(dissenting) — I dissent. In doing so, I note first that the decision that the majority reaches appears to be inconsistent with a prior decision of this court. The case that I refer to is State v. Hill, 83 Wn.2d 558, 520 P.2d 618 (1974).
Hill is markedly similar in fact and law to the instant. There the trial judge had ruled that two prior convictions could be used to impeach the credibility of the defendant if he chose to testify, even though those convictions were inadmissible. The defendant did not testify, choosing not to risk the “potentially devastating effect” of these convictions upon “his prospective cross-examination.” Hill, 83 Wn.2d at 563. As a result, we found that the defendant was “deprived . . . of a free and voluntary choice in the matter and literally compelled ... to remain silent.” Hill, 83 Wn.2d at 565. Here, the defendant, West, was also faced with the prospect of being impeached by inadmissible convictions, and but for his attorney’s ineffective counsel he would have been free to testify absent that threat.4 In *49Hill, we did not, as was done by the Court of Appeals in the present case, remand to the trial court for it to examine the error under a harmless error standard, and assess whether the defendant’s testimony would have been believable and reasonably led to a different verdict than a guilty one. We wrote that “[i]t is no answer to say that the procedure followed in the trial court was inadequate and the record insufficient to show prejudice.” Hill, 83 Wn.2d at 565. Instead, we readily conceded that the defendant’s testimony “may or may not have influenced the jury in arriving at a verdict.” Hill, 83 Wn.2d at 565 (emphasis added).
In Hill, we described the right to testify as follows:
In our state, the framers of our constitution seemingly were not content to leave the preservation of the right to testify in one’s own behalf up to the legislature, for, after providing in article 1, section 9, that an accused could not be compelled to give evidence against himself, they went on in article 1, section 22 — now amendment 10 — and provided:
In criminal prosecutions the accused shall have the right ... to testify in his own behalf, . . .
Hill, 83 Wn.2d at 564. We went on to add that “[t]he right to testify in one’s own behalf if exercised, of course, amounts to a waiver of the right to remain silent, and the free and voluntary election so to do, or not to do, should be unfettered and unhindered by any form of compulsion.” Hill, 83 Wn.2d at 564 (emphasis added).
*50I am aware that the majority recently limited the application of Hill to cases where the trial court prevents the defendant from testifying: “Hill is distinguishable because it involved wrongful actions by a court that resulted in a deprivation of the defendant’s right to testify. In contrast to the defendant in Hill, Robinson’s right to testify was abridged, not by the court, but by actions of his defense counsel.” State v. Robinson, 138 Wn.2d 753, 767-68, 982 P.2d 590 (1999). While I continue to believe that Robinson was wrongly decided, I must respect it as precedent.
Unfortunately, having eliminated the factually-similar Hill from consideration, the majority is left with inapposite cases to support its position. It cites a number of cases wherein a witness recanted testimony given at trial for the proposition that trial judges are allowed to assess the credibility of a defendant’s testimony that was never given. See Majority op. at 43. However, “[rjecantation testimony is inherently questionable.” State v. Macon, 128 Wn.2d 784, 801, 911 P.2d 1004 (1996). We have noted that “[t]he untrustworthy character of recanting testimony is well known by those experienced in the trial of criminal cases, and when such testimony is offered, it calls for rigid scrutiny.” State v. Wynn, 178 Wash. 287, 289, 34 P.2d 900 (1934). These cases involved defendants who were “convicted solely upon the testimony of a witness who later recants,” and under such circumstances one could hardly disagree that “the trial court must first determine whether the recantation is reliable before considering a defendant’s motion for new trial based upon the recantation.” Macon, 128 Wn.2d at 804. That is not the same as the defendant’s constitutional right to testify being thwarted. West never had a chance to tell his story, let alone recant it. It is difficult to understand how the majority is able to accord a venerated constitutional right the same status as peijury.
The basis for the trial judge’s ability to assess the reliability of a recantation has been summarized as follows:
The trial judge is in a peculiarly advantageous position, under the prevailing circumstances, to pass upon the showing *51made for a new trial. He has the benefit of observing the witnesses at the time of the trial, is able to appraise the variable weight to be given to their subsequent affidavits, and can often discern and assay the incidents, the influences, and the motives, that prompted the recantation. He is, therefore, best qualified to determine what credence or consideration should be given to the retraction, and his opinion is accordingly entitled to great weight. If the rule were otherwise, the right of new trial would depend on the vagaries and vacillations of witnesses.
