Riley, C.J. (dissenting).

I disagree with the majority's adoption of the "bright-line" rule contained in revised MRE 609(a). I share the concerns and criticisms expressed by Justice BOYLE and concur in parts I, II, III, and IV of her dissent.

Furthermore, in granting leave in People v Allen, People v Pedrin, and People v Smith, we directed the parties to include among the issues to be briefed whether this Court should adopt the rule announced in Luce v United States, 469 U.S. 38; 105 S Ct 460; 83 L Ed 2d 443 (1984), that to preserve for appellate review a claim of improper impeachment with a prior conviction, a defendant must testify. In my view, the Court should address this issue and follow the lead of the United States Supreme Court in Luce, by requiring a defendant to testify to preserve a claim of improper impeachment with a prior conviction. However, due to considerations of fundamental fairness, I would opt to apply this rule prospectively.

I

FACTS

A. PEOPLE v GRAY

On March 25, 1981, the jury convicted the defendant, Dennis Gray, of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The defendant was sentenced to life imprisonment for the first-degree murder conviction, and to a consecutive two-year term for the felony-firearm conviction. His convictions were affirmed by the Court of Appeals on August 3, 1983. People v Gray, unpublished opinion per curiam (Docket No. 59085).

Defendant brought a pretrial motion to suppress evidence of his criminal record for impeachment purposes. Defendant had five prior felony convictions, including a 1969 conviction of assault with intent to rob, a 1972 conviction of attempting to carry a concealed weapon, a 1975 conviction of carrying a concealed weapon, and a 1976 conviction of possession of heroin. The trial judge suppressed the 1969 conviction of assault with intent to rob, noting the similarity between that offense and the felony-murder charge, but declined to suppress the four other convictions.

During the trial, prosecution witness Matta Morgan testified that sometime between 8:30 P.M. and 9:00 P.M. on March 13, 1980, her boyfriend, Lewis Carter, came to her home to visit. The defendant, Morgan's cousin, arrived at her home sometime after midnight. Morgan asked defendant to drive Carter home and agreed to go with them. As Morgan was getting ready to leave, the defendant approached her and inquired whether Carter was carrying any money. Morgan replied, "He should. He is a numbers man." All three then left in defendant's car.

After driving for a while, defendant stopped the car, produced a handgun, and demanded money from Carter. After Carter gave defendant his money, defendant shot him several times, fatally wounding him. Defendant drove the vehicle a short distance further, disposed of Carter's body, and drove home, where he gave Morgan $150.

Defendant, testifying on his own behalf, denied robbing or shooting Carter, accused Morgan of being Carter's murderer, and admitted to the four prior convictions. According to defendant's version, Morgan summoned him to her residence during the early morning hours of March 14, 1980. When he arrived he saw Carter's body on the kitchen floor. Morgan told him that she killed Carter because "[he] didn't think I was serious." Defendant then allegedly helped Morgan get rid of the body by putting it into his car and driving around until they found a place to dispose of it.

B. PEOPLE v BROOKS

On July 30, 1981, the jury convicted defendant, James R. Brooks, of armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). The defendant was sentenced to imprisonment for a term of fifteen to fifty years for the armed robbery conviction and to the mandatory two years for the felony-firearm conviction. His convictions were affirmed by the Court of Appeals on April 11, 1983. People v Brooks, unpublished opinion per curiam (Docket No. 60075).

Defendant brought a pretrial motion to suppress evidence of his criminal record. Pursuant to MRE 609(b), the trial court excluded defendant's 1967 conviction of carrying a concealed weapon. However, the court denied the motion with respect to defendant's two prior convictions of armed robbery and one prior conviction of unarmed robbery.

The evidence advanced at trial by the prosecution showed that on November 15, 1980, at approximately 4:00 P.M., defendant entered the Professional Arts Pharmacy in Ferndale, produced a handgun, and ordered the clerk, Anne Nastas, and the pharmacist, Edward Lis, to lie down on the floor. Defendant then took various prescription medicines, drugs, money, and a gun from the premises.

Defendant was identified by Lis, Nastas, and a customer who saw the defendant as he was leaving the store. The customer found Lis and Nastas lying on the floor behind the counter. They told the customer that they had just been robbed.

The prosecution also presented Leslie Parker, who had been located by the police through a license plate number given them by an unidentified person who had observed Parker's car driving away from the store near the time of the robbery. Parker testified that he had driven a person known to him as "Tony" to a drugstore in Ferndale on November 15, 1980, at approximately 4:00 P.M. Parker stated that defendant looked very similar to "Tony," but he could not positively identify him as the same person he had driven to the store.

On direct examination, defendant testified that he had previously been convicted of armed robbery, that he was in custody for another robbery, and that he knew Edward Lis because they "did business" together. Defendant's relationship with Lis started with prescription sales, but Lis eventually agreed to sell defendant pills without a prescription and sometimes gave him pills on consignment which defendant would sell on the street.

Defendant admitted that, at approximately 1:00 P.M. on the day in question, he went to the Professional Arts Pharmacy to obtain Talwin pills. Lis refused to give him the pills and asked defendant for money owed him for pills previously taken on consignment. Defendant denied perpetrating the robbery and maintained that he did not have a firearm in his possession when he was in the pharmacy earlier that day. C. PEOPLE v PEDRIN

On July 21, 1982, the jury convicted the defendant, Jeffrey Pedrin, of breaking and entering an unoccupied building with intent to commit larceny. MCL 750.110; MSA 28.305. Defendant was sentenced to a term of imprisonment of four to ten years. His conviction was affirmed by the Court of Appeals on October 25, 1983. People v Pedrin, 130 Mich. App. 86; 343 N.W.2d 243 (1983).

The prosecutor filed a pretrial motion seeking permission to impeach the defendant with evidence of his prior conviction of breaking and entering with the intent to commit larceny. The court determined that the probative value of admitting the prior conviction on the issue of defendant's credibility outweighed its prejudicial effect and granted the motion.

The defendant's former wife testified that defendant came to her home in Munising at 6:00 A.M. on June 8, 1982, and attempted to open the door. He told her that "he just took a car." Defendant then fell asleep on the front porch, at which time, his former wife called the police. Defendant was arrested on her porch sometime between 8:15 A.M. and 8:30 A.M.

An automobile dealer testified that a 1983 Ranger pickup truck was stolen from his garage in Newberry on the evening of June 7, 1982.

A state trooper testified that the stolen vehicle was recovered one and three-quarters blocks away from the home of defendant's former wife, and that the keys to the vehicle were found ten to fifteen feet from her side porch. Defendant did not testify and presented no evidence.

D. PEOPLE v ALLEN

On July 2, 1981, the jury convicted the defendant, Mark Anthony Allen, of first-degree criminal sexual conduct. MCL 750.520b; MSA 28.788(2). Defendant was sentenced to life imprisonment. His conviction was affirmed by the Court of Appeals on November 24, 1982. People v Allen, unpublished opinion per curiam (Docket No. 59151).

On the first day of trial, defendant moved in limine to suppress evidence of his prior conviction of second-degree criminal sexual conduct. MCL 750.520c; MSA 28.788(3). Stating that defendant would not dispute having sexual relations with the complainant, but would maintain that those relations were consensual, defense counsel argued that the prejudicial effect of prior conviction evidence would far outweigh its probative value on the issue of defendant's credibility.

In exercising his discretion to determine whether to admit the evidence, the trial judge considered the similarity of the prior conviction to the instant charge and the fact that the crime involved a one-on-one confrontation between the complainant and the defendant. The court, noting that defendant's credibility would be an important issue, concluded that the probative value of evidence of the prior conviction on the issue of defendant's credibility outweighed its prejudicial effect and denied the motion to suppress.

The complaining witness, Stacy Dougherty, testified that on March 24, 1981, she was working at Arby's Restaurant on Ford Road in Garden City. At approximately 8:15 P.M., Dougherty took her evening work break and went to the ladies' rest-room, where she was confronted by the defendant who was armed with a knife, and who forced her to perform an act of fellatio.

Another Arby's employee, Kathy Bedford, testified that she went into the ladies' restroom shortly after the assault allegedly occurred and found Dougherty crouched beneath the sink, "all curled up crying really hard, [and] hyperventilating."

The defendant, who did not testify, presented Kevin Young as his only witness. Young's testimony implied that both he and the defendant had had consensual sexual relations with the complainant in the men's restroom at Arby's prior to the day of the alleged assault.

E. PEOPLE v SMITH

On June 30, 1981, the jury convicted defendant, Jackie Hagan Smith, of two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of assault with intent to murder, MCL 750.83; MSA 28.278. Defendant was sentenced to two terms of sixty to ninety years imprisonment for the criminal sexual conduct convictions, and to life imprisonment for the assault conviction. His convictions were affirmed by the Court of Appeals on August 15, 1983. People v Smith, memorandum opinion (Docket No. 61883).

Defendant moved in limine to suppress evidence of a 1969 breaking and entering conviction and a 1973 manslaughter conviction. The prosecutor stipulated to suppressing the breaking and entering conviction because it was more than ten years old. The trial judge granted the motion to suppress that conviction, but denied suppression of the manslaughter conviction.

Defendant also moved in limine to suppress evidence of the complaining witness' line-up identification and any subsequent in-court identification. Defendant argued that his arrest was illegal because it was made without probable cause and that the line-up identification should be suppressed as a fruit of the illegal arrest, as well as any subsequent in-court identification. The trial court denied the motion based upon its determination that the arresting officers did have probable cause for the arrest. The defendant did not testify.

The complaining witness, Robin Northover, testified that at approximately 6:00 P.M., on January 21, 1981, she left her aunt's house in Taylor and went with three friends to the Arcade on Beech-Daly Road in Dearborn Heights. At approximately 8:45 P.M., Northover left the Arcade and, on her return walk to her aunt's house, the defendant and two codefendants, Phillip Panik and Dana Minkler, drove up alongside her. Panik leaned out of the car window and asked Northover if she had any "papers." When Northover responded "no," Panik got out of the vehicle and offered her a ride.

Northover accepted the offer and got into the front seat of the car between the defendant, who was driving the vehicle, and Panik. Minkler was sitting in the back seat. After purchasing some beer, they drove around drinking and smoking marijuana that was mixed with "crystal." Northover smoked a marijuana cigarette with the men, drank one sixteen-ounce beer, and snorted some "tea."

After driving around for approximately two hours, the defendant drove to a Seven-Eleven store on Wayne Road to purchase more beer. Panik testified that while they were parked outside the store, two Wayne County Sheriff's deputies drove into the lot. As the deputies were walking into the store, they looked at the defendant's vehicle. Panik was smoking marijuana at the time, and he testified that seeing the police made him feel somewhat uneasy, and that "we didn't need them to come up to the car." The defendants then drove away from the store.

Shortly after the parties drove away from the Seven-Eleven store, Minkler reached over the front seat and started grabbing Northover's breasts. Northover pushed Minkler's arm away and then began struggling with Panik and Minkler. Minkler then pulled Northover into the back seat with Panik's assistance. Minkler removed the bottom half of Northover's clothing and unsuccessfully attempted to have sexual intercourse with her. While Smith was still driving, Panik and Minkler traded places. Panik also unsuccessfully attempted to have sexual intercourse with Northover. Smith then stopped the car, got into the back seat while Minkler drove, and had sexual intercourse with Northover. All three of the men subsequently forced Northover to perform fellatio on them which was followed by a third round of sexual activity with the three defendants.

