State v. Muhammad

678 A.2d 164, 145 N.J. 23, 1996 N.J. LEXIS 892

• Court: Supreme Court of New Jersey
• Decided: June 28, 1996
• Status: Published

Opinions

The opinion of the Court was delivered by

GARIBALDI, J.

At issue in this appeal is whether the New Jersey victim impact statute, N.J.S.A. 2C:ll-3c(6), is constitutional under the Federal and State Constitutions. We hold that the victim impact statute is constitutional under both Constitutions.

I

Defendant is charged with the kidnapping, rape, and murder of an eight-year-old child, Jakiyah McClain. On the afternoon of April 1, 1995, Jakiyah received permission from her mother to visit a friend, Ah-Tavia Maxey, who lived only a few blocks away. Jakiyah arrived at her Mend’s apartment between 4:00 p.m. and 5:00 p.m. She asked Ah-Tavia’s father if the two girls could play outside with one another. Mr. Maxey refused to give them permission and instead told them to go upstairs to the Maxey’s apartment and ask Ah-Tavia’s mother for permission.

While Jakiyah and Ah-Tavia were talking, defendant entered the apartment building. He volunteered to walk Jakiyah upstairs. He knew Jakiyah’s mother. Ah-Tavia watched defendant take Jakiyah’s hand and lead her upstairs. Ah-Tavia apparently remained on the ground floor. Shortly after, Ah-Tavia heard kicking, banging, and the sound of Jakiyah’s screams.

When Jakiyah failed to return home that evening, her mother began to search for the child. After she was unable to locate Jakiyah, the mother at approximately 11:00 p.m. filed a missing person’s report with the Newark Police Department. The next day, the police went to the apartment building where Jakiyah was last seen. They were told by the building superintendent that defendant had been given permission to stay in an abandoned apartment. When the police knocked on the door of the apartment, defendant answered and allowed them to enter. The police found Jakiyah’s body, curled in a fetal position with her underpants around one ankle, under a pile of clothes in the bedroom closet. Ah-Tavia Maxey identified defendant as the man she saw the day before with Jakiyah.

Defendant was taken into custody. He gave a statement to the police in which he admitted to kidnapping, sexually assaulting, and murdering Jakiyah. An autopsy of the victim indicated that the cause of death was asphyxiation and that the victim was sexually assaulted.

On June 27, 1995, an Essex County Grand Jury indicted defendant for the capital murder of Jakiyah McClain, contrary to N.J.S.A. 2C:ll-3a(l), (2). Defendant was also indicted on charges of first-degree kidnapping, contrary to N.J.S.A 2C:13-lb(l); second-degree burglary, contrary to N.J.S.A 2C:18-2; first-degree aggravated sexual assault of a child, contrary to N.J.S.A. 2C:14-2a(l); and felony murder, contrary to N.J.S.A 2C:ll-3a(3). The State served notice of four aggravating factors: that the murder involved torture, aggravated assault or depravity of mind, N.J.SA 2C:ll-3c(4)(c); that the murder was committed to escape detection or apprehension for another offense committed by defendant, N.J.S.A. 2C:ll-3c(4)(f); that the murder was committed during the course of another felony, N.J.S.A 2C:ll-3c(4)(g); and that the victim was less than fourteen years old, N.J.SA 2C:ll-3c(4)(k).

Defendant brought a pretrial motion, challenging the constitutionality of the victim impact statute under both the New Jersey and United States Constitutions. The trial court granted defendant’s motion and declared the statute unconstitutional under both Constitutions. State v. Muhammad, No. 2285-6-95 (Law Div. Nov. 17, 1995). The trial court found the statute to be “irremediably defective” and held that it was “inconsistent with existing rules of evidence and procedure and the guarantees of due process under the [C]onstitutions of this State and of the United States.” Id. slip op. at 1-2. The trial court, however, declined to reach the broader question of whether the New Jersey Constitution prohibits the use of victim impact evidence. The court did, however, reject defendant’s argument that the application of victim impact statute to defendant would violate the Ex Post Facto Clauses of the State and Federal Constitutions. Id. slip op. at 16-17.

We granted the State’s motion for direct certification pursuant to Rule 2:12-2, and also granted defendant’s motion for leave to cross-appeal the trial court’s ex post facto ruling.

II

On June 19, 1995, Governor Whitman signed into law L.1995, c. 123; N.J.S.A 2C:ll-3c(6), commonly known as the victim impact statute. That law 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.

[N.J.S.A 2C:11 — 3c(6).]

The victim impact statute is merely one of the latest efforts by the Legislature to increase the participation of crime victims in the criminal justice system. In 1971, the Legislature enacted the Criminal Injuries Compensation Act of 1971, N.J.S.A 52:4B-1 to - 33. In 1985, the Legislature enacted the Crime Victim’s Bill of Rights, N.J.SA 52:4B-34 to -38, which granted crime victims and witnesses certain rights, including the right to be treated with dignity, the right to be informed about the criminal justice process, and the right to be told about available remedies and social services. The following year, the Legislature amended N.J.S.A 2C:44-6 to allow family members of murder victims to include a written statement in the defendant’s presentence report. In 1991, the Legislature amended the Crime Victim’s Bill of Rights to provide victims with the opportunity to submit to a representative of the county prosecutor’s office a written statement about the impact of the crime on the family and to allow victims to make in-person victim impact statements in non-capital cases directly to the sentencing court. N.J.S.A 52:4B-36.

Finally, on November 5, 1991, the New Jersey electorate overwhelmingly approved Article I, paragraph 22 of the New Jersey Constitution, which is better known as the Victim’s Rights Amendment.

The Victim’s Rights Amendment provides:

A victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system. A victim of a crime shall not be denied the right to be present at public judicial proceedings except when, prior to completing testimony as a witness, the victim is properly sequestered in accordance with law or the Rules Governing the Courts of the State of New Jersey. A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature. For the purposes of this paragraph, “victim of a crime” means: a) a person who has suffered physical or psychological injury or has incurred loss of or damage to personal or real property as a result of a crime or an incident involving another person operating a motor vehicle while under the influence of drugs or alcohol, and b) the spouse, parent, legal guardian, grandparent, child or sibling of the decedent in the case of a criminal homicide.

