim or the victim's survivors, the evidence must relate to the defendant's intent. This form of blameworthiness may be affected by the defendant's " knowledge of the helplessness of the victim [and] knowledge of the murder's effects on any non-decedent victims." Martini II, supra, 139 N.J. at 49, 651 A.2d 949 (emphases added). Although the "degree of victimization" is also an element of criminal culpability, it relates to the extent of mutilation, the infliction of suffering on non-decedent victims, and in general the brutality of the murder. Id. at 49, 651 A.2d 949; DiFrisco II, supra, 142 N.J. at 242-43, 662 A.2d 442 (Handler, J., dissenting). Victimization does not include the unanticipated and unspecified harm that might be disclosed through victim-impact evidence. DiFrisco II, supra, 142 N.J. at 239-40, 662 A.2d 442 (Handler, J., dissenting); Bey IV, supra, 137 N.J. at 366, 645 A.2d 685.

The Court has expressed a preference for the "salient-factors test" of proportionality review that compares factually similar cases. DiFrisco II, supra, 142 N.J. at 232-33, 662 A.2d 442 (Handler, J., dissenting). The application of that test will be rendered unworkable and useless by the admission of victim-impact evidence, which may obscure the jury's consideration of mitigating factors and actually constitute a silent aggravating factor that has significant influence on the death-sentence decision.

There is no question that victim-impact evidence will compound the contradictions that now impair proportionality review. N.J.S.A. 2C:11-3c(6) authorizes two forms of victim-impact evidence; the first relates to the victim's character and background. Proportionality review will require tracking information in such categories as socio-economic status (type of job, education, assets) and community status (community activities, church affiliation, reputation, lack of criminal record, family status). This process will not be easy because detailed victim information, other than occupation, is often unavailable. This process, however, is critical because such evidence, specifically socio-economic status, significantly influences juries during capital sentencing. See Letter from David Weisburd to John McCarthy (Dec. 20, 1995) (found in Technical App. 11 to State v. Harris, A-108-95, to be argued Sept. 10, 1996).

The other aspect of victim-impact evidence relates to survivors. We have not previously captured data on the impact of the murder on victims' survivors. We often know little about them. That type of evidence will be extremely difficult to quantify and measure. It requires somehow measuring the emotional and financial effect of the murder on survivors. Those effects will be subjective and complex. Moreover, if this evidence is presented by survivors' testimony, the survivors' skills in conveying their emotions to the jury must be quantified to provide objective comparison with other cases.

Given the above, capital cases tried before the advent of the victim-impact statute where the death-eligible defendant was sentenced to life imprisonment will have no precedential value in a comparison with post-statute death sentences. These cases will then be excluded from the proportionality review database, but the exclusion of the life-sentenced cases from the database will skew the database in favor of death-sentenced cases adding a death-bias to all future proportionality reviews. Pre-statute cases will have no value because the jury that decided on a life sentence did not hear victim-impact evidence. Had the jurors heard such evidence, especially if the evidence showed that the victim had close sympathetic survivors — that is, immediate household family with loving emotional and financial ties — the jurors might well have voted for a death sentence. Because those cases are unreliable in a post-statute review, the cases would have to be excluded or severely limited in their precedential value. However, pre-statute cases where the jurors voted for death would not have to be excluded because we know that victim-impact evidence would not have infected and affected the verdict. Thus, pre-1996 life cases, but not death cases, would be excluded. Any future proportionality review would then have as a database only those cases where the defendant was sentenced to death. Such a database would make any future death sentence appear proportional. The inference is inescapable that the victim-impact statute will destroy effective proportionality review.

Consistency is essential in the administration of capital punishment. This principle is founded on this State's constitutional commitment to prevent the infliction of cruel and unusual punishments, and to ensure due process and equal protection of the laws. N.J. Const., art. I, ¶¶ 1, 5, 12. "Any failure to assure evenhandedness and consistency in the sentencing of all capital defendants and any failure to assure comparative proportionality of individual death sentences violates those constitutional principles, and, indeed, fails to honor the constitutional values placed on individual dignity and human life." Marshall II, supra, 130 N.J. at 235, 613 A.2d 1059 (Handler, J., dissenting).

