State v. Bey

HANDLER, J.,

concurring.

In this case defendant was convicted of capital murder and sentenced to death. The Court now reverses defendant’s conviction and death sentence, holding that his confession was improperly admitted in violation of his fifth amendment and state-law privilege against self-incrimination and that his state and federal constitutional rights to trial by a fair and impartial jury were violated as a result of prejudicial publicity. The Court also holds that the death penalty cannot be applied to the defendant as a juvenile offender.

I concur in the reasoning and result expressed by the Court’s opinion. I write separately, however, to explain more completely the importance of understanding and applying an enhanced standard of appellate review to capital cases, a principle that the majority, at least in part, follows in the instant case. This Court had previously expressed its willingness to conduct a more stringent review of the record in capital cases than is required in other criminal appeals, State v. Ramseur, 106 N.J. 123 , 324 n. 84 (1987). Nevertheless, neither in Ramseur itself nor in State v. Biegenwald, 106 N.J. 13 (1987) did the Court either make clear what such a heightened standard would entail or actually conduct a different review than it would have undertaken in any other case.

Nor is the application of a different standard of review evident in the decision that accompanies this case, State v. Bey (II), 112 N.J. 123 (1988). Indeed, the failure to follow and *106 apply this enhanced standard in Bey (II) , while invoking a heightened review of the record in this case, presents, in my opinion, an incongruous comparison. The majority today professes to apply a standard of review in capital cases that is “meticulous and searching” but eschews the suggestion that the standard should be further defined and modified. Ante at 91-94. This reluctance should yield, however,' in light of the constitutional principles that must be vindicated, and the greater consistency to be realized in the resolution of capital cases. Hence, the debate, it seems to me, should be about what the standard is or should be, not about whether the standard should exist. This belief impels me to attempt to elaborate the standard of review that must be applied in capital-murder prosecutions. I do so, not minimizing my agreement with the Court on the essential issues of this case.

I.

The foundations for an enhanced standard of appellate review in capital cases have been laid in the United States Supreme Court’s repeated recognition that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny____” California v. Ramos, 463 U.S. 992, 998-99 , 103 S.Ct. 3446, 3452 , 77 L.Ed.2d 1171, 1179 (1983); see Caldwell v. Mississippi, 472 U.S. 320, 329 , 105 S.Ct. 2633, 2639 , 86 L.Ed.2d 231, 239 (1985) (per Marshall, J.); Eddings v. Oklahoma, 455 U.S. 104, 117-118 , 102 S.Ct. 869, 878-879 , 71 L.Ed.2d 1 (1982) (O’Connor, J., concurring); Beck v. Alabama, supra, 447 U.S. 625, 637-638 , 100 S.Ct. 2382, 2389-2390 , 65 L.Ed.2d 392, 402-03 (1980) (per Stevens, J.); Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964 , 57 L.Ed.2d 973, 989 (1978) (per Burger, C.J.); Gardner v. Florida, 430 U.S. 349, 357-358 , 97 S.Ct. 1197, 1204-1205 , 51 L.Ed.2d 393, 401-02 (1977) (per Stevens, J.); id. at 363-364 , 97 S.Ct. at 1207-1208 , 51 L.Ed. 2d 393, 405-06 (White, J., concurring in judgment); Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944, 961 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

