State v. Gentry

¶1(dissenting) — The majority of this court approves the admission of unreliable evidence in criminal cases. To the extent it does so, it invites freeing those who may be guilty and convicting those who may be innocent. Both the National Academy of Sciences Report, on which this court relied in a previous case, and the testimony of the scientists at the Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923) hearing established that, at the time of Gentry’s trial, polymerase *659chain reaction (PCR) deoxyribonucleic acid (DNA) evidence was not yet generally accepted as a methodology capable of consistently producing reliable results on forensic samples. Furthermore, admission of the PCR evidence in this case is problematic because the scientist performing the testing failed to follow the manufacturer’s protocols. Accordingly, the PCR evidence should not have been introduced because it fails the second prong of the Fryetest, which requires a methodology to be generally accepted before its results may be admitted in court.

¶2I also dissent because Gentry’s sentence is arbitrary and capricious under RCW 10.95.130(2)(b) when viewed against other aggravated murder cases which did not result in the penalty of death.

¶3I

¶4Admissibility of Pcr Under Frye

¶5The admissibility of novel scientific evidence in this jurisdiction is governed by the Fryetest. See Frye v. United States, supra at 1014. That Fryetest permits the admission of evidence deriving from a scientific theory or principle only if the theory or principle has achieved "general acceptance in the relevant scientific community”. State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984).

¶6The Fryetest has two prongs: (1) whether there is a theory which has achieved general acceptance in the scientific community, and if so, (2) whether the technique used to implement that theory is also generally accepted in the scientific community. State v. Cauthron, 120 Wn.2d 879, 888-89, 846 P.2d 502 (1993). If a significant dispute exists among qualified experts as to the validity of the scientific evidence, either as to the underlying theory or its implementing technique, it may not be admitted. Cauthron, 120 Wn.2d at 887. A third prong, which inquires whether the technique was properly carried out in a given instance goes to weight, not admissibility. Cauthron, 120 Wn.2d at 889; State v. Kala-kosky, 121 Wn.2d 525, 540, 852 P.2d 1064 (1993).

¶7Adherence to the Fryetest was recently reiterated in State v. Cauthron, 120 Wn.2d at 886-89, which held restricted frag*660ment fragment length polymorphism DNA (RFLP-DNA) evidence admissible. In deciding whether RFLP testing was admissible under the Fryestandard in Cauthron, this court looked to a new and exhaustive report issued by the Comm, on DNA Technology in Forensic Science, DNA Technology in Forensic Science (Nat’l Academy Press 1992) (NRC Report). Relying on the report, the majority held that RFLP had achieved general acceptance in the forensic context, and as such was admissible under Frye. See State v. Cauthron, supra.

¶8The same NRC Report states that PCR testing has not achieved full acceptance in the forensic context:

In summary, it is well established that one can greatly amplify a locus with authenticity and that one can reliably detect alleles or sequence variation at the amplified locus with any of a number of techniques. PCR analysis is extremely powerful in medical technology, but it has not yet achieved full acceptance in the forensic setting. The theory of PCR analysis, even though it is the analysis of synthetic DNA, as opposed to the natural sample, is scientifically accepted and has been accepted by a number of courts. However, most forensic laboratories have invested their energy in development of RFLP technology and have left the development of forensic PCR technology to a few other laboratories. Thus, there is no broad base of experience in the use of the technique in identity testing.

In general, further experience should be gained with respect to PCR in identity testing. Information on the extent of the contamination problem in PCR analysis and the differential amplification of mixed samples needs to be further developed and published. A great deal of this information can be obtained when a number of polymorphic systems are available for PCR analysis. Ambiguous results obtained with a number of polymorphic markers will signal contamination or mixtures of DNA in a sample.

Quantification of PCR results needs to be explored, to make the results more reliable. Laboratories that gain experience with PCR should determine the relationship between cycle number and percentage of contaminating DNA easily detected for each system used. Control primers that amplify small amounts of DNA reliably and robustly need to be added to test amplifications. In general, information derived from the new polymorphic loci under standardized conditions with easily quantifiable results or end points is needed. Considerable advances in the use of PCR in forensic analysis can be expected soon; the method had enormous promise.

¶9(Italics mine.) NRC Report, at 70.

¶10*661The NRC Report clearly indicates that PCR testing is subject to technical difficulties which may substantively affect the reliability of the results produced. The NRC Report also specifically states that these problems, namely differential amplification, contaminated samples, and mixed samples, have not yet been adequately addressed. For that reason, this methodology had not yet achieved general acceptance in forensic testing.

¶11The error of concluding PCR has achieved general acceptance in the scientific community for testing on forensic samples was comprehensively set forth in the dissent in State v. Russell, 125 Wn.2d 24, 882 P.2d 747 (1994). The dissent’s reasoning in Russell, in which I fully concurred, applies with equal force here. Because the evidence fails to meet the part of Fryewhich requires general acceptance of the implementing technique at issue, the trial court erred in admitting it.

¶12Even disregarding the conclusion of the NRC Report, which is singularly awkward given this court’s reliance on that report in State v. Cauthron, supra,the testimony at the Fryehearing established the numerous difficulties associated with producing reliable results when PCR is applied to forensic samples. The testimony indicated that the reliability of PCR testing in the forensic context is at the very least the subject of significant controversy in the scientific community. Accordingly, the majority’s treatment of it as generally accepted is untenable.

