concurring.
Although Evid.R. 4, which was relied upon heavily in State v. Sands, 76 N.J. 127 (1978), has normally been used in criminal cases for the protection of defendants, we have interpreted that rule so as to give a trial judge discretion to exclude evidence when its probative value is outweighed by its prejudice to the State. State v. Wilbely, 122 N.J.Super. 463, 467 (App.Div.1973), rev’d on other grounds, 63 N.J. 420 (1973). However, assuming that discretion to exclude evidence of a prior conviction of a State’s witness is reposed in a trial judge, my colleague in the majority has correctly pointed out that Evid.R. 4 does not permit a judge to exercise discretion to exclude otherwise admissible evidence unless the danger of undue prejudice is “substantial.” Certainly, the prejudice to the State by reason of admission of evidence of a prior criminal conviction of a State’s *23witness pales into insignificance when contrasted with the prejudice to a defendant himself by reason of admission of evidence of his prior criminal conviction. Furthermore, in applying the test of the substantiality of the risk, we must be mindful of a defendant’s Sixth Amendment right to confront witnesses against him, which touches upon his right to attack and impeach the credibility of those witnesses.
Our dissenting colleague objects to what he terms a “different standard.” However, the standard as to exclusion of evidence of all witnesses is the same under Evid.R. 4 — /. e., whether the probative value of the evidence is “substantially outweighed by the risk that its admission will ... create substantial danger of undue prejudice.. .. ” It is true that we do not wear blinders in applying the test to defendants’ witnesses as opposed to State’s witnesses. If that be construed as a different standard, so be it.
Furthermore, a careful instruction by the judge to the jury can adequately deal with any possible prejudice to the State. A judge who permits evidence of a prior conviction of a State’s witness can still instruct the jurors that they should give it only such weight as is reasonable, given the nature of the crime and the age of the conviction. Such a charge, however, would be of little use to a defendant who testifies in his own behalf because it would be unlikely to erase from the minds of the jurors the thought that because the defendant had committed a crime before, he has a propensity to do so again.
I concur with my colleague in the majority that the trial judge mistakenly exercised his discretion when he excluded the evidence of a prior conviction, saying: “I see no reason why I should not exclude any conviction.... ” In so stating, the judge overlooked the need for the State affirmatively to justify exclusion, which it failed to do.