The opinion of the Court was delivered by
[192]*192O’HERN, J.
Child abuse is not just a sociological phenomenon; it can be murder, and it can be capital murder. The question here is whether this is a capital murder case. In State v. McCrary, 97 N.J. 132 (1984), we approved, in limited circumstances, pretrial review of the factual basis for the statutory aggravating factors that the prosecutor seeks to use to establish death eligibility under New Jersey’s capital punishment act, N.J.S.A. 2C:11-3. This interlocutory appeal requires us to review an application of the McCrary procedures in light of our subsequent decisions in State v. Biegenwald, 106 N.J. 13 (1987), and State v. Ramseur, 106 N.J. 123 (1987), in which we determined the constitutionality of the capital punishment act and established standards for its application. Specifically, we must determine whether a factual basis was presented to charge the defendant with murder that involved “aggravated assault” or “torture” of the infant child in his custody.
First, we review the Court’s definition of the “aggravated assault/torture” element of N.J.S.A. 2C:ll-3c(4)(c). Then we consider the threshold measure of proof required under the principles of State v. McCrary to determine whether a case may be prosecuted as a capital case. Finally, we determine whether the proofs meet the McCrary threshold.
I
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court upheld the Georgia capital sentencing statute, concluding that the statute contained safeguards that promised to eliminate the constitutional defects that previously had resulted in death sentences that were “wantonly and * * * freakishly imposed,” and “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 2762-63, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring). In Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. [193]*1932733, 2744, 77 L.Ed.2d 235, 251 (1983), the Court explained that although no specific set of procedures had been set down to satisfy the concerns of Furman, it found that “[t]he Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.”
In New Jersey, the categorical narrowing is established by limiting capital punishment to murders specified in N.J.S.A. 2C:ll-3c and by requiring at least one of the aggravating factors set forth in 2C:ll-3c(4). This categorical narrowing must be based on standards that will withstand a claim of vagueness.
Section c(4)(c) lists as one of the aggravating factors that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim.”1 Recognizing that we must provide each sentencing jury with specific guidance concerning the nature of the crimes that will satisfy the statute, in State v. Ramseur, supra, 106 N.J. at 197-211, Chief Justice Wilentz set forth the Court’s understanding of the legislative meaning of this aggravating factor. In that case and in State v. Biegenwald, supra, 106 N.J. at 48-52, we confined the meaning of the statutory phrase “murder [that] was outrageously or wantonly vile, horrible or inhuman” to the second portion of the statutory provision, i.e., murders that “involve[] torture, depravity of mind, or an aggravated battery to the victim.” N.J.S.A. 2C:11-3c(4)(c). In Ramseur and Biegenwald this Court elaborated on the meaning of each of these subsidiary considerations.
Reasoning that the Legislature had intended that the most accurate measure of criminal culpability was the state of the [194]*194actor’s mind, we interpreted factor c(4)(c) in that light. Hence, the c(4)(c) elements of aggravated assault and torture are limited to “the class of murders in which defendant intended to, and did in fact, cause extreme physical or mental suffering — in addition to death. * * * Thus, the extreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death.” Ramseur, supra, 106 N.J. at 208-09 (footnote omitted). Thus viewed, we reasoned that the requirement that the defendant intentionally inflict extreme physical or emotional pain in addition to death eliminates the need for a distinction between the statutory terms “aggravated assault” and “torture.” “We are convinced that the essence of the legislative concern is the defendant’s state of mind.” Id. at 207. We concluded that the Legislature’s concern, as evident in the aggravated assault/torture element of c(4)(c) was “to punish most harshly those who intend to inflict pain, harm, and suffering — in addition to intending death.” Id. at 208.
The depravity-of-mind element of c(4)(c) is established by the senselessness of the killing, i.e., “the complete absence — from society’s point of view — of any of the recognizable motivations or emotions that ordinarily explain murder. The definition of this kind of murder is not vague.” Id. at 210. Such a killer is one “who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder * * Id. at 209 (footnote omitted). It included as well one who intentionally mutilates a corpse. Id. at n. 37.