Proportionality review bears a great part of the responsibility for assuring consistency and evenhandedness in the administration of capital punishment. It operates "`as a check against the random and arbitrary imposition of the death penalty' by an aberrant jury." Ramseur, supra, 106 N.J. at 327, 524 A.2d 188 (quoting Gregg v. Georgia, supra, 428 U.S. at 206, 96 S.Ct. at 2940, 49 L.Ed.2d at 893 ). Beyond the prevention of arbitrariness, proportionality review also "is a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination in imposing the death penalty" on such bases as race, sex, or other suspect classification. DiFrisco II, supra, 142 N.J. at 245, 662 A.2d 442 (Handler, J., dissenting) (quoting Ramseur, supra, 106 N.J. at 327, 524 A.2d 188). Victim-impact evidence will further undermine proportionality review and the judiciary's capacity to preside over capital punishment prosecutions with any semblance of fairness and equality.

VII

The introduction of victim-impact evidence unacceptably exacerbates the racial disparities evident in capital sentencing. Victim-impact evidence encourages jurors to examine and use, both consciously and unconsciously, the comparative worth of the defendant and the victim. Race unquestionably influences our perceptions. This evidence will therefore set back our attempts to eliminate racial disparities in capital sentencing. Such discriminatory sentencing cannot be tolerated in New Jersey. "[W]hen an institution of justice fosters either overt or hidden use of constitutionally forbidden criteria such as race, social standing, religion, or sexual orientation, it cannot be defended as just." Berger, supra, 20 Fla.St.U. L.Rev. at 48. Victim-impact evidence will be the Trojan horse that will bring into every capital prosecution a particularly virulent and volatile form of discrimination.

The most lethal part of racial bias that may be exacerbated by victim-impact evidence is discrimination based on the victim's race. American history is replete with examples of punishment that was explicitly related to the race of the victim. Statistical analysis of capital sentencing suggests a bias based on the victim's race. In McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), the United States Supreme Court considered the Baldus study, which concluded that in Georgia capital defendants charged with killing whites were 4.3 times more likely to be sentenced to death than those charged with killing blacks. Id. at 287, 107 S.Ct. at 1764, 95 L.Ed.2d at 275 . Although roughly half the total homicide victims are black, only 40 of the first 318 executions that have taken place since Gregg involved black victims. A General Accounting Office report surveying twenty-eight statistical studies on post- Furman capital sentencing found that twenty-three of the studies determined that the victim's race influenced the likelihood that the defendant would be charged or sentenced with a capital crime. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, Cong. Record S-6889 (May 24, 1990).

I continue to hold grave concerns about racial discrimination in capital sentencing. See Jackson, supra, 128 N.J. at 151, 607 A.2d 974 (Handler, J., dissenting) (criticizing refusal in McCleskey v. Kemp to vacate death sentence despite assuming racial disparities exist; "Our Court, committed as it is to the eradication of unfair discrimination in the criminal justice system, should not be so unresponsive.").

The Baldus study's concerns have not abated. Baldus, Death Penalty Proportionality Review Project Final Report to the New Jersey Supreme Court (Sept. 24, 1991). Commentators believe that the main reason for continuing discrimination is that "racial prejudice is a powerful force that may not be easily extirpated by statutory or verbal formulas." Welsh S. White, The Death Penalty in the Nineties 136-37 (U. Michigan Press 1991); see Randall Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L.Rev. 1388, 1394 (1988) (noting that jury's disparate reaction suggests that black communities are being "slighted by criminal justice systems that respond more forcefully to the killing of whites than the killing of blacks").

Charges of racial bias within our own capital-sentencing system are not new. The Special Master's Report, noted in Marshall II, suggested that a discrepancy in capital-sentencing rates may correlate to the race of the defendant or the race of the victim. 130 N.J. at 207, 613 A.2d 1059. Other bases for unprincipled discrimination against the value of certain classes of victims exist. "For instance, religious and political dissidents, gay people, homeless drifters, prostitutes, and drug addicts may not be regarded as true victims, or their assailants as real criminals, by judges and jurors from (typically) white and middle-class backgrounds." Berger, supra, 20 Fla.St.U. L.Rev. at 52. A recent study draws preliminary conclusions focusing on three areas for potential bias: cases involving black defendants, white victims, or high-status victims. The study believed that there was bias in capital sentencing and that the high status of the victim and the race of the defendant had a significant impact on the life-or-death decision. Letter from David Weisburd to John McCarthy, supra.