After the trio finished sexually abusing Northover, Minkler stated, "we've got to get rid of her." Smith pulled the car over on a dirt road in a wooded area of western Wayne County. Smith grabbed Northover who was naked and dragged her into the woods. When they were out of sight of the car, defendant put his arm around Northover's neck and choked her until she was unconscious.

When Northover awoke, she was bleeding profusely from a stab wound to her neck. She packed the wound with snow and walked to a nearby residence where the police were summoned.

Following defendant's arrest, he was incarcerated in a local "lockup" with codefendant Panik. Prosecution witness Donald Perdue was also incarcerated there at that time on charges of nonpayment of child support. The prosecutor moved in limine to suppress evidence of Perdue's twenty-six-year-old conviction for assault with intent to do great bodily harm less than murder. The court granted the motion because the conviction was outside the ten-year time limit of MRE 609(b). Perdue testified regarding various incriminating statements he overheard defendant make during a conversation between defendant and Panik while they were confined.

On redirect examination, the prosecutor asked Panik several questions about what happened in front of the Seven-Eleven store in an apparent attempt to clarify how well the sheriff's deputies had seen the defendants. The prosecutor asked Panik what he did when he saw the deputies. Panik responded, "[w]e had beer, you know, we was all on parole, we didn't need them to come up to the car." Defendant moved for a mistrial due to Panik's statement "we was all on parole." The court denied the motion without explanation.

II

LUCE v UNITED STATES

In granting leave to appeal in People v Allen, People v Pedrin, and People v Smith, we directed the parties to include among the issues to be briefed whether this Court should adopt the rule announced in Luce, supra, that to preserve for appellate review the claim of improper impeachment with a prior conviction, a defendant must testify.

In Luce, the defendant was charged with conspiracy and possession of cocaine with intent to distribute. The trial court denied defendant's motion to preclude the prosecution from using evidence of defendant's prior state conviction of possession of a controlled substance. On appeal, the defendant contended that the trial court abused its discretion under MRE 609(a) in allowing evidence of the prior conviction. The Sixth Circuit Court of Appeals held that the issue was not reviewable because defendant did not testify at trial.

The United States Supreme Court affirmed in a unanimous decision, holding "that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Id., 469 U.S. 43. In so ruling, the Court reasoned:

A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify. [ Id., 41.]

The Luce Court further explained that "any possible harm" flowing from such a ruling in limine is wholly speculative. The Court noted that a trial court can change its ruling in limine after the evidence unfolds, particularly where the defendant's testimony differs from that which was stated in the proffer. Moreover, the Court noted that a reviewing court has no way of knowing whether the prosecution would have actually used the prior conviction to impeach the defendant. A prosecutor may choose not to use an arguably inadmissible prior conviction, particularly where the defendant's testimony can be impeached by other means or when the prosecution's case is strong. Id.

The defendants essentially argue that the Luce rule is unnecessary, that the concerns expressed by the Luce Court are exaggerated, and that its underlying rationale is contrary to well-established principles in this jurisdiction. I disagree.

MRE 609(a) was derived from FRE 609(a) and similarly requires the court to engage in a balancing process in determining whether the probative value of admitting a prior conviction for impeachment purposes outweighs its prejudicial effect upon the defendant. Our Court of Appeals has recognized the difficulty inherent in reviewing claims that a trial court erred in allowing a defendant to be impeached with prior convictions outside of a concrete factual context.

The case of People v Jones, 98 Mich. App. 421; 296 N.W.2d 268 (1980), illustrates the difficulty encountered. In balancing the probative value against the prejudicial effect on the issue of credibility, the court must consider, inter alia, the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions. In Jones, the Court recognized that in most cases, a trial judge is in no position to conclusively rule on that factor until he has heard the prosecution's proofs, learned the substance of the defendant's proposed testimony, and has some idea of what other proofs the defendant will present. The Jones Court keenly observed that the following questions represent a partial list of factors crucial in determining the effect on the decisional process of a defendant's decision not to testify:

(1) Will the defendant's testimony directly contradict the testimony of one or more key prosecution witnesses? When the trial becomes a credibility contest, background information about the disputants is essential to a jury. (2) Will the defendant claim or imply good character, by his own testimony or by a character witness, that his hidden record would refute? MRE 609 does not entitle a defendant to "pull the wool" over the jury's eyes. (3) Will the defendant claim a defense such as diminished capacity due to intoxication, mistake, ignorance or accident that becomes far less probable in the light of his prior criminal conduct? A claim by a defendant, for example, that he left the store without paying for an item because he forgot he had put it in his pocket does not go over so well when it becomes known, on cross-examination, that the defendant has been convicted of several thefts before. [ Id., 430.]

The Jones Court further recognized that, in some cases, defense counsel will make a motion in limine under MRE 609(a), although the defendant had nothing reasonable to say in his own defense and will not testify regardless of the ruling; that he may even prefer an adverse ruling to gain an appealable issue out of an otherwise hopeless trial. Id.

In light of these inherent problems, the Court of Appeals adopted the following rule expressed in United States v Cook, 608 F.2d 1175, 1186 (CA 9, 1979):

"In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609." [ Jones, supra, 431.]

The Luce Court rejected the above procedure because "[r]equiring a defendant to make a proffer of testimony is no answer; his trial testimony could, for any number of reasons, differ from the proffer." Luce, supra, 41, n 5. The Luce Court was also concerned with the potential for planting error requiring reversal.

I share the concerns of the Luce Court. Furthermore, from my review of the cases, I note that in the overwhelming majority of jurisdictions that have addressed this issue, the rule enunciated in Luce has been adopted. Moreover, some federal circuits have extended application of the Luce rule to other rulings in limine outside the context of FRE 609(a). I am persuaded that the rationale underlying the Supreme Court's adoption of the Luce rule is sound and that it is equally applicable to Michigan practice. Therefore, I would hold that to preserve a claim of error as to the admission of evidence of a prior conviction for impeachment purposes, a defendant must testify.

It does not follow, however, that the Luce rule should govern the cases before us. This Court has held that three factors must be considered in determining whether a judicially created rule of law should be applied retroactively.

the purpose of the new rule,

the general reliance on the old rule, and

[3] the effect on the administration of justice. [ People v Nixon, 421 Mich. 79, 85; 364 N.W.2d 593 (1984).]

I believe that the defendants' reliance on the old rule outweighs other considerations favoring retroactive application. The defendants have done everything necessary to preserve the issue under the old rule. Adoption of the Luce rule was not even reasonably foreseeable at the time of their trials. Under these circumstances, I believe it would be unduly harsh to apply the Luce rule to these defendants. Therefore, I would apply the rule only prospectively, i.e., to trials beginning after this decision is final.

III

ANALYSIS

MRE 609(a) pertinently provides:

General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if

(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and

(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.

As noted by the majority, the factors to be considered in performing the balancing required by MRE 609(a)(2) have been gleaned from case law which predated adoption of the Michigan and federal Rules of Evidence. Five factors have repeatedly emerged as the appropriate criteria to be considered in determining whether to allow a defendant witness to be impeached with prior conviction evidence:

(1) the impeachment value of the prior offense (i.e., to what degree does the prior offense relate to the witness' propensity for truthfulness?);

(2) the vintage of the prior offense (the probative value is enhanced with the recency of the prior offense);

(3) the similarity of the prior offense to the crime charged (the greater the similarity the greater the prejudicial effect);

(4) the effect on the decisional process should the accused choose not to testify out of the fear of impeachment;

(5) the centrality of the credibility issue.

This Court has stated that the underlying purpose in balancing these factors is:

1) [t]o put before the jury only those prior convictions indicative of the defendant's disposition toward truthfulness and veracity; and

2) [t]o keep from the jury those convictions which, although they may be indicative of defendant's disposition towards truthfulness, may interfere with the jury's ability to determine the defendant's guilt or innocence on the basis of the evidence. Such interference is what is meant by "prejudice." [ People v Hughes, 411 Mich. 517, 520-521; 309 N.W.2d 525 (1981).]

I believe that a further purpose properly served by this inquiry is to assure that the jury is not deprived of this traditional device for assessing a witness' credibility when its value to the truth-seeking process is crucial.

Although credibility is virtually always at issue in any trial, its significance is critically magnified, and often becomes the dispositive issue, when the trial is essentially reduced to a swearing contest between two opposing witnesses. I believe that this situation may tip the balance in favor of allowing the defendant to be impeached with evidence of prior convictions if the question is otherwise close.

I believe that the existing factors utilized in making determinations under MRE 609(a) constitute appropriate and adequate criteria. The following analyses of the cases sub judice illustrate how these factors should be applied, under varying circumstances, to best serve the purposes behind the sometimes difficult balancing process required by MRE 609(a)(2).

A. PEOPLE v GRAY

In ruling on defendant Gray's motion to suppress evidence of his five prior felony convictions, the trial court stressed that the case primarily involved a credibility contest between the prosecution's chief witness, Matta Morgan, and the defendant. The court determined that it would be important for the jury to be aware of both the defendant's and the witness' prior criminal records in determining who was telling the truth. Therefore, the court denied the motion with regard to the three prior convictions of carrying a concealed weapon and the possession of heroin conviction. The court suppressed the assault with intent to rob conviction, recognizing the similarity between that offense and the felony-murder charge, the underlying felony being robbery. Defendant admitted to the four prior convictions on direct examination.

The Court of Appeals held that the trial judge properly considered the relevant factors in allowing defendant to be impeached with his prior convictions and that she did not abuse her discretion in doing so.

I agree that the trial judge did not abuse her discretion in allowing the defendant to be impeached with his four prior felony convictions. The principal issue at trial was the identity of the murderer. Resolution of that issue necessarily depended upon whether the jury believed defendant's or Morgan's version of what happened.

Morgan testified that the defendant robbed and then fatally shot the victim as they were driving in the defendant's car. Defendant maintained that Morgan had murdered the victim in her house and then asked him to help her dispose of the body.

Standing alone, evidence of convictions of carrying a concealed weapon and possession of heroin may not be highly probative of an individual's credibility. However, the value of such evidence to the truth-seeking process was critical because the trial had boiled down to a swearing contest between two opposing witnesses. Thus, it was essential that the jury be aided by any evidence that was probative of credibility. It would indeed have been deceptive to permit the defendant to portray himself as a person who has led a blameless life and as worthy of belief as one who has.

In light of the foregoing, I cannot say that the trial judge abused her discretion in allowing the defendant to be impeached with the evidence of the prior convictions. Therefore, I would affirm the decision of the Court of Appeals.

B. PEOPLE v BROOKS

Defendant Brooks similarly argues that the trial court erred in admitting evidence of his two prior convictions of armed robbery and one prior conviction of unarmed robbery. In People v Baldwin, 405 Mich. 550, 553; 275 N.W.2d 253 (1979), we held that it was error for a trial judge to consider the similarity of a prior offense as a factor weighing in favor of admissibility. Although evidence of prior similar offenses is not inadmissible per se for impeachment purposes, such offenses should be admitted for that purpose only when there is a compelling need for such evidence, and then only sparingly. The danger inherent in admitting evidence of a prior conviction for impeachment purposes is particularly acute when the prior offense is the same or similar to the charged offense. The court in Gordon v United States, 127 US App DC 343, 347; 383 F.2d 936 (1967), stated:

A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time." As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.

