Concurring in result only:
I concur with the majority in result only because I disagree with the majority’s interpretation of Kentucky Rules of Evidence (KRE) 608(b) and 609. But because application of KRE 608(b) and 609 to this case violates Allen’s due process right to present a defense, I concur in the majority’s result — remanding the case for a new trial.
Respectfully, I disagree with that portion of the majority’s opinion in effect amending KRE 608 and 609. I would read the rules consistent with this Court’s recent opinion in Childers v. Commonwealth.18 KRE 609 exclusively regulates witness impeachment relating to a prior conviction, and KRE 608(b) deals exclusively with impeachment using conduct related to truthfulness that did not lead to a criminal conviction.
While I share the majority’s frustration with those rules, they were deliberately chosen; and if they are to be amended, the amendments should be the product of the full rule-amending process. As cumbersome and as time-consuming as that process can be, its allowance for the airing of complexities and divergent points of view is nowhere more necessary than with respect to the rules governing the impeachment of witnesses with criminal convictions and prior bad acts. A brief consideration of how we arrived at our current rules will, I hope, make this clear.
To begin, it is helpful to note that in evidence-rules parlance, Kentucky is what is known as a “mere-fact” state. Under our KRE 609, that is, a witness may be impeached with the “mere fact” of a prior felony conviction, without the felony being identified, without mention of the witness’s sentence, and without any evidence, of the conduct that gave rise to the conviction. Of the states that have addressed the issue, it appears that a substantial majority permit, in some circumstances at least, this sort of “mere-fact” impeachment.19
*472But our rule goes beyond merely permitting such prior-conviction impeachment. With respect to criminal convictions, our rule expressly disallows impeachment in any other manner: “The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction.”20 This strict mere-fact approach is a substantial departure from Federal Rules of Evidence (FRE) 609, which permits the cross-examiner to identify the nature of the underlying crime, the date of the conviction, and the range of punishment.21 And it places us, apparently, in a small minority of strict mere-fact states.22 Our rule, indeed, appears to be the only one in the country that expressly disallows any identification of the underlying crime.23
Three Kentucky cases provided the principal stepping stones to KRE 609. The first was Cowan v. Commonwealth,24 Writing for our predecessor court in that case, Chief Justice Palmore criticized, as “unnecessary and ... unfair,” the then existing practice of impeaching witnesses, including testifying defendants, with any fact reflected in the record of a prior conviction.25 It was the court’s opinion, rather,
that the original purpose of the impeachment statute (now CR 43.07) in referring to proof by the record was to provide against instance in which the witness might deny that he had been convicted of felony. When he admits it, there is no reason to prove the record of conviction and, perforce, no reason for such further details as may otherwise have been disclosed by it. Henceforth[,] the rule will be so construed. A witness may be asked if he has been convicted of a felony. If he says “Yes,” that must be the end of it, with the usual admonition. If he says “No,” refutation by the record will be limited to one previous conviction, again with the admonition.26
Four years later, the court returned to the issue of witness impeachment and, while acknowledging the concerns about undue prejudice expressed in Cowan, opined nevertheless that “it is proper to impeach a witness, even one who may be an accused defendant who chooses to be a witness for himself, by proof of background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses.”27 Accordingly, the court “modified” (a polite term for “reversed” in this instance) the Cowan mere-fact approach by limiting pri- or-conviction impeachment to felonies of dishonesty, such as perjury, forgery, counterfeiting, passing bad checks, theft, and stealing, among others; but with respect to those convictions, allowing the cross-*473examiner, subject to the discretion of the trial court, to introduce the nature of the underlying crime and background facts “relevant to the issue of credibility.” 28
Following Cotton, the Court took the third step toward KRE 609 in Commonwealth v. Richardson.29 The defendant in Richardson was charged with burglary; and when he testified at trial, the Commonwealth was permitted to impeach him with the fact that he had previously been convicted of another burglary. Although proper under Cotton, this impeachment of Richardson seemed to the Court so unduly prejudicial as to invalidate the balance the Cotton court had attempted to strike between the rights of defendants and of society in the trial of criminal cases. The Court, therefore, overruled Cotton and returned to the strict mere-fact approach of Cowan:
In future cases, the [impeachment] rule will be construed essentially as in Co-wan, swpra, so that a witness may be asked if he has been previously convicted of a felony. If his answer is “Yes,” that is the end of it[;] and the court shall thereupon admonish the jury that the admission by the witness of his prior conviction of a felony may be considered only as it affects his credibility as a witness, if it does so. If the witness answers “No” to this question, he may then be impeached by the Commonwealth by the use of all prior convie-tions[;] and to the extent that Cowan limits such evidence to one prior conviction, it is overruled. After impeachment, the proper admonition shall be given by the court.... Identification of the prior offense or offenses, before the jury, by either the prosecution or defense, is prohibited!;] and any language to the contrary in Cotton, supra, and its progeny is specifically overruled.30
Richardson was decided in 1984. Six years later, its strict mere-fact approach to prior-conviction impeachment was codified in the new KRE 609, including expressly its disallowance of any “identification of the prior offense.”
