¶ 42. {dissenting). Evidence that a witness has been convicted of a crime is strong medicine. Especially when a complainant testifies, "The defendant did it," and the defendant testifies, "No, I didn't," and there are no other witnesses who saw the crime alleged. With only "You did it," and "No, I didn't," a jury naturally casts about for reasons to believe one witness or the other. Evidence that the complainant or the defendant has been convicted of a crime is often the only difference between those witnesses, and it therefore can tip the scale one way or the other. That is the reason the supreme court adopted Wis. Stat. § 906.09 in 1973. The Judicial Council Committee's Note on § 906.09 reads:
[T]here is apparent a growing uneasiness that impeachment [by evidence of conviction of crime] not only casts doubt upon [a defendant's] credibility, "but also may *837result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community."
(Citation omitted.)
¶ 43. The committee continued: "The most significant feature of the rule is the requirement that the evidence of conviction be excluded if the judge determines that its probative value is outweighed by the danger of unfair prejudice."
¶ 44. Wisconsin Stat. § 906.09 (2001-02)1 attempts to prevent the improper use of prior conviction evidence by requiring that a trial court, prior to the admission of conviction evidence, hear the relevant facts pertaining to the convictions, and exercise discretion as to whether a jury should hear the evidence or not. The Judicial Council Committee's Note explains the factors a trial court might consider:
The Rule has been drafted with the view that a judge should consider whether from the lapse of time since the conviction, the rehabilitation or pardon of the person convicted, the gravity of the crime, the involvement of dishonesty or false statement in the crime, the elements noted in Luck v. United States [348 F.2d 763 (1965)], and Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936 (1967), the probative value of the evidence of crime is substantially outweighed by the danger of undue prejudice.
¶ 45. The majority correctly concludes that the trial court erroneously exercised its discretion because it used an incorrect standard when addressing Gary B.'s *838motion in limine to exclude evidence of his prior convictions. But it is what the majority next concludes that concerns me. "Nonetheless, the discussion in these cases supports our conclusion that once a jury is apprised of a witness's past criminal conduct, evidence of the exact number of the witness's prior convictions will rarely be outcome determinative."2 Majority at ¶ 34. The majority has thus concluded that improper admission of the numbers of prior convictions is ipso facto harmless.
¶ 46. This cannot be correct. Under the majority's theory, a defendant who was eight times convicted of speeding, contrary to Wis. Stat. § 346.57(4) (1965), and once of disorderly conduct, contrary to Wis. Stat. § 947.01, could not successfully complain on appeal that the State improperly introduced evidence of the eight convictions, because even if the evidence was improperly admitted, the admission was ipso facto harmless. Human beings don't behave that way, and juries are comprised of human beings. To say that it doesn't matter whether a defendant answers "once," "nine times," or "57 times" does not comport with the way ordinary people think.
¶ 47. It is no answer to say that pursuant to Wis. Stat. § 906.09(3), evidence of conviction cannot be admitted until a judge first makes a determination whether the evidence should be excluded. That is the rule, but trials are busy places for counsel and trial judges alike, and rules are not always followed. Once an appellate court holds that any error in applying a *839statute is ipso facto harmless, the significance of the statute is substantially reduced.
¶ 48. I would treat this case as we did in Gyrion v. Bauer, 132 Wis. 2d 434, 393 N.W.2d 107 (Ct. App. 1986). There, after concluding that evidence of the defendant's criminal record was improperly admitted, we said:
While the improper admission of evidence of a prior conviction is not ipso facto prejudicial, we cannot conclude in this case that this evidence did not taint the jury's verdict. The evidence regarding the accident was conflicting and, in the absence of this prejudicial testimony, the jury may well have chosen to believe Gyrion's version of the accident. Because of the admission of clearly prejudicial evidence, the judgment is reversed and the cause remanded for a new trial.
Id. at 439 (citations omitted).
¶ 49. While the error in Gyrion was different from the error here, it is Gyrion's analysis that is important. We cannot tell what Gary B.'s jury would have done had it not heard evidence of three of Gary B.'s five convictions. We can only pretend to know. The three convictions were between twenty-three and twenty-seven years old, and were for writing bad checks, disorderly conduct and assault. Gary B. was fined and put on probation for these crimes. He spent no time in jail. The relevance of crimes of this nature and this old cannot outweigh the danger of unfair prejudice in admitting them. The jury was not told of the nature of Gary B.'s old crimes, and indeed could not be told of their nature. Voith v. Buser, 83 Wis. 2d 540, 545-46, 266 N.W.2d 304 (1978). There was significant evidence from which a jury could conclude that the sexual assaults did not occur, and there was also significant evidence from which a jury could conclude that they did. The credibility of the defendant and of the complainant was critical. *840I cannot conclude that there is "no reasonable possibility" that the error contributed to Gary B.'s conviction. See State v. Smith, 203 Wis. 2d 288, 300, 553 N.W.2d 824 (Ct. App. 1996). Accordingly, I respectfully dissent.
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
The majority does not tell us what factors must be present in the rare case in which the wrong number of convictions is outcome determinative. The usual legal result of applying the adjective "rare" to an outcome is to assure that the outcome never occurs.