In the instant case, there were no compelling reasons to impeach the defendant with three prior robbery convictions. I believe that once the jury learned that defendant had committed three prior robberies, the danger that the jury would draw the impermissible inference, i.e., he did it three times before so he probably did it again this time, is too substantial to allow such evidence to be used. The prejudicial effect of the error was exacerbated by its cumulative nature. The admission of two prior convictions of the very same offense and one prior conviction of a very similar offense was unwarranted.

I am persuaded, however, that, although the court clearly abused its discretion in allowing the prior convictions for impeachment purposes, the error was harmless beyond a reasonable doubt under the particular facts of this case.

It was the defendant's theory that the pharmacist fabricated the robbery allegations because the defendant was in arrears on payments he owed the pharmacist for prescription drugs he had taken on an earlier consignment. However, my review of the record compels the conclusion that defendant's theory is wholly incredible. Were defendant's story true, the pharmacist and the clerk would have to have been uncommonly good actors. Three different police officers testified that the pharmacist was visibly shaken when he reported the robbery. Furthermore, the question left unanswered by defendant is, why would the pharmacist wait until 4:00 P.M. to report the robbery if the defendant, by his own admission, was in the store at approximately 1:30 P.M. the same day?

Defendant's story also does not posit any explanation as to why the clerk, who had only been working at the store for two months, would perjure herself. There was never any suggestion that she was involved in the alleged illicit business. The clerk corroborated the pharmacist's testimony that an armed robbery had occurred and positively identified the defendant as the perpetrator.

Most importantly, there is absolutely no reason to believe that the customer who entered the pharmacy immediately after the robbery allegedly occurred would have perjured herself. The customer positively identified defendant as the person she had observed in the pharmacy immediately before she approached the counter and found the pharmacist and clerk lying on the floor.

Therefore, in light of the totally unbelievable nature of the defendant's testimony and the overwhelming strength of the prosecution's case, I would find that the error in admitting evidence of defendant's prior convictions for impeachment purposes was harmless beyond a reasonable doubt.

Defendant further argues that the trial court erred in failing, sua sponte, to give a limiting instruction on the use of prior convictions for impeachment purposes pursuant to CJI 3:1:08. The defendant did not request such an instruction; nor did he object to the trial court's failure to so instruct.

A trial court is under no obligation to give, sua sponte, a limiting instruction to the jury. People v Chism, 390 Mich. 104; 211 N.W.2d 193 (1973); People v DerMartzex, 390 Mich. 410; 213 N.W.2d 97 (1973). This Court held in Chism and DerMartzex that "in the absence of request or proper objection under present Michigan case law, there is no absolute requirement that the trial judge give limiting instructions, even though such an instruction should have been given." Id., 416. At issue in both cases was the trial court's failure, sua sponte, to give a limiting instruction regarding evidence of other crimes offered for purposes other than impeachment. In DerMartzex, this Court noted that defense counsel may have declined to request a limiting instruction to avoid highlighting the prior acts to the jury. That rationale is similarly applicable to limiting instructions regarding evidence of prior convictions offered for impeachment purposes. Therefore, the trial court did not err in failing, sua sponte, to give the limiting instruction on the use of prior conviction evidence.

I would affirm the defendant's conviction.

The sole issue raised by defendant Pedrin is whether the trial court erred in granting the prosecutor's motion in limine to allow impeachment of defendant with evidence of his October, 1981, conviction of breaking and entering. At the hearing on the prosecutor's motion to allow impeachment with evidence of defendant's prior breaking and entering conviction, defense counsel proffered that, if defendant testified, he would deny breaking into the garage and stealing the truck, and would testify that he had hitchhiked to his former wife's residence in Munising. Defense counsel stated that defendant had no alternative method of presenting his defense because he did not know who drove him to Munising.

The trial judge noted that the similarity of the prior conviction to the charged offense, and the defendant's inability to present his defense other than by testifying, militated against its admissibility. Nevertheless, the judge determined that the probative value of evidence of the prior conviction on the issue of defendant's credibility outweighed the prejudicial effect because the prior offense involved "moral turpitude" and "dishonesty." Defendant maintains that he did not testify as a result of that ruling.

The Court of Appeals, emphasizing that the prior conviction was a theft offense, held that the trial court's decision to admit the evidence was not an abuse of discretion.

I disagree and conclude that the trial court did abuse its discretion in ruling that defendant could be impeached with evidence of the prior breaking and entering conviction. As in Brooks, supra, the similarity of the prior conviction to the charged offense was a factor weighing heavily against its admission, and there were no compelling reasons to permit such impeachment. Gordon, supra. The effect on the decisional process of the defendant's failure to testify out of fear of impeachment similarly weighed against admissibility. There was no alternative way for defendant to present his story that he had hitchhiked to his former wife's residence, and there were less prejudicial means of impeaching the defendant, e.g., by evidence of his statement to his former wife that he "just took a car."

Furthermore, I cannot conclude that the error was harmless. The prosecutor's case was not overwhelming, being based primarily on circumstantial evidence. I cannot say that not even one juror would have voted for acquittal had defendant testified. Therefore, I would reverse defendant's conviction and remand the matter for a new trial.

D. PEOPLE v ALLEN

Defendant Allen argues that the trial court erred in denying his motion to suppress evidence of his conviction of second-degree criminal sexual conduct. Defense counsel proffered that defendant would admit to having had sexual relations with the victim in the women's lavatory at Arby's and that he would maintain that the relations were consensual. The trial judge noted that the similarity between the prior conviction and the charged offense militated against admissibility. However, recognizing that the crime involved a one-to-one confrontation of the defendant and the victim, and the centrality of the credibility issue, the court denied the motion to suppress.

The Court of Appeals affirmed, holding that it was not an abuse of discretion to admit the prior conviction under the particular circumstances presented. I agree. The similarity of the prior offense and the fact that it is not an offense like perjury which bears directly on credibility weigh against its admission. Nevertheless, the rationale underlying our decision in Gray, supra, is similarly applicable here where the question of guilt or innocence rests on the credibility of opposing witnesses. Had defendant testified, his credibility, as well as the victim's, would have been the dispositive issue which had narrowed to the question whether the complaining witness had consented to sexual relations. Furthermore, it does not appear that there were any less prejudicial means to impeach the defendant, and he was able to present his consent defense, in part, through the testimony of Kevin Young.

Young testified that on a previous occasion, he and the defendant had met the victim at the restaurant, at which time both of them engaged in consensual sexual relations with her. The defendant was able to inferentially raise his consent defense and mitigate the prejudicial effect of his failure to testify, while simultaneously impeaching the victim's assertion that the sexual relations were in fact nonconsensual. Had the defendant testified, his testimony would have directly contradicted the victim's testimony on the consent issue. Under these circumstances, I cannot say that the trial judge abused his discretion in allowing impeachment with evidence of the prior conviction.

Defendant Allen argues further that the trial court erred in denying him the opportunity to impeach the complaining witness, Stacy Dougherty, with her testimony at the preliminary examination. Defendant argues that Dougherty's testimony at the examination was inconsistent with her testimony at trial.

At the preliminary examination, Dougherty testified that when she walked into the ladies' restroom the door to the stall for handicapped persons was open and she noticed someone standing in that stall. She could not tell whether the person standing there was a male or female, being able to see only the person's backside, tan corduroy pants, and an orange kinky hairdo. After entering the stall adjacent to the handicapped stall and latching the door, she came back out immediately because she thought that something was "fishy." Witness Dougherty was washing her glasses at the sink when the defendant approached her and told her to perform an oral sex act. She said "no" and the defendant then forced her to do so. Defense counsel asked if defendant had asked her to perform the sex act with the understanding that he would reciprocate by engaging in oral sex with her. Dougherty stated that she could not recall.

At trial, Dougherty testified that when she walked into the ladies' restroom she could only see the person in the handicapped stall from approximately the knee down on one leg and that she did not notice what color pants the person was wearing. She also testified that when she first went into the restroom, she thought the person standing in the handicapped stall may have been sick. She denied that she had agreed to engage in a mutual sex act with defendant.

During cross-examination, defendant attempted to impeach Dougherty with the preliminary examination transcript in regard to the above differences in her testimony. Pursuant to the prosecutor's objection, the trial court declined to allow defense counsel to impeach Dougherty with her preliminary examination testimony as a prior inconsistent statement.

The Court of Appeals held that there was no inconsistency between Dougherty's preliminary examination testimony and her testimony at trial; thus, the trial judge did not abuse his discretion in denying the admission of Dougherty's examination testimony.

As a general rule, the only contradictory evidence that is admissible for impeachment purposes is that which directly tends to disprove the exact testimony of the witness. People v McGillen #1, 392 Mich. 251; 220 N.W.2d 667 (1974); People v Johnson, 113 Mich. App. 575, 579; 317 N.W.2d 689 (1982). The question of inconsistency is one within the discretion of the trial judge. People v Graham, 386 Mich. 452, 457; 192 N.W.2d 255 (1971). In the instant case, I am not persuaded that the trial judge abused his discretion in ruling that Dougherty's trial testimony was not inconsistent with her testimony at the preliminary examination. Although Dougherty's preliminary examination testimony contained certain details about defendant's clothing which she was unable to recall at trial, her trial testimony was not inconsistent, but rather, it appears to reflect a lapse in memory. Similarly, at the preliminary examination, complainant testified that she could not recall if defendant had asked her to consent to a sexual act and subsequently testified at trial that he did not. Considered in the total context of Dougherty's testimony, I do not view these two variances in the testimony as contradictory. Therefore, I conclude that the trial judge's refusal to allow impeachment with the preliminary examination testimony was not an abuse of discretion, thus I would affirm defendant's conviction.

E. PEOPLE v SMITH

Defendant Smith argues that the trial court erred in denying his motion to suppress evidence of his prior manslaughter conviction. The trial court ruled that the prior conviction would be admissible for impeachment purposes without explanation.

The Court of Appeals affirmed defendant's conviction finding no error on this issue.

Defendant first argues that the trial judge erred by failing to state, on the record, the factors he considered in deciding to admit the manslaughter conviction and that reversal is required. MRE 609(a)(2) provides in part that the court must articulate on the record the factors it considered in making its determination. The trial judge in the instant case did not comply with that requirement. Nevertheless, the record establishes that the trial judge was aware of his discretionary power to exclude use of prior convictions to impeach defendant and that he considered the relevant factors in reaching his decision to admit the manslaughter conviction. I would deem the error to be harmless under these circumstances. People v Eggleston, 148 Mich. App. 494; 384 N.W.2d 811 (1986), lv den 426 Mich. 862 (1986).

Defendant further argues that the trial judge misapplied the relevant factors and abused his discretion in denying the motion to suppress. I agree. Defendant aptly notes that all of the pertinent factors militate against admissibility. Manslaughter is not an offense which is very probative of credibility. Such convictions should only be admitted when the weight of the other factors tips the balance in favor of admissibility.

In this case, all of the remaining relevant factors militate against admissibility. Manslaughter is sufficiently similar to the charged offense of assault with intent to murder to be deemed a factor weighing against admissibility. There were no compelling reasons to justify the use of a similar conviction. The offense did not involve a one-to-one confrontation of the defendant and the victim, nor did the determination of defendant's guilt or innocence reduce itself to a credibility contest between two key witnesses. Thus, the need for such impeachment evidence was marginal.

