(concurring). I concur in the result reached in the majority opinion of the Court. However, I feel obliged to disagree with the portion thereof which discusses the propriety of the question put by the prosecutor to an important defense witness as to whether he had ever been convicted of crime. As the opinion notes, when the witness gave á negative answer the prosecutor acknowledged that he made the inquiry without any proof in his possession or any knowledge that the witness ever had been convicted of crime. This *282admission was followed by defendant’s motion for a mistrial which the trial court denied. That denial is being sustained by our Court because the trial, court immediately and explicitly told the jury the question should not have been asked and that no adverse inference was to be drawn from it. The instruction, it is said, adequately neutralized any impropriety on the prosecutor’s part. Under the circumstances of this case, I agree that the record presented to us does not show sufficient prejudice to warrant a reversal of the conviction.
The difficulty I have with the opinion is that it does not unqualifiedly declare that the question put by the prosecutor is improper and should not be asked on cross-examination of a party or a witness unless the interrogator has evidence available to show a conviction of crime, if such a conviction is denied. My colleagues hold that the question is not improper in the sense that an objection thereto must be sustained, if the prosecutor “has had no fair opportunity to look into the matter and in good faith believes that the witness may have a criminal record.” The only exception noted is that the question may not be asked if the prosecutor in fact' “has knowledge that no such convictions exist.”
Overall the view expounded in the opinion is that if the witness denies that he'has ever been convicted of crime and the questioner has no proof to the contrary, no harm is done so long as the trial judge gives the jury a neutralizing instruction. The suggestion is that it is harmless to ask a witness blandly” if he has been convicted of crime and that he is not stigmatized in the eyes of the jury if his answer is in the negative. But can anyone tell from a cold record on appeal whether the question was put “blandly”? The question can be put with the thunder of Thor, or with seductive Circean charm, or with the insidiousness of a lago, and its words will look the same on paper.
If, on the other hand, the answer to the question is in the affirmative, my colleagues infer that the end justified the means. If, as the Court says, the witness suffers no stigma *283when his answer is in the negative, it follows from his “yes” answer that an immediate stigma is visited upon him. And therein lies the trouble and the danger of unjust prejudice. If the examiner does not pursue the matter further, as probably would be the case, ordinarily his adversary could not afford to remain silent on redirect examination, if he had no knowledge of any criminal conviction. Certainly, if he knew that any so-called conviction was for some petty or disorderly person offense, or traffic offense or the like, or even a juvenile delinquency adjudication, he would feel obliged to engage in further questioning to explain the admission of the witness that he had been convicted of crime. Even after it has been shown laboriously that the witness’s conviction or convictions were disorderly person or petty offenses, which have no place in a fair trial, and which a juror or jurors may not regard as petty, I have serious doubt that a neutralizing instruction by the trial judge can undo the damage.
We know that most laymen are not aware of which infractions are crimes and which are disorderly person offenses or even more trivial aberrations from lawful conduct. Our experiences, either as trial or appellate judges, have shown us that frequently witnesses admit to criminal convictions when the infractions are not crimes. That is unfortunate and inconsistent with the true administration of criminal justice. Moreover, except in rare circumstances, the situation is avoidable. In these days of modern investigatory and discovery techniques, both the prosecutor and defense counsel are generally aware in advance of the trial of the names and addresses of persons who may appear as witnesses, and have the opportunity, particularly the prosecutor, of ascertaining if any of them have criminal records. See e. g. R. 3:13-3(c), (d) and (i); 3:11-1. In my judgment, the danger of prejudice and discredit arising from such admissions so far outweighs any procedural privilege on the part of either the prosecutor or defense counsel to engage in speculative and baseless questioning about possible conviction of crime, that *284the inquiry should be prohibited. Cf. New Jersey Rules of Evidence, Rule 4.
The applicable statute authorizing proof of conviction of crime to affect the credibility of the defendant or a witness specifies that it may be done by examination or by production of the record of the conviction. N. J. S. A. 2A:81-12. It seems to me that the serious damage to the credibility of a witness which so frequently follows in the wake of proof of previous conviction of crime requires that the enactment be strictly construed and applied, and that the courts should take pains to see that it is not misused, consciously or unconsciously. On that basis, fairness in application thereof requires the assumption that when the Legislature spoke of proving the conviction by examination or production of the record it contemplated that the matter would not be inquired into unless the questioner had proof that such a conviction actually existed. In other words, the implication to be drawn from the whole statute is that the intention was to require the questioner to be prepared to prove the conviction by competent evidence, if the witness denied a conviction, and that the inquiry should not be made unless such proof was at hand. Existence of good faith in asking the question about previous conviction of crime should be tested by a single criterion: Was there a conviction of that nature, and was the examiner prepared to prove it when he asked the question. See People v. Perez, 58 Cal. 2d 229, 23 Cal. Rptr. 569, 373 P. 2d 617 (1962).
The Supreme Court of California in People v. Perez dealt with the issue now facing us. There the prosecutor asked a defense witness on cross-examination: “Have you been convicted of a felony?” The witness answered in the negative, whereupon defense counsel moved for a mistrial and to cite the prosecutor for misconduct “if he has no proof of a felony.” The trial judge denied the motion, suggested that the question had been put in good faith and that “I don’t see how you can prejudge his question at this time.” The appellate court in commenting on this state*285ment said: “The latter remark correctly indicated that the determination concerning the requisite good faith on the part of the interrogator may not be made until it is known whether the questioner possesses proof of the prior felony conviction about which inquiry was made of the witness.” 23 Cal. Rptr. at 574, 373 P. 2d at 622, n. 2.1 At any rate, the prosecutor did not at any time during the trial offer proof of a prior felony conviction against the witness. The Supreme Court declared that in the absence of an intention to prove and evidence to prove the conviction, the question was improper. The view expressed there, and in the substantial number of concordant cases cited in the opinion, in my judgment is sound and necessary to the fair administration of the criminal law.
Por the reasons set forth, interrogation of the defendant or witnesses for either party as to previous conviction of crime ought to be barred unless the interrogator has evidence in his possession to prove the fact, if the witness gives a negative answer.
Justice Proctor joins in this concurring opinion.
Prancis and Proctor, J. J., concurring in result.
For affirmance — Chief Justice Weintraub and Justices Jacobs, Prancis, Proctor, Hall, Sci-iettino and HaneMAN-7.
For reversal — None.
If the prosecutor has any doubt as to whether the evidence in his possession or which may appear at the trial is sufficient to prove a previous conviction, there is no reason why he cannot settle the matter prior to trial or at least before the question is posed, at a side bar conference or at a time when the jury is not present.