(dissenting)—I respectfully dissent. The State's case rested on the believability of its key witness, a paid informant who had blatantly threatened another witness in the past.
Dale Redmond openly testified of his relationship with Pasco police. He had an "understanding" he would receive $50 every time he made a "buy". In this case, he was paid $50 after both transactions, and he admitted he used at least part of that money to purchase illegal drugs. He also admitted it was possible his testimony had some effect on the decision to defer prosecution of a shoplifting charge. The majority concludes this paid informant may not have testified if the defense had been allowed to question him about his attempt to suborn perjury 16 years earlier. I cannot agree.
The majority initially recognizes that a decision to limit cross examination must take into account the potential impact on the defendant's right of confrontation under the sixth amendment to the United States Constitution and Const, art. 1, § 22 (amend. 10). Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
Our Supreme Court has adopted a "compelling state interest" requirement to balance the right to present evidence with the State's interest in limiting the prejudicial effects of the evidence. Hudlow, at 16. Under this test, if the evidence is relevant, the State must have a compelling interest in limiting any potential prejudicial effect. Hudlow, at 16. The focus should be on the potential prejudice to the ''truthfinding process", and the evidence should not "confuse the issues, mislead the jury, or cause the jury to decide *544the case on an improper or emotional basis". Hudlow, at 13-14.
In applying this test, the first step is to determine the probative value of the evidence. When the State's case rests solely on the testimony of one witness, that witness' credibility is especially relevant, and "a criminal defendant is given extra latitude in cross-examination to show motive or credibility ..." State v. York, 28 Wn. App. 33, 35-36, 621 P.2d 784 (1980); see State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980); State v. Tate, 2 Wn. App. 241, 247, 469 P.2d 999 (1970). Here, Mr. Redmond was the only witness to testify Mr. Barnes sold drugs, and both parties recognized the paid informant's credibility was a critical question for the jury. The letters obviously reflect on Mr. Redmond's credibility and are not merely cumulative evidence. They go beyond his prior criminal involvement to demonstrate his fundamental lack of respect for the truth-finding process.
Relevance is enhanced by Mr. Redmond's response to the prosecutor's question regarding the importance of the oath. When the witness stated he knew he could be charged with perjury for lying, he left the jury with the inference he took his oath seriously. The question was particularly unfair, considering the prosecutor's obvious awareness of the letters and the court's pretrial ruling. The State opened the door to rebuttal on cross examination by raising the subject of the importance of the witness' oath. State v. York, supra at 37; see generally 5 K. Tegland, Wash. Prac., Evidence § 11(3), at 41-48 (3d ed. 1989).
As the trial court recognized, passage of time vitiates the probative value of evidence of prior bad acts. See 5A K. Tegland § 237(2), at 243 (interpreting the 10-year time limit of ER 609(b)). However, in balancing a defendant's right of confrontation, any per se time limit is inappropriate. See People v. Redmon, 112 Mich. App. 246, 315 N.W.2d 909 (1982), quoted with approval in Hudlow, at 15-16. Here, the letters are highly relevant to the issue of Mr. Redmond's credibility, despite the passage of time.
*545The next step under the Hudlow analysis is to determine whether the State had a compelling interest in limiting the prejudicial effects of the evidence. The State has not identified any prejudice to the truthfinding process, nor is any apparent. The witness is not the defendant, so there is no risk the evidence will prejudice jurors against Mr. Barnes. See 3 J. Weinstein & M. Berger, Evidence § 608[05], at 608-50 to 608-51 (1988). There is no state interest in affording special protection to the witness, as in the case of the rape shield statute, RCW 9A.44.020(3). See Hudlow, at 18.
The majority concludes the State has a compelling interest in ensuring that "witnesses . . . will not be discouraged from testifying because a prior conviction or misconduct may be revealed". Majority, at 539. The majority relies on State v. Martinez, 38 Wn. App. 421, 424, 685 P.2d 650, review denied, 102 Wn.2d 1020 (1984), which is inapplicable here. There, the State had presented testimony of another critical witness, " diminishing the importance of the victim's credibility to a determination of this case". Martinez, at 424. In this case, by contrast, Mr. Redmond was the single critical witness against Mr. Barnes. More importantly, the witness in Martinez was the victim of the assault, not a paid informant as in this case. Motivated as Mr. Redmond was by cash and drugs, and possibly by favorable treatment by the prosecutor, the majority's assumption he would have been discouraged from testifying by the prospect of revelation of his past misdeeds is not persuasive. I find it more likely that Mr. Redmond viewed his testimony as a prerequisite for future employment.
