dissenting.
The majority holds it was not reversible error to permit a testifying defendant in a sex offense case to be cross-examined about watching a sexually explicit movie that depicted the same kind of acts with which defendant was charged. Defendant, willingly accompanied by someone of the opposite sex, viewed this movie in the privacy of his motel room five days after commission of the crimes with which he was charged. Believing that this cross-examination should not have been permitted, was highly inflammatory, and contributed to the verdict against defendant, I respectfully dissent.
I.
Unlike the majority, I believe the issue of defendant’s guilt is close. This view colors my assessment of the impact of the challenged evidence.
*172The majority places great weight upon the victim’s “unequivocal identification” of defendant in court, but attempts, I fear, to “paper over” equivocal identification efforts of the victim in pretrial identification sessions during which she saw defendant’s photograph. During the first photographic array, which included defendant’s picture, the victim made no identification. Less than twenty-four hours later, she saw the photographs again and could say only that defendant’s picture made her feel sick. She did not identify him, tentatively or otherwise, as her assailant. At a live line-up almost a month later,1 the victim identified defendant.
In determining what effect the challenged cross-examination had on the trial’s outcome, we should view the victim’s identification as a process —from her initial description through the pretrial identification proceedings to the testimony in the courtroom. Although her in-court identification was unequivocal, and I think admissible, despite a reasonably strong argument that it was irreparably tainted by unduly suggestive pretrial procedures, the victim’s equivocal performance at these other procedures must detract from the strength of her in-court identification.
Even so-called “unequivocal” eyewitness identification especially when it functions as the nearly exclusive evidence of guilt, must be viewed carefully. United States v. Holley, 502 F. 2d 273, 274-75 (4th Cir. 1974); United States v. Telfaire, 469 F. 2d 552, 555-56 (D.C. Cir. 1972). Often recollections by victims are wrought with uncertainty and susceptible to suggestion. Identifications, especially by victims suffering from the shock and horror of their experiences, deserve particular scrutiny. Errors may all too readily plague their memories. See generally 3 Wigmore on Evidence § 786(a) (Chadbourn rev. 1970). “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967).
*173The upshot is that I cannot subscribe to the majority’s heavy reliance on the victim’s identification as supportive of a conclusion that the evidence against defendant was overwhelming.
The majority next refers to the “results of blood tests [which] pointed to defendant as the perpetrator of the crime.” Suffice it to say simply that these results mean only that defendant, along with a large portion of the population, could have committed the crime. A number of states do not permit such evidence because they conclude it has little, if any, probative value. State v. Gray, 292 N.C. 270, 282, 233 S.E. 2d 905, 913-14 (1977). We do admit it, but we have also recognized that its probative value is slight. Id. at 283, 233 S.E. 2d at 914.
The majority finally notes that “clothes matching those worn by the assailant were discovered in defendant’s locker.” This statement obscures the fact that the items seized did not match precisely those attributed to the assailant. He allegedly wore navy blue jogging shorts and Nike tennis shoes. While two similar items were found in defendant’s locker, they are hardly unique items of clothing. Furthermore, defendant’s shorts had white stripes and his Nike shoes were laced with black shoestrings, the latter being a relatively unusual fact which was never mentioned in the victim’s description, although she did notice and mention a “black swirl on the side of the tennis shoes.”
Finally, on the closeness of the case question, I note the majority simply ignores defendant’s considerable evidence supporting an alibi. Defendant was a lance corporal in the United States Marine Corps. He testified that at 11 p.m. on the evening during which the crime occurred he was in his “rack.” Since he was scheduled for “mess duty” the next morning, he was due to be awakened at 2:45 a.m. Actually he was awakened sometime after 3 a.m., but he could not recall the exact time, or who woke him. He was at “chow hall” for roll call at 4 a.m., the time he was scheduled to be on duty.
This testimony gains crucial significance due to the victim’s explicit testimony that the perpetrator was in her apartment from 3 a.m. until 4:15 a.m. by the clock. Defendant could not, of course, have been in both places simultaneously.