*107 Many states have acknowledged their special appellate role in capital cases by statutory provisions or judicial decisions that mandate exacting review of capital murder appeals. 1 States have responded to this imperative by providing for independent appellate review of the imposition of the death penalty, e.g., Lewis, Harding, Brogdon, and by requiring review of the jury’s finding that an aggravating circumstance existed, e.g., State v. Fetterly, 109 Idaho 766 , 710 P.2d 1202, 1208 (1985), cert. denied, 479 U.S. 870 , 107 S.Ct. 239 , 93 L.Ed.2d 164 (1986); Coleman v. State, 185 Mont. 299 , 605 P.2d 1000, 1019 (1979), cert. denied, 446 U.S. 970 , 100 S.Ct. 2952 , 64 L.Ed.2d 831 *108 (1980); Foster v. State, 714 P.2d 1031, 1041 (Okla.Cr.App.), cert. denied, 479 U.S. 873 , 107 S.Ct. 249 , 93 L.Ed.2d 173 (1986); Hopkinson v. State, 664 P.2d 43, 86 (Wyo.1983), cert. denied, 464 U.S. 908 , 104 S.Ct. 262 , 78 L.Ed.2d 246 (1983). Most important, an enhanced standard of review has been applied to guilt-phase errors in capital murder appeals. See, e.g., Fisher v. State, 481 No.2d 203 (Miss.1985); Weeks v. State, 456 No.2d 395 (Ala.Cr.App.1983), aff’d 456 So.2d 404 (Ala.1984), cert. denied, 471 U.S. 1030 , 105 S.Ct. 2051 , 85 L.Ed.2d 324 (1985); Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A. 2d 937 (1982), cert. denied, 463 U.S. 1236 , 104 S.Ct. 31 , 77 L.Ed.2d 1452 (1983); State v. Wood, 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988 , 103 S.Ct. 341 , 74 L.Ed.2d 383 (1982).

Application of an enhanced standard of appellate review by this Court would be consistent with these other jurisdictions and with the federal court’s recognition of the special role that state appellate courts must fill. Moreover, the enhanced standard of appellate review comports with the statutory scheme enacted by this State’s Legislature in reinstating capital punishment and with principles expounded (if not results reached) in decisions of this Court.

This State’s capital murder statute reflects the special nature of the death penalty in its provision of protections not available to other criminal defendants. The statute differentiates death penalty prosecutions from other criminal prosecutions by requiring that convicted capital offenders be given a right of direct appeal to this Court. N.J.S.A. 2C:11-3e. The distinctive statutory sentencing scheme uses a jury to weigh aggravating and mitigating factors as the method for imposing a death sentence, thus separating capital murder sentencing from all other criminal sentencing. N.J.S.A. 2C:11-3c(1). The standards governing admissibility of mitigating evidence, moreover, are extremely liberal while those relating to the aggravating factors remain strict. N.J.S.A. 2C:11-3c(1), amended L.1985, c. 178, § 2. The statute further specifically allows for three possible penalty phase verdicts by stating that non-unanimity is *109 a legitimate determination and requires a non-death sentence. N.J.S.A. 2C:11-3c(3). See State v. Bey (II), supra, 112 N.J. at 158 ; State v. Ramseur, 106 N.J. at 311-15. Moreover, the Legislature amended the capital murder statute to exclude juveniles from the death penalty even though they can be tried as adults and subjected to any other criminal punishment. N.J.S.A. 2C:11-3g; ante at 96-99. Further, the legislative understanding that heightened protections were required for a capital murder prosecution is reflected by the statement of the bill’s sponsor, Senator John Russo:

But, the bill has some rather rigorous provisions in it for the protection of the defendant, the theory being that ultimate penalty is paid, as difficult as that will be on all of us who have a part in it, when that day comes, we want to at least feel we have tried to cover every possible contingency for the protection of the defendant and hopefully it will be utilized only in the most extreme cases.

[Public Hearing, N.J. Senate Judiciary Committee, Senate No. 112, at 1 (Feb. 26, 1982).]

This evolving understanding of the important ramifications of capital causes is also reflected directly and indirectly in our own decisions. In State v. McCrary, 97 N.J. 132, 144 (1984), we held that the State must serve a notice of aggravating factors on defendant prior to trial and that the defendant must be afforded the opportunity to challenge these factors in a pretrial motion. The Court went beyond the dictates of the statute to require this limited judicial review of the prosecutor’s discretion because “[w]hen a criminal proceeding takes on the character of a capital case, the exercise of such authority is not only tenable, it is absolutely imperative to ensure fundamental fairness to a defendant.” Id. at 139 . Similarly, in State v. Davis, 96 N.J. 611 (1984), this Court held that a lower standard of admissibility must apply to defendant’s proffer of evidence concerning mitigating factors “[bjecause of this fundamental distinction between the death penalty and all other punishments.” Id. at 622 . We also determined, in State v. Koedatich, supra, 98 N.J. 553 (1984), that a defendant could not waive his statutory right to direct appeal. The Legislature expressed its approval for these augmented protections by amending the *110 statute in 1985 to conform with the Court’s opinion in Davis and Koedatich. L. 1985, c. 178, § 2; L.1985, c. 478, § 1.