Concededly, there is hardly ever direct evidence of an actor’s state of mind, but the intent to torture or inflict gratuitous pain may be inferred from the circumstances of the crime. For example, in State v. Ramseur, the defendant’s vengeful act in coming back to inflict additional stab wounds on the dying victim, combined with his own statements, well demonstrated his intent to inflict needless suffering on the already dying victim. 106 N.J. at 288. In State v. Zola, 112 N.J. 384, 434 [195]*195(1988), we observed that the scalding or stabbing of the body of the strangled victim could establish either an intent to inflict nonlethal, purposeful torment or a senseless desecration of the victim’s body. In sum it is the evidence of intent to inflict extreme pain, harm, and suffering, in addition to causing death, that establishes the c(4)(c) element of aggravated assault/torture and the constitutional narrowing of intentional murders that are death-eligible.
II
Under the New Jersey Code of Criminal Justice, a defendant convicted of purposeful or knowing murder can be sentenced to death only if one or more statutorily-specified aggravating factors exist and outweigh, beyond a reasonable doubt, any mitigating factors. N.J.S.A. 2C:11-3c(3). The Code requires that the prosecuting attorney give the defendant notice of any aggravating factor that he intends to prove either “[pjrior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor.” N.J.S.A. 2C:11-3c(2)(e).
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The opinion of the Court was delivered by
[192]*192O’HERN, J.
Child abuse is not just a sociological phenomenon; it can be murder, and it can be capital murder. The question here is whether this is a capital murder case. In State v. McCrary, 97 N.J. 132 (1984), we approved, in limited circumstances, pretrial review of the factual basis for the statutory aggravating factors that the prosecutor seeks to use to establish death eligibility under New Jersey’s capital punishment act, N.J.S.A. 2C:11-3. This interlocutory appeal requires us to review an application of the McCrary procedures in light of our subsequent decisions in State v. Biegenwald, 106 N.J. 13 (1987), and State v. Ramseur, 106 N.J. 123 (1987), in which we determined the constitutionality of the capital punishment act and established standards for its application. Specifically, we must determine whether a factual basis was presented to charge the defendant with murder that involved “aggravated assault” or “torture” of the infant child in his custody.
First, we review the Court’s definition of the “aggravated assault/torture” element of N.J.S.A. 2C:ll-3c(4)(c). Then we consider the threshold measure of proof required under the principles of State v. McCrary to determine whether a case may be prosecuted as a capital case. Finally, we determine whether the proofs meet the McCrary threshold.
I
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court upheld the Georgia capital sentencing statute, concluding that the statute contained safeguards that promised to eliminate the constitutional defects that previously had resulted in death sentences that were “wantonly and * * * freakishly imposed,” and “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Furman v. Georgia, 408 U.S. 238, 309-10, 92 S.Ct. 2726, 2762-63, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring). In Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. [193]*1932733, 2744, 77 L.Ed.2d 235, 251 (1983), the Court explained that although no specific set of procedures had been set down to satisfy the concerns of Furman, it found that “[t]he Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.”
In New Jersey, the categorical narrowing is established by limiting capital punishment to murders specified in N.J.S.A. 2C:ll-3c and by requiring at least one of the aggravating factors set forth in 2C:ll-3c(4). This categorical narrowing must be based on standards that will withstand a claim of vagueness.
Section c(4)(c) lists as one of the aggravating factors that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim.”1 Recognizing that we must provide each sentencing jury with specific guidance concerning the nature of the crimes that will satisfy the statute, in State v. Ramseur, supra, 106 N.J. at 197-211, Chief Justice Wilentz set forth the Court’s understanding of the legislative meaning of this aggravating factor. In that case and in State v. Biegenwald, supra, 106 N.J. at 48-52, we confined the meaning of the statutory phrase “murder [that] was outrageously or wantonly vile, horrible or inhuman” to the second portion of the statutory provision, i.e., murders that “involve[] torture, depravity of mind, or an aggravated battery to the victim.” N.J.S.A. 2C:11-3c(4)(c). In Ramseur and Biegenwald this Court elaborated on the meaning of each of these subsidiary considerations.