Today, the pendulum swings back toward Cotton. For reasons much like the ones offered in Cotton, the Court now “construes” KRE 608 and 609 to allow a cross-examiner to ask a previously convicted witness about the facts underlying the prior conviction, provided those facts are deemed relevant to the witness’s credibility. This is simply Cotton with the caveat that the questioner must now choose between asking whether the witness was convicted and asking what he did. Under the Court’s new rule, the jury may now hear that the witness has engaged in felonious conduct — even conduct like that of which he is accused — without hearing that he has been punished for it. The risk of prejudice in that scenario is arguably even greater than that posed by the Cotton approach without the caveat. For witnesses with multiple prior felony convictions, moreover, the difference between the Court’s new rule and Cotton would seem to be negligible, as presumably the witness could be asked about the fact of conviction A and about the facts underlying conviction B.
Even if I were not convinced that the Court’s new rule is simply the resurrection of an approach to impeachment, the rejection of which is expressly embodied in KRE 609, I could not go along with it because as I read our rules, KRE 608 does not contemplate or allow for the right of *474“election” the majority reads into it. KRE 608 is modeled upon and follows closely FRE 608, which admittedly is hardly a model of clarity. I agree, however, with those federal courts that understand the express provision within rule 608(b) limiting its application to instances of conduct “other than conviction of crime as provided in rule 609,” as assigning to rule 609 the exclusive regulation of witness impeachment where the impeachment relates to a prior conviction.31 Were it otherwise, as the United States Court of Appeals for the Ninth Circuit observed in Osazuwa, then the backdoor of rule 608 would render nugatory the limitations imposed by rule 609.32 Such a backdoor reading does not harmonize the two rules; it makes them conflict. In as much as our rule 609 is even more restrictive than the federal one, undoing the restrictions with rule 608 is, in our case, even farther from the drafters’ intent. So far, indeed, is the majority’s new rule from Richardson and its embodiment in KRE 609 that it must be understood, not as a construction of the rules but as an amendment of them; and I do not favor amendment in this manner.
All of that said, I hasten to add that I share, fully, the majority’s willingness to revisit our strict mere-fact approach to witness impeachment. As today’s case illustrates, whatever may be the virtues of simplicity, the failure of our KRE 609 to make any distinction between testifying defendants and non-defendant witnesses; to make any distinction between crimes of dishonesty and other crimes; to address expressly misdemeanor convictions; or to indicate clearly how the two rules, KRE 608 and KRE 609, are to work together can have the ironic effect of significantly hampering the very defendant the rule’s strict simplicity was designed to protect. This is a problem, and there is no easy solution. The interests involved crisscross in complicated ways, as the contentious history of the federal rules, the wide diversity of state approaches, and our own seesawing back and forth between Cowan and Cotton would suggest. While caution is appropriate in the face of such complexity, KRE 609 has not been amended for over twenty years. I agree with the Court that a reassessment of our practice is in order; but I firmly believe that it should be carried out with the benefit of the full rule-making process, not by straining current rules beyond their intent.
While I disagree with the majority that Allen should have been allowed to ask about Weaver’s criminal acts on cross-examination under KRE 608(b) and 609, I would hold that Allen’s due-process right to present a defense should trump the rules in this particular case. So I concur in the majority’s result remanding the case for retrial.
The analysis does not stop with the conclusion that the evidence rules prevent the introduction of a particular piece of evidence, which the defendant claims is essential to her defense. When the rules of evidence exclude evidence, the question becomes whether the evidence excluded “amounts to either an arbitrary or a dis*475proportionate application” of the rules.33 “[I]n several cases[,] the United States Supreme Court has held that a defendant’s constitutional right to present a meaningful defense trumped an evidentiary rule.”34 Although case law does not refer to it as such, this inquiry is essentially an as-applied constitutional challenge to the rules of evidence: does application of the rules of evidence in this particular case result in an unfair trial.