[N.J. Const, art. I, ¶ 22.]

The Victim’s Rights Amendment explicitly authorizes the Legislature to provide victims with “those rights and remedies” that are deemed appropriate to effectuate the purpose of that amendment. On the basis of that constitutional authority, and relying on the United States Supreme Court’s elimination of a federal constitutional bar against the admissibility of victim impact evidence in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the New Jersey Legislature enacted the victim impact statute, N.J.S.A 2C:11-3c(6).

The various victims’ statutory rights enacted in this State are the product of a “victims’ rights” movement that has swept through this, nation over the last two decades. Historically, the legal system did not view crime victims as having any rights. Andrew J. Karmen, Who’s Against Victims’ Rights? The Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice, 8 St. John’s J. Legal Comment. 157 (1992). Because criminal attacks were viewed as attacks and threats on the entire community, and were prosecuted by the state on behalf of “the people,” the actual victim was treated as merely another piece of evidence. Ibid. Although victims were expected to cooperate with authorities and to testify as part of the state’s case-in-chief, little attention was paid to the financial, physical, and emotional needs of victims. David Roland, Progress in the Victim Reform Movement: No Longer the “Forgotten Victim”, 17 Pepp.L.Rev. 35, 36-38 (1989). Indeed, “[m]any commentators have observed that crime victims are largely excluded from the criminal justice system, and that those who are able to participate suffer a ‘second victimization’ at the hands of the system.” Richard E. Wegryn, New Jersey Constitutional Amendment for Victims’ Rights: Symbolic Victory?, 25 Rutgers L.J. 183, 184 (1993) (citations omitted). That feeling of isolation from the system causes many victims and their families to “report widespread dissatisfaction with the criminal system.” Id.

In response to the belief that the criminal justice system was tilted in favor of protecting the rights of defendants, while ignoring the plight of victims, crime victims joined together to address perceived injustices and imbalances in the criminal justice system and to work toward reforms. The victims’ rights movement is comprised of many groups, each with their own agendas; however, all of the groups are devoted to increasing the role that victims play in the criminal process. Katie Long, Note, Community Input at Sentencing: Victim’s Right or Victim’s Revenge?, 75 B. U.L.Rev. 187,189-91 (1995).

Ill

Defendant asserts that the victim impact statute violates Article I, paragraph 12 of the New Jersey Constitution, which prohibits the infliction of cruel and unusual punishments, and the due process clause of the State Constitution.¹ In capital sentencing each juror must individually determine whether each mitigating factor exists, and then individually decide whether the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. State v. Bey, 112 N.J. 123, 161, 548 A.2d 887 (1988) (Bey II), cert. denied, — U.S. -, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995). The death penalty is imposed only if the jurors unanimously agree that the aggravating factors outweigh the mitigating factors. Ibid. One mitigating factor, N.J.S.A. 2C:ll-3c(5)(h), (section 5(h)), is defined as “any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” Essentially, section 5(h) is a catch-all factor of defendant’s mitigating evidence not encompassed in the other defined factors. The victim impact statute provides that if the defendant presents evidence of his character or record pursuant to section 5(h), 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. That statute then directs the trial court to inform the jury that if the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds evidence of a mitigating catch-all factor, then the jury may consider the victim impact evidence presented by the State in determining the appropriate weight to give the catch-all factor.

Defendant alleges that the admission of victim impact statements in a capital case is likely to confuse and impassion the jury, and thus creates an impermissible risk that the penalty decision will be made in an arbitrary and capricious manner rather than on the basis of the relevant evidence. For the same reasons, defendant contends that victim impact evidence is inadmissible under N.J.R.E. 403, which requires that evidence be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or misleading the jury.

The State contends that victim impact evidence is relevant to the sentencing decision because it illustrates each victim’s uniqueness as a human being and the nature of the harm caused by the defendant’s criminal conduct. In addition, the State maintains that deference should be given to the Legislature’s judgment that victim impact evidence plays a proper role in capital sentencing. The State urges this Court to follow the United States Supreme Court’s holding in Payne and similarly recognize that the State has a legitimate interest in presenting the sentencing authority with victim impact evidence. Further, the State argues that such a result is mandated by the Victim’s Rights Amendment.

IV

The victim impact statute does not violate the United States Constitution. On July 27,1991, the United States Supreme Court held that the Eighth Amendment of the Federal Constitution, which prohibits the imposition of cruel and unusual punishments, does not bar the admission of victim impact evidence during the penalty phase of a capital trial. Payne, supra, 501 U.S. at 811, 111 S.Ct. at 2601, 115 L.Ed.2d at 726. The Supreme Court overruled the prior holdings of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), in which the Court held that the Eighth Amendment prohibits a capital sentencing jury from receiving victim impact evidence relating to the personal characteristics of the murder victim and the emotional impact of the death on the victim’s family, and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), in which the Supreme Court extended the rule adopted in Booth to statements made by the prosecutor about the personal qualities of the victim.

In reevaluating the exclusion of victim impact evidence, the Court rejected two of the premises underlying Booth and Gathers: first, that evidence of the personal characteristics of the victim and of the emotional impact of the crimes on the family does not in general reflect on the defendant’s blameworthiness, and second, that only evidence of moral culpability is relevant to a capital sentencing decision. Payne, supra, 501 U.S. at 819, 111 S.Ct. at 2605, 115 L.Ed.2d at 731. The Court explained that the consideration of the harm caused by the crime has always been an important factor in determining the severity of a sentence. Id. at 820, 111 S.Ct. at 2605-06, 115 L.Ed.2d at 732. The majority in Payne noted that in excluding victim impact evidence, the Booth Court had misread the language of Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976), that the capital defendant must be treated as a “uniquely individual human bein[g].” Payne, supra, 501 U.S. at 818, 111 S.Ct. at 2604, 115 L.Ed.2d at 730. The Payne Court explained that “[t]he language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received.” Id. at 822, 111 S.Ct. at 2607, 115 L.Ed.2d at 733.