¶13The evidence presented at the 6-week Fryehearing included seven expert witnesses and the forensic scientist, Dr. Blake, who conducted the tests whose admissibility is at issue here.

¶14The experts at the hearing could not agree. That testimony, summarized below, establishes beyond any doubt that the majority’s conclusion the evidence is admissible under Fryebecause it is generally accepted is erroneous.

¶15The following scientists testified for the State: Haig H. Ka-zazian, Jr., M.D., Henry A. Erlich, Ph.D., Stephen P. Daiger, Ph.D., Cecilia Hlavaty von Beroldingen, Ph.D., and Edward T. *662Blake, Ph.D. For the defense were Aimee Bakken, Ph.D., Ashok Bhagwat, Ph.D., and Mr. David Adler. An affidavit from Dr. Richard Roberts was also admitted.

¶16Dr. Haig Kazazian, Jr., director of the Center for Medical Genetics at Johns Hopkins, had used PCR for medical diagnosis but had never tested crime scene evidence. He testified that PCR can be used on degraded and old samples. He stated he had reviewed the Cetus Corporation’s PCR kit, which he had not used, and that the procedures would be generally accepted in the scientific community. 10 Report of Proceedings, at 280; 11 Report of Proceedings, at 444-45.

¶17Dr. Kazazian reviewed Dr. Blake’s conclusions and stated the results appeared to be accurate. 10 Report of Proceedings, at 292-93. At the time of his testimony he was a member of the National Research Committee of the National Academy of Sciences, which had not released its report on DNA. Because it was confidential, Dr. Kazazian testified he could not reveal its contents but that to the best of his knowledge there was a consensus of the committee on the use of the Cetus DQ-alpha technology for forensic purposes. 10 Report of Proceedings, at 247, 250.

¶18Dr. Roberts, a molecular biologist, has worked with DNA since 1972 and was the assistant director for research at Cold Spring Harbor in New York. His affidavit concluded that there is not a generally accepted method to assure the PCR amplification is of the product sought to be amplified rather than of a contaminant. He concluded that "at our present state of knowledge, or ignorance, it would be imprudent to rely upon data obtained solely by the PCR method.” He also reviewed the PCR testing Dr. Blake performed in this case and concluded he could not agree with Dr. Blake that the shoelace bloodstains unequivocally showed a genotype of 1.2, 3, because there was contamination in the control which showed a 1.1 allele. Ex. 15 (Frye).

¶19Dr. Henry A. Erlich is a geneticist and director of the Human Genetics Department at Cetus Corporation, and has been used as an expert in other criminal trials. 11 Report of Proceedings, at 471, 466; 12 Report of Proceedings, at 496. *663He testified that PCR is reliable if the person understands the principles of PCR, carries out the reactions carefully and knows how to interpret the data. 12 Report of Proceedings, at 543.

¶20The trial court admitted for cross examination purposes an affidavit written by C. Thomas Casey, M.D., the chairman of the Institute for Molecular Genetics at Baylor College of Medicine and the medical director of a DNA diagnostic laboratory at Baylor. His affidavit was written in October 1989 for use in the McSherry case. People v. McSherry, 14 Cal. Rptr. 2d 630 (1992) (ordered withdrawn from publication in official reporter). His affidavit concludes PCR testing is new, not yet validated, and that the testing result excluding the defendant, McSherry, as a source of the DNA was incorrect. Dr. Erlich testified he thought Dr. Casey had changed some of his opinions since writing the McSherryaffidavit. 13 Report of Proceedings, at 711.

¶21An affidavit from Dr. Kenneth K. Kidd, professor of genetics, biology and psychiatry at Yale University School of Medicine, concluded he was unaware of any literature that addresses the problems of PCR evidence in the forensic context.

¶22Dr. Edward T. Blake, a forensic serologist with a doctorate in criminology who has previously testified regarding PCR-DNA evidence, performed the PCR tests in this case. He typed the blood on both of Gentry’s shoelaces. In the first testing, conducted July 1989, he was unable to obtain any DNA typing because the material removed from the shoelaces inhibited the amplification reaction, 20 Report of Proceedings, at 1286-88; Ex. 4, at 3 (Frye). However, when he ran PCR tests again in April 1990, he concluded that the genotype on each shoelace was 1.2, 3, consistent with the genotype of the victim. 13 Report of Proceedings, at 853; 20 Report of Proceedings, at 1288, 1221; Ex. 4 (Frye).

¶23Dr. Blake described the PCR DQ-alpha test and the controls he used to avert laboratory contamination. He testified further that his laboratory, Forensic Science Associates, was the only crime laboratory routinely using PCR on crime scene evidence in August 1990.19 Report of Proceedings, at *6641151. By March 1991, several other labs were using the test. 19 Report of Proceedings, at 1159-60, 1166. Dr. Blake testified that each type of "differential amplification”, which can lead to allelic dropout and a mistyping of the sample, has its own remedies. 20 Report of Proceedings, at 1193-94.