Victim-impact evidence will clearly feed such unconscious biases and increase the level of discrimination because it magnifies the likelihood that jurors will impose punishment if the victim is of an impermissibly favored race or class. The most potent victim-impact evidence is likely to underscore those factors. Such biases in capital sentencing run afoul of the State Constitution.

Examining the victim-impact statute provides some context for the general discussion of racial discrimination. By statute, victim-impact evidence may be used to consider the impact of the murder on the victim's survivors. Jurors will utilize their unconscious impressions of the victim's worth when considering whether the credibility of the victim-impact evidence and the degree to which the survivors' suffering will counter the weight of the c(5)(h) evidence. First, jurors will consider whether the victim-impact evidence correlates to what the jurors believe is the appropriate impact for the victim's death. Second, jurors will make a moral determination of the gravity of the victim's death. Such steps accentuate disparate capital sentencing on the basis of the victim's race. For these reasons, victim-impact evidence raises the foreboding possibility that death-penalty sentencing decisions influenced by victim-impact evidence will be based on the "same invidious motives" as race-based discrimination. Payne, supra, 501 U.S. at 866, 111 S.Ct. at 2631, 115 L.Ed.2d at 763 (Stevens, J., dissenting).

VIII

The Court's most recent decisions involving death penalty cases only add to the sorry saga that has become the jurisprudence of capital punishment. Each case, in its own way, demonstrates and underscores the inherent and inescapable contradictions within that jurisprudence. The Court struggles to reconcile the irreconcilable. It only creates more profound confusion and intractable contradictions.

This decisional process comes with monumental sacrifice; it involves enormous resources, time, and energy. Were this an academic debate, the futility of the pursuit would not be so prohibitive. If this complicated only the discourse of scholars, we might allow ourselves to be fascinated by the intellectual exercise. However, human lives rest in the balance of the Court's judgments and words. No error can be passed off as innocuous. This case unfortunately epitomizes the deepest level of the capital punishment dilemma. The prejudice arising from victim-impact evidence goes to the very base of the structure of our carefully, constitutionally contrived system of capital punishment. It effectively destroys that base.

For the reasons stated, I dissent from the Court's opinion.

STEIN, J., dissenting.

The dilemma presented by this appeal is obvious. The Legislature perceives an imbalance in the trial of capital cases because juries in the penalty phase often hear mitigating evidence from a defendant's family about his disadvantaged background, without hearing any evidence about the identity of the victim and the impact of the homicide on the victim's family. To correct that imbalance, the Legislature has authorized the State to introduce victim impact evidence to offset the weight that those jurors in a capital case who find the c(5)(h) mitigating factor accord to that mitigating evidence. The Court's primary concern is that the admissibility of such evidence does not subject death-penalty juries to emotional and inflammatory testimony that will result in death-sentencing decisions based primarily on the force of the victim impact evidence.

Although well-intended, the statute creates more problems than it solves, and poses a fundamental threat to the rationality of death-penalty prosecutions in New Jersey. Justice Handler addresses many of the practical problems posed by the statute, ante at 191-194, 678 A.2d at 199-205, and concludes that the statute violates state constitutional principles. Ante at 77-82, 678 A.2d at 93-105. The Chief Justice, although concluding that the statute is unwise but not unconstitutional, believes that its application will inject arbitrariness into the prosecution of capital cases. Justices O'Hern and I believe the statute may violate the federal constitutional guarantee that a defendant be allowed to introduce relevant mitigating evidence in his own behalf. We would invalidate the statute, but would allow limited use of victim impact evidence in all capital prosecutions, differing somewhat on the permitted use of such evidence.

The majority sustains the statute without addressing or resolving many of the problems it poses, but appropriately attempts to limit the potentially distorting effects of victim impact evidence by authorizing trial courts to impose restrictions on the emotional and substantive context of such testimony in order that juries will not be misled by its admission. Ante at 54, 678 A.2d at 180.

For over ten years this Court has attempted to infuse rationality and coherence into capital murder prosecutions, steadfastly refusing to sustain death sentences that did not satisfy our standards of constitutionality and trial fairness. In my view, this statute will grossly distort the reliability of capital prosecutions, prevent defendants from asserting their constitutional right to present mitigating evidence, and leave juries seriously confused over their function. It will also raise a cloud over the constitutionality of death sentences imposed in this State. Moreover, no statute is necessary to permit the limited introduction of victim impact evidence in death penalty cases. For those reasons, I cannot join the majority opinion.