This Court, moreover, has a special role in capital murder prosecutions; it must function as the final fail-safe. It is importuned, through its conduct of proportionality review, to ensure that the death penalty is, as Senator Russo put it, “utilized only in the most extreme cases.” See N.J.S.A. 2C:11— 3e. In ensuring that only these “most extreme” cases are selected, a comprehensive standard for appellate supervision and review of the record below, one enhanced substantially beyond that customarily applicable in ordinary criminal causes, is essential.

Like courts in other states, this Court should, as a consequence of the direct appeal posture of death penalty cases and the mandate of proportionality review, conduct an independent and searching review of the record below. This Court, in capital cases, is reviewing the raw material of the trial itself, and not a record that has been refined on appeal; our review of that record therefore must necessarily be of a different, more searching, nature. A critical and independent examination of the entire record made at the trial level is required. Consequently, the standard of review for capital causes counsels for less, not more or even customary, deference to the trial court’s factual determinations. Cf. State v. Ramseur, supra, 106 N.J. at 260 (deference to trial court’s determinations on jury voir dire in capital murder prosecution); State v. Biegenwald, supra, 106 N.J. at 29-30 (same). This review of the record must be plenary, because the jury’s penalty-phase determination is undeniably influenced by the guilt-phase proceedings, the record of which is routinely moved into evidence at the beginning of the penalty phase and becomes an integral part of the record in the penalty determination.

The enhanced standard of review requires the Court to engage in a scrupulous and meticulous review of the record on appeal, including all findings of fact and rulings by the trial *111 court. Once this review is completed, the question becomes what substantive standard of reversibility should guide appellate review. In my opinion, this enhanced review of the record must be complemented by a rigorous substantive standard for determining whether errors adduced from this searching review are reversible. A review of the application of the substantive standards in cases before this Court and the United States Supreme Court exposes, in my opinion, the need for a fully defined substantive standard of review in death penalty appeals.

This Court has recognized the principle that death is a unique sanction requiring uncommon procedural protections. State v. Ramseur, supra, 106 N.J. at 324; State v. Williams, 93 N.J. 39, 61 (1983). The commitment to an enhanced standard of review for capital cases and a recognition that capital prosecutions are fundamentally different from any other prosecutions was expressed in State v. Williams, supra, by this Court when it stated:

This requirement of fairness — and particularly jury impartiality — is heightened in cases in which the defendant faces death. The death penalty is a categorical imperative for trial fairness.

[ 93 N.J. at 61 .]

The nature and scope of the Court’s commitment to a heightened standard, however, remains unclear. In State v. Ramseur, the majority endorsed in principle a heightened scrutiny of the record with respect to prosecutor’s actions in death penalty prosecutions, stating:

Because death is a uniquely harsh sanction this Court of necessity will more readily find prejudice resulting from prosecutorial misconduct in a capital case than in other criminal matters.

[106 N.J. at 324.]

Similarly, in Biegenwald , this Court reiterated its commitment to “scrupulously review” prosecutorial conduct in capital cases, 106 N.J. at 40. In both cases, however, the Court failed to explain the standard it proposed to adopt and the results it reached. Moreover, its dispositions did not reflect the heightened scrutiny it claimed to have undertaken. The Court de *112 ferred, in fact, in several respects to the trial court’s findings instead of independently verifying such lower court determinations. See Ramseur, 106 N.J. at 260 ; Biegenwald, 106 N.J. at 29-30 .