Reasoning that the Legislature had intended that the most accurate measure of criminal culpability was the state of the [194]*194actor’s mind, we interpreted factor c(4)(c) in that light. Hence, the c(4)(c) elements of aggravated assault and torture are limited to “the class of murders in which defendant intended to, and did in fact, cause extreme physical or mental suffering — in addition to death. * * * Thus, the extreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death.” Ramseur, supra, 106 N.J. at 208-09 (footnote omitted). Thus viewed, we reasoned that the requirement that the defendant intentionally inflict extreme physical or emotional pain in addition to death eliminates the need for a distinction between the statutory terms “aggravated assault” and “torture.” “We are convinced that the essence of the legislative concern is the defendant’s state of mind.” Id. at 207. We concluded that the Legislature’s concern, as evident in the aggravated assault/torture element of c(4)(c) was “to punish most harshly those who intend to inflict pain, harm, and suffering — in addition to intending death.” Id. at 208.
The depravity-of-mind element of c(4)(c) is established by the senselessness of the killing, i.e., “the complete absence — from society’s point of view — of any of the recognizable motivations or emotions that ordinarily explain murder. The definition of this kind of murder is not vague.” Id. at 210. Such a killer is one “who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder * * Id. at 209 (footnote omitted). It included as well one who intentionally mutilates a corpse. Id. at n. 37.
Concededly, there is hardly ever direct evidence of an actor’s state of mind, but the intent to torture or inflict gratuitous pain may be inferred from the circumstances of the crime. For example, in State v. Ramseur, the defendant’s vengeful act in coming back to inflict additional stab wounds on the dying victim, combined with his own statements, well demonstrated his intent to inflict needless suffering on the already dying victim. 106 N.J. at 288. In State v. Zola, 112 N.J. 384, 434 [195]*195(1988), we observed that the scalding or stabbing of the body of the strangled victim could establish either an intent to inflict nonlethal, purposeful torment or a senseless desecration of the victim’s body. In sum it is the evidence of intent to inflict extreme pain, harm, and suffering, in addition to causing death, that establishes the c(4)(c) element of aggravated assault/torture and the constitutional narrowing of intentional murders that are death-eligible.
II
Under the New Jersey Code of Criminal Justice, a defendant convicted of purposeful or knowing murder can be sentenced to death only if one or more statutorily-specified aggravating factors exist and outweigh, beyond a reasonable doubt, any mitigating factors. N.J.S.A. 2C:11-3c(3). The Code requires that the prosecuting attorney give the defendant notice of any aggravating factor that he intends to prove either “[pjrior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor.” N.J.S.A. 2C:11-3c(2)(e). In adopting our Rules to implement the capital-sentencing act, we required the prosecutor to give the notice of aggravating factors and supporting discovery to the defendant at the time of arraignment. R. 3:13-4(a). In State v. McCrary, supra, 97 N.J. at 141, we noted the extraordinary difference between a capital case and a noncapital case: the death qualification of the jurors, the requirement of an entirely distinct sentencing phase, the gathering of proof and extensive investigation into the defendant’s background for presentation of mitigating factors are unique to the capital trial. Most importantly, we concluded that “the specter of death should not hang over the head of an accused without some basis in fact.” Ibid.
Hence we approved, in limited circumstances, pretrial review of the validity of the aggravating factors asserted. Recognizing the broad charging discretion of prosecutors, we sought to [196]*196fetter it only to the extent necessary to protect a defendant’s rights. We have since recommended that the Attorney General and the various County Prosecutors, in consultation with the Public Defender, adopt guidelines for use throughout the State by prosecutors in determining the selection of capital cases. State v. Koedatich, 112 N.J. 225, 258 (1988), cert. denied, — U.S. -, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). This case follows too closely upon that decision to reflect the results of such a process. In the absence of further guidance, we will apply the standard of review adopted in McCrary. The standard was similar to that applied in striking an indictment, a discretion not to be exercised except on “the clearest and plainest ground.” Id.Id. 97 N.J. at 144 (quoting State v. Davidson, 116 N.J.L. 325, 328 (Sup.Ct.1936), quoted in State v. Weleck, 10 N.J. 355, 364 (1952)). The defendant must “demonstrate that evidence is clearly lacking to support the charge.” McCrary, supra, 97 N.J. at 142. The procedure that we envisioned does not require the prosecutor to prove his case before trial: “[i]t does no more than serve to assure that there is some evidence that justifies the submission of the specified aggravating factors to the trier of fact * * Id. at 143. We emphasized that there was not to be a trial within a trial and an order for the production of testimony would be the exception to the rule. Id. at 144. While there has been some question of the fairness of requiring the defendant to prove the absence of evidence to support the factors, the present case rather clearly demonstrates the ease with which the basic question is resolved. The State furnished defendant with its pathological reports, grand jury minutes, and the defendant’s own confession. It is the measure of this evidence that we address.