¶24Stephen P. Daiger, Ph.D, a professor of medical genetics at the University of Texas, testified that PCR in the forensic context poses a relatively low, but measurable, probability that there will be a differential amplification (causing allelic dropout) and that it would typically lead to the erroneous exclusion of a suspect. 18 Report of Proceedings, at 817-18. He testified that the presence of two alleles in the Gentry test argued against allelic dropout in this case. 18 Report of Proceedings, at 924-25. He also acknowledged the danger of contamination in the forensic setting but stated that certain measures could help to eliminate contamination. 18 Report of Proceedings, at 912-15. He testified that the reverse dot blot testing done here was generally accepted in the scientific community, 18 Report of Proceedings, at 920, and that the population genetics data bases were generally accepted as reliable, 18 Report of Proceedings, at 925-26. He found Dr. Blake’s results acceptable and opined the Cetus DQ-alpha protocols would be generally accepted in the scientific community. 18 Report of Proceedings, at 923,1016.

¶25Cecilia Hlavaty von Beroldingen, Ph.D, a forensic DNA specialist with the Oregon State Police Crime Laboratory, testified that using DQ-alpha PCR method for forensic casework does not alter the usual PCR amplification, but that in forensic samples the DNA may be exposed to environmental insults that damage the DNA and may be comprised of mixed samples, i.e., mixtures of biological stains from two different individuals. 23 Report of Proceedings, at 1616, 1655. She reviewed Dr. Blake’s report and agreed with its results. 23 Report of Proceedings, at 1609-10. She described the possibility of allelic dropout (the preferential amplification or differential amplification) as a phenomenon which results in the number 1 allele not being detected because it is not amplified. She opined this had not occurred in the *665Gentry case because there was amplification of the number 1 allele. 23 Report of Proceedings, at 1613.

¶26Ashok S. Bhagwat, Ph.D., a professor of chemistry at Wayne State University, with 12 years’ experience working with DNA, but who has not done forensic testing, testified that the differences between PCR testing in the research lab and in the forensic context are substantial and that PCR testing is not generally accepted in the scientific community for testing on crime scene evidence because of the problems of contamination and limited samples preventing duplicate testing. 28 Report of Proceedings, at 2238-40, 2290. With regard to contamination, he stated that PCR is so powerful that a single cell contamination could be devastating to the result and that the problem of contamination is unlikely to be easily solved for evidence arising from crime scenes. 28 Report of Proceedings, at 2238-39. He testified that unless there was sufficient sample to perform duplicate testing, the scientific community would not accept the results as reliable. 28 Report of Proceedings, at 2239. He reviewed an article by Westwood and Werrett, An Evaluation of the Polymerase Chain Reaction Method for Forensic Applications, Forensic Science Int’l (1990), and concluded that it raised serious questions about the application of the Cetus DQ-alpha kit and the reverse dot blot use for interpreting forensic evidence. See 28 Report of Proceedings, at 2253; Ex. 86 (Frye). He also reviewed the article Use of Formamide to Improve Amplification of HLA DQ-alpha Sequences, by Comey, Jung and Budowle, vol. 10 BioTechniques no. 1 (1991), and concluded that it said that allelic dropout could occur in the PCR amplification process even if the temperature in the thermal cycler was properly maintained. 28 Report of Proceedings, at 2286; Ex. 87 (Frye).

¶27Dr. Bhagwat testified it was not possible to report a reliable result from the tests run on Gentry’s shoelaces because the controls taken from an unstained part of the shoelace showed DNA and the allele in that control did not show up on the test of the bloodstain. 28 Report of Proceedings, at 2256-57. Dr. Bhagwat agreed with Dr. Robert’s affidavit that *666PCR was not yet generally accepted for use on forensic samples. 28 Report of Proceedings, at 2252-53.

¶28Mr. David Adler is a research associate and faculty member at the University of Washington with a masters degree in molecular biology who has conducted thousands of PCR tests, but not in the forensic setting. 29 Report of Proceedings, at 2385-90. He testified the Cetus DQ-alpha PCR kit was not generally accepted by the scientific community as reliable for use on crime scene evidence, 29 Report of Proceedings, at 2397, and testified regarding the problems in understanding the thermodynamics, mixed samples and limited samples making duplicate testing impractical. 29 Report of Proceedings, at 2398-2401. He also criticized the Gentry test conclusions because of contamination in the environmental controls in the shoelaces, and because there was no duplicate testing. 29 Report of Proceedings, at 2440-44.

¶29Aimee Hayes Bakken, Ph.D., is a professor and researcher in biology at the University of Washington who has not done any DNA testing on crime scene evidence and has not personally performed PCR testing. 27 Report of Proceedings, at 2086-87, 2168. She testified Dr. Blake’s conclusions in the Gentry case would not be generally accepted in the scientific community. 27 Report of Proceedings, at 2097. Prom reading the literature, she concluded that PCR is not generally accepted in the scientific community for forensic use as it is still an evolving technique. 27 Report of Proceedings, at 2176.

¶30The majority’s approval of the admission of PCR evidence in this case is erroneous because it treats as generally accepted a testing method which the NRC Report and the testimony indicated was not generally accepted at the time it was admitted. Admission of the evidence is also problematic because Dr. Blake deviated from the manufacturer’s protocols in conducting the testing. See 27 Report of Proceedings, at 2132. See also 20 Report of Proceedings, at 1217,1219. The majority does not address this aspect of the case. It stands to reason, however, that even if there were a generally accepted methodology by which to conduct PCR testing, it would remain an issue *667whether the scientist conducting the test so deviated from the generally accepted protocols of that methodology that it could no longer properly be said he followed that generally accepted methodology. See NRC Report, at 55 (repeatedly emphasizing that testing should be conducted with proper protocols, and that evidence should not be admitted in court absent rigorous indicia that reliable methods and standards were used).