If this Court’s standard of substantive review remains undefined, the federal Court’s efforts to derive a consistent standard of review to embody the principle that “death is different” have been confusing and inconsistent, if not incoherent. In Caldwell v. Mississippi, supra, the Court reversed a capital sentence because of prosecutorial comments that “sought to minimize the jury’s sense of responsibility for determining the appropriateness of death made during the penalty phase,” 472 U.S. at 341 , 105 S.Ct. at 2646, 86 L.Ed.2d at 247 . The Court identified its criterion of review as follows: “Because wé cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.” Id. (emphasis added). A similar stringency was exhibited in the recent case of Gray v. Mississippi, 481 U.S. 648 , 107 S.Ct. 2045 , 95 L.Ed.2d 622 (1987), in which a plurality of the Court declared that the erroneous exclusion for cause of a death-scrupled juror is not amenable to harmless error analysis. “[T]he relevant inquiry,” the Court held, is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.” Id. at-, 107 S.Ct. at 2055, 95 L.Ed.2d at 637 quoting Moore v. Estelle, 670 F.2d 56, 58 (5th Cir.) (specially concurring opinion), cert. denied, 458 U.S. 1111 , 102 S.Ct. 3495 , 73 L.Ed.2d 1375 (1982) (emphasis in original); see also Mills v. Maryland, — U.S.-, 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988) (vacating death sentence because of “substantial possibility” that jury believed, from court’s instructions, that it had to be unanimous on mitigating factors; no showing of actual prejudice was required).

The federal Court in subsequent cases has not, however, endorsed either the stringent “no effect” standard applied in Caldwell or the “possible effect” standard of Gray . In Darden v. Wainwright, 477 U.S. 168 , 106 S.Ct. 2464 , 91 L.Ed.2d *113 144 (1986), the Court, in a 5-to-4 decision, explicitly rejected application of the Caldwell “no-effect” standard to reverse a capital sentence because of improper prosecutorial comments during the guilt phase limiting Caldwell to comments “that mislead the jury as to its role in the sentencing process____” Id. at 183 n. 15, 106 S.Ct. at 2473 n. 15, 91 L.Ed.2d at 158 -59 n. 15. The Court believed that Caldwell could be satisfactorily distinguished because “[t]he comments in Caldwell were made at the sentencing phase of trial and were approved by the trial judge. In this case, the comments were made at the guilt-innocence stage of trial, greatly reducing the chance that they had any effect at all on sentencing.” Id.

Justice Blackmun, joined in dissent by Justices Brennan, Marshall, and Stevens, argued persuasively, however, that Caldwell was not so easily distinguishable. The Darden dissent relied on the seven-member majority’s opinion in Beck v. Alabama, supra, in which the Court stated: “To insure that the death penalty is ... imposed on the basis of ‘reason rather than caprice or emotion,’ we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination.” 447 U.S. at 638 , 100 S.Ct. at 2390, 65 L.Ed.2d at 403 (emphasis added). From this principle, the dissent reasoned that the Caldwell no-effect standard should be applicable to the prosecutorial comments at issue in Darden because:

Caldwell’s Eighth Amendment underpinnings clearly extend to guilt determinations in capital cases as well as to sentencing____ And under the circumstances of this case, where the sentencing hearing followed immediately upon the jury’s return of a guilty phase and the State’s summation consisted of less than a full page of transcript ... I think the State must have assumed that its ... repeatedly expressed wish that Darden die would affect the jury’s sentencing decision as well as its determination of guilt.

[ 477 U.S. at 177 n. 3, 106 S.Ct. at 2470 n. 3, 91 L.Ed.2d at 167 n. 3 (citations omitted).]

In line with its restrictive review in Darden , the Court in Ross v. Oklahoma, — U.S.-, 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), held by a 5-to-4 margin that a trial court’s *114 erroneous failure to exclude a juror because of pro-death penalty bias was harmless, despite the fact that the defense was forced to exercise a peremptory challenge and ultimately exhausted its peremptory challenges. In so holding, the Court rejected the Gray Court’s “possible effect” test: “We think the broad language used by the Gray Court is too sweeping to be applied literally and is best understood in the context of the facts there involved.” Id. 108 S. Ct. at 2278. The Court did not indicate what its exact standard of review consisted of but instead looked to whether the jury that actually sat was impartial, ignoring case law holding that “[t]he denial or impairment of the right [to a full complement of peremptory challenges] is reversible error without a showing of prejudice.” Swain v. Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824, 835 , 13 L.Ed.2d 759, 772 (1965).