*174Considerable credible testimony2 supported defendant’s contentions. First Lieutenant Peter D. Lloyd, commander of defendant’s platoon, confirmed that defendant was assigned “mess duty” for the morning in question and that defendant should have been awakened at 3 a.m. to be at “chow hall” at 4 a.m. He testified further that, had defendant not been at “chow hall” at that time, he would have been “written up” for an unauthorized absence. Lieutenant Lloyd confirmed that defendant had not been cited for an unauthorized absence on that day. Corporal Reubin Pitts, the non-commissioned officer in charge of defendant’s squad, testified that he was awakened at 3:30 a.m. on the day in question and he woke defendant at 3:30 a.m. He actually touched defendant in waking him. Defendant was wearing white trousers and a T-shirt. He was certain also that defendant came to “chow hall” at 4 a.m. Private Brett James Crawford, who admitted having had “a difference” with defendant, and who, like defendant, had mess duty on 21 July, testified that he “pulled the covers off’ defendant to try to wake him sometime between 3:30 and 4 a.m. on that day. He recalled seeing defendant at the mess hall shortly after he, the witness, left the barracks at 3:50 a.m. and working with him in the mess hall that morning. Finally, Lance Corporal William L. Tally, a chaplain’s assistant, testified that he saw defendant in a recreation room in the upstairs of the barracks around 11 p.m. the night of the crime. He also saw defendant in his “rack” at 3:30 a.m. and on his way to “chow hall” at 3:50 a.m. on the morning of the attack.
As this brief review indicates, considerable evidence supported defendant’s alibi. The majority curiously and inexplicably ignores it. The quantity and quality of this evidence makes defendant’s case on its face at least as strong as that of the state. This alone makes the question of defendant’s presence at the scene and therefore his guilt close indeed. I find the majority’s contrary position to be unsupported by the record.
II.
The challenged cross-examination was admitted for the purpose of impeaching defendant’s credibility as a witness. For this *175evidence to be admissible it must first be relevant to the issue of defendant’s credibility; second, even if relevant, its prejudicial effect must not outweigh its probative value. The evidence meets neither standard.
The basic test of relevance is that the evidence have a logical tendency to prove a fact in issue. See State v. Swift, 290 N.C. 383, 226 S.E. 2d 652 (1976). See generally Fed. R. Evid. 401.3 If the proffered evidence does not make a fact in issue more or less probable, it is not relevant.
The fact in issue for which the evidence below was offered was defendant’s credibility. As the majority notes, the prosecution used the evidence only to impeach defendant. To be permissible, an attempt to impeach a witness’s credibility should test his propensity for telling the truth. That a person may watch a sexually explicit movie in the privacy of a motel room with someone of the opposite sex has no bearing, ie., is not relevant, on the question of that person’s propensity to tell the truth. That such conduct may be morally offensive to some (although certainly not all) people, does not imbue it with a logical tendency to prove or disprove a propensity for truthfulness. Support for this conclusion may be found in the federal rule which permits the impeachment of a witness’s credibility by evidence referring “only to character for truthfulness or untruthfulness,” Fed. R. Evid. 608(a), a rule which our legislature has adopted, effective 1 July 1984. An Act to Simplify and Codify the Rules of Evidence, Chap. 701, 1983 Sess. Laws, Rule 608(a).
Our case law retains the notion that a witness, even the defendant in a criminal case, may be impeached “by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct.” State v. Williams, 279 N.C. 663, 675, 185 S.E. 2d 174, 181 (1971). Nevertheless, we have never said precisely what sort of conduct rises to the level of “criminal and degrading.” In the vast majority of cases, the conduct consisted of an illegal, ie., criminal act. See, e.g., State v. Leonard, 300 N.C. *176223, 266 S.E. 2d 631, cert. denied, 449 U.S. 960 (1980) (killing); State v. Herbin, 298 N.C. 441, 259 S.E. 2d 270 (1979) (rape); State v. Williams, 292 N.C. 391, 233 S.E. 2d 507 (1971) (robberies); State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972) (assault and sodomy); State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938) (gambling). I am confident that the phrase “criminal and degrading conduct,” as used in Williams, means that the conduct must amount either to a violation of the criminal law4 or to acts involving deceit, fraud, or trickery. While the conduct herein may be tasteless and morally wrong to many of us, it is neither a crime nor an act bearing on defendant’s truthfulness. Its use, therefore, for impeachment purposes constitutes error.