The Court opined that the misreading of precedent in Booth had “unfairly weighted the scales in a capital trial” because it allowed the defendant to introduce virtually all mitigating evidence concerning his own circumstance, but barred the State from offering any victim impact evidence. Ibid. The Court recognized that the prosecution has a legitimate interest in using victim impact evidence to show each “victim’s uniqueness as an individual human being.” Id. at 823, 111 S.Ct. at 2607, 115 L.Ed.2d at 734. The Payne Court stated:

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[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 and in particular to his family.” By turning the victim into a “faceless stranger at the penalty phase of a capital trial,” Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.

[Id. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735 (citations omitted).]

The Payne Court thus held that if a “State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Id. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. The majority opined that “[v]ictim 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.” Id. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. Payne left undisturbed ‘ the holding in Booth that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. Id. at 830 n. 2, 111 S.Ct. at 2611, n. 2, 115 L.Ed.2d at 739, n. 2.

We disagree with Justice Stein that the victim impact statute violates the Federal Constitution by impermissibly burdening a defendant’s right to introduce catch-all mitigating evidence. Post at 107, 678 A.2d at 206 (Stein, J., dissenting). Specifically, the argument is that defendants will likely forego their constitutional right to present catch-all mitigating evidence in order to avoid opening the door for the State to introduce victim impact evidence. The solution of both Justice O’Hern and Justice Stein is to permit victim impact evidence to be admitted and weighed against all the mitigating factors. We fail to understand, however, how “[p]aradoxically, more victim impact evidence would pose less of a constitutional burden than that presented by the statute before us.” Post at 60, 678 A.2d at 183 (O’Hern, J., concurring and dissenting).

Justice Stein relies on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) to support his theory. Post at 106, 678 A.2d at 205 (Stein, J., dissenting). That case is easily distinguishable. Lockett, supra, held that a defendant has a right to present any relevant mitigating evidence in support of a sentence less than death. Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990; accord Penry v. Lynaugh, 492 U.S. 302, 317-20, 109 S.Ct. 2934, 2946-48, 106 L.Ed.2d 256, 277-79 (1989); Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1, 11 (1982). In Lockett, however, the trial court in accordance with a statute had prohibited the introduction of specific mitigating evidence. The victim impact statute does not prohibit the introduction of any mitigating evidence.

In the course of a criminal trial, defendants are constantly forced to make many hard choices. Whether they should testify or not is, perhaps, the most difficult choice. Yet no one would claim that the State’s right to challenge the defendant’s credibility or to introduce his prior record presents a constitutionally prohibited practice. Similarly, defendants are constantly forced to make difficult choices when they are determining what mitigating evidence to present. For example, if the defendant chooses to introduce mitigating evidence that relates to any of the other mitigating factors, N.J.S.A. 2C:ll-3c(5)(a), (b), (c), (d), (e), (f), and (g), the State is allowed to present evidence that rebuts the defendant’s mitigating evidence. Likewise, if the defendant introduces evidence under the catch-all mitigating factor, the State is permitted to introduce evidence to remind the jury that the defendant did not kill an abstract victim, but a real, unique human being whose loss is felt by the victim’s survivors. Such evidence goes to a defendant’s moral blameworthiness. The defendant is no more restricted from introducing evidence relevant to the catch-all factor than he would in introducing evidence relevant to any other mitigating factor.

While we may have drafted the victim impact statute differently, the judiciary does not have a license “to rewrite language enacted by the [Legislature.” Chapman v. United States, 500 U.S. 453, 464, 111 S.Ct. 1919, 1927, 114 L.Ed.2d 524, 538 (1991) (quoting United States v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512, 524 (1989)). The victim impact statute as written is constitutional under both the Federal and State Constitutions. Accordingly, this Court has no “license” to rewrite that statute.

V

At times we have interpreted the State Constitution to afford New Jersey citizens broader protection of certain rights than that afforded by analogous or identical provisions of the Federal Constitution. See, e.g., State v. Pierce, 136 N.J. 184, 208-13, 642 A.2d 947 (1994); State v. Novembrino, 105 N.J. 95, 145, 519 A.2d 820 (1987); State v. Gilmore, 103 N.J. 508, 522-23, 511 A.2d 1150 (1986); State v. Hunt, 91 N.J. 338, 344, 450 A.2d 952 (1982). With respect to capital punishment in particular, we have held that “our State Constitution ‘provides an additional and, where appropriate, more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty.’ ” State v. Koedatich, 112 N.J. 225, 251, 548 A.2d 939 (1988) (quoting State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989)). Although we have at times pursued an independent course in capital punishment jurisprudence, “it is not enough to say that because we disagree with a majority opinion of the Supreme Court, we should invoke our State Constitution to achieve a contrary result.” State v. Hempele, 120 N.J. 182, 226, 576 A.2d 793 (1990) (O’Hern, J., dissenting). Furthermore, whenever a challenge is raised to the constitutionality of a statute, there is a strong presumption that the statute is constitutional. “[Cjourts do not act as a super-legislature.” Newark Superior Officers Ass’n v. City of Newark, 98 N.J. 212, 222, 486 A.2d 305 (1985). Thus, any act of the Legislature will not be ruled void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. “Where alternative interpretations of a statute are equally plausible, the view sustaining the statute’s constitutionality is favored.” Town of Secaucus v. Hudson County Bd. of Taxation, 133 N.J. 482, 492, 628 A.2d 288 (1993), cert. denied, 510 U.S. 1110, 114 S.Ct. 1050, 127 L.Ed.2d 372 (1994).

In Hunt, supra, 91 N.J. at 364-67, 450 A.2d 952 (Handler, J., concurring), Justice Handler set forth criteria for determining whether the State Constitution provides a basis for a result different than that permitted by the Federal Constitution. In assessing the constitutionality of a statute under the New Jersey Constitution, the following seven factors should be examined: (1) textual language, (2) legislative history, (3) preexisting State law, (4) structural differences between the Federal and State Constitutions, (5) matters of particular State interest, (6) State traditions, and (7) public attitudes.