I

The majority opinion will leave unsettled for many years the constitutionality of any future death sentence, in this case or any other case, imposed under New Jersey's capital punishment act, N.J.S.A. 2C:11-3c. Although the United States Supreme Court held in Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720, 735 (1991), that the Eighth Amendment does not prohibit states from admitting victim impact evidence in death penalty prosecutions, that Court has never held, much less considered, whether a State can admit that victim impact evidence to rebut evidence of only one of the several authorized statutory mitigating factors.

As Justice O'Hern's separate opinion implies, N.J.S.A. 2C:11-3c(6) impermissibly burdens the constitutional right of a defendant to offer mitigating evidence under the c(5)(h) catch-all mitigating factor. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court invalidated an Ohio capital-punishment statute that recognized only three mitigating factors and precluded consideration by the sentencing judge of a defendant's age, character, prior record, lack of specific intent, and relatively minor role in the homicide. The Court held that under the Eighth and Fourteenth Amendments a sentencer in a capital case may "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990.

Although the victim impact statute does not preclude a defendant from offering evidence to support the c(5)(h) factor, the statute burdens the exercise of that right by allowing the State to rebut only that mitigating evidence with victim impact proof. As Justice O'Hern demonstrates, the inevitable effect of that "restriction" on the use of the c(5)(h) factor will be to compel defense counsel to avoid that factor and attempt "to shoehorn the mitigating evidence * * * into one of the other mitigating factors, most likely factors c(5)(a), c(5)(d), c(5)(e)." Ante at 64, 678 A.2d at 184. Accordingly, the statute poses a substantial risk of violating the core principle of Lockett because it so greatly burdens the use of the c(5)(h) factor alone — and no other — by subjecting it to the powerful offsetting effect of victim impact evidence. Any defense counsel would be deficient if he or she did not try to avoid using the c(5)(h) factor by attempting to offer substantially the same evidence through other mitigating factors.

Thus, it is a virtual certainty that any defendant sentenced to death after this opinion will raise an Eighth and Fourteenth Amendment challenge, alleging that the restriction on the right to offer mitigating evidence imposed by the victim impact statute is unconstitutional. Defendants who offer c(5)(h) evidence will argue that their right to do so was impermissibly burdened by the victim impact evidence offered in rebuttal, and defendants who avoid the use of c(5)(h) evidence will argue that their presentation of mitigating evidence was unconstitutionally restricted by the need to eschew use of the c(5)(h) factor in order to avoid the effect of victim impact evidence.

At the heart of the Supreme Court's holding in Payne was its observation that "there is nothing unfair about allowing the jury to bear in mind [the harm that Payne's killing had caused] at the same time as it considers the mitigating evidence introduced by the defendant." 501 U.S. at 826, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. Not one line of that opinion suggests that the State can single out evidence of one mitigating factor and authorize the use of victim impact evidence solely to rebut that mitigating evidence. In my view, the constitutional question presented by the victim impact statute is substantial and unresolved, and the constitutionality of death sentences imposed in New Jersey for years to come will hang in the balance, while the constitutionality of the statute is litigated through the federal appellate process.

The other irremediable flaw in the statute, as noted by Justice O'Hern, ante at 63-64, 678 A.2d at 184-185, and Justice Handler, ante at 95-95, 678 A.2d at 200-201, is the absurd and surely to be ignored jury instruction that it requires. Because only jurors who find the c(5)(h) mitigating factor can consider the victim impact evidence, the trial court must instruct the jury that those members who do not find the c(5)(h) factor must disregard the victim impact evidence. No court could expect jury members to obey that instruction, but the majority sustains the statute nevertheless. The Court should not uphold a statute that requires a jury instruction with which no jury could conceivably comply.

Moreover, the statute authorizes the admissibility of the victim impact evidence solely in response to the defendant's presentation of evidence pursuant to the c(5)(h) factor, and before the jurors determine whether any of them find the existence of that mitigating factor. Thus, the possibility exists that the victim impact evidence will be admitted but ultimately will be irrelevant because no juror finds the c(5)(h) factor to exist. The court would then be obligated to instruct the entire jury to disregard the victim impact evidence, an instruction virtually impossible to obey.