¶31In sum, when PCR DNA evidence was admitted at the time of Gentry’s trial, there was acceptance of the scientific theory underlying PCR DNA evidence, but no consensus about the reliability of its implementing techniques in the forensic context. Furthermore, even if there were a generally accepted methodology, there is no testimony it was followed in this case. The evidence was therefore inadmissible and should have been excluded by the trial court.

¶32II

¶33Proportionality

¶34I also take issue with the majority’s proportionality analysis. Contrary to the majority’s conclusion, the death penalty is not proportionate under RCW 10.95.130(2)(b).

¶35RCW 10.95.130(2)(b) requires this court to consider whether the "sentence of death is excessive or disproportionate to the penalty imposed in similar cases”.

¶36A sentence is excessive or disproportionate if it has not "generally been imposed in similar cases”. (Italics mine.) In re Jeffries, 114 Wn.2d 485, 490, 789 P.2d 731 (1990); State v. Rupe, 108 Wn.2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); State v. Lord, 117 Wn.2d 829, 939, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 121 L.Ed. 2d 112 (1992). A sentence is not "generally” imposed unless it is imposed in at least 50 percent of similar cases. State v. Jeffries, 105 Wn.2d 398, 437, 717 P.2d 722 (Utter, J., dissenting), cert. denied, 479 U.S. 922 (1986); Lord, 117 Wn.2d at 939.

¶37The legislative requirement that we determine whether the death penalty is generally imposed in similar cases does not require this court to match with exactitude one murder *668case against another. However, if it cannot reasonably be said the death penalty generally is imposed in cases sharing similar features, or in worse cases, it cannot be proportionate under RCW 10.95.130(2)(b).

¶38Imposition of the sentence of death is not always disproportionate. In State v. Dodd, 120 Wn.2d 1, 838 P.2d 86 (1992), the sentence of death was not disproportionate because there were no similar cases in which the death penalty had not been imposed. It was therefore possible to reasonably conclude the penalty of death under RCW 10.95.130(2)(b) was not imposed arbitrarily and capriciously. That case involved the multiple murder of children who died after prolonged torture, one after as many as 14 hours of torture. The aggravated murder reports describe the facts as gruesome "due to the victims’ ages [11, 12 and 4], defendant’s extreme degree of sexual preoccupation, and the obsession with possibility of vivisecting children”. Report of the Trial Judge (Aggravated Murder Report) (Dodd) No. 76, at 12. The trial judge commented on his case, "I have practiced criminal law as an attorney and a judge for 31 years, and this ranks among the most heinous that I’ve been involved in out of some 40 or 50 homicides over those years.” Report of the Trial Judge (Aggravated Murder Reports) (Dodd) No. 76, at 13.

¶39Similarly, it was possible in State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988) to uphold the penalty of death under RCW 10.95.130(2)(b). In that case, too, the nature of the crime, involving extreme and gratuitous brutality in the murder of an entire family, including children, made it possible to conclude the penalty of death was not being visited on the defendant arbitrarily or capriciously.

¶40The same simply cannot be said here. The most salient features in this case are the age of the victim, the sexual assault, the seriousness of Gentry’s criminal history, which includes a manslaughter conviction and a rape conviction, and the paucity of mitigating evidence. The majority correctly identifies these salient features, but fails to engage in a discussion of their relevance in a manner that explains why equally, or arguably more, heinous cases which did not *669result in the penalty of death. Under the circumstances, the penalty of death cannot be considered other than arbitrary.

¶41The cases below, culled from the Aggravated Murder Reports, involve multiple murders, murder involving extreme and prolonged suffering on the part of the victim, and a victim particularly vulnerable due to age. In none of these cases was the penalty of death imposed. The majority’s resolution of the proportionality issue cannot account for murder cases arguably worse than this one in which the prosecutor either did not seek, or the jury did not impose, the death penalty. To the extent that is true, the death penalty cannot be considered proportionate in this case.

¶42Martin Sanders (No. 81). Sanders killed two children after raping them. Aggravating factors were multiple victims, rape, concealment and common scheme or plan. He had convictions for kidnapping, assault, and rape. No mitigating circumstances appear in the report. He received life without the possibility of parole.

¶43Stephen Carey (No. 10). Carey murdered his estranged wife and 18-month-old child by setting their trailer on fire. See State v. Carey, 42 Wn. App. 840, 714 P.2d 708, review denied, 106 Wn.2d 1003 (1986). The wife survived 18 hours before she died of third degree burns over 100 percent of her body. The aggravating circumstance was arson. The report lists no mitigating circumstances. He received life without the possibility of parole.

¶44Cherno Camara (No. 130). Camara murdered two of his children with a hatchet and struck his former wife in the leg with a hatchet, causing a severe laceration. She escaped and survived. Camara had a prior conviction for fourth degree assault and for the unlawful display of a weapon. The report indicates he suffered from post traumatic stress disorder. The jury did not impose the death penalty.

¶45Minviluz Macas (No. 101). Macas set fire to her house, killing her 85-year-old husband and two of her children, ages 9 and 11. She had no prior record. The State did not seek the death penalty.

¶46*670Stanley Runion (No. 99). Runion killed a child and two adults after taking them hostage. He had two convictions for assault with a deadly weapon. No mitigating circumstances are listed in the report. He received life without the possibility of parole.

