(concurring) .
I fully agree with the result, with parts I, II and IV of the opinion written by Judge Hastings, and with part III insofar as it states and applies the general rule in this circuit with respect to impeachment of a defendant who takes the stand in a criminal case by showing his prior convictions.
I would choose, however, a rule for the future like that part of Rule 21, Uniform Rules of Evidence, providing:
“If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.”
As stated in a 1968 decision, “The author of this opinion, speaking individually, holds the view that the proposed rule is sound policy and ought to be adopted by legislation or exercise of judicial rule making power. But injustice resulting from the existing rule would have to be much more apparent than in this case in order to justify changing the rule by decision of a particular appeal.”1
I feel no concern for a guilty defendant who is dissuaded from perjury by the prospect of having his record of convictions put before the jury or one who was not dissuaded, but whose perjury was not persuasive. But I do think there is a real probability of instances where a defendant who is innocent of the particular offense charged, or perhaps guilty of only a lesser, included offense, will either be dissuaded from telling his story, and unjustly convicted because of his silence, or, if he tells it, unjustly convicted because of his record.
*573In my judgment, for whatever it may be worth, the ability of a prosecutor to discredit an accused who takes the stand and lies is not so substantially advanced by exposure of past criminal convictions as to justify imposing on an innocent defendant with a past record the dilemma between silence and exposure of his record.2
I note that Rule 609, Proposed Rules of Evidence for United States Courts and Magistrates, March 1971 Revised Draft, will make certain changes in the existing rules. Among its provisions is one which will exclude evidence of a witness’ conviction if “the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.” This provision for exercise of discretion had its source in Luck v. United States, (1965), 121 U.S.App.D.C. 151, 348 F.2d 763, 767, and Gordon v. United States, (1967), 127 U.S.App.D.C. 343, 383 F.2d 936.
This provision, like the rest of Rule 609, is not limited to witnesses who are defendants in criminal cases, although that may be the situation in which the provision would be must useful. If adopted, the provision would, to the extent judges exercise discretion in favor of a witness-defendant, avoid the dilemma referred to. The idea of leaving the matter in the discretion of the judge must be based on an assumption that a judge will usually be able to pick out the defendant who is probably innocent and will probably testify truthfully and to relieve him from presentation of his record of prior convictions. With all respect, however, my own preference is for a rule which would categorically exclude prior convictions for the purpose of impeachment of a defendant in a criminal ease, subject to the exception in proposed Uniform Rule 21.
. United States v. Sternback, (7th Cir., 1968), 402 F.2d 353, 356.
. For comment critical of the present rules, see McCormick, Evidence, 1954, pp. 93, 94; 70 Yale Law Journal 763 (1961) Note, Other Crimes Evidence; 78 Harvard Law Rev. 426 (1964) Note, Procedural Protections; 12 St. Louis University Law Journal 277 (1968) Comment, Impeachment of the Defendant-Witness by Prior Conviction; 19 Hastings Law Journal 919 (1968) Note, Impeachment by Prior Crimes; 37 University of Cincinnati Law Review 167 (1968) Note, Prior Conviction Evidence; 71 West Virginia Law Review 160 (1969) Note, The Use of Prior Convictions to Impeach the Credibility of the Criminal Defendant; 6 Crim.Law Bulletin 26 (1970) Cohen, Impeachment of a Defendant-Witness By Prior Conviction.