Applying the Hunt criteria to the victim impact statute, we conclude that the New Jersey Constitution does not prohibit family members from testifying about the character of the murder victim or the impact of the crime on the family during the penalty phase of a capital ease. With respect to factors one and four, textual language and structural differences, there is a substantial difference in the two Constitutions. In the New Jersey Constitution there is a specific provision, namely, the Victim’s Rights Amendment, that recognizes the rights of victims. A similar clause does not exist in the United States Constitution. Our State Constitution explicitly provides victims of crimes with more rights than the Federal Constitution. The Victim’s Rights Amendment expressly authorizes the Legislature to provide crime victims with “those rights and remedies” as it determines are necessary. Even if we were inclined to diverge from the holding in Payne and interpret the Cruel and Unusual Punishment Clause of our State Constitution as providing greater protections against the arbitrary imposition of the death penalty, the text of the New Jersey Constitution demands that we not pursue such an independent course. The authority to enact the victim impact statute can be traced directly to Article I, paragraph 22 of the New JerseConstitution. In upholding the constitutionality of the victim impact statute, we are mindful of the words of Justice (then Judge) Pashman in New Jersey Sports & Exposition Auth. v. McCrane, 119 N.J.Super. 457, 476-77, 292 A.2d 580 (Law Div. 1971), aff'd as modified, 61 N.J. 1, 292 A.2d 545, appeal dismissed, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972), “It must be remembered that the greatest danger to people from the exercise of the judicial power is that there may be a usurpation by the courts of the people’s right to express in law, by overwhelming numbers of their elected legislators, their collective reasoning.”

An examination of factors two, five, six, and seven, offers further proof that the New Jersey Constitution, like the Federal Constitution, supports the right of victims to present victim impact evidence at the sentencing phase of a capital trial. When the Legislature enacted N.J.S.A 2C:ll-3c(6), it expressly explained in a statement accompanying the bill that the statute is designed “to effectuate Art. I, para. 22 [of the New Jersey Constitution] to the fullest extent permissible under the [FJederal [Constitution, and to implement the will of the New Jersey electorate with regard to capital prosecution.” Senate Judiciary Committee, Statement to Senate Bill No. 1728, at 1 (March 20, 1995). Unlike most interpretations of constitutional provisions, we need not surmise what the founders intended when they drafted the Victim’s Rights Amendment. We know exactly what the founders of this constitutional amendment intended — fair treatment for victims. To hold the victim impact statute unconstitutional would require us to ignore the Victim’s Rights Amendment and the will of the electorate that overwhelmingly approved the constitutional amendment. Over 1,200,000 citizens voted for the Victim’s Rights Amendment while only 223,248 people voted against it. Manual of New Jersey, Two Hundred and Fourth Legislature (First Session) 1992, at 903. Beginning with the passage of the Criminal Injuries Compensation Act of 1971 (N.J.SA 52:4B-1 to -33), the people of New Jersey, speaking through the Legislature, have repeatedly expressed a very strong “public attitude” that victims should be provided with more rights.

Nor does an examination of preexisting State law, factor two, provide authority for us to reach a different result. Although in the past we have suggested that victim impact statements are inadmissible at the sentencing phase of a capital murder trial, see, e.g., State v. Pennington, 119 N.J. 547, 566-71, 575 A.2d 816 (1990); State v. Williams, 113 N.J. 393, 450-54, 550 A.2d 1172 (1988), those opinions never addressed victim impact evidence in light of a post-Payne statute that specifically authorizes the introduction of victim impact statements. Our decisions rendered prior to Payne were not based on an independent foundation in the New Jersey Constitution, but rather were based on the United States Supreme Court’s view in Booth and Gathers that the introduction of victim impact evidence in the sentencing phase of a capital case violated the Eighth Amendment of the Federal Constitution. See, e.g., Pennington, supra, 119 N.J. at 566-71, 575 A.2d 816; Williams, supra, 113 N.J. at 450-54, 550 A.2d 1172.

After Payne and prior to the enactment of the victim impact statute, we continued to hold that victim impact evidence should be excluded from capital cases. In the absence of any legislative action to the contrary, this approach was consistent with Justice O’Connor’s concurrence in Payne, supra, in which she wrote, “We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, ‘the Eighth Amendment erects no per se bar.’ ” 501 U.S. at 831, 111 S.Ct. at 2612, 115 L.Ed.2d at 739-40 (citations omitted) (O’Connor, J., concurring). In the absence of the Victim’s Rights Amendment, we might have continued to hold that victim impact evidence should not be admitted during the sentencing phase of a capital case. However, the electorate, by passing the Victim’s Rights Amendment, which is intended to afford victims whatever rights could be afforded to them without violating the United States Constitution, and the Legislature, by enacting N.J.S.A. 2C:11-3c(6) in order to effectuate that amendment, have mandated that victim impact evidence be admitted. Cf. State v. Harris, 141 N.J. 525, 548, 662 A.2d 333 (1995) (acknowledging that constitutional amendment overruled holding in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988)).

We must now harmonize the victim’s constitutional rights with the defendant’s due process rights under the State Constitution. Supra at 35, fn. 1, 678 A.2d at 170, fn. 1. We agree with Justice Handler that “different sections of the Constitution should be read in harmony not in conflict.” Post at 75-76, 678 A.2d at 190-191 (Handler, J., dissenting). We well-reeognize that competing clauses of a constitution should be harmonized to give effect to competing clauses. We part company with Justice Handler, however, because of his failure to recognize that the substantial limitations we have placed on the admission of victim impact evidence effectively harmonizes the victim’s constitutional right to have victim impact evidence introduced with the defendant’s due process rights. See infra at 53-56, 678 A.2d at 179-180.