In light of the foregoing, I believe the trial judge abused his discretion in declining to suppress the manslaughter conviction. Nevertheless, I conclude that the error was harmless beyond a reasonable doubt due to the overwhelming strength of the prosecution's case. The victim's positive identification of the defendant was well substantiated in light of the face-to-face confrontation she had with her assailants over several hours. Most importantly, the two codefendants, Panik and Minkler, consistently testified in minute detail of defendant's complicity in perpetrating the offense. Under these circumstances, I find it inconceivable that the jury would have acquitted defendant on the basis of his tenuous purported defense of misidentification. Thus, the trial judge's erroneous ruling on defendant's motion to suppress use of his prior manslaughter conviction does not constitute grounds for reversal of defendant's conviction.

Smith raises several other issues which I believe merit discussion. First, defendant argues that the trial court erred in denying his motion to suppress evidence of the line-up identification and any subsequent in-court identification. At trial, defendant argued that he had been arrested without probable cause, that his line-up identification should be suppressed as a product of the illegal arrest, and that any subsequent in-court identification would be the product of the illegal line-up identification which similarly should be suppressed. The trial court denied the motion. Detective Kohlstrand subsequently testified to the line-up identification of the defendant by the complaining witness, Robin Northover, who also identified defendant at trial as one of her assailants.

On this appeal, defendant has abandoned his theory that the arrest was illegal because it was made without probable cause. Defendant now argues that the arrest was illegal because there were no exigent circumstances justifying an arrest without a warrant, relying on Payton v New York, 445 U.S. 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980).

Generally, issues not raised in the trial court will not be considered on appeal. People v Lynch, 410 Mich. 343, 351; 301 N.W.2d 796 (1981); People v Snow, 386 Mich. 586, 591; 194 N.W.2d 314 (1972). While exception to the general rule has been made on numerous occasions in both civil and criminal cases, a prerequisite to having new issues considered on appeal is that there must be a sufficient record to allow for thorough judicial review. Id.; Meek v Wilson, 283 Mich. 679, 689; 278 N.W. 731 (1938).

In the instant case, an adequate record was not established to resolve the new arguments raised by the appellant here. Defendant's contention that the police made an illegal warrantless entry into his home to effect his arrest is clearly not supported by the record. The evidence and arguments advanced on defendant's motion to suppress the identification evidence related solely to whether there was probable cause for the arrest. No evidence was presented concerning the circumstances surrounding defendant's arrest, nor can such evidence be gleaned from elsewhere in the record. Although there is no question that the defendant's arrest was made without a warrant, it cannot be determined from the record whether the arrest was justified by one of the various exceptions to the warrant requirement. Therefore, the issue has not been properly preserved for appellate review. Id.

Defendant next argues that the trial court erred in admitting photographs and slides of the victim's wounds. It is well-settled that the admission of photographic evidence lies within the sound discretion of the trial judge. People v Eddington, 387 Mich. 551, 562; 198 N.W.2d 297 (1972). The court's decision to admit photographs will be upheld if they were substantially necessary or instructive to show material facts and it does not appear that they were offered in an attempt to excite passion or prejudice. People v Falkner, 389 Mich. 682, 685; 209 N.W.2d 193 (1973). Assuming relevance of the photographs, it must still be determined whether the probative value of admitting the photographs outweighs the prejudicial effect. Id.

In the instant case, defendant argues that the photographs and slides admitted into evidence were gory, inflammatory, and irrelevant to any issue in dispute. Defense counsel indicated that he would stipulate to the sexual assault and the assault with intent to murder because the defense was that the defendant was not the perpetrator.

The prosecutor argues that the photographs were relevant to proving the intent element of the assault with intent to murder charge notwithstanding defendant's offer to stipulate to that element. There is no rule that stipulations per se negate admissibility. People v Green, 74 Mich. App. 351, 357; 253 N.W.2d 763 (1977), aff'd 405 Mich. 273; 274 N.W.2d 448 (1979). The prosecution bears the burden of establishing each and every element of the charged offense beyond a reasonable doubt, and the jury must be instructed to consider each element regardless of stipulation. Id. See also People v Reed, 393 Mich. 342; 224 N.W.2d 867 (1975), cert den 422 U.S. 1044, 1048 (1975). Therefore, defendant's argument that the offer to stipulate to the elements of the crime rendered admission of the photographs irrelevant to proving the element of intent is without merit.

Furthermore, I believe the probative value in admitting the photographs outweighed the danger of unfair prejudice. There were no witnesses to the slashing of the victim's neck. The victim was herself rendered unconscious before her neck was cut. The photographs and slides at issue depict the location of the wound and its severity. Coupled with the treating physician's testimony, I believe the photographs and slides were highly probative of defendant's intention to kill the victim. Photographs that are admissible for a proper purpose are not rendered inadmissible merely because they vividly depict a gruesome injury, even though they may arouse the passions or prejudice of the jurors. Eddington, supra, 563. Thus, I cannot conclude that the trial judge abused his discretion in admitting the photographs and slides at issue.

Next, defendant contends that the trial court erred in denying his motion for a mistrial. Defendant argues that he was entitled to a mistrial when witness Panik testified on redirect examination that "we was all on parole" when the prosecutor was questioning him about the encounter with two Wayne County Sheriff's deputies in front of the Seven-Eleven store.

It is well settled that the decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court. People v Kelsey, 303 Mich. 715; 7 N.W.2d 120 (1942); People v Holly, 129 Mich. App. 405, 415; 341 N.W.2d 823 (1983). To constitute error requiring reversal in a criminal trial, the error complained of must have been so extreme that it deprived the defendant of a fair trial and resulted in a conviction that was a miscarriage of justice. People v Ritholz, 359 Mich. 539, 559; 103 N.W.2d 481 (1960); MCL 769.26; MSA 28.1096. A volunteered and unresponsive answer to a proper question is generally not cause for granting a mistrial. Kelsey, supra.

From my review of the record, I am not persuaded that Panik's volunteered and unresponsive answer to the prosecutor's question deprived defendant of a fair trial. The statement "we was all on parole" was ambiguous, and it cannot be said that it was an improper and prejudicial reference to the defendant's prior record. It is highly unlikely that this one isolated, ambiguous, and unresponsive comment resulted in significant prejudice to defendant. Therefore, I cannot say that the trial court abused its discretion in denying the motion for a mistrial.

Finally, the defendant also argues that reversal is warranted because he was not permitted to impeach prosecution witness Donald Perdue with evidence of Perdue's 1955 conviction of assault with intent to do great bodily harm less than murder. He relies on the Court of Appeals decision in People v Redmon, 112 Mich. App. 246; 315 N.W.2d 909 (1982). The trial court agreed with the prosecutor that such impeachment was precluded under MRE 609(b) because of the age of the conviction.

MRE 609(b) provides:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

Crucial to our analysis of this issue is an examination of the unique facts in Redmon. Defendant Redmon was charged with inciting, inducing, or exhorting prosecution witness Russell Haynes to commit murder. At her 1980 trial, the defendant sought to put before the jury the fact that between 1940 and 1967 Haynes had been convicted eight times of larceny and fraud-related activities. The trial court reluctantly disallowed such impeachment under authority of MRE 609(b).

The Court of Appeals reversed, stating that the Sixth Amendment right to confrontation took precedence over the court rule, as applied to a prosecution witness, under the peculiar facts in Redmon. The Court emphasized that the defendant's theory was that Haynes had lied to authorities about the defendant's involvement in an effort to ward off a severe sentence, which he feared because of his past extensive criminal record.

The instant case is clearly distinguishable. The compelling need for admission of the evidence of the prior conviction which was present in Redmon is not present here. Perdue's prior conviction was not relevant to the defense theory; indeed, it had nothing to do with the facts of the instant case. Further, I note that Perdue's twenty-six-year-old conviction was not for an offense bearing on truthfulness, and that defendant was permitted to explain fully the reason for Perdue being in jail with defendant, i.e., nonpayment of child support.

Our conclusion that Redmon is distinguishable makes it unnecessary for us to discuss the correctness of the Court of Appeals opinion in Redmon. Nonetheless, I emphasize the narrowness of that decision, and further observe that nothing in MRE 609(b) restricts its applicability to defendants who testify as opposed to other witnesses.

Finding no error, I would decline to extend the Redmon decision to encompass the facts in this case, and would affirm the decision of the Court of Appeals.

IV

SUMMARY

On the issue for which leave was granted, I would hold that to preserve a claim of improper impeachment with a prior conviction for appellate review, a defendant must testify. However, because considerations of fundamental fairness compel prospective application of the rule, it should not govern the cases at bar.

In People v Gray, I would hold that the trial court did not abuse its discretion in allowing the defendant to be impeached with evidence of three prior convictions of carrying a concealed weapon, and one prior conviction of possession of heroin.

In People v Brooks, I would hold that the trial court abused its discretion in allowing the defendant to be impeached with two prior robbery convictions and one prior unarmed robbery conviction due to the similarity of those offenses and the charged offense of armed robbery. However, I find the error harmless beyond a reasonable doubt. I find no merit in the remaining issue raised in Brooks.

In People v Pedrin, I would hold that the trial court abused its discretion in allowing the defendant to be impeached with a prior breaking and entering conviction due to the similarity of that offense and the charged offense of breaking and entering.

In People v Allen, I would hold that the trial court did not abuse its discretion in allowing the defendant to be impeached with a prior conviction of second-degree criminal sexual conduct, notwithstanding the similarity of that offense to the charged offense of first-degree criminal sexual conduct. The impeachment evidence was properly ruled admissible due to the one-to-one nature of the offense, the centrality of the credibility issue, the lack of an alternative method of impeachment, and the defendant's ability to present his theory of defense without testifying. I find no merit in the remaining issue raised in Allen.

In People v Smith, I would hold that the trial court abused its discretion in ruling that defendant could be impeached with evidence of his prior conviction of manslaughter. However, I find the error harmless beyond a reasonable doubt. Further, after careful consideration of the remaining issues raised in Smith, I conclude that there is no basis for reversal.

BOYLE, J. (dissenting).

I

The majority has today replaced the trial judge's discretionary authority to advance the truth-seeking process with its own view of the proper use of impeachment evidence. The majority's opinion would, for example, categorically prevent an accused drug seller from being impeached with evidence of prior convictions of the sale of drugs, and a defendant accused of sexual offenses from being impeached with prior convictions of sexual offenses. As a result, the majority's limitation of trial-judge discretion will multiply the opportunity for even the guilty defendant to escape punishment and make the discovery of truth more difficult.

The majority imposes this policy choice on the criminal justice problems of this state on the basis of its "perception" of the need for a new rule. It does so with a citation to the law of West Virginia and on the basis of social science studies of mock jurors, without analysis of the impact on the factual accuracy of jury verdicts and without consideration of existing safeguards protecting the innocent. If our "relatively low regard for truth-seeking is perhaps the chief reason for the dubious esteem in which the legal profession is held," today's decision will provide further reason "to question our service in the quest for truth," Frankel, The search for truth: An umpireal view, 123 U Pa LR 1031, 1040, 1041 (1975).

The prosecution must be held to the burden of proving guilt beyond a reasonable doubt, and safeguards must exist permitting postconviction review of claims of erroneous conviction. The issue here, however, does not involve a question of effectuating a constitutional right or of assuring review of a claim of innocence. The only issue addressed today is that of a new policy regarding impeachment with prior convictions. I disagree with the majority's determination to impose upon our jurisprudence a policy that automatically excludes or includes categories of prior convictions for impeachment. In my judgment, a policy rule that takes relevant and reliable evidence away from the factfinder is justifiable only if it advances countervailing interests equal or superior to the truth-finding function. The revised interpretation of MRE 609 here announced and the new version of MRE 609 here adopted do not attempt such an analysis and perforce do not meet that burden.