¶47Arnold Roy Brown (No. 2). Brown raped and murdered his 7-year-old niece. He had prior convictions for assault, theft, and burglary. No mitigating evidence appears in the appellate reports. The jury did not impose the death penalty. The judge commented that the jury’s failure to do so was inappropriate because there were no mitigating circumstances.

¶48Davis James Dayton (No. 78). Dayton murdered a 3-year-old neighbor. The victim was stabbed repeatedly with a knife and hit over the head numerous times. Dayton had multiple prior burglary convictions. No mitigating evidence appears in the report. He received life without the possibility of parole.

¶49Herbert Rice, Jr. (No. 70). Rice murdered an elderly couple. The victims were tortured and mutilated before being killed. Each was aware of the other’s suffering. The woman was stabbed as many as 85 times. The man’s stab wounds were so extensive the forensic expert indicated he had never before encountered such a case. The expert indicated also that the victims did not die quickly. The aggravating circumstances were multiple victims, robbery, burglary, and concealment. The jury did not impose the death penalty.

¶50Lawrence Sullen (No. 69). Sullen killed a husband and wife and beat and shot their 11-year-old daughter. She survived and was left in the house when Sullen set fire to it. The aggravating circumstances were multiple victims, common scheme or plan, and concealment. No mitigating circumstances are listed in the report. He was sentenced to life without the possibility of parole.

¶51Jonathon Woods (No. 64). Woods abducted an 89-year-old woman, stuffed her into a trunk for 2 to 4 hours and shot her several times in the legs before he shot her in the head. The aggravating circumstances were the crime was one of revenge against a former witness, was committed to conceal *671defendant’s identity, and occurred in the course of a robbery, burglary, and kidnapping. He had two prior convictions for burglary and one for robbery. The jury was unable to unanimously agree. He received life without parole.

¶52Jeffrey Lane (No. 65). Lane was the codefendant of Woods (listed above). The same aggravators were present. The jury did not impose the death penalty.

¶53William Pawlyk (No. 116). Pawlyk murdered his former girlfriend and her boyfriend. Both victims were stabbed over 100 times. It is inferable the victims experienced great suffering before they died. Pawlyk had no prior record. He pleaded insanity which the jury rejected. The State did not seek the death penalty. He received life without the possibility of parole.

¶54It is evident from the above discussion that the death penalty is not generally imposed even in multiple homicide cases of particularly vulnerable victims. Nor is the death penalty generally imposed where the victim endured more prolonged agony before dying than did Gentry’s victim. Under these circumstances, the imposition of the death penalty on Gentry cannot be considered proportionate under RCW 10.95.130(2)(b).

¶55Johnson, J., concurs with Utter, J., in issue I.

¶56(dissenting) — The majority errs in concluding victim impact statements in the penalty phase of a capital case are admissible under Washington law. It effectively has created a sentencing proceeding in which the adversaries are not the defendant and the State, but rather the defendant and the victim. The majority relies on this characterization to extend the Victims’ Rights Amendment beyond its explicit and historical meaning, and in unwarranted contravention of article 1, sections 3 and 14 of the Washington Constitution, to apply to special sentencing proceedings in death penalty cases.

¶57The argument that a criminal prosecution requires an evenhanded balance between the State and the defendant *672fundamentally misconceives the nature and purpose of state and federal constitutional criminal protections. One purpose of affording constitutional rights to accused individuals and imposing limits on the State is to protect accused individuals from overreaching by the disproportionately powerful State. Payne v. Tennessee, 501 U.S. 808, 860, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991) (Stevens, J., dissenting). See also Pulley v. Harris, 465 U.S. 37, 45, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984) (constitutional review of death penalty statutes is to avoid "wholly arbitrary, capricious, or freakish sentences”); State v. Cater’s Motor Freight Sys., Inc., 27 Wn.2d 661, 667, 179 P.2d 496 (1947) (due process guaranty protects individuals from arbitrary exercise of powers of government).

¶58I therefore dissent as to issue 12.

¶59I

¶60The decision is left to the states whether to admit victim impact statements in the sentencing phase of death penalty cases. Payne, 501 U.S. at 827. In Washington, capital punishment proceedings are regulated by statute, subject to specific constitutional limits. The special sentencing proceeding held determines whether the death penalty should be imposed or whether there are sufficient mitigating circumstances to merit leniency. RCW 10.95.030-.060. RCW 10.95.070 contains a list of factors the jury may consider, all of which relate specifically to the defendant’s culpability for the capital offense. Victim impact statements are not mentioned.

¶61Our case law has further defined limits on admissible evidence. In State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I), State’s cert. granted and remanded, 463 U.S. 1203, defendant’s cert. denied, 463 U.S. 1212 (1983), reaff'd on remand, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II), we found portions of RCW 10.95.060(3) and RCW 10.95.070 to be unconstitutional. In the special sentencing proceeding, the jury may consider mitigating factors only and the prosecution may introduce *673only the defendant’s criminal record,148 evidence of the facts and circumstances of the murder for which the defendant is being sentenced (if the sentencing jury is not the jury that convicted the defendant), and evidence of "additional nonstatutory aggravating factors” insofar as its rebuttal value outweighs its prejudicial effect. Bartholomew I, 98 Wn.2d at 197-99; Bartholomew II, 101 Wn.2d at 642-43.