II

With but one qualification, I am persuaded that Justice O'Hern's proposed procedure, which requires no statute, is far preferable to that endorsed by the majority. I would invalidate N.J.S.A. 2C:11-3c(6) under the federal Constitution, as an impermissible burden on a defendant's right to present mitigating evidence. I would hold that limited victim impact evidence is admissible in every capital case to inform the jury of the victim's identity and unique characteristics and generally to inform the jury of the impact of the homicide on the victim's family.

As Justice O'Hern observes, our death penalty jurisprudence has excluded evidence and argument focused on the victim only when its obvious purpose was to inflame the jury, and evidence informing the jury about the victim in some detail has been routinely admitted when relevant to the State's guilt-phase proofs. Ante at 61-62, 678 A.2d at 183-184. In State v. Williams, 113 N.J. 393 , 550 A.2d 1172 (1988), we held that evidence pertaining to the victim, although admissible, "cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence." Id. at 451, 550 A.2d 1172. Because the constitutionality of non-inflammatory victim impact evidence has been resolved by the United States Supreme Court, I would hold that such evidence is admissible in the penalty phase of all capital cases without statutory authorization. The jury should be permitted to evaluate that evidence in determining the weight to be accorded to all mitigating evidence offered by a defendant. The critical task is to control the emotional context of that evidence.

To counterbalance the obvious emotional effect of such evidence, I would require the jury to be instructed that it is not to attempt any comparison between the value of the victim's life and the defendant's life, and that our jurisprudence does not permit the imposition of the death penalty to be predicated on the relative worth of victims. Regrettably, in considering such evidence as bearing on the weight to be accorded a defendant's mitigating evidence, the jury will be comparing unrelated evidence, although in a manner not dissimilar from the jury's function in weighing aggravating against mitigating factors. Accordingly, I would also require a jury instruction along the following lines:

I have previously instructed you that in order for you to sentence the defendant to death you must find that the State has proved that the aggravating factors that you have determined to exist in this case substantially outweigh the mitigating factors that you have determined to exist in this case, beyond a reasonable doubt. I note that when you engage in that weighing process you will be comparing aggravating factors and mitigating factors that are not directly relevant to each other. For example, the aggravating factor that the homicide was committed in the course of a felony does not readily relate to the mitigating factor based on defendant's age. Nevertheless, the law requires that you weigh those factors against each other. In doing so, the law in effect requires that you determine the relative significance of the aggravating and mitigating factors as they apply to your determination about the appropriateness of the ultimate penalty to be imposed on defendant.

With respect to the victim impact statements that have been offered into evidence, your function is a similar one. The purpose of those statements is to show you the victim's unique status as a human being and the nature of the harm caused by the defendant's criminal conduct. Just as you should know the unique human being that is the defendant, you should know the unique human being that was the victim of his crime. The status of the victim is not in any sense to be considered by you as an aggravating factor under the Death Penalty Act. Each murder victim is equally worthy in the eyes of the law and you are not to infer that such evidence signified that defendants whose victims were assets to the community are more deserving of death than defendants whose victims are perceived to be less worthy.

Nevertheless, I instruct you that you are permitted to evaluate the evidence concerning the victim's unique status as a human being and the harm caused by the defendant's conduct in deciding how much weight you will attribute to the mitigating factors that you find. Of course, in making that evaluation, you must not attempt to compare the value of the victim's life with the value of the defendant's life. You must simply consider the victim impact evidence and then determine whether or to what extent it does or does not affect the weight that you will assign to the mitigating factors that you determine defendant has proved to exist.

III

The grave constitutional issue posed by the statute and the incomprehensible jury instruction required by it, argues compellingly against the result reached by the majority. It may be contended that the alternatives proposed by Justice O'Hern and by this opinion would result in more victim impact evidence than is authorized by the statute. Perhaps so, but that evidence would be presented more coherently, without subverting and burdening the constitutional rights of defendants and without requiring jury instructions that no jury could honor. The Court can accommodate the legislative will without distorting and undermining the reliability of all death penalty prosecutions. By sustaining the statutory scheme, the Court explicitly enforces the legislative mandate, but in the process subjects capital prosecutions to an incoherent procedure with serious constitutional vulnerability.

For affirmance — Chief Justice WILENTZ, and Justices POLLOCK, GARIBALDI and COLEMAN — 4.

Concurring in part; dissenting in part — Justice O'HERN — 1.

Dissenting — Justices HANDLER and STEIN — 2.