This Court recently explained the appropriate analysis in McPherson v. Commonwealth35 and Montgomery v. Commonwealth.36
[T]he United States Supreme Court has made clear that evidence rules are not to be applied so as to deprive a defendant of due process[;] and in a criminal trial[,] “ ‘due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.’ ” “An exclusion of evidence will almost invariably be declared unconstitutional,” we have observed, “when it ‘significantly undermine[s] fundamental elements of the defendant’s defense.’ ”... [T]he Supreme Court has held, the defendant’s interest in the challenged evidence must be weighed against the interest the evi-dentiary rule is meant to serve, and only if application of the rule would be arbitrary in the particular case or disproportionate to the state’s legitimate interest must the rule bow to the defendant’s right.37
The Supreme Court has established a balancing test to evaluate, on a case-by-case basis, constitutional challenges to the exclusion of evidence.38 “Under that test, courts must determine whether the rule relied upon for the exclusion of evidence is arbitrary or disproportionate to the State’s legitimate interests.39
An evidentiary exclusion is not arbitrary if it meaningfully furthers a valid purpose the rule was meant to serve. In determining whether the exclusion is disproportionate, courts have weighed “the importance of the evidence to an effective defense, [and] the scope of the ban involved” against any prejudicial effects the rule was designed to guard against. Exclusions have been found invalid where the probative value of the excluded evidence was substantial, and where the trial court failed to consider its probative value, but they have been upheld where the probative value of the excluded evidence was deemed slight[.]40
I would hold here that Allen’s due process right to present a defense trumps the application of KRE 608(b) and 609. Weaver, the prosecution’s key witness, pleaded guilty to twenty-five felony counts of first-degree criminal possession of a forged instrument and two misdemeanor counts of giving a false name to a peace officer. Allen sought to inquire about the specific conduct underlying the convictions. Namely, that Weaver was found with counterfeit money in his car and gave a false name to the arresting officer twice.
*476Allen’s entire defense was that Weaver forged her name on the loan documents. The conduct underlying Weaver’s prior convictions lies at the heart of this defense. Allen’s intent in introducing this evidence goes beyond a general attempt to discredit Weaver as being less likely to be truthful in his testimony because of his misdemean- or convictions. The introduction of evidence of a prior crime for this purpose is “a general attack on the credibility of the witness.”41 In the general situation, the right to present a defense would not typically abrogate the Rules of Evidence. But, here, the conduct underlying the conviction — counterfeiting and lying to the police — supported Allen’s defense that Weaver forged her name on the loan documents and lied to the police about it.
As stated by the majority in its conclusion that exclusion of the evidence was not harmless, Allen’s primary defense was that Weaver forged her signature on the loan documents and lied about her involvement. The proof Allen sought to introduce went to the core of her defense and would have impeached the character and credibility of the Commonwealth’s star witness. Weaver’s credibility, or lack thereof, was Allen’s only defense. In this case, the probative value of the excluded evidence outweighs the prejudicial effects the rule was designed to guard against.
So while I disagree with the majority’s reading of KRE 608(b) and 609, I would hold that Allen’s due process right to present a defense trumps the rules in this particular case. Accordingly, I concur in the majority’s result remanding Allen’s case for a new trial.
ABRAMSON, J., joins.
. 332 S.W.3d 64 (Ky.2010).
. State v. Hill, 801 N.W.2d 646 (Minn.2011) (collecting cases but noting six states that do *472not allow "mere-fact" impeachment under any circumstances).
. KRE 609(a).
. United States v. Osazuwa, 564 F.3d 1169 (9th Cir.2009).
. Hill, 801 N.W.2d at 652 (identifying Kentucky, Nebraska, Wisconsin, and Virginia as the only states to limit prior-conviction impeachment to the "mere fact” of the conviction only).
. Westlaw searches, at any rate, for language along the lines of "the identity of the crime upon which conviction was based may not be disclosed” return no rule but ours.
. 407 S.W.2d 695 (Ky.1966).
. Id. at 698.
. Id.
. Cotton v. Commonwealth, 454 S.W.2d 698, 701 (Ky.1970).
. Id. at 702.
. 674 S.W.2d 515 (K.y.1984).
.Id. at 517-18.
. Childers, 332 S.W.3d 64 (collecting federal cases). As the Court correctly observes, our rule 609, by disallowing impeachment with misdemeanor convictions, including misdemeanor convictions for crimes of dishonesty, creates an anomaly that the federal rules do not. Under our rules, a convicted misde-meanant cannot be impeached, whereas a witness guilty of the same dishonest behavior but not convicted of a crime may be asked about that behavior under rule 608. Were the Court content to restrict its holding to this misdemeanor anomaly, I would be far less inclined to object.
. 564 F.3d at 1173-75.
. McPherson v. Commonwealth, 360 S.W.3d 207, 215 (Ky.2012).
. Montgomery v. Commonwealth, 320 S.W.3d 28, 40 (Ky.2010) (citations omitted).
. 360 S.W.3d 207.
. 320 S.W.3d 28.
. McPherson, 360 S.W.3d at 214 (citations omitted).
. Montgomery, 320 S.W.3d at 42.
. Id. (citations and internal quotations omitted).
. Id. (citations omitted).
. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).