¶62The United States Supreme Court accepted certiorari in BartholomewI and remanded the case for reconsideration in light of Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (statutory procedure for determining eligibility for death penalty adequately confines the class of persons eligible to a narrow category in which there is special justification for the imposition of a death sentence compared to others found guilty of murder). On remand, we reaffirmed BartholomewI, concluding different criteria apply to aggravating factors than to mitigating factors, thereby imposing a more stringent standard upon the prosecution than the defendant at the sentencing phase of a capital case. Bartholomew II, 101 Wn.2d at 637-38. We identified two primary federal and state constitutional limits on the admission of aggravating factors at a special sentencing proceeding, both of which are necessary to afford the defendant a fair trial: (1) evidence prejudicial to the defendant cannot be admitted at the sentencing phase; and (2) evidence admitted during the sentencing phase of capital cases, just as in all other criminal cases, must be accurate and reliable. Bartholomew II, 101 Wn.2d at 636-38.

¶63In BartholomewII, we also noted that the Washington Constitution, article 1, sections 3 and 14, provides broader protection than the Supreme Court’s interpretation of the Eighth and Fourteenth Amendments. Bartholomew II, 101 Wn.2d at *674639. See also State v. Chrisman, 100 Wn.2d 814, 817-18, 676 P.2d 419 (1984) (federal constitution provides only "minimal rights” and decisions of federal courts do not limit the right of state courts to accord greater rights). Accordingly, while we rested our decision on an interpretation of both the state and federal constitutions, we explicitly held the Washington Constitution to compel our result:

[T]he independent state constitutional grounds we have articulated are adequate, in and of themselves, to compel the result we have reached. . . . Therefore, any decision by the Supreme Court limiting federal constitutional guaranties in a manner inconsistent with our interpretation of Const, art. 1, §§ 3 and 14 will have no bearing on our decision in this case.

¶64Bartholomew II, 101 Wn.2d at 644.149

¶65The result in BartholomewII therefore is unaffected by the Supreme Court’s constriction of Eighth Amendment protection in Payne. The Eighth Amendment imposes a minimum threshold below which the death penalty cannot be imposed and it prohibits the states from limiting the sentencer’s consideration of any relevant circumstance that could cause the sentencer to decline to impose the death penalty. Romano v. Oklahoma, 512 U.S. 1, 129 L. Ed. 2d 1, 10, 114 S. Ct. 2004 (1994); Payne, 501 U.S. at 824; McCleskey v. Kemp, 481 U.S. 279, 306, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987); Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Beyond these limitations, the State may choose which substantive factors are relevant to death penalty determinations; the Supreme Court explicitly left to the states the decision whether to allow victim impact statements in death, penalty sentencing. Payne, 501 U.S. at 824-25.

¶66*675II

¶67The majority concludes correctly that the victims’ rights amendment, article 1, section 35,150 does not specifically repeal any provision of the Washington Constitution or this court’s construction of any constitutional provision, nor is the amendment in unavoidable conflict with another provision. Majority, at 625. The majority also concludes correctly that the due process and cruel punishment provisions of the state constitution, Const, art. 1, §§ 3 and 14,151 as construed by this court in BartholomewII, require evidence proffered in special sentencing proceedings to conform to the Rules of Evidence. Majority, at 622. As we wrote in BartholomewII,

It makes no sense to afford these protections to one charged with a lesser crime but then suspend them in a capital case. We will not do so, for this would place a defendant facing the death penalty in the perilous position of having to rebut potentially unreliable or unreasonably prejudicial evidence before a jury that has already convicted him of aggravated murder. To suspend these protections which are afforded all other criminally charged defendants at such a critical phase of a capital case is contrary to the reliability of evidence standard embodied in the due process clause of our state constitution. Const, art. 1, § 3.

¶68(Italics mine.) Bartholomew II, 101 Wn.2d at 640-41.

¶69The death penalty differs qualitatively from all other punishments because of its severity and finality; therefore, it is *676critical that the determination to impose the death penalty be reliable. State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991) (citing Johnson v. Mississippi, 486 U.S. 578, 584, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988); Bartholomew II, 101 Wn.2d at 638), cert. denied, 506 U.S. 856, 121 L. Ed. 2d 112, 113 S. Ct. 164 (1992), clarified in In re Lord, 123 Wn. 2d 737, 870 P.2d 964, cert. denied,-U.S-, 130 L. Ed. 2d 86, 115 S. Ct. 146 (1994). See also Murray v. Giarratano, 492 U.S. 1, 8, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (1989) (United States Constitution places special constraints on procedures used to convict an accused of a capital oifense and to sentence him or her to death, in order to ensure the existence of a greater degree of reliability); Lockett, 438 U.S. at 604 (finality of death penalty requires a greater degree of reliability when it is imposed). The need for greater reliability is reflected in the statutorily mandated procedure for requesting the death penalty and the required special sentencing proceedings to determine whether the death penalty should be imposed once guilt has been established. RCW 10.95; State v. Rice, 110 Wn.2d 577, 607, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989). Hence, notwithstanding the Victims’ Rights Amendment, Washington Constitution, article 1, sections 3 and 14, continues to require that evidence admitted in special sentencing proceedings in capital cases conform to the Rules of Evidence.