VI

We have always recognized that it is almost impossible to avoid referring to some victim impact evidence in a capital murder trial. In fact, much of the victim impact evidence that is likely to be admitted during the penalty phase would have been presented anyway during the guilt phase of the trial. Where, however, the victim impact evidence presented had no bearing on the substantive issue of guilt or the penalty to be imposed, we previously did not allow the State to present such evidence due to our concerns over the potential inflammatory effect of victim impact evidence. See, e.g., State v. Coyle, 119 N.J. 194, 231-32, 574 A.2d 951 (1990) (holding that victim impact evidence “serve[s] only to prejudice the jury unduly against the defendant and to confuse its deliberations on the aggravating factors”); Williams, supra, 113 N.J. at 452, 550 A.2d 1172 (“inflammatory statements [about the victim’s character] could likely result not only in unduly prejudicing the jury against defendant but also in confusing it over whether its deliberations should be influenced by the sterling character of the victim”). These concerns still exist. Nevertheless, we recognize that under the Victim’s Rights Amendment and the victim impact statute the electorate and the Legislature have determined that before a jury determines whether to sentence a defendant to death, the jurors should, in limited circumstances, be informed about the uniqueness of the victim as a human being and the particular harm caused by the crime.

In holding that in limited situations the State can offer the jury a quick glimpse of the victim’s life and the impact of the loss on the victim’s surviving family members, we do not believe that the jury is likely to become overwhelmed and confused by victim impact evidence. In State v. Zola, 112 N.J. 384, 431-32, 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989), we recognized the right of a capital defendant to make a brief statement in mitigation to the jury at the close of the presentation of evidence in the penalty phase without exposing himself to cross-examination. We observed that a brief statement by the defendant would be unlikely to “inject a fatal emotionalism into the jury’s deliberations.” Id. at 431, 548 A.2d 1022. We believe that a similar brief statement from the victim’s family about how the killing has impacted their lives is also unlikely to inflame the jury. “[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687 (1934).

Defendant asserts that, to the extent that a victim impact statement presents evidence about conditions that the defendant was unaware when he committed the criminal act, such as the victim’s occupation and marital status, the statement is irrelevant and impermissibly diverts the jury from making its sentencing decision on the character of the defendant and the circumstances of the crime. However, “criminal conduct has traditionally been categorized and penalized differently according to the consequences not specifically intended, but determined in part by conditions unknown to a defendant when he acted.” Payne, supra, 501 U.S. at 835-36, 111 S.Ct. at 2614, 115 L.Ed.2d at 742 (Souter, J., concurring). While it is clear that a defendant’s foreknowledge of the specific consequences that his acts are likely to have is relevant to sentencing, the foreseeable consequences of a defendant’s actions are equally relevant. “Murder has foreseeable consequences. When it happens, it is always to distinct individuals, and, after it happens, other victims are left behind.” Id. at 838, 111 S.Ct. at 2615, 115 L.Ed.2d at 744. Defendants who intentionally choose to kill know that their actions will destroy a unique individual who is likely to be a parent, child, spouse, brother, or sister.

While a defendant might be unaware of the specific characteristics of his victim or of the particular survivors that the victim will leave behind, it is completely foreseeable that the killing will eliminate a unique person and destroy a web of familial relationships. “That foreseeability of the killing’s consequences imbues them with direct moral relevance, ... and evidence of the specific harm caused when a homicidal risk is realized is nothing more than evidence of the risk that the defendant originally chose to run despite the kinds of consequences that were obviously foreseeable.” Id. at 838-39, 111 S.Ct. at 2616, 115 L.Ed.2d at 744 (citations omitted). That conclusion is buttressed by the facts of this case. When the killer brutally attacked eight-year-old Jakiyah, it was completely foreseeable that the homicidal behavior would eliminate a uniquely individual human being and cause great harm to the survivors of the little girl. Although the killer might have been ignorant of the details about Jakiyah and her family, it does not violate the Constitution if the jury is permitted to take into account such obviously foreseeable consequences.

YII

Although victim impact evidence when offered to rebut a defendant’s presentation of catch-all mitigation evidence is not prohibited by the New Jersey Constitution, it must nevertheless be relevant and reliable. The admission of evidence relating to the victim’s character or the impact of the murder on the victim’s family requires a balancing of the probative value of the proffered evidence against the risk that its admission may pose the danger of undue prejudice or confusion to the jury. N.J.R.E. 403; Williams, supra, 113 N.J. at 451, 550 A.2d 1172. “[I]n each case there is a traditional guard against the inflammatory risk, in the trial judge’s authority and responsibility to control the proceedings consistently with due process, on which grounds defendants may object.” Payne, supra, 501 U.S. at 836, 111 S.Ct. at 2614, 115 L.Ed.2d at 743 (Souter, J., concurring). Ultimately, whether specific victim impact evidence is too prejudicial is a factor that should be evaluated in each case within the exercise of the trial court’s discretion.

Although the decision to admit specific victim impact statements will typically be in the discretion of the trial court, certain statements are clearly impermissible. For example, the State will not be permitted to elicit testimony concerning the victim’s family members’ characterizations and opinions about the defendant, the crime, or the appropriate sentence. Similarly, statements that are grossly inflammatory, unduly prejudicial, or extremely likely to divert the jury from its focus on the aggravating and mitigating factors should be excluded. Williams, supra, 113 N.J. at 452, 550 A.2d 1172. Allowing such testimony could render a defendant’s trial fundamentally unfair and could lead to the arbitrary imposition of the death penalty. Victim impact evidence admitted pursuant to N.J.S.A. 2C:ll-3c(6) should be limited to statements designed to show the impact of the crime on the victim’s family and to statements that demonstrate that the victim was not a faceless stranger, but was a unique individual human being. There is no place in a capital case for unduly inflammatory commentary. Ibid.

