(dissenting).
I must respectfully dissent-. The trial court’s ruling that defendant’s prior conviction for criminal sexual conduct was admissible for impeachment purposes, coupled with the trial court’s improper comments and instructions, so prejudiced defendant as to require, in my opinion, reversal and a new trial.
City of St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975), cited by the majority, recognized but refused to extend the principle that impeachment by a prior crime may allow the jury to see “the whole person” where the jury is properly cautioned that the evidence may be used only as it relates to the defendant’s credibility. DiBucci was decided before the promulgation of Minnesota Rules of Evidence. Under Rule 609, the trial court may allow the introduction of a prior conviction such as this one only if it determines that the probative value of such evidence outweighs its prejudicial effect. In making this determination the court must consider: (1) the impeachment value of the prior crime; (2) the date of the conviction and defendant’s subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of defendant’s testimony; and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d 534 (Minn.1978).
Although felonies unrelated to truth or veracity may have some probative value as to credibility, in the instant case the impeachment value of the prior crime was negligible. Criminal sexual conduct in the third degree does not involve any element of veracity and, thus, is not probative of credibility. The more similar the crime, the greater the likelihood of prejudice, because the jury is likely to convict on the basis of character rather than guilt. See, State v. Bowser, 305 Minn. 431, 234 N.W.2d 890 (1975). Defendant’s conviction was for a very similar crime, i. e., criminal sexual conduct in the third degree. The fact that it was a recent conviction enhanced its prejudicial effect as much, if not more, than its probative value.
Defendant’s testimony and the centrality of the credibility issue might have been critical. Defendant did not testify, however, because the trial court ruled that his prior conviction was admissible for impeachment. Because the probative value of this conviction was so slight and its prejudicial effect so great, I would find this evidentiary ruling reversible error, particularly when coupled, as in this case, with the trial court’s comments and instructions, which suggested that defendant must bring in evidence to establish his innocence.1
Prior to counsel’s opening statements, the trial court told the jury that:
* * * after the county attorney’s opening statement the attorney for the defendant has the option to make an opening statement at that time or wait until the state has rested and before they introduce evidence. After the opening statements they will proceed to present their evidence through the testimony of *710witnesses that they will call and the introduction of certain exhibits that they feel may be helpful to the jury in reaching its decision * * *. After all the evidence is in and both parties have rested the attorneys will make what is commonly referred to as closing arguments or a summation the purpose of which is to sum up the evidence that they offered * * *
After both sides rested, the court again instructed the jury that the attorneys “have the duty and obligation to present all the evidence they have to support the claims of their clients * * *.”2 When the jury returned'to ask for further evidence, the court emphasized that they could only consider evidence “that the attorneys bring into court, either the prosecution or the defense.” (Emphasis added.) The trial court told the jury three times that it was to determine defendant’s “guilt or innocence.” In addition, all three verdict forms stated: “We the jury impaneled and sworn to try the guilt or innocence of the above-named defendant * * *.”
I believe that the combined effect of these comments and instructions was to imply that defendant had the burden of proving his innocence.3 In a criminal trial the defendant is presumed innocent and has no duty to produce witnesses or present evidence. Nor does he have a duty to testify on his own behalf, and neither the court nor the prosecutor may allude to his failure to testify. Minn.Stat. §§ 611.02, 611.11; State v. White, 295 Minn. 217, 203 N.W.2d 852 (1973).
Because the trial court erred in ruling to admit defendant’s prior conviction and because the trial court’s comments and instructions to the jury were improper, I would reverse and remand the case for a new trial.
. The majority notes that defendant did not object to the trial court’s “unintentional misstatements.” However, this court has demonstrated its willingness to review errors in jury instructions, despite a lack of objection, when those errors involve fundamental law or controlling principles and they substantially and materially prejudice defendant. State v. Hembd, 305 Minn. 120, 232 N.W.2d 872 (1975); State v. Keaton, 258 Minn. 359, 104 N.W.2d 650 (1960).
. Although this instruction is identical to CRIMJIG 3.11, Minnesota Criminal Jury Instruction Guide, we believe that the phrase “[It is his duty] to present all the evidence * * * to support the claims of [his] client,” while appropriate in a civil case, should be omitted in a criminal case. See, 10 Minnesota Practice, Criminal Jury Instruction Guides, CRIMJIG 3.11.
. Compare United States v. Rosa, 493 F.2d 1191 (2nd Gir. 1974), where the reference to proof of guilt or innocence was found erroneous but clearly corrected by other “flawless” ■ instructions.