The confusion over the proper substantive standard of review to be applied in death penalty cases was crystallized in the recent case of Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792 , 100 L.Ed.2d 284 (1988). In Satterwhite , the Court held that the admission of a psychiatrist’s report on future dangerousness during the penalty phase of a capital case violated the Sixth Amendment where defense counsel was given no advance notice of the examination. Id. at-, 108 S.Ct. at 1796. More important than this determination, however, was the Court’s decision that this constitutional error was subject to harmless error analysis under Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705, 710-11 (1967). The majority reversed the lower court determination that the error was harmless, holding that the “sufficiency of evidence” standard of review below was inadequate: “The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Satterwhite v. Texas, supra, — U.S. at -, 108 S.Ct. at 1798 (quoting Chapman, supra, 386 U.S. at *115 24 , 87 S.Ct. at 827 , 17 L.Ed.2d at 710 ). Thus, the majority interjected a possible third standard of review for capital cases; that is whether the. error “contributed to the verdict.” In concurrence, Justice Marshall, joined by Brennan and Black-mun, reasoned that

[t]he threat of an erroneous harmless-error determination ... looms much larger in the capital sentencing context than elsewhere____ Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enterprise.

[Satterwhite v. Texas, supra, — U.S. at-, 108 S.Ct. at 1800.]

Justice Marshall reasoned that harmless error is an inappropriate standard in a capital sentencing context, because “[ujnlike the determination of guilt or innocence, which turns largely on an evaluation of objective facts, the question whether death is the appropriate sentence requires a profoundly moral evaluation____” Id.

It is clear, therefore, from this Court’s failure and the Supreme Court’s inability to define a uniform substantive standard of review for death penalty cases, that until such a standard is defined and applied consistently, the results of various appeals will be irreconcilable, as Caldwell is with Darden, Gray is with Ross , and Bey (I) is with Bey (II) . It has become a matter of some urgency to explicate more fully the standard of “heightened review” that even the Ramseur majority agreed should exist in capital cases. I offer the following analysis as a stimulus to further thought.

I commend, initially, the concurring opinion in Satterwhite . Because the capital sentencing decision is intrinsically a moral, rather than exclusively an evidentiary, decision, harmless error is an inadequate standard in the context of a capital murder prosecution. This insight applies with equal force, in my opinion, to the jury’s guilt-phase determinations, for the reasons identified in Beck v. Alabama, supra, and the dissent in Darden v. Wainwright, supra; because the guilt-phase record is routinely moved into evidence as the foundation of the penalty-phase judgment, any distinction between the two phases disin *116 tegrates. A capital case is a prosecutorial continuum in which evidence moves without interruption or alteration from the trial of guilt and the determination of death eligibility to the trial of penalty and the imposition of sentence. A guilt-phase determination in a capital case differs in kind, therefore, from a guilt determination in the normal criminal case. To avoid the confusion that could easily arise, I believe that harmless error should be eschewed as a substantive standard of appellate review of error in death penalty cases.

The standard of review governing capital cases should embrace elements that can serve both to direct and to quantify the determination of reversibility. I believe the basic standard of reversibility must reflect the moral implications that pervade a capital proceeding from beginning to end, while taking into account pragmatic considerations relating to the administration of criminal justice. This standard of review, in other words, must be rigorous and escalated well beyond that which is customarily employed; at the same time, however, it should not blindly nullify everything essayed in the prosecution under review.

Accordingly, the State should be required to show beyond a reasonable doubt where the error is not of constitutional dimension, that there was no realistic likelihood of prejudice affecting the jury’s deliberations arising from the error. Absent that demonstration, the error must lead to a reversal. Where the error is of constitutional dimension, however, this Court should be guided by the Caldwell “no effect” standard; the substantive test must be further elevated to protect against the consequences of constitutional error. The State shall be required to show that a constitutional error, whether arising in a pre-penalty phase of the prosecution or in the penalty phase itself, had “no effect” on the determination to impose the death sentence. This is a difficult, though not impossible, standard to meet, but an appropriate one, in my view, for errors of constitutional magnitude in death penalty proceedings.