Although we are not bound by the law of other states, we observe that the vast majority of jurisdictions that have considered the admissibility of victim impact evidence have similarly concluded that such evidence is relevant to determining the appropriate sentence. See State v. Gonzales, 181 Ariz. 502, 892 P.2d 838, 852 (1995) (holding that trial court may consider victim impact evidence to rebut evidence defendant offers in mitigation), cert. denied, — U.S. -, 116 S.Ct. 720, 133 L.Ed.2d 673 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677, 689 (1995), cert. denied — U.S. -, 116 S.Ct. 1436, 134 L.Ed.2d 558 (1996); People v. Edwards, 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 819 P.2d 436, 467 (1991) (finding that victim impact evidence relates to aggravating factor of circumstances of offense), cert, denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992); In re Petition of the State of Delaware, 597 A.2d 1, 3 (Del.1991) (holding that capital punishment statute requires trial court to consider merits of admitting victim impact evidence during penalty phase of a first-degree murder trial); Window v. State, 656 So.2d 432, 438 (Fla.) (ruling that victim impact evidence is admissible only after State has presented evidence of aggravating circumstances; evidence limited to demonstrating victim’s uniqueness as human being and resultant loss to community members by victim’s death), cert. denied, — U.S. -, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995); Livingston v. State, 264 Ga. 402, 444 S.E.2d 748, 751 (1994) (holding that victim impact evidence may be relevant to defendant’s culpability); State v. Card, 121 Idaho 425, 825 P.2d 1081, 1088 (1991) (same), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 (1992); People v. Hope, 147 III.2d 315, 168 Ill.Dec. 103, 107, 589 N.E.2d 503, 507 (1992) (finding that victim impact evidence helps jury assess defendant’s moral culpability; also consistent with Illinois Crime Victim’s Bill of Rights); State v. Scales, 655 So.2d 1326, 1336 (La.) (finding victim impact evidence that is not overly detailed is admissible), cert. denied, — U.S. -, 116 S.Ct. 716, 133 L.Ed.2d 670 (1995); Evans v. State, 333 Md. 660, 637 A.2d 117, 129 (holding that victim impact evidence did not deny defendant due process), cert. denied, — U.S. -, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994); State v. Parker, 886 S.W.2d 908, 927 (Mo.1994) (same), cert. denied, — U.S. -, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995); McNelton v. State, 111 Nev. 900, 900 P.2d 934, 937-38 (1995), cert. denied — U.S. -, 116 S.Ct. 1833, — L.Ed.2d - (1996); State v. Fautenberry, 72 Ohio St.3d 435, 650 N.E.2d 878, 882-83 (holding that victim impact evidence is relevant to circumstances of offense and impact on survivors), cert. denied, — U.S. -, 116 S.Ct. 534, 133 L.Ed.2d 439 (1995); Freeman v. State, 876 P.2d 283, 289 (Okla.Cr.App.) (holding victim impact evidence is relevant consideration of capital sentencing juries), cert. denied, — U.S. -, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); Lucas v. Evatt, 308 S.C. 31, 416 S.E.2d 646, 649 (1992) (finding victim impact evidence is no different from other relevant evidence); State v. Smith, 857 S.W.2d 1, 14 (Tenn.) (same), cert. denied, 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); Banda v. State, 890 S.W.2d 42, 63 (Tex.Cr.App.1994) (holding capital sentencing jury is permitted to hear victim impact evidence), cert. denied — U.S. -, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379, 389 (1994) (finding that victim impact evidence is relevant to aggravating factor), cert. denied, — U.S. -, 116 S.Ct. 100, 133 L.Ed.2d 55 (1995); State v. Gentry, 125 Wash.2d 570, 888 P.2d 1105, 1134-41 (holding that victim impact evidence is relevant to sentencing), cert. denied, — U.S. -, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). Only a few states have banned the introduction of victim impact evidence. See, e.g., Bivins v. State, 642 N.E.2d 928 (Ind.1994), cert. denied, — U.S. -, 116 S.Ct. 783, 133 L.Ed.2d (1996); Mack v. State, 650 So.2d 1289, 1324-25 (Miss.1994), cert. denied, — U.S. -, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995); State v. Guzek, 322 Or. 245, 906 P.2d 272 (1995). When N.J.S.A. 2C:ll-3c(6) is considered in conjunction with the Victim’s Rights Amendment, it is obvious that the electorate of New Jersey wants this State to align itself with the weight of authority that has recognized the relevance of victim impact evidence.

VIII

Even if victim impact evidence were relevant, defendant contends that the trial court was correct in holding that the limitations placed on the admission of such evidence by N.J.S.A. 2C:ll-3c(6) renders the statute invalid. The trial court observed that the victim impact statute is written in terms of the jury as a whole finding the existence of the catch-all mitigating factor and, if it does so, being permitted as a body to consider what weight the mitigating factor should receive in light of the victim impact evidence. Muhammad, supra, slip op. at 3. That statutory scheme, according to the trial court, is inconsistent with our requirement in Bey II, supra, 112 N.J. at 161, 548 A.2d 887, that each juror in capital cases individually decide whether a mitigating factor is present and what weight it should receive. Id. Envisioning a divided jury on the catch-all mitigating factor, the trial court concluded that the victim impact statute might impermissibly allow before the entire jury evidence that only some of the jurors (i.e., those jurors that found the existence of the catch-all mitigating factor) are allowed to consider. Id. slip op. at 4. Because jurors who did not find the existence of the mitigating factor would be exposed to victim impact evidence, that for them would be irrelevant under N.J.S.A 2C:ll-3e(6), the court held that the statute was “irremediably defective.” Id. slip op. at 1. The court declared that the N.J.SA 2C:ll-3c(6) “require[s] a level of mental gymnastics beyond the ability of any juror,” and therefore its enforcement would violate principles of due process. Id. slip op. at 12-13.

Although under the victim impact statute there is the possibility that some jurors who do not find the existence of the catch-all mitigating factor will be exposed to victim impact evidence, this situation is not unusual in capital cases. As a matter of federal constitutional law, each juror must individually determine the existence of mitigating factors and then individually decide whether the aggravating factors outweigh the mitigating ones. Bey II, supra, 112 N.J. at 161, 548 A.2d 887. Thus, whenever a defendant presents mitigation evidence that the State is allowed to rebut using otherwise inadmissible evidence, there is the possibility that jurors who did not find the existence of that mitigating factor will nevertheless be exposed to the rebuttal evidence. For example, if a defendant introduces evidence of good character, the State is entitled to introduce evidence of bad character that would otherwise be inadmissible. Jurors who did not find the “good character” mitigating factor would nevertheless be exposed to the State’s rebuttal evidence. That situation is analogous to the situation under N.J.S.A 2C:11-3c(6).