Ill
Is there, then, “some evidence that justified the submission” of the aggravated assault/torture element of c(4)(c) to the trier of fact? This case evokes the same horrors that society has witnessed all too frequently in recent years. In New Jersey [197]*197alone, twenty-four children died of abuse last year. Patterson, “Deaths from child abuse, neglect increase to record levels in state,” Star-Ledger, Feb. 1, 1989, at 1. Regrettably, it is also true that many fatal child-abuse cases involve the kind of torture of the victim that characterizes capital murder. See State v. Bass, 221 N.J.Super. 466 (App.Div.1987) (multiple lacerations, burn marks, and recent-fractures). The question in this case is whether there is evidence, circumstantial or direct, that would establish the defendant’s intent to inflict on his child extreme pain and torment in addition to the fatal blows that caused her death. ■
The evidence presented is that on October 7, 1987, the defendant called the police to summon the rescue squad for his four-month-old daughter, Heather Matulewicz. Defendant told the responding officer that Heather had vomited on herself and while he was attempting to bathe and change the baby, she had slipped from his arms, fallen to the floor and struck the back of her head. When defendant’s attempts at CPR failed, he summoned the police. Heather was taken to the pediatric intensive care unit at the Robert Wood Johnson Hospital.
The responding officer became suspicious when he noticed an unexplained bruise on the baby’s forehead. A detective from the Major Crimes Unit of the prosecutor’s office went to the hospital, where he observed a bruise on Heather’s right hip-buttock area. Discussion with a social worker revealed that Heather had previously been hospitalized for head injuries in June 1987. He obtained a search warrant for defendant’s apartment, but he found no evidence that the child had been sick or bathed to corroborate defendant’s story.
The defendant was advised of his Miranda rights, waived them, and agreed to respond to questioning by a member of the prosecutor’s office. Defendant admitted lying to the responding officer, and confessed to striking blows to the baby’s head, forcefully throwing her into her crib, and then vigorously shaking her until she stopped breathing. He claimed that on [198]*198previous occasions when he had hit Heather she had stopped crying. He maintained that he “just went a little bit overboard * * * [but] never meant to hurt her.”
Heather died on October 13, 1987. The autopsy report listed the cause of death as “[e]xtensive brain edema, retinal hemorrhages due to shaking and blunt force trauma. Survival for six days with anoxic cerebral necrosis and pneumonia.” There was evidence of blows to the head that bruised the brain. Such a bruise causes swelling of the brain tissue and cuts off the blood flow to the brain, resulting in death. Although there was evidence of physical blows to Heather’s body, no scars, burns, or mutilation were present. As senseless as this homicide was, the State did not assert before us on appeal that it was in any sense a thrill killing or one that was bereft of anger or frustration or a recognizable human emotion. Hence, there is no claim that the “depravity of mind” element of c(4)(c) has been satisfied, the State focusing solely on the aggravated-assault/torture element.
The argument at the McCrary hearing primarily addressed the proofs of the injury. The State emphasized the following:
There’s a statement by the defendant saying this child had been battered on June 29th, 1987, and October 7th, 1987, both times to the extent that the child stopped breathing and had to be hospitalized. Medical evidence will show the injuries suffered by this four-month-old child, including bruises, brain hemorrhage, were to the point where the child was unable to survive.
Your Honor, with regard to the Ramseur decision, torture is defined as either physical torture or mental torture, and I submit to the Court that it doesn’t take much imagination to infer physical torture from being shaken to death as well as suffering forced trauma, which Dr. Badgen acknowledges in his report as a possible cause of death.
So, I submit, your Honor, that there’s clearly sufficient evidence to sustain the itemization of the aggravating factor in this case.
The trial court agreed that the State had met its burden under McCrary, noting that
while it may well be that to shake a 10-year-old or a 15-year-old child may not amount to conduct which is, as stated in this factor, outrageously or wantonly vile or horrible or inhuman, perhaps it doesn’t involve torture or an aggravated assault to the victim, but I think that bearing in mind that we are dealing with a totally defenseless human being, a four-month-old child, that that question is [199]*199one that should not be resolved by the Court, but is a determination which should be made by the jury.