*117 The enhanced standard of review in capital cases entails, therefore, a two-step analysis in first identifying and then analyzing errors. First, the reviewing court must exercise heightened scrutiny of the record and independence in making its own findings with respect to trial court rulings and determinations. Once errors are identified through this heightened scrutiny, the second process requires an in-depth assessment of all errors comprehending every phase of the prosecution under the substantive standard derived above from federal and state constitutional sources.

Each step in this review process involves a departure from the norms of appellate review. The heightened scrutiny of the record, the first predicate of this enhanced standard of review of capital causes, requires a more rigorous methodology, approach and attitude toward judicial review in relation to the record below. This scrutiny derives from the procedural posture of the case as a direct appeal, and from the mandate of proportionality review. The second, and key, feature of the enhanced standard of review, the requirement of a different, clarified, and more stringent substantive test for determining reversible error, derives ultimately from our understanding that courts are subject to a categorical imperative for assuring fairness in the judicial administration of capital causes. State v. Williams, supra. The standard thus does not require the defendant to demonstrate that the error resulted in any prejudicial impact; rather, it enjoins the State to demonstrate beyond a reasonable doubt, when it wishes to take life, the absence of any realistic likelihood that an error committed in gaining a death sentence prejudiced the jury’s deliberations, and, with respect to constitutional errors, the absence of any effect whatsoever on the jury’s deliberations.

The two components of the standard are unified in their scope; each encompasses all phases of a capital murder prosecution, including the accusatory, pretrial, and trial stages of the prosecution. I believe that any distinction between guilt and penalty phases for purposes of either prong of the two-part test *118 for appellate review is inconsistent with the reasoning of Beck v. Alabama, supra. Moreover, it would be particularly anomalous in New Jersey, where both phases are heard successively on largely overlapping evidence before the same jury and where, as the Court has acknowledged, the aggravating factors considered by the jury during the sentencing phase “are functionally indistinguishable,” because of the breadth of the guilt-phase definition of capital murder, “from elements of the offense.” Ramseur, 106 N.J. at 201 n. 27; Biegenwald, 106 N.J. at 59 (noting the “functional similarity” of aggravating factors and elements of an offense).

Both the State and this Court have an overarching responsibility in assuring the fair and rational application of the death penalty. See State v. Koedatich, 98 N.J. 553 (1984). Because this responsibility demands an independent and exhaustive review of the record, the errors contemplated by this standard should not be limited by the species of error claimed, such as prosecutorial comments. The substantive standard must be applied, moreover, to all errors that are presented on appeal, whether or not the subject of an objection at the trial or raised for the first time by defendant on appeal or noted by the Court itself. The reversibility of error may not turn on whether it was acquiesced in or caused by the defense counsel at the trial level. Cf. State v. Harper, 128 N.J.Super. 270, 277 (App.Div.), certif. den., 65 N.J. 574 (1974) (appellate court can disregard errors caused by defendant unless they impair fundamental right to fair trial). Thus, the heightened scrutiny of the record, acting in combination with the stringent standard for reversibility, eliminates less protective tests for determining reversible error, such as “plain error” and “harmless error.”

A principal virtue of this two-pronged test is that by combining a thorough-going review of the record with a stringent substantive standard, it requires the appellate court to see the case as a whole. Thus, each error identified in the Court’s analysis of the record is critically evaluated in assessing prejudice both for its individual effect on deliberations and for its *119 effect on the structure of the entire case. Issues such as the ameliorative effect of curative instructions, or the deleterious effect of publicity, will thus depend in part on such normally less important factors as the nature and strength of the proofs and the nature and degree of other errors.