Defendant also contends that jurors will be unable to follow the court’s instructions about using victim impact evidence only for the limited purpose of determining how much weight should be accorded to the catch-all factor, and instead will misuse victim impact evidence to support aggravating factors or even use it to justify a death sentence. Justice Handler also asserts that it will be impossible for trial courts to give clear jury instructions under the victim impact statute. Post at 70, 678 A.2d at 188 (Handler, J., dissenting). We acknowledge that jury instructions regarding the victim impact statute will be more complex than most jury instructions in non-capital cases, and therefore have requested the Trial Judges Committee on Capital Causes to draft appropriate instructions that are consistent with this opinion. However, jury instructions in all capital cases are more complex than those given in non-capital cases. The instructions that will be given regarding evidence admitted under the victim impact statute will be similar to those already given in capital cases. The victim impact instructions just present a further refinement of the type of refined judgments we expect jurors to make in capital cases.

We have long relied upon the ability of jurors to faithfully follow a trial judge’s instructions in deliberating on a defendant’s guilt, and, in the capital context, the appropriate sentence. See State v. Manley, 54 N.J. 259, 270, 255 A.2d 193 (1969) (“[I]n administering the criminal law, the courts must rely upon the jurors’ ability and willingness to follow the limiting instruction^] without cavil or question.”); accord State v. Obstein, 52 N.J. 516, 527 n. 1, 247 A.2d 5 (1968); State v. Cormier, 46 N.J. 494, 508, 218 A.2d 138 (1966). While there is no way to assure that a jury adheres scrupulously to the mandate of a limiting instruction, there is no reason to believe that jurors will not act responsibly in performing their duty. The entire structure of the penalty phase of capital cases is premised on the belief that jurors will use evidence only for its proper purpose. For example, under current law, jurors must be unanimous in finding the existence of an aggravating factor. Thus, even if eleven jurors find that the evidence supports an aggravating factor, they are not permitted to consider that factor if the twelfth juror made no such finding. Nevertheless, we trust that those eleven jurors will adhere to the trial court’s limiting instruction and deliberate about the appropriate sentence without consideration of those aggravating factors that they found to exist beyond a reasonable doubt. Although limiting instructions cannot eliminate the possibility that jurors will misuse victim impact evidence, that concern “does not justify a prophylactic, constitutionally based rule that this evidence may never be admitted.” Payne, supra, 501 U.S. at 831, 111 S.Ct. at 2612, 115 L.Ed.2d at 739 (O’Connor, J., concurring).

IX

The Legislature has taken appropriate steps to reduce the possibility that jurors will misuse victim impact evidence. Under the victim impact statute, the admission of victim impact evidence is limited to a clearly delineated course. Only 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 N.J.S.A. 2C:ll-3c(5)(h) may the jury consider victim impact evidence. Even if these requirements are met, the victim impact statements can be used solely for the purpose of determining how much weight to attach to the catch-all mitigating factor. Victim impact testimony may not be used as a general aggravating factor or as a means of weighing the worth of the defendant against the worth of the victim. “[0]ur law does not regard a crime committed against a particularly virtuous person as more heinous than one committed against a victim whose moral qualities are perhaps less noteworthy or apparent.” Williams, supra, 113 N.J. at 450, 550 A.2d 1172. The victim impact statute mandates that such evidence can be introduced for only one purpose, namely, to assist the jury in determining the appropriate weight to give the catch-all mitigating factor.

While legislatures in other states have enacted statutes that allow victim impact evidence to be admitted for any purpose, see, e.g., ArkCode Ann. § 5-4-602(4) (Michie 1993); Ill.Rev.Stat. ch. 38, para. 1406 (1989), the New Jersey Legislature was very careful not to allow victim impact evidence to be used as a general aggravating factor. It is apparent that the Legislature in drafting N.J.S.A. 2C:ll-3c(6) was cognizant of our previous opinions in which we opined that “[i]t is constitutionally required that juries in capital trials reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary.” Williams, supra, 113 N.J. at 453, 550 A.2d 1172.

Various safeguards are included in the victim impact statute to ensure that victim impact evidence will not be admitted in a manner that would allow the arbitrary and unconstitutional imposition of the death penalty. For example, the victim impact statute does not confer upon the victim’s family an absolute right to testify during the penalty phase. “[Rjather, the prosecutor is to determine what evidence, if any, should be submitted” to the jury. Senate Judiciary Committee, Statement to Senate Bill No. 1728, at 1 (March 20,1995).

To harmonize the victim impact statute with the due process clauses of the Federal and State Constitutions, the Attorney General and County Prosecutors Association have both urged us to devise additional procedural safeguards to reduce the possibility that victim impact evidence is admitted for improper purposes or is used inappropriately. As a matter of fairness, we hold that certain additional procedures must be followed before victim impact statements can be entered into evidence. The defendant should be notified prior to the commencement of the penalty phase that the State plans to introduce victim impact evidence if the defendant asserts the catch-all factor. The State shall also provide the defendant with the names of the victim impact witnesses that it plans to call so that defense counsel will have an opportunity to interview the witnesses prior to their testimony. The greater the number of survivors who are permitted to present victim impact evidence, the' greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim’s uniqueness as a human being and to help the jurors make an informed assessment of the defendant’s moral culpability and blameworthiness. Further, minors should not be permitted to present victim impact evidence except under circumstances where there are no suitable adult survivors and thus the child is the closest living relative.

Before a family member is allowed to make a victim impact statement, the trial court should ordinarily conduct a Rule 104 (formerly Rule 8) hearing, outside the presence of the jury, to make a preliminary determination as to the admissibility of the State’s proffered victim impact evidence. The witness’s testimony should be reduced to writing to enable the trial court to review the proposed statement to avoid any prejudicial content. The testimony can provide a general factual profile of the victim, including information about the victim’s family, employment, education, and interests. The testimony can describe generally the impact of the victim’s death on his or her immediate family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references.