The rules of automatic exclusion and admission and the artificially circumscribed discretion adopted today create a conclusive presumption against the admission of certain prior convictions and a conclusive presumption in favor of the admission of others. Despite the failure to establish a deficiency in the system that requires this result, the opinion suppresses relevant and unquestionably reliable evidence, proof beyond a reasonable doubt of the commission of a prior felony by the defendant.

Because the "clarified" balancing test is applied to cases which antedate today's decision, validly obtained convictions will be reversed, and appellate resources will be taxed as the parameters of the new "rules" are developed. Neither this clarification nor the bright-line rules can, in good faith, be justified by rule-making authority. No comment, no input, no weighing of policy concerns by the bench and bar, has been allowed. The Court has simply created new law not even argued by the parties in these cases. Cases are reversed today and will be reversed hereafter, not because our current rule was violated, or because the constitution was violated, or because juries have returned verdicts that are not supported by the evidence. These cases will be reversed solely because a majority of this Court believes that trial judges cannot be trusted to appropriately exercise Rule 609 discretion and lay jurors inevitably misuse prior-conviction evidence.

As with other experiments, the system will stagger and lurch through a period of adjustment silently attended by the human and social costs that are the price of today's undertaking. In the interim, before the imperatives of the system gain the approval of a new majority of this Court, today's opinion will have impeded truth finding and undermined the institutional integrity of the trial judiciary and of the jury system.

The suggestion that these per se rules advance "the integrity of fact finding" is on an intellectual par with a claim that book burning advances knowledge. The essence of every censor's position is that readers cannot be trusted to properly use the knowledge they might obtain.

II

Cross-examination, "the greatest legal engine ever invented for the discovery of truth," 5 Wigmore, Evidence (Chadbourn rev, 1974), § 1367, p 32, is derailed today because of a policy decision that eschews legal analysis in favor of the majority's "perception" of the need for a new rule. The result is the replacement of trial-judge discretion with the majority's value system; the cost is making the discovery of truth more difficult.

1

The deficiency in the majority's jurisprudential approach to this issue is aptly illustrated by Professor Grano's explanation of the analogous objectives of rules of criminal procedure:

When the guilty are convicted and the innocent are acquitted, the result does "accord with substantive law," but when the innocent are convicted or the guilty escape, the substantive law is defeated. Truth, therefore, must be the primary goal of procedure. Indeed, truth must be the goal of any rational procedural system, whether accusatorial or inquisitorial. Reasonable persons may disagree about the better method of determining truth, but no rational person touts a procedural system because it makes discovery of truth more difficult.

Complexity is introduced, however, by an unavoidable dilemma: "the easier it is . . . to prove guilt, the more difficult does it become to establish innocence." While the prevalence of truth is preferable, if error is inevitable, a guilty person should escape before an innocent one is convicted. Thus, despite the desire for truth, we sometimes deliberately increase the risk of error to ensure that the innocent are acquitted. For example, the standard of proof beyond a reasonable doubt undoubtedly helps more guilty than innocent defendants. Nevertheless, we appropriately would resist any effort to lower the burden of proof, for the overall gain in the number of correct verdicts would come at an unacceptable cost.

* * *

[T]he appropriate focus must be on the anticipated benefits to be derived from the rule, the scope of the risk [of convicting innocent persons], and the existence of other safeguards to counter the risk. . . .

Because truth is the primary goal, we should prefer those procedures for protecting the innocent that do not increase the risk of erroneous acquittal. [Grano, Implementing the objectives of procedural reform: The proposed Michigan rules of criminal procedure — part I, 32 Wayne L R 1007, 1011-1012, 1014-1015 (1986).]

The majority does not attempt to evaluate truth seeking against competing concerns or consider alternative safeguards for both truth seeking and a competing concern. It wholly fails to acknowledge the fact that the legal system presumes that juries will follow instructions, and that, where that presumption has been overcome, it has been where the inadmissible evidence contained elements of unreliability or unlawfulness and was offered in the case in chief to create an "overwhelming probability" of improper substantive use. Jackson v Denno, 378 U.S. 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964).

Thus, in Bruton v United States, 391 U.S. 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), the Court rejected the government's argument that in a joint trial use of a confession to prove the confessor's guilt promoted truth, because severance was an alternative means to achieve truth, because arguments of speed, economy, and convenience were insufficient to justify infringement on the nontestifying defendant's right of confrontation, and because evidence of the confession became "intolerably" unreliable when the confessing accomplice did not testify.

The balancing analysis produced a different result in the Court's unanimous opinion in Tennessee v Street, 471 U.S. 409; 105 S Ct 2078; 85 L Ed 2d 425 (1985), where the Court held that the defendant's rights under the Confrontation Clause were not violated by the introduction of the accomplice's confession. Here, by contrast with Bruton, and as in this situation, the evidence was not introduced in the case in chief. Rather, the defendant took the stand and testified that his own confession had been coercively derived from the accomplice's statement. The state called the sheriff who testified in rebuttal that respondent was not read the accomplice's confession and then read that confession to the jury. The trial judge instructed the jury that the confession was not admitted for the purpose of proving its truthfulness, but solely for the purpose of rebuttal. The Court noted that, because the accomplice's confession was not introduced in the case in chief on the issue of guilt, the only similarity to Bruton was the fact that the confession could have been misused by the jury as evidence of the defendant's guilt. The jury, however, was "pointedly" told not to consider the truthfulness of the statement. Thus, the critical question for the Court was "whether, in light of the competing values at stake, may we rely on the 'crucial assumption' that the jurors followed the 'instructions given them by the trial judge?'"

The Court concluded:

Had the prosecutor been denied the opportunity to present Peele's confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of respondent's testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's very mission — to advance "the accuracy of the truth-determining process in criminal trials." [ Tennessee v Street, supra, p 415.]

Moreover, unlike the situation in Bruton, in Street there were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence.

The majority's attempt to distinguish Street does not come to grips with the fact that the evidence there was not offered in the case in chief or that the Court concluded that the jurors could be relied upon to follow instructions. The fact is that the defendant had denied the truth of his confession, and it is simply incorrect to assert that the evidence provided little if any inculpatory information "that was not already before [the jury] in defendant's own confession." Ante, p 573, n 10. The improper purpose prohibited by the instruction was the jurors' misuse of the accomplice's confession implicating the defendant. That is, the potential prejudice to the defendant was that the jury would use the accomplice's confession not solely to find that defendant's denial was untrue, but also to conclude that the accomplice's statement was substantive evidence of defendant's guilt. To use the majority's terminology, the veracity of defendant's denial of his confession had to be "mediated" through the knowledge that the absent accomplice had confessed and incriminated the defendant as an active participant in the decedent's hanging, an obviously far more damaging "independent and improper basis for a guilty verdict," ante, p 572, n 10, than the situation presented by impeachment with prior convictions.

The Court has also upheld the efficacy of limiting instructions and concluded that evidence of a defendant's prior criminal convictions could be introduced for the purpose of sentence enhancement, so long as the jury is instructed it could not be used to determine guilt, Spencer v Texas, 385 U.S. 554; 87 S Ct 648; 17 L Ed 2d 606 (1967).

In Spencer, supra, p 561, Justice Harlan noted that the "conceded possibility of prejudice" was "outweighed by the validity of the State's purpose in permitting introduction of the evidence" and that "[t]he defendants' interests are protected by limiting instructions . . . and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence. . . ." Justice Harlan further noted that instructions to a jury limiting the proper use of evidence elicited on cross-examination of defense witnesses as to defendant's character and a prior conviction "are no more difficult to comprehend or apply than those upon various other subjects," id., p 563. The Court has also permitted illegally seized evidence, Walder v United States, 347 U.S. 62; 74 S Ct 354; 98 L Ed 503 (1954), and improperly obtained confessions, Harris v New York, 401 U.S. 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), to be used by the jury in assessing credibility, so long as the jury is properly instructed. Thus, the United States Supreme Court has created a narrow exception to the rule that juries are presumed to follow instructions where there is an "overwhelming probability" that the jury cannot follow the instruction and the result would be devastating to the defendant's case, Richardson v Marsh, 481 US ___; 107 S Ct 1702; 95 L Ed 2d 176 (1987), a proposition that the majority has here failed to demonstrate.

These cases illustrate that a proper approach to the problem of potential prejudice requires an inquiry as to: whether the possibility of prejudice is protected by trial-judge discretion and limiting instructions; whether there is no alternative short of suppression of evidence to uphold the competing concern; and whether, if alternatives exist, the value underlying the competing concern has been fairly served. Application of these principles to the question of potential prejudice from impeachment with prior convictions demonstrates that there are existing safeguards against the misuse of prior convictions, and that there is no alternative to the suppression of truthful evidence relevant to the credibility question other than trial-judge discretion and the limiting instruction.

It might be observed, as the majority at one point does, ante, p 572, n 10, that the law is itself rendered irrelevant because this decision is based not on constitutional grounds, but on policy. The majority does not, however, evaluate the very factors most crucial to the adoption of a wise policy. The majority's policy does not balance the negative effect on the truth-finding function against the benefit of the elimination of potential prejudice. Nor does the majority evaluate the significant alternative barriers to the improper use of "bad man" evidence that the system has erected, barriers that both protect against the risk that innocent persons are convicted and insure that the fact-finding process is not emasculated.

The majority does not weigh the fact that a magistrate must determine that there is probable cause to believe a defendant is guilty, that a trial judge must assure through motion practice that the evidence has been obtained through lawful means, that Rule 404(a) precludes the use of "bad man" evidence as substantive proof of guilt, that the prosecutor must present in the case in chief evidence sufficient to permit a rational jury to find guilt beyond a reasonable doubt, or be directed out of court, People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979), and Jackson v Virginia, 443 U.S. 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), that the prosecutor may not comment on the defendant's failure to testify, Griffin v California, 380 U.S. 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965), and that a trial court has discretion to grant a new trial where it has concluded that the verdict is against the great weight of the evidence, People v Hampton, supra, p 375.

The majority further fails to focus on the fact that it is only where a defendant exercises a right that a defendant alone possesses, and elects to testify, that the credibility issue is presented. Before this point in the process, the safeguards in the system assure us of that which every trial judge and lawyer knows, that "the preponderant majority," Frankel, supra, p 1037, of defendants are guilty of the charged offense or a lesser or related offense. At the point in a trial where the issue is the credibility of the defendant's testimony, the prosecution has carried the burden of proving guilt in the case in chief without resorting to prior record evidence, and the risk of convicting an innocent person has been tempered. Reliance on the discretion of the trial judge and the limiting instruction to curb a potential for prejudice more effectively advances the goal of protecting the innocent while not increasing the risk of erroneous acquittal than suppressing truthful evidence relevant to the very issue the jury must decide.

The cogent analysis of the United States Supreme Court teaches that when a reason for erecting a barrier against truth is advanced, the burden on truth seeking and the risk of erroneous conviction must be evaluated. The majority simply ignores the fact that when the prosecution has carried the burden of proving guilt beyond a reasonable doubt without resort to the use of prior conviction evidence, the risk of convicting the innocent through misuse of the evidence has been diminished, and the issue is whether the factfinder should be deprived of relevant and reliable evidence when a defendant takes the stand and denies guilt.