The enhanced standard of review imposes a substantial burden on the State, but imposes it because death is a unique and irreversible sanction. The standard of appellate review applicable to death penalty cases cannot accommodate the room for error that is tolerable in cases where life is not at stake. The imperative for fairness demands that the margin of mistake be diminished where the effect of an error would be irremediable. It is not perfection that is prescribed; rather, it is a level of error-free process that is commensurate with the criminal sanction of death. It should thus be appreciated that this enhanced standard is unique to capital causes. This special standard need not, therefore, and indeed should not, be applicable to non-capital criminal prosecutions. The jurisprudence governing capital murder is truly distinctive; an overriding goal of our jurisprudence should be to require death penalty law to develop to the extent possible without influencing or distorting the settled law governing the general administration of criminal justice.

A different standard of review, in sum, governs the appellate disposition of capital causes; this standard of review is unique in both its substantive and procedural aspects, and is materially more protective, as a consequence of the severity of the penalty, than that applicable to the generality of criminal appeals. To be applied consistently, this standard must be expressly defined, consciously followed, and uniformly invoked as to all errors on appeal.

II.

The Court’s willingness to apply the first part of this enhanced standard of review in this case is evidenced by its *120 disposition, reflecting an actual independent and exacting scrutiny of the record, concerning the confession and the midtrial publicity issues.

A.

The Court rules that defendant’s confessions relating to the Alston murder were obtained in violation of his fifth amendment and state-law privileges against self-incrimination. The Court observes that when the police officer began to question defendant about the Alston incident, he immediately invoked his right to remain silent by “[indicating] he did not want to talk to us about it____” Ante at 64.

The Court properly recognizes that the right of a suspect to remain silent during the course of custodial interrogation is one guaranteed by both the federal fifth amendment, see, e.g., Miranda v. Arizona, 384 U.S. 436, 460-61, 467 , 86 S.Ct. 1602, 1624 , 16 L.Ed.2d 694, 715-16, 719 (1966); Michigan v. Mosley, 423 U.S. 96, 103 , 96 S.Ct. 321, 326 , 46 L.Ed.2d 313, 321 (1975), and state law, State v. Hartley, 103 N.J. 252, 260, 262-63, 284-86 (1986). It also recognizes that continued police interrogation, rather than the immediate termination of interrogation, after a defendant has invoked his right to remain silent will render any subsequent inculpatory statements unconstitutionally compelled as a matter of law, and hence inadmissible. Ante at 68-73.

I agree emphatically with this Court’s analysis and conclusion, and can express only consternation that the Court did not undertake the same searching analysis in the companion case of Bey II. I see no legally significant distinction between defendant’s expression in this case that “he would have nothing to say” and his expression in Bey II, occurring earlier in the ongoing interrogation, that “he wanted to think about it.” Each constitutes a request by the defendant to invoke his right to remain silent because, as the majority stresses, a request to terminate interrogation “however ambiguous” must be scrupu *121 lously honored. Ante at 64 (citing State v. Kennedy, 97 N.J. 278, 288 (1984); State v. Wright, 97 N.J. 113, 119-20 (1984); State v. McCloskey, 90 N.J. 18 , 26 n. 1 (1982)). The only explanation I can offer for this incongruous difference in result is that the Court in Bey (II) has not engaged in the same heightened scrutiny of the same record, and has applied at most an ordinary standard for determining the reversibility of error.

B.

The Court has determined, correctly in my view, that the trial court’s efforts to deal with the midtrial publicity were inadequate and that the resulting prejudice mandates a reversal of defendant’s conviction. Ante at 81, 91. The Court states:

We believe the court erred in relying on its protective instructions alone, and conclude that due to the highly prejudicial nature of the information contained in these articles, and the realistic possibility that it may have reached one or more of the jurors, the court’s refusal to poll the jury violated defendant’s fair trial rights and requires that his convictions be reversed.

[Ante at 81.]

I concur in the Court’s determination that the trial court failed to safeguard defendant from a jury untainted by extraneous prejudicial publicity. As pointed out by the Court, the trial court refused throughout to question the jurors individually or to poll the jury generally concerning the articles at issue. The court also refused to sequester the jury until the final night of the penalty phase. Ante at 56-57. As the majority correctly holds, in light of the circumstances the trial court’s refusal to poll the jury constitutes reversible error. Most important, it is the enhanced scrutiny of the record and the trial court’s rulings that lead the majority to conclude under a conventional standard of review for error that the trial court committed reversible error in failing adequately to shield the jury from exposure to that publicity.

