existence of mitigating factors in New Jersey

2009However, as we evaluate the ineffective assistance argument in the context of the proceedings at the time of the trial, and the fact defendant could have received a sentence of thirty years to life if the death penalty were not imposed, we do not speculate on the possible consequences of a retrial. [11] In his opinion, Judge Kreizman said he was "most impressed" with Dr. Samuel and therefore "discount[ed]" the opinion of Dr. Cunningham. [12] It must be remembered that an aggravating factor must be found unanimously, but that "[e]ach juror ... should individually determine the existence of miti

2006Even if one juror finds a mitigating factor which in that juror’s mind is not outweighed by a reasonable doubt by the aggravating factor or factors, then the jury may not sentence the defendant to death. [ (Emphasis added).] “[E]ach juror must individually determine the existence of mitigating factors.” Bey (II), supra, 112 N.J. at 161 , 548 A.2d 887 .

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

2004This Court has recognized that mitigating evidence serves multiple purposes: (1) to weaken the State’s proofs concerning the existence of aggravating factors; (2) to establish the existence of mitigating factors; and (3) to bolster the weight of those mitigating factors found to exist in an attempt to have those factors outweigh the aggravating factors found to exist during the jurors’ ultimate deliberation. [State v. Martini 131 N.J. 176, 316, 619 A.2d 1208, 1282 (1993) (Martini I), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed.2d 137 (1995).] The defendant has a right to both critici

2004This Court has recognized that mitigating evidence serves multiple purposes: (1) to weaken the State's proofs concerning the existence of aggravating factors; (2) to establish the existence of mitigating factors; and (3) to bolster the weight of those mitigating factors found to exist in an attempt to have those factors outweigh the aggravating factors found to exist during the jurors' ultimate deliberation. [ State v. Martini, 131 N.J. 176, 316 , 619 A. 2d 1208, 1282 (1993) ( Martini I ), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed. 2d 137 (1995).] The defendant has a right to both

2004This Court has recognized that mitigating evidence serves multiple purposes: (1) to weaken the State’s proofs concerning the existence of aggravating factors; (2) to establish the existence of mitigating factors; and (3) to bolster the weight of those mitigating factors found to exist in an attempt to have those factors outweigh the aggravating factors found to exist during the jurors’ ultimate deliberation. [State v. Martini 131 N.J. 176, 316, 619 A.2d 1208, 1282 (1993) (Martini I), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed.2d 137 (1995).] The defendant has a right to both critici

2004This Court has recognized that mitigating evidence serves multiple purposes: (1) to weaken the State's proofs concerning the existence of aggravating factors; (2) to establish the existence of mitigating factors; and (3) to bolster the weight of those mitigating factors found to exist in an attempt to have those factors outweigh the aggravating factors found to exist during the jurors' ultimate deliberation. [ State v. Martini, 131 N.J. 176, 316 , 619 A. 2d 1208, 1282 (1993) ( Martini I ), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed. 2d 137 (1995).] The defendant has a right to both

1999In State v. Loftin, we observed that when a jury non-unanimously finds the existence of mitigating factors, that is “compelling evidence” that the jury was not confused on the permissibility of non-unanimity on mitigating factors. 146 N.J. 295, 376 , 680 A.2d 677 (1996).

1999In State v. Loftin, we observed that when a jury non-unanimously finds the existence of mitigating factors, that is “compelling evidence” that the jury was not confused on the permissibility of non-unanimity on mitigating factors. 146 N.J. 295, 376 , 680 A.2d 677 (1996).

1999When the trial court is unsure of the nature of a jury’s request during deliberations, the court should “bring the jury into the courtroom in order to resolve [the] uncertainty.” State v. Brown, 275 N.J.Super. 329 , 646 A.2d 440 (App.Div.1994); see State v. Graham, 285 N.J.Super., 337, 342 , 666 A.2d 1372 (App.Div.1995) (“[W]hen the jury’s question is ambiguous, the judge is obliged to clear the confusion by asking the jury the meaning of its request ...

1999When the trial court is unsure of the nature of a jury’s request during deliberations, the court should “bring the jury into the courtroom in order to resolve [the] uncertainty.” State v. Brown, 275 N.J.Super. 329 , 646 A.2d 440 (App.Div.1994); see State v. Graham, 285 N.J.Super., 337, 342 , 666 A.2d 1372 (App.Div.1995) (“[W]hen the jury’s question is ambiguous, the judge is obliged to clear the confusion by asking the jury the meaning of its request ...

1993Permitting the jury to apply mitigating evidence in those fashions comports with our insistence “that juries must be allowed to consider all mitigating circumstances advanced by defendant at trial.” Biegenwald IV, supra, 126 N.J. at 53, 594 A.2d 172 ; State v. Bey, supra, 112 N.J. at 169, 548 A.2d 887 .

1993Permitting the jury to apply mitigating evidence in those fashions comports with our insistence “that juries must be allowed to consider all mitigating circumstances advanced by defendant at trial.” Biegenwald IV, supra, 126 N.J. at 53, 594 A.2d 172 ; State v. Bey, supra, 112 N.J. at 169, 548 A.2d 887 .

1990We agree with defendant that when resentencing has been ordered, all current information relevant to an appropriate appraisal of the factors should be considered. *594 State v. Jarbath, 114 N.J. 394, 409-11 , 555 A. 2d 559 (1989). [2] Without that information the resentencing process takes on a fictional component unwarranted by any reasonable analysis of its clear purpose.

1990We agree with defendant that when resentencing has been ordered, all current information relevant to an appropriate appraisal of the factors should be considered. *594 State v. Jarbath, 114 N.J. 394, 409-11 , 555 A. 2d 559 (1989). [2] Without that information the resentencing process takes on a fictional component unwarranted by any reasonable analysis of its clear purpose.

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence in

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence in

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence in

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence in

1989See State v. Williams, 113 N.J. 393 (1988) (empanelment of the jury and its voir dire ); State v. Moore, 113 N.J. 239 (1988) (responsibility of courts to charge the jury with appropriate lesser-included offenses); State v. Gerald, supra, 113 N.J. 40 (1988) (responsibility of juries to determine that the defendant had the knowledge or purpose that death would result from the criminal act); State v. Rose, 112 N.J. 454 (1988) (necessity that juries understand the limited purposes that some evidence may have in capital cases); State v. Zola, 112 N.J. 384 (1988) (use of expert scientific evidence i

1986Because of the novelty and the obvious importance of the issue, see State v. Koedatich, 98 N.J. 553 (1984), we granted the motion for leave to appeal filed by defense counsel, who felt an obligation to seek a review of the Law Division order which states "that defense counsel abide by the request of the defendant not to present the evidence to support the existence of mitigating factors, which would include the testimony of Dr. James D.

1983In Bell v. Ohio, 438 U.S. 637 , 98 S.Ct. 2977 , 57 L.Ed. 2d 1010 (1978), decided after Downs , the United States Supreme Court did not rule on petitioner's Eighth and Fourteenth Amendment claims of unconstitutionality that "the defendant must bear the risk of nonpersuasion as to the existence of mitigating factors." At 642, 98 S.Ct. at 2980 (footnote).

1983In Bell v. Ohio, 438 U.S. 637 , 98 S.Ct. 2977 , 57 L.Ed. 2d 1010 (1978), decided after Downs , the United States Supreme Court did not rule on petitioner's Eighth and Fourteenth Amendment claims of unconstitutionality that "the defendant must bear the risk of nonpersuasion as to the existence of mitigating factors." At 642, 98 S.Ct. at 2980 (footnote).