The majority refers to a number of cases for the proposition that “disparaging conduct” may be used to impeach a witness. I concede there is loose language in some of the cases which tends to support the “disparaging conduct” rationale for admissibility, but there are no holdings which support the rationale. I think it is time, therefore, for this Court to reject “disparaging conduct,” whatever it may encompass, as a test for admissibility of impeaching acts.
First, State v. Gurley, 283 N.C. 541, 196 S.E. 2d 725 (1973), from which Justice Martin and Chief Justice Branch get comfort, does not control the issue. Although the Court there did permit a testifying defendant to be cross-examined by questions regarding “his possession of, familiarity with and interest in [pornographic magazines] for the purpose of impeachment,” the Court never characterized this conduct as “disparaging” or as “misconduct” and never stated that it tended to impeach defendant by way of showing his bad character. Id. at 547, 196 S.E. 2d at 729. The Court did not cite or otherwise rely on any of our cases establishing the rule that a testifying defendant may be cross-examined about specific acts of misconduct to show his bad character on the question of his overall credibility as a witness. Indeed, the Court in Gurley cited no cases for its conclusion and *177treated the question quite perfunctorily. Yet in the next succeeding paragraph the Court dealt at some length with the propriety of cross-examining defendant about his prior criminal activities, citing several cases for the proposition that a defendant “may be questioned as to particular acts impeaching his character.” Id.
To understand why the Court so perfunctorily treated the pornographic magazine cross-examination in Gurley, one need only examine the facts in that case. This examination makes clear that the Court did not allow the cross-examination for the purpose of impeaching defendant by way of showing his bad character. Rather, it allowed the cross-examination on the substantive issue of Gurley’s identity as the assailant for the purpose of impeaching Gurley’s testimony that he had never seen the victim and had not raped or kidnapped her.
The record in Gurley reveals that the victim testified that her assailant “showed me a few magazines of his that were full of nude girls and stuff. Magazines with nude girls ... a pile of them ... on his nightstand. He showed me a couple of them.” She said her assailant told her that she “belonged in them, in reference to a statement concerning my body.” She said her assailant exhibited these magazines and made this statement during the two-to three-hour period in which he detained and repeatedly raped her. She identified five magazines marked state’s Exhibit 11 as “similar to” the ones defendant showed her. Gurley, testifying in his own behalf, stated that he had never seen the victim and denied any involvement in her rape or kidnapping.
Thus the reason for the propriety of the pornographic magazine cross-examination in Gurley becomes obvious. Defendant’s possession of, familiarity with and interest in pornographic magazines was one of the facts which tended to identify him as the victim’s assailant. The Court in Gurley noted in its statement of facts that after the victim was released by her assailant she reported the matter immediately to the police “including a full description of her assailant, of the cloth used as a blindfold, of guns, of bed covers and of pornographic magazines observed by her in the apartment to which she was taken . . . .” Id. at 544, 196 S.E. 2d at 727. Thereafter, a deputy sheriff went to the apartment described by the victim, found the defendant there together *178with a number of articles the victim had described, including the pornographic magazines. All of these articles, with the exception of the pornographic magazines, were admitted and exhibited to the jury. The Court further noted in its recitation of the facts in Gurley that defendant on cross-examination “acknowledged that the pornographic magazines had been in his apartment and that he was familiar with them. He described their contents in some detail.” Id. at 544, 196 S.E. 2d at 728. For some reason, not apparent in the record, the trial court sustained defendant’s objection to the introduction only of the magazines.
Thus, the pornographic magazine cross-examination in Gurley tended to identify Gurley as the victim’s assailant. It did indeed tend to impeach his denial of his guilt, not by way of showing his bad character, but by way of showing that he, like the victim’s assailant, possessed and had an interest in pornographic magazines.
I note, too, that at trial Gurley, for obvious reasons, raised no objections to the pornographic magazine cross-examination as he had not objected to the victim’s description of her assailant as one who possessed and was interested in such literature.
