Because it is now constitutionally required that the death sentence be imposed only upon proof of specified facts and circumstances, it is now constitutionally required that the death sentence be imposed only upon proof of specified facts and circumstances, it is possible to distinguish between the crimes of mere murder and capital murder. In a capital murder trial, a criminal defendant should have a constitutional right to a jury trial of all the factual determinations essential to the imposition of the death penalty. Although the Supreme Court has long recognized criminal defendants' right to a jury trial of all the factual elements of the crime charged, it has not recognized a right to a jury determination of sentencing facts; however, as Bullington vs. Missouri illustrates, former constitutional distinctions between determinations of guilt and determinations of sentence are being reexamined in the context of evolving concepts of procedural due process for imposing the death penalty. The Bullington Court ignored the form of the sentencing proceeding and viewed it in substance as an additional trial in which the state has the burden of proving facts which would warrant the imposition of a more severe punishment. Because the state's ability to subject the defendant to the death penalty is based upon the establishment of additional factual circumstances and because there is no counterbalancing state interest to the defendant's right to due process, the defendant is entitled to require the state to prove its case to the satisfacton of the jury. A total of 120 footnotes are provided. (Author summary modified)