The majority's lack of assessment of the alternative means to suppressing reliable and relevant evidence also explains the failure to acknowledge that the Legislature of this state has given defendants an additional protection against the possibility that a lay jury might misuse evidence of prior convictions. In Michigan, the defendant has the sole right to select a bench trial or a trial by jury, MCL 763.3; MSA 28.856; People v Stoeckl, 347 Mich. 1; 78 N.W.2d 640 (1956). Given the choice between a judge who until today was presumed to have the ability to limit prior conviction evidence to its proper purpose or an untrained and inexperienced jury, it is simply illogical and unfair to permit a defendant to select a lay jury and then to claim that its inability to properly assess reliable evidence requires suppression.

Each exception to the truth-finding function bears a heavy burden. Contrary to the majority's assumption, the fact that one exception exists is no evidence that another should be created. The majority itself slides along the "slippery slope" from the exclusion of prior convictions in the case in chief to exclusion of convictions on cross-examination without a clear understanding of the protection already afforded a defendant, or a persuasive answer to the question as to why, even if jurors might in a given case not be able to restrict use of prior conviction evidence to the issue of credibility, truthful evidence should be subject to generic suppression in the forum that exists for its determination.

In sum, the majority does not carry the burden of establishing the need for rules which generally exclude classes of evidence. If that need is indeed established by the jury's inability to "mediate" a proper use through a potential misuse, the need is revealed as an attack on the fact-finding system itself because, clearly, both jurors and judges as factfinders are called upon to "mediate" in every situation where evidence is admitted for a limited purpose.

The majority has ignored the policy expressed in a state statute, distorted the rule-making process, and rejected the approach to this issue which is followed by the overwhelming majority of other states, by the federal courts, and by this state until today.

The majority has not only failed to consider the protections against potential prejudice that exist in our system, it has wholly failed to balance the likelihood of a negative effect on the judicial system, the risk of erroneous acquittal, against the systemic gains to be achieved by the new rules. The majority analysis indicates that of the twenty-five cases in abeyance, eighteen defendants were to be, or were, impeached with bright-line excludable convictions.

The majority accuses the dissent of "[a]ssuming . . . that the defendant is almost certainly guilty. . . ." ( Ante, p 603.) I have not assumed that any given defendant is guilty, but, rather, have attempted to urge the majority to a rational examination of the implications of its new policy for the criminal justice system.

If an innocent person is convicted despite all the current protections of the system, the system has, in that instance, failed. Thus, a just system must provide a method to insure that an arguably wrongfully convicted individual has an avenue for redress. By contrast, the majority has converted a potential for an undesirable and deplorable consequence in individual instances into a presumption of prejudice mandating a systemic revision that prevents juries from learning of generic types of prior convictions.

The rules announced today impede the task of weighing and evaluating the truth of testimony. Here, unlike the situation in Bruton, or in Cruz v New York, 481 US ___; 107 S Ct 1714; 95 L Ed 2d 162 (1987), the prosecutor's obligation to prove guilt beyond a reasonable doubt in the case in chief, Rule 404 itself, and the right to waive a jury, provide alternative means to protect the legitimate interest in avoiding misuse of "bad man" evidence. Categorical denial of impeachment evidence impedes the jury "in its task of evaluating the truth of respondent's testimony" in opposition to "the Confrontation Clause's very mission — to advance 'the accuracy of the truth-determining process in criminal trials.'" Tennessee v Street, supra, p 415.

2

The majority's preference for bright-line rules also constricts the trial court's responsibility to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth. . . ." MRE 611; see MRE 102. To a person who is or has been a trial judge, this is the most disturbing aspect of the new rules, and the dimension of the rules most revealing of the majority's lack of experience with the trial court's role.

The majority fails to understand that the principal business of the trial judge in a jury trial is ruling on evidence. With few exceptions, these rulings are not either/or decisions. Relevancy decisions are judgment calls committed to the trial court's discretion. The rules of the game would consume the purpose of a trial if trial judges did not assess the purpose and value of the evidence in the evolving context of the trial. To a trial judge, the trial is not an abstraction, but an evolving process requiring ongoing evaluation. It was to that evolving reality that Justice RYAN spoke in observing that, as with other rulings on relevancy, the Rule 609 decision requires assessment of "[t]he importance to the truth-seeking process, not merely the prospects for acquittal, of obtaining the defendant's version of the events in question." People v Wakeford, 418 Mich. 95, 116; 341 N.W.2d 68 (1983).

Skillful lawyers on both sides of the counsel table know that advance bright-line rulings from a trial judge can benefit their client's theory of the case. The responsibility of the trial judge, however, is not to monitor the gladiators' battle, but rather to assure that the advocates' perspectives do not unfairly blindside the truth-finding process. The trial judge occupies an area within the arena of effective representation by defense counsel and zealous but evenhanded presentation by the prosecution. In this area, the primary obligation of the judge is not to the adversaries, but to the trial process and to the twelve persons who are sworn to determine the truth.

As the Supreme Court explained in Luce v United States, 469 U.S. 38, 41-42; 105 S Ct 460; 83 L Ed 2d 443 (1984),

The ruling [regarding impeachment] is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's [in limine] proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.

The majority's failure to appreciate the role of a judge in a jury trial is more remarkable because it squarely contradicts the rationale of a case on which the majority purportedly relies, Gordon v United States, 127 US App DC 343, 348; 383 F.2d 936 (1967). In Gordon, Judge Warren Burger wrote that an admission of prior convictions for impeachment was proper, partially

because the case had narrowed to the credibility of two persons — the accused and his accuser — and in those circumstances there were greater, not less, compelling reasons for exploring all avenues which would shed light on which of the two witnesses was to be believed.

Thus, in the very case in which a prior conviction's relation to credibility is most important to the truth-seeking process, the majority would ban it. It is true that in a credibility contest the "prejudice" to the defendant of such a prior conviction will be high. However, in many such contests, the Court now mandates that the full dimension of the credibility issue can never be disclosed to the jury.

The majority prevents the trial judge from evaluating the context and purpose of the cross-examination and leaves the jury to falsely conclude that since it has not learned of a prior conviction of the defendant, defendant's crime-free life entitles his testimony to more credibility than that of the impeached witness. This result contravenes, as described by Judge Burger, "the very nature of judicial discretion [which] precludes rigid standards for its exercise. . . ." Gordon v United States, supra, p 348. In these situations the majority dictates that only the need to include the testimony and never the need to permit impeachment can be considered. The result is obvious: the trial court is stripped of its authority, the jury is barred from access to the facts, and the victim and society lose.

Contrary to the majority's suggestion, it is not the dissent which "strip[s] the probative/prejudice balance of any real meaning," ante, p 602. It is the majority's inhibition of the trial judiciary that drastically limits the authority to evaluate the proffered impeachment evidence in the context of the purpose and situation in which it is offered. The result is exclusion of generic classes of evidence regardless of probativeness in a given case and inclusion of generic classes of evidence regardless of existential prejudice in a given case. In effect, these rules determine probativeness without regard to prejudice and prejudice without regard to probativeness.

Rule 609 reflected the decision of a committee of lawyers and judges adopting the common-sense premise that any past felony committed by a witness is to some extent relevant to credibility. This premise was as simple and as profound as the observation that if the far more imperative social obligation not to commit crime does not prevent criminal conduct, a defendant is far less likely to have inhibitions against lying.

While it has not been proven, it may be safely assumed that some jurors misuse prior conviction evidence admitted only for credibility. Rule 609 thus does not guarantee that an innocent person will never be convicted. It is one thing, however, to provide a procedure to protect against the possibility of an erroneous conviction in isolated cases; it is quite another to create a rule on the basis of supposition or personal perception that suppresses logically relevant evidence and increases the risk of erroneous acquittal.

Nonetheless, because of the perceived "low probative value" of all bright-line excludable convictions, the majority denies a relationship between believability and prior felonious conduct and refuses to allow judges the discretion to permit lay factfinders to draw an inference that a person who has previously flaunted society's conventions by violating the criminal law of the state may also be willing to lie under oath.

The majority's answer to a potential for juror misuse is the creation of an analytical rule. On the basis of speculation as to the effect on the process caused by jurors' inability to follow a limiting instruction, the majority imposes an administrative solution for what is in fact an existential problem. This solution ignores the fact that these problems are quintessentially ad hoc and call for ad hoc solutions. Therefore, the wise course for an appellate court is to recognize a wide discretion in the trial court with a correspondingly narrow scope of appellate review. As the United States Supreme Court instructs, fixed and arbitrary rules that suppress truth should be adopted only for compelling constitutional or societal reasons.

I am persuaded that the vast majority of the trial judiciary believes that it is desirable that a defendant have a fair opportunity to present a defense, and that it is frequently appropriate to limit attack on a defendant in order to encourage him to take the stand. I would trust these judgments, made with a "vision not vouchsafed to us, as we scan the printed page. . . ." People v Stoeckl, supra, 7 (SMITH, J., dissenting), to the integrity of trial judges, their fidelity to the rules we have already created, and to the wisdom of juries.

3

The majority has looked to empirical studies of mock jurors by behavioral psychologists to design these new rules. The very use of the concept that jurors "mediate" their conclusions through other perceptions bespeaks the majority's application of behavioral decision theory to the jury system. The majority fails to acknowledge, however, that simulations of the jury process are conceded even by proponents of "psycholegal" research to be "imperfect tools for answering empirical questions," Kerr Bray, The Psychology of the Courtroom (New York: Academic Press, 1982), p 318. Notwithstanding such reservations and ignoring the fact that the prosecution must introduce sufficient evidence in the case in chief to support guilt beyond a reasonable doubt, the majority states that it is much easier for a jury to conclude that "a person is bad than that he did something bad," ante, p 568, and then flatly asserts that the limiting instructions do not accomplish their purpose.

One study the majority believes deserves consideration involves forty-eight mock jurors being advised of seven prior similar convictions, Doob Kirshenbaum, Some empirical evidence on the effect of s. 12 of the Canada Evidence Act upon an accused, 15 Crim L Q 88, 93 (1972-73). It is this study which provides the "halo effect" explanation in the majority opinion.

The second study cited used both individual verdicts and four-person mock juries and was performed with forty individuals and thirty four-person groups who read a hypothetical burglary scenario in which half the persons were informed that the defendant had a prior conviction for burglary and were given a single written instruction that read:

"[T]he accused person's prior criminal record should not be used to determine whether or not the defendant is guilty. Prior record should be used only to determine the credibility of the defendant, that is, whether he is to be believed as a witness." [Hans Doob, Section 12 of the Canada Evidence Act and the deliberations of simulated juries, 18 Crim L Q 235, 240 (1975-76).]

The results from the individual verdicts "did not replicate" Doob Kirshenbaum's original findings, that is, the presence of a record did not seem to make a difference in the percentage of guilty verdicts when the verdicts were made individually. The presence of the record did appear to make a difference in the four-person groups, in which forty percent of the group knowing of a record found the defendant guilty and none of the fifteen groups not advised of a record found the defendant guilty. In evaluating the results, the authors conclude that knowledge of a previous conviction biases a jury against the defendant. They also note, however, that in the absence of a record, the "No Record groups discredited the evidence significantly and consistently more per unit time than Record groups did." (Emphasis in original.) Id., p 245. While crediting the portion of the study that supports its result, the majority has failed to observe, as it formulates new policy for this state, that without any factual basis in the hypothetical problem the no-record mock jurors were more likely to be biased against the state by observing that the law was biased against the defendant, that police line-ups were biased, or that the evidence was only circumstantial.