¶70The Rules of Evidence provide the "stringent procedural safeguards” necessary to ensure sentencing proceedings are fundamentally fair, as required by article 1, sections 3 and 14. Bartholomew,II, 101 Wn.2d at 640; ER 102. Under the Rules of Evidence, courts may admit only evidence that is relevant, trustworthy, reliable, and not unreasonably prejudicial. Bartholomew II, 101 Wn.2d at 640-41; ER 401-403. In allowing victim impact statements to be introduced in the sentencing phase of death penalty proceedings, the majority disregards the Rules of Evidence by allowing the admission of irrelevant, untrustworthy, unreliable, and unreasonably prejudicial evidence.

¶71*677When a defendant has been found guilty of aggravated first degree murder and the prosecuting attorney has complied with RCW 10.95.040, a special sentencing proceeding is conducted to determine whether the death penalty should be imposed. At this proceeding, the jury is to answer a single question: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” RCW 10.95.060(4). Only evidence of mitigating circumstances and evidence "concerning the facts and circumstances of the murder” may be introduced. RCW 10.95.060(3). RCW 10.95.070 sets forth factors the jury may consider in deciding whether the defendant merits leniency. Significantly, while the list of factors is not exclusive, all factors listed relate to the defendant’s personal responsibility and moral guilt, not to victim characteristics or impacts on the victim’s friends and family. Accordingly, in deciding whether there are sufficient mitigating circumstances to merit leniency, the entire focus of the jury’s inquiry is to be sharply limited to a balancing of the evidence of mitigating circumstances against the evidence of the facts and circumstances of the murder. See Rice, 110 Wn.2d at 607, 624.

¶72Underlying this limitation is the notion, residing at the core of our criminal jurisprudence, that appropriate punishment should be imposed consistent with each defendant’s personal responsibility and moral guilt, rather than in an arbitrary or unfair manner. Tuilaepa v. California,-U.S.-, 129 L. Ed. 2d 750, 760, 114 S. Ct. 2630 (1994) (penalty phase of capital case requires "individualized sentencing and must be expansive enough to accommodate relevant mitigating evidence so as to assure an assessment of the defendant’s culpability”); Zant, 462 U.S. at 879 (penalty phase of capital case requires "individualized determination on the basis of the character of the individual and the circumstances of the crime”); Enmund v. Florida, 458 U.S. 782, 801, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982) (decision *678whether to impose death penalty must turn on defendant’s "personal responsibility and moral guilt”); State v. Mak, 105 Wn.2d 692, 723, 718 P.2d 407 (penalty phase of capital case must include individualized determination based on defendant’s character and record and on circumstances of the crime), cert. denied, 479 U.S. 995 (1986); RCW 9.94A.010 (setting forth purpose of Washington’s Sentencing Reform Act of 1981). Victim impact statements, which typically present the ripple effect of the victim’s death on both the victim’s family and the victim’s community, are irrelevant to a determination of the defendant’s blameworthiness. Unless the impact on the victim’s friends and family were known to the defendant at the time of the murder and have some probative bearing on an element of the crime of which the defendant was convicted, admission of victim impact statements infuses the sentencing proceeding with arbitrary factors that are wholly unrelated to an individualized determination of the defendant’s personal responsibility and moral guilt. See Bartholomew II, 101 Wn.2d at 642-43.

¶73Because of its inherent capacity to draw the jury’s attention away from the character of the defendant and the circumstances of the crime, any probative value of victim impact statements is outweighed by its prejudicial effect. See Payne, 501 U.S. at 864 (Stevens, J., dissenting). Introduction of such statements invites the jury to determine the sentence based on emotional factors, the status of the victim in the community (i.e., "victim worth”), or the eloquence of the victim’s friends and family, rather than through rational consideration of the defendant’s individual culpability. Prosecutors use victim impact statements in an attempt to show the victim’s similarity to the jurors, thereby generating empathy or fear in place of reason and careful consideration. Such statements may unnecessarily supply jurors with information on the victim’s race, religion, and social class, factors which ordinarily may not be considered in the sentencing decision. See McCleskey, 481 U.S. at 291 n.8 (violation of equal protection to base enforcement of criminal laws on unjustifiable standard such as race, religion, or other arbi*679trary classification); Zant, 462 U.S. at 885 (irrelevant or constitutionally impermissible factors such as race, religion, or political affiliation cannot be considered aggravating factors in capital sentencing proceedings). Admitting victim impact statements creates two classes of victims: those whose lives were so worthwhile that their killer should be put to death, and those whose lives were not so worthwhile as to require the death of the killer. No longer is sentencing based on an individualized determination of the defendant’s blameworthiness, but on the jury’s post hoc determination, in an emotional and prejudicial context, whether the defendant killed a "worthy” member of society or a less "worthy” citizen. Admission of victim impact statements thereby increases the risk that the jury will act in an arbitrary and capricious manner or make invidious distinctions as to the relative worth of the victim.

¶74The admission of victim impact statements has the inevitable effect of putting the victim on trial, shifting the focus of the sentencing proceeding from the defendant and the nature of his or her crime to the value the victim’s friends and family place on the victim’s life. Inviting a detailed narration of the emotional and economic sufferings of the victim’s friends and family and inquiring into their backgrounds and that of their deceased loved one revictimizes the friends and family by forcing them to relive the trauma of the crime. It places a burden on the victim’s friends and family to persuade the jury of the victim’s character and potential, and it pressures friends and family to provide the most graphic or emotionally wrenching statement possible in order to convince the jury of the worth of their loved one. These statements may so inflame jurors to the point where they cannot heed the trial judge’s instructions, effectively preventing them from giving appropriate consideration to evidence of mitigation. These inflammatory factors cannot help but infect the jury’s decisionmaking process, leading to inconsistent imposition of the death penalty, thereby rendering the sentencing proceeding fundamentally unfair and denying the due process of law guaranteed in the Washington Constitution.