The Court now adopts and follows the majority rule in dealing with prejudicial midtrial publicity. This approach, *122 which carries forward to the trial stage the degree of scrutiny mandated by State v. Williams, supra, to combat the potential for prejudice resulting from publicity that may affect the selection of jurors, should ensure that the jury will be free from the taint of publicity when it considers the evidence against a defendant. Under Williams , the trial court must conduct especially searching voir dire and consider the need for a change of venue in the event of extensive pretrial publicity that presents the realistic likelihood of prejudice. 93 N.J. at 67-69 . The majority’s opinion, consistent with Williams , requires that trial courts exercise the same vigilance to protect jurors from the taint of midtrial publicity.

The majority’s opinion reinforces this Court’s commitment to a jury free from tainted publicity by requiring that the court undertake effective measures to ascertain whether during the trial jurors were exposed to such information. See ante at 86-90. Thus, in conjunction with Williams , this Court has provided that trial courts must undertake to eliminate any potential for prejudice resulting from pretrial or midtrial publicity in a capital murder prosecution, requiring in effect enhanced procedural protections guaranteed by an enhanced scrutiny of the trial court’s rulings.

III.

I find myself in basic agreement with the opinion of the Court in terms of its meritorious determinations of the major controverted issues on this appeal. I concur particularly in the Court’s disposition of the confession and trial publicity issues. I am satisfied that the Court’s treatment of the record on this appeal is fully consistent with one aspect of the enhanced standard of review, namely, heightened scrutiny of the record. I express my concurrence in the belief and hope that the Court will continue to apply this heightened scrutiny conscientiously, will consciously invoke a comprehensive enhanced standard of review, and will adopt a substantive standard for reversible *123 error that is responsive to the imperative for fairness present in all capital murder appeals. It should, I urge, be a rigorous standard that will recognize the need for exacting protection against errors and the utmost protection against constitutional error because a life is in the balance.

For the reasons expressed, I join in the determination of the Court to reverse defendant’s conviction and sentence.

For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GIRIBALDI and STEIN — 7.

For affirmance — None.

Many states require the reviewing court not only to make fact findings independent of the sentencing courts, but also to conduct an independent weighing of aggravating and mitigating circumstances to verify the propriety of a given death sentence. See, e.g., Colo.Rev.Stat. § 16-11-103(7)(a) (Supreme Court "shall review the propriety of [any death] sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based’’); Ohio Code Supp. § 2929.05 (Ohio Supreme Court "shall review and independently weigh all of the facts and other evidence disclosed in the record ..." in assessing the propriety of a death sentence) (emphasis added). Thus, in Alabama, the Court of Criminal Appeals "must independently weigh the aggravating and mitigating circumstances to determine whether they are sufficient to support a sentence of death.” Lewis v. State, 380 So.2d 970, 977 (Ala.Crim.App.1979) (emphasis added); see also State v. Harding, 137 Ariz. 278 , 670 P.2d 383, 398 (1983), cert. denied, 465 U.S. 1013 , 104 S.Ct. 1017 , 79 L.Ed.2d 246 (1984) (Arizona Court must conduct independent review of the record of each capital case "to determine the correctness of the findings of the trial court as to aggravating and mitigating circumstances, in order to independently determine the propriety of the sentence imposed") (emphasis added).

The Louisiana Supreme Court has promulgated a Court Rule specifying its standard of review in death penalty cases, providing that, in determining whether a given capital sentence is excessive, the court shall determine

(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors; (b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and (c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

[State v. Brogdon, 457 So.2d 616, 630 (La.1984), cert. denied, 471 U.S. 1111 , 105 S.Ct. 2345 , 85 L.Ed.2d 862 (1985) (citing La.Sup.Ct.Rule XXVIII).]