Moreover, Gurley, unlike the case at bar, was not a close case on its facts. The Court in Gurley noted:
In view of the overwhelming evidence presented by the state of unquestioned competence, any error in the admission of the evidence of which [defendant] now complains, assuming timely objection had been made, would clearly have been harmless error.
Id. at 548, 196 S.E. 2d at 730.
Finally, if Gurley, so long as it stands, should be thought to control, then, believing that Gurley is not sound law on this point, I would urge the Court to overrule this aspect of it.
The majority refers to State v. Lynch, 300 N.C. 534, 268 S.E. 2d 161 (1980), as being supportive of admissibility. The conduct at issue in Lynch was the defendant’s having called the district attorney a “punk” and mouthed the word “mother” as defendant passed counsel’s table during trial. This kind of conduct demonstrated defendant’s contempt for the process of the trial itself and *179an officer of the court charged with conducting that process. Arguably, therefore, it bears on the issue of defendant’s credibility as a witness in that process.
Other cases referred to by the majority as supportive of admissibility are readily distinguishable. Sparks, 307 N.C. 71, 296 S.E. 2d 451, relied on the prosecutor’s failure to address his cross-examination to a specific act of misconduct; it did not alter the definition of “criminal and degrading conduct.” Because the question was framed improperly, the Court had no occasion to face the issue of whether defendant’s conduct itself could be used for impeachment purposes. Likewise, Small, 301 N.C. 407, 272 S.E. 2d 128, involved a defendant’s being cross-examined about sexual acts with women other than defendant’s wife. Adultery is a form of deceit. Arguably, one who commits it is not as prone to be truthful as one who remains faithful to his or her spouse. But the critical fact in Small was the state’s initial introduction, without objection, of that same evidence in its case in chief for substantive purposes to show defendant’s motive for killing the victim who was his wife. Finally, Lester, 289 N.C. 239, 221 S.E. 2d 268, involved inquiry into defendant’s dishonorable discharge. But the record reveals that defendant voluntarily indicated that he was discharged because he had been “busted for drugs.” Thus, Lester stands for nothing more than the acceptability of impeachment by cross-examination on prior criminal acts.
When we permit impeachment by acts which we consider merely “disparaging,” we risk encompassing conduct which some might simply consider immoral, or in bad taste, or merely “bad manners.” The legislature has not prohibited watching even obscene movies; it proscribes only their dissemination. N.C. Gen. Stat. § 14-190.1(a). Our Court of Appeals has concluded that one cannot be constitutionally prosecuted for occupying a motel room for “immoral purposes” for the very reason that a court cannot properly determine what is and is not “immoral.”
G.S. 14-186 fails to define with sufficient precision exactly what the term ‘any immoral purpose’ may encompass. The word immoral is not equivalent to the word illegal, hence, enforcement of G.S. 14-186 may involve legal acts which, nevertheless, are immoral in the view of many citizens. One must necessarily speculate, therefore, as to what acts are immoral.
*180State v. Sanders, 37 N.C. App. 53, 55, 245 S.E. 2d 397, 398 (1978). To some people being in a motel room with someone of the opposite sex to whom you are not married or watching a sexually explicit movie with or without that person may be “disparaging conduct.” To others not. Truly, as the Supreme Court itself has noted, “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25 (1971). To read and see such critically acclaimed books and movies as, for example, Lady Chatterly’s Lover, Tropic of Cancer, “Midnight Express” (depicting masturbation, homosexuality, and sadism), and “Last Tango in Paris” (depicting sodomy per anus) might be considered “disparaging conduct” to some. Yet this Court would not, nor should it, conclude that reading or seeing these works is “disparaging conduct” by which a witness’s credibility can be impeached. Defendant’s conduct at issue here seems no worse than this.
This, then, is the kind of quagmire into which we plunge when we refuse to reject acts which we consider merely “disparaging” as material for impeachment. A better rule which I wish this Court would adopt in this case is that a specific act used to impeach a witness must be either illegal, deceitful, or show contempt for the very process by which the defendant is being tried. See State v. Black, 308 N.C. 736, 303 S.E. 2d 804 (1983) (where the Court assumed that cross-examination of defendant about his prior employment at an adult bookstore was objectionable). Defendant’s conduct, however offensive it might be to some, is neither legally wrong nor dishonest, nor does it demonstrate contempt for the legal process; it should not, therefore, be available for impeachment purposes. Simply stated, it bears no relevance to that issue.