¶75*680III

¶76Victim impact statements are not relevant as a purported "balance” to the defendant’s mitigation evidence, necessary to preserve victims’ rights at the special sentencing proceeding. The argument that victim impact statements balance mitigation evidence reflects a flawed vision of criminal proceedings, a vision in which wronged victims may use criminal proceedings to obtain vengeance or retribution against criminal defendants. A criminal proceeding is not a private right of action for the victim’s benefit; it is a proceeding in which a prosecutor, representing all the people of the State, seeks to deter, punish, restrain, and/or rehabilitate those whose actions are so dangerous or offensive that they are an affront to a civilized society. See Bergman v. State, 187 Wash. 622, 625, 60 P.2d 699, 106 A.L.R. 1007 (1936); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.3(b), at 17-20 (1986).152Cf. David Boerner, Sentencing in Washington § 2.5 (1985) (purposes for which sentences imposed under Sentencing Reform Act of 1981).

¶77Under RCW 10.95.040-.070, the proper counterbalance to evidence of mitigation is evidence of the facts and circumstances of the murder, including evidence of aggravation. See State v. Benn, 120 Wn.2d 631, 677-78, 845 P.2d 289, cert. denied, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 382 (1993); Rice, 110 Wn.2d at 624. However, prosecutors may not use the "circumstances of the crime” as a nonstatutory aggravating factor to embrace the entire spectrum of facts present in virtually every homicide. Maynard v. Cartwright, *681486 U.S. 356, 363,100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); Godfrey v. Georgia, 446 U.S. 420, 428-33, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980); Rice, 110 Wn.2d at 609. Apart from some limited statement based on evidence admissible during the guilt phase or to rebut the defendant’s mitigation evidence, victim impact statements generally are unrelated to the circumstances of the crime, and therefore inadmissible. Bartholomew II, 101 Wn.2d at 642. Such statements are introduced for the purpose of impermissibly inviting the jury to base its decision on sympathy for the victim or the victim’s friends and family, rather than as a moral response to the defendant’s background, character, and crime committed. In re Rupe, 115 Wn.2d 379, 387-88, 798 P.2d 780 (1990). See California v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987) (O’Connor, J., concurring).

¶78A further counterbalance is provided by the prosecutor’s cross examination of defense witnesses and introduction of relevant evidence to rebut the defendant’s evidence, thereby ensuring the jury receives a balanced and complete picture of the crime. Lord, 117 Wn.2d at 890. Even if a proffered victim impact statement were relevant to rebut the defendant’s mitigation evidence, it would be inadmissible unless its rebuttal value outweighs its prejudicial effect. Lord, 117 Wn.2d at 890-91; Bartholomew II, 101 Wn.2d at 643. Because victim impact statements are inherently prejudicial, even as rebuttal evidence, such statements are unlikely to be admissible under the Rules of Evidence for any purpose during a capital sentencing proceeding.

¶79Just as the admission of evidence of nonstatutory aggravating factors "opens too wide a door for the influence of arbitrary factors on the sentencing determination”, Bartholomew I, 98 Wn.2d at 195, so does the admission of victim impact statements also defeat the constitutional mandate of channeled jury discretion at the sentencing phase of a capital case. Arave v. Creech, 507 U.S. 463, 123 L. Ed. 2d 188, 198, 113 S. Ct. 1534 (1993); Bartholomew II, 101 Wn.2d at 639. Admitting victim impact statements impermissibly invites the jury to make an irrational, emotional capital sen*682tencing decision, rather than one that is and appears to be based on reason. In re Rupe, 115 Wn.2d at 388 (citing Booth v. Maryland, 482 U.S. 496, 508, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987)).

¶80Conclusion

¶81To ensure the death penalty is not imposed arbitrarily or invidiously, the jury must find at least one aggravating factor involved in the crime. To ensure the sentence is based on an individualized determination of the defendant’s moral blameworthiness, and not on passion and prejudice, the jury must weigh the aggravating factor(s), including the circumstances of the crime, against the mitigating evidence presented by the defendant. A victim impact statement presenting information about the impacts of the crime on the victim’s family, friends, and community is not relevant to the jury’s task and is inherently prejudicial. Admitting such a statement puts the character of the victim on trial and retraumatizes the victim’s friends and family by forcing them to present emotional and graphic testimony to obtain jury sympathy.

¶82"It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion”. Bartholomew II, 101 Wn.2d at 638 (quoting Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977)). By Allowing the jury in a special sentencing proceeding to consider irrelevant and prejudicial statements as to the victim’s worth and the suffering of the victim’s friends and family, the majority invites emotional and arbitrary sentencing decisions resting on unreliable information, and allows invidious distinctions by juries impermissibly based on their sympathy with the victim, and privatizes the death penalty by permitting the victim’s friends and families to seek vengeance and retaliation through state action.

¶83Utter and Madsen, JJ., concur with Johnson, J.