The trial court should weigh each specific point of the proffered testimony to ensure that its probative value is not substantially outweighed by the risk of undue prejudice or misleading the jury. N.J.R.E. 403. Determining the relevance of the proffered testimony is particularly important because of the potential for prejudice and improper influence that is inherent in the presentation of victim impact evidence. However, in making that determination, there is a strong presumption that victim impact evidence that demonstrates that the victim was a unique human being is admissible. During the preliminary hearing, the trial court should inform the victim’s family that the court will not allow a witness to testify if the person is unable to control his or her emotions. That concern should be alleviated by our requirement that the witness be permitted only to read his or her previously approved testimony. Finally, the court should also take the opportunity to remind the victim’s family that the court will not permit any testimony concerning the victim’s family members’ characterizations and opinions about the defendant, the crime, or the appropriate sentence. Finally, the trial court should inform the prosecutor that any comments about victim impact evidence in his or her summation should be strictly limited to the previously approved testimony of the witness.

The limitations that we have placed on the admission of victim impact evidence are not designed to restrict any of the rights afforded to victims by either the Victim’s Rights Amendment or the victim impact statute. Rather, these controls are necessary to minimize the possibility that victim impact statements made during the penalty phase of a capital trial will inflame the jury and prevent it from deciding the proper punishment on the basis of relevant evidence.

Even though we hold that the introduction of victim impact statements during the sentencing phase of a capital case does not violate the New Jersey Constitution, we recognize that under certain circumstances victim impact statements could render a defendant’s sentencing fundamentally unfair and could lead to the arbitrary imposition of the death penalty. This was also a concern of the Payne Court, which warned that “[i]n the event that [victim impact] evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Supra, 501 U.S. at 825, 111 S.Ct at 2608, 115 L.Ed.2d at 735. We have confidence in the ability of the courts to determine whether a defendant has been impermissibly prejudiced by the admission of unduly inflammatory victim impact evidence.

X

Defendant also contends that applying N.J.S.A. 2C:11-3c(6) to him would violate the State and federal constitutional prohibitions on ex post facto laws because his alleged crimes were committed on April 1, 1995, and N.J.S.A 2C:ll-3c(6) did not go into effect until June 19, 1995. See U.S. Const, art. I, § 10, cl. 1; N.J. Const, art. IV, § 7, ¶ 3. The purpose of the Ex Post Facto Clauses is to guarantee that criminal statutes “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981). In order to violate the Ex Post Facto Clauses, the statute in question must either (1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed. Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216, 217 (1925). See also Doe v. Poritz, 142 N.J. 1, 42-43 n. 10, 662 A.2d 367 (1995) (holding that there is no reason why our interpretation of the State’s Ex Post Facto Clause should not follow the United States Supreme Court’s interpretation of the Federal Clause).

The victim impact statute does not violate any of the above proscriptions. It does not criminalize behavior that was previously lawful. Nor does N.J.S.A. 2C:ll-3c(6) make more burdensome the punishment for a crime after its commission. Defendant argues, however, that applying the victim impact statute to his case would materially alter the situation to his disadvantage because the presentation of victim impact evidence might lessen the weight that the jury attaches to the catch-all mitigating factor. Although defendant’s assessment may be correct, the fact that a statute works to a defendant’s disadvantage does not constitute an ex post facto violation. Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990). Because N.J.S.A. 2C:ll-3c(6) simply modified the scope of evidence that may be admitted during the penalty phase of a capital case and did not alter any substantive rights of defendant, the statute’s application to defendant would not violate the State or Federal Ex Post Facto Clauses. Accord Nooner v. State, supra, 907 S.W.2d at 689; Windom v. State, supra, 656 So.2d at 439; State v. Maxwell, 647 So.2d 871, 872 (Fla.Dist.Ct.App.1994), aff'd, 657 So.2d 1157 (Fla. 1995); Livingston v. State, supra, 444 S.E.2d at 752; cf. State v. Erazo, 126 N.J. 112, 135, 594 A.2d 232 (1991) (holding that application of N.J.S.A 2C:11-3e(2)(f), which permits State to introduce evidence about aggravating factor of prior murder, did not violate Ex Post Facto Clauses when applied to defendant whose crime occurred before statute was enacted). The victim impact statute applies to all trials and retrials commenced after June 19,1995, regardless of the date of the murder.

XI

We also disagree with Justice Handler’s speculations that the introduction of victim impact evidence will “destroy proportionality review” and should not be tolerated “because of its powerful and corrosive potential for invidious discrimination.” Post at 70-71, 678 A.2d at 188-189 (Handler, J., dissenting). We observe that much victim impact evidence is already admitted into evidence in the guilt phase. Such evidence, therefore, is presently considered in proportionality review. Undoubtedly, the presence of victim impact evidence admitted under the victim impact statute will make proportionality review a more complicated process, just as a defendant’s use of an allocution statement creates a more complicated review system. However, we do not hold that allocution statements even if they create a more complex review procedure are not to be considered in a proportionality review analysis. Nor should we hold that victim impact evidence should not be considered in proportionality review.

Justice Handler’s comments with regard to racial discrimination are equally speculative. This Court has never held that the Death Penalty Act is unconstitutional because it discriminates against defendants on the basis of race. As we recognized in State v. Marshall, 130 N.J. 109, 613 A.2d 1059 (1992) (Marshall II), a court can only see that justice is rendered at a given time. That admonition is equally applicable to Justice Handler’s comments about the effect of victim impact evidence on both proportionality review and discrimination.

XII

After Payne it is clear that there is no per se federal constitutional bar to the admission of victim impact evidence. The mandate of the people of this State, as expressed through the adoption of the Victim’s Rights Amendment and the enactment of the victim impact statue, is to give crime victims and their families the right to present victim impact evidence during the penalty phase of a capital murder trial. We are bound to give effect to the will of the electorate absent a constitutional prohibition, and we hereby do so.

We reverse the trial court’s order that N.J.S.A. 2C:ll-3e(6) is unconstitutional. Therefore, in accordance with this opinion, the State may introduce victim impact evidence at the penalty phase of defendant’s trial.

1 Article 1, paragraph 1 of the New Jersey Constitution provides:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting private property, and of pursuing and obtaining safety and happiness.