(concurring in the result)—I agree with the result in Justice Brachtenbach's opinion in affirming the Court of Appeals. I cannot agree, however, with the approach in Justice Brachtenbach's opinion. The overruling in Justice Brachtenbach's opinion of seven recent cases is *557not necessary when the same ends could be reached by following the analysis of the Court of Appeals. See State v. Brown, 47 Wn. App. 565, 736 P.2d 693 (1987). With one exception, I would adopt this analysis.6
The opinion by Justice Brachtenbach would overrule State v. Pam, 98 Wn.2d 748, 659 P.2d 454 (1983); State v. Koloske, 100 Wn.2d 889, 676 P.2d 456 (1984); and State v. LeFever, 102 Wn.2d 777, 690 P.2d 574 (1984), which hold that a defendant must make a timely offer of proof in order to contest on appeal the denial of a motion in limine excluding impeachment evidence under ER 609(a)(2). Instead, following Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), the opinion by Justice Brachtenbach would have the criminal defendant take the stand and be subjected to the impeaching evidence in front of a jury before being able to appeal the issue.
There is a serious problem in this requirement, one not addressed by the United States Supreme Court nor today's opinion by Justice Brachtenbach. Under the fifth amendment to the United States Constitution and Const, art. 1, § 9, criminal defendants have the right not to testify at their own trial. Cf. Seattle v. Hawley, 13 Wn.2d 357, 124 P.2d 961 (1942) (no inference to be drawn from defendant's failure to testify). By forcing a criminal defendant to testify in order to preserve objections to an in limine ruling on appeal, his right to remain silent is affected. Further, if the evidence was wrongly introduced, then
[a] defendant must choose between trial before a jury prejudiced against him as a result of the improper admission of impeaching convictions, or an appeal before a court which will not hear his claim that the ruling below was erroneous.
People v. Collins, 42 Cal. 3d 378, 398, 722 P.2d 173, 187, 228 Cal. Rptr. 899 (1986) (Broussard, J., concurring and *558dissenting). A constitutional right, then, becomes manipulated by new demands of trial tactics.
This problem does not occur when the defendant is able to preserve his objection for appeal by an offer of proof. It may be true, as pointed out by the Supreme Court in Luce, that an offer of proof may differ in content from actual testimony subject to cross examination. Luce, at 41 n.5. That problem can be remedied by methods other than forcing a defendant to testify before a jury when he would choose to remain silent. A defendant could make an extended offer of proof or could, as suggested by three members of the California Supreme Court, testify in camera after the prosecution closed its case. See Collins, 722 P.2d at 187 (Broussard, J., concurring and dissenting). As the opinion by Justice Brachtenbach itself points out, we are not compelled to follow federal precedent on the rules of evidence. Opinion by Justice Brachtenbach, at 547-48; cf. Orwick v. Seattle, 103 Wn.2d 249, 692 P.2d 793 (1984). Other states have chosen not to follow Luce. See, e.g., People v. Contreras, 108 A.D.2d 627, 485 N.Y.S.2d 261 (1985); State v. McClure, 298 Or. 336, 692 P.2d 579, 584 n.4 (1984). I would rather adopt a rule which serves the policy interest identified by the opinion by Justice Brachtenbach and yet protects the rights of the defendant.
I also take issue with the opinion by Justice Brachtenbach over its rejection of the rule in State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), as well as the rule adopted by a majority of this country's federal courts. See opinion by Justice Brachtenbach, at 547 footnote 3. The opinion by Justice Brachtenbach concludes instead that all crimes involving theft are per se dishonest and automatically admissible under ER 609(a)(2). Instead of following the federal legislative history behind ER 609, the opinion by Justice Brachtenbach engages in its own "plain language" interpretation of the rule. Thus, this new construction of ER 609 is not based on the reports of those who drafted it but on passages from Webster's dictionary and the intuition of Justice Brachtenbach's opinion. By so doing, the *559opinion by Justice Brachtenbach would make no distinction—for the credibility-driven purposes of ER 609(a)(2)— between the person who steals a loaf of bread and the one who swindles his victims out of their savings. Further, by allowing the admission of crimes such as robbery, burglary, theft, and perhaps kidnapping under the per se standard of ER 609(a)(2), the opinion by Justice Brachtenbach effectively emasculates the balancing test in 609(a)(1).
The opinion by Justice Brachtenbach and I differ about the connotations of the word "dishonesty" in this context. Because this term is not unambiguous, I think it best to refer to the federal legislative history behind it. That history indicates that the offenses intended to be admissible under the rule are those involving active deception. See State v. Newton, 109 Wn.2d 69, 77-78, 743 P.2d 254 (1987); State v. Burton, 101 Wn.2d at 1-2.
I also take issue with Justice Brachtenbach's opinion in its overruling State v. Jones, 101 Wn.2d 113, 677 P.2d 131 (1984), to the extent that case establishes a constitutional harmless error standard for the erroneous admission of evidence under ER 609. The admission of past convictions for impeachment purposes has an impact upon a defendant's decision to testify. A defendant's right to testify—as well as his right to remain silent—is of federal as well as state constitutional magnitude. See U.S. Const, amend. 5; Const, art. 1, §§ 9, 22. Any ruling having an effect on these rights is consequently of constitutional proportions. The opinion by Justice Brachtenbach reasons its result is proper by stating that a defendant has no right to testify free of impeachment. Opinion by Justice Brachtenbach, at 554-55. While this is true, the statement in Justice Brachtenbach's opinion does not fully acknowledge that its rule puts pressure on a defendant's decision to testify or to remain silent, thus affecting constitutional rights.
The opinion by Justice Brachtenbach further declares that there is no logic behind recognizing a constitutional error standard for ER 609 while maintaining a nonconstitutional standard for ER 404. There is an answer to the *560puzzle in Justice Brachtenbach's opinion. ER 609 directly affects defendant during his testimony, while ER 404 does not. Therefore, the former puts pressure on the rights to testify and to remain silent. Because the latter does not, it is logical to retain two standards for these two rules.
I do agree with the opinion by Justice Brachtenbach, however, in overruling State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984). Insofar as that case allows the presumptive admission of past convictions under ER 609 after earlier admission under ER 404(b), it has no place in our body of evidence law.
On the basis of the above, then, I concur with the opinion by Justice Brachtenbach in its result but not its reasoning.
Dolliver and Smith, JJ., concur with Utter, J.
I differ with the Court of Appeals over the treatment of one issue: that of looking to the underlying facts of crimes involving theft to determine admissibility under ER 609(a)(2). I believe this analysis is contrary to our rule developed in State v. Newton, 109 Wn.2d 69, 77-78, 743 P.2d 254 (1987).