Accordingly, the defendant’s motion to strike N.J.S.A. 2C:11-3c(4)(c) as an aggravating factor was denied. The Appellate Division denied leave to appeal that ruling. We granted defendant’s motion for leave to appeal. 114 N.J. 301 (1988).
The question that we must resolve is whether, in the words of Ramseur, there is some evidence that Heather endured “extreme physical or mental suffering” that was “precisely what defendant wanted to occur in addition to death.” 106 N.J. at 208-09. As noted, there will be some cases in which needless torture will be apparent, such as from the presence of burns on a child’s body or from chaining. The State points to the defendant’s previous beating of the child as evidence of an intent to inflict this type of needless pain.
Evidence of arguments or violence relating to a defendant and a homicide victim is admissible in the State’s case to prove intent or state of mind, usually the intent to kill or to do grievous bodily harm. See State v. Ramseur, supra, 106 N.J. at 264-67 (evidence of defendant’s prior violence toward decedent admissible to counter argument that his action was unknowing result of epilepsy). In this case, the prior incident may therefore establish an intent to do more than quiet the baby. To the extent that the prior incident is offered to prove that on this occasion the defendant intended only to inflict serious bodily injury on the child, it may be insufficient to support a capital sentence because of the constitutionally-required culpability standards regarding a capital defendant’s intent to kill. See State v. Gerald, 113 N.J. 40 (1988). However, even if it establishes an intent to kill, without more the prior incident does not establish an intent to “cause extreme physical or mental suffering — in addition to death.” Ramseur, supra, 106 N.J. at 208. As Ramseur and Zola explain, that intent may be inferred from supporting circumstances, e.g., returning to a dying victim, inflicting wounds and suffering different in nature from the lethal injuries, or from expressions of intent to [200]*200make the victim suffer mentally or physically. In some cases, the method of killing may demonstrate that intent to torture the victim. The pathological evidence presented thus far is insufficient to establish that point.
While the abject helplessness of the child-victim evokes extraordinary concern, we have established the categorical narrowing of capital murders by reference to the criminal’s mind. We may wish to compare the facts of this case with those present in State v. Ramseur. As the Ramseur trial court summarized the State’s evidence,
there was plainly a disfigurement, there was a brutal attack upon the victim consisting of many stab wounds. The defendant then left the scene and walked across the street. The victim was still alive. Defendant according to the witnesses calmly returned. The victim knew she was dying and so stated at the time. She was plainly conscious. The fact that the defendant while the victim was alive threatened to kill her grandchildren if he could find them, the fact that the killing occurred in the presence of the grandchildren and the fact that after making this threat, probably the worst threat that could possibly be made to a dying person, the victim was executed. [Ramseur, supra, 106 N.J. at 288.]
Without in any sense mitigating the horror of the present crime, it draws too fine a line to ask a jury to resolve on the evidence so far disclosed that any extreme physical or mental suffering that Heather experienced was precisely what the defendant wanted to occur in addition to death. See id. at 206 (“[D]eath should not be imposed as a result of what may be an extremely close determination of how much pain is ‘necessary’ [to kill].”) (commenting on State v. Sonnier, 402 So.2d 650, 658-60 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983).
Application of McCrary principles to the c(4)(c) factors in such cases requires an especially sensitive exercise of judicial supervision. After all, a capital murder case presupposes an intent to kill and not just injure. Hence, the natural question is — “Why do it this way? Why shake the body of a helpless infant to death?”. If death is all the actor intends, there is no need to inflict such pain on the infant. Yet, as Justice Handler points out in his concurring opinion, post at 209 n. 2, the State [201]*201does not invariably prosecute such cases as capital-murder cases. It is not baby-death that makes the case capital, but the presence of some other distinguishing intent to inflict torture or pain.
This is not to say that this case cannot or will not be a capital case. The striking of an aggravating factor is without prejudice to a later application for its introduction should additional supporting evidence come to light. We outlined in McCrary the procedures to be followed in that circumstance. 97 N.J. at 144-45. On this record, applying the standards of McCrary, we are unable to find evidence that justifies the submission of the specified aggravating factor to the jury.
The order denying defendant’s motion to strike the aggravating factor c(4)(c) is reversed. On this record, the factor should be stricken. The case is remanded to the Law Division for further proceedings consistent with this opinion.