Wynn, 178 Wash. at 288-89. Here we have no “vagaries or vacillations” from West concerning his trial testimony because we simply have no testimony. However, let us assume for argument’s sake that one could accept the highly strained analogy between a witness’s recanted testimony and the frustration of a defendant’s constitutional right to testify. If that were so, it would necessarily follow from Wynn that it was only the judge who presided at the trial, as was not the case here, who could properly make the posttrial assessment of the impact of West’s proferred testimony. Wynn, 178 Wash. at 288-89; see also State v. Barry, 25 Wn. App. 751, 758-59, 611 P.2d 1262 (1980) (“In passing upon the question of whether newly discovered evidence will probably result in a different outcome upon retrial, the trial court .... may utilize the knowledge that it gained from presiding at the trial . . . .”) (emphasis added; citations omitted) (citing United States v. Curry, 497 F.2d 99 (5th Cir. (1974)). Thus the majority even violates its own inapplicable rule.
After citing its inapposite recantation cases, the majority relies upon two decisions of the Court of Appeals wherein one factually similar event did arise: an ineffective assistance of counsel claim was made. See Majority op. at 43-44 (citing State v. Maurice, 79 Wn. App. 544, 903 P.2d 514 (1995); Dorsey v. King County, 51 Wn. App. 664, 754 P.2d 1255 (1988)). However, these cases, too, are distinguishable. As was true with the recantation cases, these cases involved the testimony of third parties. In Dorsey and Mau*52rice, the question was whether defense counsel should have introduced testimony from witnesses not heard from at trial, witnesses whom the defendants argued would have provided exculpatory testimony if they had testified. The Court of Appeals in both cases found that defense counsel’s performance was deficient in not introducing this testimony, but found no prejudice in this failure — remanding, in the case of Maurice, to the trial court for a determination of whether prejudice resulted. See Maurice, 79 Wn. App. at 552. Again, however, this is a different matter entirely from the defendant himself being unable to exercise his constitutional right to testify.
I am uncomfortable with relegating the deprivation of a constitutional right so fundamental as the right of a criminal defendant to testify in his or her own defense to the realm of harmless error, although I understand that this is the rule that follows from Robinson. I am even more uncomfortable with allowing a judge uninvolved with the trial itself to assess the “believability” of the testimony that the defendant might have given there had he or she been free to testify. Perhaps it is old-fashioned, but I believe that the constitution demands that a criminal defendant’s credibility is a matter better left to the unanimous, contemporaneous assessment of twelve jurors than to the retrospective guesswork of a single judge acting “as a thirteenth juror.” State v. Williams, 96 Wn.2d 215, 227, 634 P.2d 868. Because precedent does not support this practice that the majority approves, I dissent.
Johnson, Madsen, and Sanders, JJ., concur with Alexander, J.
The prior convictions in Hill, unlike those of West, had been reversed and were thus “voided and stood for naught.” Hill, 83 Wn.2d at 561. “To permit their *49use for impeachment purposes had the defendant taken the stand in his own defense would clearly have been prejudicial error.” Hill, 83 Wn.2d at 561. However, this fact certainly does not make Hill distinguishable. Also unmentioned by the majority is the fact that Judge Roper, upon remand, did rule that West’s convictions were inadmissible. He found that the most recent of these convictions was in 1968, and that West’s past second degree murder conviction “was too old and too prejudicial, and bore too little relation to the Defendant’s propensity to tell the truth.” Clerk’s Papers (CP) at 24 (citing State v. Alexis, 95 Wn.2d 15, 621 P.2d 1269 (1980)). Similarly, West’s other convictions “would be inadmissible for impeachment purposes” due to both the “nature of the crimes and the staleness of same.” CP at 24-25 (citing State v. Jones, 101 Wn.2d 113, 677 P.2d 131 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988); Alexis, 95 Wn.2d 15; ER 609). What these two cases have in common is the chilling effect upon the defendant’s decision to testify that the introduction of such evidence might have had.