dissenting:
I respectfully dissent from the majority’s establishment of an absolute rule requiring admission of a prior crimen falsi conviction. I would hold that a district court judge may exclude evidence of a prior conviction involving dishonesty when the prejudicial effect of the evidence is overwhelming.
In formulating the Federal Rules of Evidence, Congress authorized introduction of two types of prior convictions for impeachment purposes — felony convictions and convictions involving dishonesty or false statement. After lengthy debate, Congress chose to treat these two classes of convictions differently, according greater value to convictions involving dishonesty. Under rule 609(a) of the Federal Rules of Evidence, crimes punishable by death or imprisonment for more than one year shall be admitted if “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.” Fed.R.Evid. 609(a). This limitation on the admission of felony convictions reflects the traditional concern over admission of prior convictions for impeachment purposes — that the relevance of a conviction to the defendant’s credibility will not justify the prejudice that occurs if the jury considers the prior conviction as evidence of present guilt. The judge, in considering felony convictions, is instructed to apply a simple balancing test, measuring probative value against prejudicial effect. This test is not, however, applied to convictions involving dishonesty. Congress determined that these convictions are particularly probative of a defendant’s credibility and therefore should not be subjected to the simple balancing between probative value and prejudicial effect.
I do not believe that application of rule 403 of the Federal Rules of Evidence to rule 609(a) will necessarily contravene the intent of Congress to treat these two types of convictions differently. Rule 403 is a general rule which provides the flexibility that is essential in any set of procedural or evidentiary rules. The rule expresses recognition that evidence which is relevant, probative, and admissible under other rules, may nonetheless be so prejudicial that it should be excluded. Rule 403 does not, however, sanction general application of a simple balancing test, such as that in rule 609(a)(1), to evidence admissible under other rules. Instead, it permits only the use of a much more stringent test; evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403 [emphasis added]. To apply the rule 403 test for exclusion to rule 609(a) would not subject convictions involving dishonesty to the same treatment as felony convictions. While felony convictions may be excluded if their prejudicial effect outweighs their value as impeachment evidence, convictions involving dishonesty could be excluded only upon a strong showing of overwhelming prejudice to the defendant.
Because of the Congressional recognition, embodied in rule 609(a)(2), of the great probative value of a crimen falsi conviction, it is unlikely that a defendant would often be able to máke the necessary showing to require exclusion. Nonetheless, the purpose of rule 403 was to provide judges some flexibility in cases where the possibility of prejudice is extremely great, and I feel that this case comes within that limited group of cases. The defendant’s prior conviction for mail fraud was offered to impeach the defendant’s credibility as a witness; it was, of course, not relevant as substantive evidence to prove the defendant’s guilt in the offense at trial. Despite the undeniable relevance of the prior conviction to the issue of credibility, the prejudice inherent in admission of this conviction is so great that its use should have been limited. It would be hard to imagine evidence more prejudicial, in a trial for mail fraud, then the defendant’s prior conviction for mail fraud. I would suggest that the probative value of a conviction involving dishonesty is substantially outweighed by the danger of unfair prejudice to the defendant, when the prior con*284viction concerns the same kind of offense as that for which the defendant is being tried. A judge should not be prohibited from excluding this evidence by a rigid holding that rule 403 can never be applied to rule 609(a)(2).