III.
Even if this evidence passes the test of relevancy, I find its probative force to be greatly outweighed by its potential for inflaming the jury against defendant accused of sex offenses.5
*181The majority acknowledges that the sexual acts depicted in the movie “were the same type of sexual acts that had been forced upon the victim five days earlier.” This renders the evidence inflammatory and inclines the jury to decide the case on an improper basis. The evidence’s effect is all too clear. The jury hears that defendant was in a motel room, five days after the crime in issue, viewing with a girl friend a movie which depicts sexual acts similar to those with which defendant is charged. The jury improperly concludes not only that defendant has similar sexual desires but that he is disposed forcefully to satisfy them upon an unwilling victim. It is then a short step to the next conclusion that defendant is in fact the perpetrator of the crimes charged.
More generally, evidence of a defendant’s bad acts always tends to draw a jury’s attention from the real issues. United States v. Bledsoe, 531 F. 2d 888, 891 (8th Cir. 1976). The damaging force of such evidence is that it inclines the jury to convict simply because it disapproves of a defendant as a person. See State v. Ervin, 340 So. 2d 1379, 1381 (La. 1976).
The majority asserts that the introduction of this evidence, even if error, created no reasonable possibility that had it been excluded a different result would have been reached at trial. For the reasons set out in part I of this dissent, I strongly disagree.
The majority fails to note defendant’s considerable evidence of an alibi. Contrary to the impression created by the majority, this case, as I have already shown, was close on the question of defendant’s presence at the scene and consequently his guilt of the crime. The likelihood of prejudice, therefore, flowing from the admission of the challenged cross-examination is so enhanced that a reasonable possibility does exist that a different result would have obtained had the evidence been excluded.
*182IV.
When such prejudicial evidence is admitted, defendant’s right to a fair trial, etched in any notion of basic due process and fundamental fairness, is jeopardized. See Comment, Impeachment of the Criminal Defendant by Prior Acquittals — Beyond the Bounds of Reason, 17 Wake Forest L. Rev. 561, 591-95 (1981) (hereinafter Impeaching the Testifying Defendant). Based upon its overwhelmingly prejudicial effect alone, the evidence should have been excluded.
I am concerned by an inescapable effect transcending this case of the admission of this kind of evidence. It involves a defendant’s decision whether to testify. When allowing impeachment of a testifying defendant, we must recognize that he possesses a statutory, if not a constitutional, right to testify. N.C. Gen. Stat. § 8-54 (1981); Impeaching the Testifying Defendant, supra, at 587-89; Bradley, Havens, Jenkins and Salvucci, and the Defendant’s Right to Testify, 18 Am. Cr. L. Rev. 419, 420-23 (1981). Courts must zealously guard important rights, like the right to testify in defense of oneself. If we continue to refuse to reject irrelevant and unduly prejudicial evidence to be introduced on cross-examination under the guise of “character impeachment”, defendants who might otherwise truthfully testify in their own defense will be improperly discouraged from exercising their right to do so. We should reject unjustified interpretations of evidentiary principles which impinge on this important right.
V.
I further dissent from the majority’s conclusion that defendant was not entitled to the victim’s prior statement when she testified on voir dire during the trial. I recognize that our recent decision in State v. Williams suggests the route taken by the majority. 308 N.C. 357, 302 S.E. 2d 438 (1983). It does not, however, compel this result; and I do not think it should be so extended.
We have held that prior statements of prosecution witnesses are not discoverable before trial. State v. Hardy, 293 N.C. 105, 122-24, 235 S.E. 2d 828, 838-39 (1977). That holding did not indicate that it should extend to pretrial hearings. In Williams, however, we extended the Hardy rule to pretrial hearings. 308 N.C. at 361, *183302 S.E. 2d at 441. In retrospect, I am now troubled by our conclusion in Williams.