The most recent study cited by the majority is based on observations of 160 persons approached in Laundromats, supermarkets, bus terminals, and private homes who were asked to determine guilt or innocence of a hypothetical defendant from a two-page case summation. This study concludes that mock jurors are more likely to convict a defendant when advised of conviction of a prior similar crime, not, as the majority implies, of any prior conviction — a result that supports the current approach of our jurisprudence to this category of case, People v Crawford, 83 Mich. App. 35; 268 N.W.2d 275 (1978). Similarly, the study's observation that the participants' rating of the hypothetical defendant's credibility did not vary as a function of prior conviction is used by the majority to support its conclusion that a limiting instruction has no effect on how jurors use prior conviction evidence. It is obvious even to the untutored, however, that the fact that there was no significant variation in the mock jurors' evaluation of the "defendant's" credibility is equally explained by the fact that there was no real defendant to evaluate. As the authors of this study themselves note:

One should be cautious in generalizing from the results of this study to jurors in a real trial. First, the ratio of trial evidence to prior conviction information is much lower in simulations than in actual trials. In an actual trial, the greater richness of evidence and actors probably provides jurors with more bases for forming credibility judgments than the subjects in our simulation had. [Wissler Saks, On the inefficacy of limiting instructions: When jurors use prior conviction evidence to decide on guilt, 9 Law Human Behavior 37, 46 (1985).]

Finally, not only was there no real defendant, no actual deliberation or explanation of the limiting instruction, the most telling indication of the absence of persuasive weight in this study is the fact that the observation the majority finds most important, ante, p 577, that is, that all else being the same, the "conviction" rate was higher where the impeaching crime was murder, is a conclusion drawn from a survey of twenty people, fourteen of whom opined that the defendant was guilty.

The Kalven Zeisel study, The American Jury (Boston: Little, Brown Co, 1966), which is the only attempt to measure the decisional processes of actual juries does not support the majority's result and is, therefore, not dealt with in the survey of empirical studies. Given the majority's reliance on hypotheticals presented to mock jurors to support its assumptions, and because The American Jury is the seminal study of actual jurors, it is appropriate to examine its findings in depth.

The Kalven Zeisel study measured the trial judge's assessment of guilt against the jury's verdict in 3,576 jury trials and assumed the performance of the judge as a baseline of expertise in understanding the facts and applying the law. The importance of the study for purposes of examining the majority's conclusion that there is a "likelihood" that jurors convict the innocent is that in 3,576 trials there was overwhelming judge and jury agreement; in sixty-four percent of the cases both would convict, and in fourteen percent both would acquit. The study found that judges and jurors reached contradictory results in twenty-two percent of the cases. Of this twenty-two percent, in nineteen percent the judge would convict where the jury would acquit, and in three percent the judge would acquit where the jury would convict.

The study concludes that the jury's disagreement is "massively in one direction," that is, for acquittal. Id., p 58. The Kalven Zeisel work does provide evidence that jurors are influenced by personal characteristics of defendants and witnesses and by perceptions that do not relate to the issue of guilt or innocence. The study does not prove that juries are more likely than a judge to convict where the defendant takes the stand and is impeached, but, rather, supports the view that jurors are twice as likely to reach what the study assumes are outcomes that are not controlled by formal law or professional evaluation of evidence because of jury sentiments about the law and the defendant. Thus, Kalven Zeisel substantiate the view that where juries do not reach "correct" results, they are engaged in the historic function of jury equity, erring on the side of acquittal.

Nor does the Kalven Zeisel study support the majority's observation that it is "much easier" for a jury "to conclude that a person is bad than that he did something bad." Ante, p 568. The majority fails to observe that Kalven Zeisel do not suggest that the jurors' higher acquittal rate is because the defendant is innocent. The majority thus erroneously implies that because a jury finds guilt at a higher rate where prior records are introduced, the verdicts are less likely to be factually accurate. In fact, as noted, the Kalven Zeisel statistics assume the judge's evaluation as the standard of competence. Where judges and juries disagree (as they do less in cases of prior records) the disagreement describes not a factual inaccuracy suggesting conviction of innocent defendants, but a jury sentiment toward equity for a defendant despite factual accuracy and the rules of law.

Having noted the phenomenon and the direction of judge and jury disagreement, the focus of the study turns to identification of the source and cause of the disagreement. The majority opinion neglects one entire chapter of the study devoted to the credibility hypothesis (chapter 13, pp 168-181). This chapter explores and rejects the existence of a defendant's repudiated confession as a source of disagreement (p 174), it explores and rejects the effect of accomplice testimony as a source of disagreement (p 177), and it examines in detail the precise issue raised by the majority in this opinion, the "defendant-as-witness," ante, p 567, that is, the effect of the credibility of the defendant as a source of disagreement.

The study proves in table 56, p 179, that twenty-three percent of all disagreements in these trials are attributable to a defendant's taking the stand and testifying where either he had no record or his record had been suppressed. Specifically, in twenty-three percent of all cases of disagreement, the judge would have convicted, but the jury acquitted, where the defendant did not have a record or his record had been suppressed. Table 57, p 180, proves that the bulk of the effect of this defendant factor stems from the defendant having been charged with a serious crime. In other words, the more serious the crime, the more likely the jury is to disagree with the judge.

The jury's broad rule of thumb here, presumably, is that as a matter of human experience it is especially unlikely that a person with no prior record will commit a serious crime, and that this is relevant to evaluating his testimony when he denies his guilt on the stand. [ Id., p 179.]

Thus, assuming the factual accuracy of the trial judge's verdict, the credibility hypothesis suggests that jurors are likely to give disproportionate weight to an unblemished record to reach incorrect results. Id., p 180.

The study also focuses on the credibility issue in the evaluation of the "cross-over phenomenon" — cases in which the judge is more lenient than the jury. Id., p 375. The issue here is whether there are cases in which a jury convicts and a judge would acquit that are statistically traceable to the use of a record for impeachment. Assuming, as the majority does, ante, p 568, n 8, that the study's grouping produces data relevant to our debate, the study concluded that in a total of five cases out of 3,576 trials, a jury convicts where a judge would have acquitted either because a defendant testified and was impeached with a criminal record or did not testify at all (whether he had a record or not).

This study deals, of course, only with trials and not with all cases. However, if the Kalven Zeisel results are applied on the basis of current data of all cases at the adjudicative level, fifteen percent will result in a trial, see discussion, n 12.

In the world of Kalven Zeisel, there would be 23,840 defendants at the adjudicative level, of which 20,264 would admit guilt and plead guilty. Of the remaining 3,576 cases, even assuming all defendants chose a jury trial, in five cases, a defendant would be convicted by a jury who would have been acquitted by a judge (whether that result is attributable to the fact that the defendant testified and was impeached with a criminal record or did not testify).

Thus, the study proves that the risk of "erroneous" conviction by a jury due to use of a criminal record for impeachment (whether by use of a criminal record or by the defendant not taking the stand) is .0013982 or .13982 percent of the cases. Applied to all cases at the adjudicative level, the risk of erroneous conviction is .0002097 or .02097 percent of all cases. In fact, the study supports the conclusion that in roughly one out of a thousand trials, the jury may misuse the evidence.

The data cited by Kalven Zeisel not only refutes the majority's proposition that it is "likely" that misuse of the evidence leads to conviction of innocent defendants, but flatly contradicts it both ways. The study demonstrates that the risk of erroneous acquittal is greatest where a criminal record is suppressed and that the risk of erroneous conviction where a prior record is used is roughly one in a thousand cases.

Finally, one additional matter, also neglected by the majority, is the role of the trial judge, id., ch 32, p 411. As earlier noted, a trial judge must dismiss a case at the close of the prosecution's proofs if the prosecution has failed to carry its constitutional burden. The issue may be raised again at the close of the case prior to jury submission. After a jury renders a verdict, the issue of sufficiency of the evidence can be raised by motions for a new trial or for judgment notwithstanding the verdict.

Moreover, and most importantly, in this state, although not constitutionally required, the trial judge may grant a new trial even when the evidence is constitutionally sufficient to prove guilt beyond a reasonable doubt, Hampton, supra.

Thus, there is a last resort to prevent the unjust conviction of the innocent. Chapter 32 of the Kalven Zeisel study shows that of the cases in which the jury convicted and the judge would have acquitted, the judge respected the jury verdict in only forty-eight percent of the cases. The judge either set aside the verdict or gave a minimum penalty in over half the cases. In the forty-three cases involving serious crimes, the trial judge either set aside the verdict or gave a minimum penalty in sixty-one percent of the cases.

The study concludes its analysis of the cross-over phenomenon as follows:

In the end the institutional arrangement is impressive. It gives the jury autonomy to do equity on behalf of the criminal defendant. Where the jury's freedom leads to "illegally" harsh results, the judge is at hand, ready to erase them. [ Id., p 413.]

For purposes of examining the premises of the majority's new policy, the most significant observations in The American Jury can be summarized as follows: If there is a bias in the system by juries, it is massively toward acquittal; the bias leads to erroneous acquittals if the standard for "erroneous" is whether the trial judges' presumptive competence represents a valid judgment that the defendant's guilt has been factually established in accordance with law; the likelihood of "erroneous" acquittal is greatest where the defendant testifies and does not have a record or the record is suppressed; the risk of erroneous conviction by a jury is seventy-seven out of 3,576 trials, or 2.2 percent; in only five of these trials was the result traceable to impeachment with a criminal record (or the defendant's failure to testify); and the risk of error is offset by the trial judge's intervention at the postconviction stage in over half of the cases in which the jury presumably erroneously convicted.

It is not surprising that the majority has chosen to ignore these observations. The American Jury study does not support what the majority does today; indeed, it contradicts every assumption in which the majority indulges.

The fact is that there is no demonstrable evidence that juries resolve doubtful cases on the basis that the defendant is a "bad man" and should be punished, that juries lower the burden of proof even if a guilty verdict would be incorrect, that juries convict because of a belief that the defendant's convictions indicate that he is probably guilty of the crime charged, or that juries incorrectly convict where a defendant does not take the stand because of fear of impeachment. Thus, there is no basis other than the majority's preference for its own rules for the statements that there is an "overwhelming tendency for jurors . . . to misuse prior conviction evidence," ante, p 579, or that MRE 609 presents a "likelihood that innocent persons may be convicted." ( Ante, p 569.)

The majority uses decisionmaking theory to support its result while ignoring the only actual evidence of juror performance and federal law, as well as the law in the overwhelming number of sister states. That it has done so can only be understood as the measure of its determination to impose its values on the legal process.

The obvious risk in such an approach is the threat of a loss of faith in the system itself. Legal rules must appear to function both to advance factual accuracy and to reflect the normative values of society, not the values of the lawgivers themselves. Thus, to the extent that jury verdicts are attributable not to factual accuracy, due process requirements, or mercy dispensation, but to rules of law that do not reflect society's normative values, the jury process becomes more alien and more suspect to the citizenry.

Among the societal values the American legal system has consistently reflected is the value in a trial by one's peers and the value of a crime-free life. While the majority may assume that the experience of other jurisdictions with impeachment by prior convictions represents an absence of enlightenment, the fact that forty-six other jurisdictions have adopted rules of inclusion or trial-judge discretion may instead represent a collective understanding that the societal value of a crime-free life must be reflected in rules of law.