The only apparent prejudice in the use of this evidence is to the State's case. The sole inference that could have been created by the letters was that Mr. Redmond was not telling the truth—the very purpose for impeachment evidence. I would hold that the court's refusal to allow defense counsel to use the letters in cross examination of Mr. Redmond violated Mr. Barnes' right of confrontation under the Sixth Amendment and Const, art. 1, § 22 (amend. 10).
*546The majority implies the jurors would have reached the same verdict even if they had known of the letters since Mr. Redmond was adequately impeached with other evidence. A constitutional error is harmless only if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same verdict without the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 321, 106 S. Ct. 1208 (1986). There is a fundamental difference between the letters and the other impeachment evidence. The other evidence clearly "charred [Mr. Redmond's] integrity", as the State contends, by impugning his general character for truthfulness and by demonstrating a motive for testifying. The letters go beyond this initial impeachment and graphically demonstrate Mr. Redmond's disdain for judicial proceedings and a willingness to undermine the process by suborning perjury. Taking an oath is the first prerequisite to witness competence. Its purpose is to impress upon the witness the importance of telling the truth. ER 603; Nirk v. Kent Civil Serv. Comm'n, 30 Wn. App. 214, 218, 633 P.2d 118, review denied, 96 Wn.2d 1023 (1981); 5A K. Tegland § 220, at 160-61; 6 J. Wigmore, Evidence § 1827 (1976). A person's willingness to encourage violation of this oath is of significant impeachment value. Considering the jurors' uncertainty demonstrated by IV2 days of deliberations on a factually simple case, it is impossible to state, beyond a reasonable doubt, that the error was not prejudicial. See State v. York, supra at 37. The error was not harmless, and the conviction should be reversed.
The majority comments on defense counsel's failure to ask Mr. Redmond about the letters, to have them marked for identification, or to authenticate them. The record does not reveal how counsel intended to use the letters, but it does show the trial court ruled they could not be used for any reason in cross-examining Mr. Redmond. In view of this clear pretrial ruling, an attempt by counsel to refer to the letters would have been a useless act, and it undoubtedly would have incurred the court's wrath. Although *547defense counsel was not given the opportunity to authenticate the letters, I note they are contained in a certified Franklin County court record related to revocation of Mr. Redmond's probation.4 They thus could have been authenticated without calling another witness. See RCW 5.44.010; CR 44(a)(1); ER 901.
I also disagree with the majority's reliance on ER 608(b). The rule provides:
Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The majority concludes that if Mr. Redmond had denied sending the letters, counsel would have been required to "take the answer" of the witness and would not have been allowed to call another witness to contradict him. See 5A K. Tegland § 232, at 212. The question here is not whether Mr. Barnes was entitled to call another witness, but whether he should have been allowed to use the letters themselves to impeach Mr. Redmond.
An unsettled question is whether the provision excluding extrinsic evidence of prior conduct bars only the testimony of a second witness, or whether it also bars the use of documentary evidence to contradict the witness during cross-examination. Some courts have seemingly read the rule as barring the use of documentary evidence on cross-examination, while others follow the prerule view that the document would be considered "extrinsic" only if the laying of a proper foundation for its admission would involve the calling of additional witnesses.
*548(Footnotes omitted.) 5A K. Tegland § 232, at 215-16. This unsettled issue was not briefed or argued in this appeal.
Even if the letters were inadmissible under ER 608(b), they still may have been admissible to contradict Mr. Redmond if he denied sending them.
The Rule 608(b) requirement that "the examiner must take his answer" does not prevent extrinsic evidence from being admitted to attack the witness' credibility on some theory other than impeachment by prior misconduct. Counsel and courts sometimes have difficulty in distinguishing between Rule 608 impeachment ¿nd impeachment by contradiction. The troublesome kind of case has arisen when the witness—usually the defendant—makes a claim on direct examination inconsistent with bad conduct. Extrinsic evidence may not be admitted pursuant to Rule 608 to rebut this claim. Whether extrinsic evidence may be admitted on a theory of impeachment by contradiction would depend on the circumstances of the case.
3 J. Weinstein & M. Berger § 608[05], at 608-31 to 608-33. The court's ruling denied Mr. Barnes his constitutional right to confront the key witness against him. I would reverse and remand for a new trial allowing the jury to view Mr. Redmond's testimony in its proper context.
Review denied at 113 Wn.2d 1018 (1989).
According to the prosecutor's recommendation in that 1972 proceeding, Mr. Redmond pleaded guilty to a charge of bribery for authoring the threatening letters. The prosecutor's statement indicated the FBI had found Mr. Redmond's fingerprints on one of the letters, Mr. Redmond had access to the typewriter believed to have been used to write one of the letters, and Mr. Redmond had made statements that he intended to or had written threatening letters.