Our rationale for protecting prior statements of prosecution witnesses from pretrial discovery by the defense hinges on the need not to disclose their identity unnecessarily. We recognized the legislature’s concern with this problem and the protection it accorded the identity of the state’s witnesses in Hardy, 293 N.C. at 124, 235 S.E. 2d at 839 (noting legislative commentary to the criminal discovery statutes). Obviously, this justification fails to support nondisclosure of witnesses’ statements once they testify at a voir dire hearing, either before or during trial. We did not analyze the issue carefully in Williams, as we noted only that any impeachment value of a former statement went to the weight rather than the admissibility of the witness’s identification. 308 N.C. at 361, 302 S.E. 2d at 441. Impeachment value of a former statement, however, is nearly as important during a voir dire before the judge as it is during trial before the jury. The judge must assess the credibility of witnesses in rendering his judgment as to the admissibility of the evidence which is the subject of the voir dire. There is, therefore, no reason not to provide defendant with prior statements of witnesses who testify during voir dire and there are good reasons for providing them. A voir dire, no less than the trial itself, is a search for the truth. Insofar as prior statements shed light on this search, they should be available in both proceedings.
It is true, as the majority notes, that the legislature did prevent discovery of pretrial statements of a witness “until that witness has testified on direct examination in the trial of the case,” N.C. Gen. Stat. § 15A-903(2). The legislature did not, as the majority states, refer to the trial “before a jury.” I believe the construction of the statute which best accords with the legislative intent is that testifying “in the trial of the case” means testimony during any public judicial proceeding, whether before a judge on voir dire or a jury on the question of guilt, where the witness testifies concerning matters on which he or she has made a prior statement.
Here, of course, the voir dire took place during the trial, although out of the jury’s presence. Assuming Williams was correctly decided on its facts, I would not extend Williams to voir *184dires conducted during the trial of a case, ie., after the jury has been empaneled.
Given the content of the witness’s prior statement, I do not believe it would have aided defendant in any way during the voir dire. Since the nondisclosure was not prejudicial in this case, it would not, standing alone, entitle defendant to a new trial.
Only because of the improper “impeachment” of defendant on cross-examination do I vote for a new trial.
Justice Frye joins in this dissenting opinion.. Between the times she viewed the photographs and the live line-up, the victim underwent hypnosis in an effort to see if she could recall why defendant’s photograph bothered her. Although defendant assigns no error dealing specifically with this hypnotic session, it underscores the dramatic change in the victim's ability to identify defendant as her assailant between the two photographic procedures and the line-up, not to mention the in-court identification. The victim’s assertion at trial that no new information developed from the hypnotic session hardly assuages any lingering doubts as to the positiveness of her identification.
. Three of the four witnesses who corroborated defendant’s account described themselves as merely acquaintances, not close Mends, of defendant.
. Our new evidence code, 1983 N.C. Adv. Legis. Serv. c. 701, adopts the federal standard for relevancy which includes “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.
. As I point out in Section III, infra, the essence of impeachment is to probe the witness’s credibility by testing his propensity for truth and veracity. See Fed. R. Evid. 608. Thus, even acts not necessarily criminal which reflect on a witness’s tendency toward untruthfulness, e.g., lying, fraud, or trickery, would be admissible for impeachment purposes. The acts involved in this case, however, have no relation to defendant’s propensity for truth and veracity.
. Our common law evidence rule requiring this balancing has never been clearly articulated. See State v. Stone, 240 N.C. 606, 83 S.E. 2d 543 (1954); State v. Brantley, 84 N.C. 766 (1881). See also, 1 Brandis on N.C. Evidence § 80, pp. 295-96 (1982). In its adoption of an evidence code, effective 1 July 1984, the legislature followed precisely the applicable federal rule. Our new code provides that evidence, *181although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ... or misleading the jury . . . .” Compare N.C. Gen. Stat. § 8C-1, Rule 403, with Fed. R. Evid. 403. The federal rule requires exclusion if the evidence creates “an undue tendency to suggest decision on an improper basis.” M. Graham, Handbook of Federal Evidence § 403.1 (1981). The evidence admitted below suggests just the sort of improper basis contemplated by this rule.