The rules of the system cannot be dictated by popular opinion. The vitality of the institution is, however, appropriately gauged by the community's judgment that the law is reflecting values that are not merely those of the decisionmakers. See, generally, Tribe, Trial by mathematics: Precision and ritual in the legal process, 84 Harv LR 1329, 1392-1393 (1971).

III

The majority classifies prior convictions into three categories: the automatically admissible, the automatically excluded, and those requiring an exercise of modified discretion by the trial court. Those offenses which would be automatically admissible are offenses involving dishonesty or false statement. Those offenses which are automatically excluded are all other offenses, except theft offenses which would fall in a mid-range balancing area. In my judgment, the majority has seriously erred in disallowing the trial-judge discretion to exclude the former or admit the latter.

In a given case, a crime involving dishonesty or false statement could be so unfairly prejudicial as to require exclusion from a sense of justice, despite probative bearing on veracity. Similarly, crimes other than theft could, in a given case, be more probative of veracity than prejudicial. Rule 609 as currently drafted recognizes that there are cases in which a trial court must, for the sake of justice, have the discretion to balance probativeness against prejudice. Without such discretion, the trial process will surely produce exceptions to the rules in order to admit or exclude evidence because the facts in a certain case seem to demand it. See, e.g., note, Prior conviction impeachment in the District of Columbia: What happened when the courts ran out of luck?, 35 Cath U L R 1157 (1986). The purpose of retaining any discretionary element is to avoid possible injustice under a given set of facts. To secure truth while screening prejudice, one should seek to broaden the scope of discretion and avoid the wooden strictures that a "bright-line" test creates.

When the Michigan Rules of Evidence were adopted, the question of a trial judge's discretion in relation to impeachment by prior convictions was clearly presented and considered. MRE 609(a), as originally proposed, and as ultimately adopted, included a protection for criminal defendants that was not part of FRE 609(a) : Under MRE 609(a), prior convictions of crimes involving dishonesty or false statement were not automatically admissible. Instead, the trial judge was entrusted with the discretion to exclude even these convictions when prejudice outweighed the probative value. As adopted by this Court, the balancing approach was applied not just to criminal defendants, but to all witnesses in civil and criminal cases faced with impeachment with prior crimes involving dishonesty or false statement. Wade Strom, Michigan Courtroom Evidence, R 609, p 234.

Requiring the exercise of discretion before admitting either felonies or crimes of theft, dishonesty or false statement, has been described as an improvement over the Federal Rules by the Chairman of this Court's Committee on Rules of Evidence, James K. Robinson, because of the trial judge's control over unfair prejudice:

For example, MRE 609 . . . solved several drafting problems of the counterpart federal rule and authorized the trial judge to exercise more control over unfairly prejudicial prior convictions offered for impeachment. [Robinson, Current issues in Michigan evidence law, 61 Mich B J 330, 333 (1982).]

This very innovation over FRE 609(a) is swept away by the proposed "bright line" rule requiring automatic admission, regardless of the amount of prejudice, of crimes involving dishonesty or false statement.

IV

The concerns discussed above are the tip of the iceberg.

Although the newly adopted "bright line" rule will be solely prospective in operation, the majority applies the "clarified" balancing test to the "cases at hand" on the ground that the balancing test does not represent a "clear break" in our jurisprudence. The Court thus creates a rule of general application in a field of law which results in the greatest percentage of appeals and which could affect virtually every trial begun in the years these cases have been pending and not concluded on direct appeal. The introduction of the low probative/presumptive exclusion analysis which is the heart of both the "bright line" and "non-bright line" tests is a substitute for the abuse of discretion standard which the trial judges of this state have relied upon in hundreds and perhaps thousands of cases.

Moreover, the new "vintage" analysis is a heretofore unknown MRE 609 consideration. It simply cannot fairly be said that today's decision is simply a clarification of MRE 609. This fact demonstrates that the decision should be given purely prospective effect. This fact also demonstrates that the "modification" of Rule 609 should have been accomplished through the rulemaking process, making application wholly prospective. When the Court creates a rule, all courts of this state, including this Court, are bound by it. To pronounce this "clarification" of Rule 609 by case decision is, in fact, to retroactively amend a rule which bound us, no less than the Court of Appeals and trial court. The result is that cases that were unquestionably correctly decided under the rule the lower courts were duty-bound to follow now contain error. If the lower courts cannot rely on this Court to uphold them when they comply with our rules, the process of rulemaking is undermined. If the purpose of the rule is to encourage defendants to take the stand, that purpose can be effected without retroactive application. The reliance by the trial judiciary on Rule 609 is clear, as is the burden on the administration of justice of judicial reexamination of all nonfinal cases in which the impeachment issue has been raised, People v Nixon, 421 Mich. 79; 364 N.W.2d 593 (1984).

Prospective application would have been accomplished through the rulemaking procedure. An honest appraisal of the effect of applying the "clarified" balancing test would dictate prospective application. The cost to society due to reversed convictions and the concomitant strain on victims, witnesses, and public resources occasioned by retrials would be avoided, and the bench and bar would be allowed an opportunity to accommodate the change in procedure.

V

In resolving the appeals in the instant cases, I agree with Chief Justice RILEY'S holding that we should address the issue whether this Court should adopt the rule in Luce v United States, 469 U.S. 38; 105 S Ct 460; 83 L Ed 2d 443 (1984), and hold that, "to preserve a claim of error as to the admission of evidence of a prior conviction for impeachment purposes, a defendant must testify," ante, p 637. I also agree that MRE 609(a) is the appropriate test governing the admissibility of prior convictions for impeaching a witness' credibility.

A. PEOPLE v GRAY

I agree with Chief Justice RILEY'S reasoning and result with regard to Gray. The trial judge did not abuse her discretion in allowing impeachment with the defendant's prior convictions for carrying a concealed weapon and possession of heroin. While the facial relation of these offenses to credibility is not as great as others, the value of the evidence was great. As the Chief Justice states, "the value of such evidence to the truth-seeking process was critical because the trial had boiled down to a swearing contest between two opposing witnesses." Ante, pp 641-642.

B. PEOPLE v ALLEN

I also agree with Chief Justice RILEY'S reasoning and result in Allen. In Allen, as in Gray, the question of guilt or innocence rested upon the credibility of the complainant and the defendant. The sexual act was admitted by the defendant — the question was whether the act was consensual. This is the epitome of the one-to-one swearing contest in which credibility of the witnesses is crucial. I would affirm the decision of the Court of Appeals.

C. PEOPLE v SMITH

I concur with Chief Justice RILEY'S determination that the trial court erred in failing to state the factors it considered in admitting the defendant's prior conviction of manslaughter for impeachment, and I agree that the error was harmless. However, because the error is a nonconstitutional evidentiary error, I believe that the proper standard for determining whether error which requires reversal occurred is "whether the defendant was unfairly prejudiced by the evidence." People v Allen, 424 Mich. 109, 110; 378 N.W.2d 481 (1985). In light of the otherwise overwhelming evidence of the defendant's guilt, there was no unfair prejudice to the defendant. I concur in Chief Justice RILEY'S resolution of the remaining issues. Thus, I also would affirm the decision of the Court of Appeals.

D. PEOPLE v PEDRIN

In this case, the defendant, charged with breaking and entering with intent to commit larceny, was impeached with evidence of a prior conviction of breaking and entering with intent to commit larceny. The trial judge decided that the probative value of the prior conviction outweighed its prejudicial effect. Because I see no abuse of the trial court's discretion, I would affirm the conviction.

The prior offense included the intent to commit larceny, a theft offense. As the trial judge noted, the prior offense involved dishonesty. While the prejudicial effect of impeachment with a conviction of the same prior offense is appreciable, the balance is, in the first instance, properly placed in the hands of the trial judge. This Court, when it adopted MRE 609(a) in 1978, acknowledged the probativeness of theft offenses by adding theft offenses to those misdemeanors which can be used for impeachment under the rule. The trial judge acknowledged the prejudicial effect, and balanced prejudice and probative value, noting that the defendant's credibility upon testifying would be a very important issue because his proposed testimony presented a story with no other corroboration or support. Thus, the need for the testimony was heightened. Under these circumstances, I see no abuse of discretion.

E. PEOPLE v BROOKS

While I am not convinced that the impeachment in this case was error, I agree that any error was harmless. Therefore, I would affirm the conviction in this case.

CONCLUSION

The "bright-line" rule of automatic admission and exclusion of certain prior convictions, combined with the drastically circumscribed discretion allowed trial judges in relation to remaining offenses, will not serve the fair administration of justice in this state.

RILEY, C.J., concurred with BOYLE, J.

GRIFFIN, J., took no part in the decision of these cases.

APPENDIX A

Percentage Not Percent Overall Guilty of Guilty Guilty Guilty Guilty Guilty Year Pleas Pleas at Trial at Trial at Trial Percent ---------------------------------------------------------------------------- 1969 5522 84% 820 195 81% 97%

1970 6899 86% 773 342 69% 96%

1971 8144 90% 590 340 63% 96%

1972 7955 90% 489 393 55% 96%

1973 6432 86% 537 492 52% 93%

1974 6723 88% 505 446 53% 94%

1975 5907 83% 759 468 62% 93%

1976 5894 88% 488 314 61% 95%

1977 8970 83% 911 908 50% 92%

1978 5833 81% 810 544 60% 92%

TOTAL

68,279 86% 6,682 4,442 60% 94%

APPENDIX B

TABLE 52

Jury Acquittal Rate and Strength of Evidence

(Per cent jury acquittals of all verdicts in each cell)

Balance of Contradictions | | Pro-defendant | Neutral | Pro-prosecution Strength of No | | No | | No | Prosecution's Record/ | Record/ | Record/ | Record/ | Record/ | Record/ Case Stand | No Stand | Stand | No Stand | Stand | No Stand --------|----------|---------|----------|----------|--------- Normal 65 | 38 | 49 | 30 | 26 | 28 --------|----------|---------|----------|----------|--------- Strong 45 | 44 | 40 | 21 | 18 | 9 --------|----------|---------|----------|----------|--------- Very strong 31 | 13 | 30 | 17 | 21 | 12 (confession) | | | | | ===================|====================|==================== Average 44 | 35 | 20 Total No Record/Stand Total Record/No Stand 42 25

Strength of || Prosecution's || Case || Average ||--------- Normal || 40 ||--------- Strong || 30 ||--------- Very strong || 21 (confession) || ||--------- Average || 33

Judge Acquittal Rate and Strength of the Evidence

(Per cent Judge Acquittals of all Verdicts in each Cell)

Balance of Contradictions

Strength of Prosecution Pro-defendant | Neutral | Pro-prosecution Case No Record | Record | No Record | Record | No Record | Record ----------|--------|-----------|--------|-----------|------- Normal 29 | 37 | 31 | 22 | 6 | 6 ----------|--------|-----------|--------|-----------|------- Strong 19 | 28 | 20 | 11 | 4 | 5 ----------|--------|-----------|--------|-----------|------- Very 13 | 0 | 10 | 3 | 3 | 0 strong | | | | | ===================|====================|=================== Average 25 | 19 | 4 No Record Record Total 21 14

Strength of Prosecution || Average Case || ||========== Normal || 24 ||---------- Strong || 15 ||---------- Very || 5 strong || ||---------- Average || 17

See Kalven Zeisel, supra, pp 160, 162.