(concurring in part, dissenting in part)—I agree the testimony of Ray's defense witness, Bogart, was erroneously suppressed. However, there are several reasons why this court should not hold theft offenses are admissible per se under ER 609(a)(2) and, therefore, I dissent as to that issue.
The majority announces that it "take[s] this opportunity to overrule [State v.] Burton, [101 Wn.2d 1, 676 P.2d 975 (1984)] and to clarify the confusion engendered by the plurality opinion in State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989).” Majority, at 544. It then proceeds, with no new justification or analysis, to adopt what was formerly the minority opinion in Washington and to overrule years of Washington case law. All this the majority does as a volunteer, as its holding regarding ER 609(a)(2) is not necessary to the result in this case.
The question whether theft crimes are crimes of dishonesty for purposes of ER 609(a)(2) is not new. As far as the law of this state is concerned, however, the majority's *552answer is new. It constitutes a marked and, I believe, unnecessary and unwise change from previous Washington law.
The court first considered the issue of whether theft is a "crime of dishonesty" for purposes of ER 609(a)(2) in State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), at which time we explicitly rejected the Court of Appeals' statement ”'[t]o steal is dishonest. We need not trace federal legislative history to construe "dishonesty"."' Burton, at 6 (quoting State v. Burton, 33 Wn. App. 417, 420, 655 P.2d 259 (1982), rev'd, 101 Wn.2d 1, 676 P.2d 975 (1984)). Instead, the court held:
[TJhe Court of Appeals overly broad definition of the word "dishonesty" ... is inconsistent. . . with our intent in adopting ER 609(a)(2) and with the vast majority of federal case law interpreting Fed. R. Evid. 609(a)(2) . . . [W]e find the word "dishonesty" must be defined in the context of the rule. . . . [W]e find that it is proper to look to the legislative history surrounding the adoption of the federal rule as well as the federal case law developed since its adoption to define the category of crimes included under ER 609(a)(2).
Burton, at 6. The court considered federal legislative history when ER 609(a)(2) was adopted, and it should continue to do so today. That legislative history makes it clear that "dishonesty or false statement" was meant to connote only "crimen falsi", rather than the wider range of all crimes which are technically dishonest (see Burton, at 6-7). Although unguided intuition might support a broad reading of "dishonesty", the majority of federal courts still interpret the rule as excluding crimes of theft. See 3 D. Louisell & C. Mueller, Federal Evidence § 317, at 337-38 (1979), 208-10 (Supp. 1990).
The concept that crimen falsi differ qualitatively from other crimes is not new. As noted in Burton:
At common law, the term "crimen falsi" referred to "crimes of infamy". State v. Payne, 6 Wash. 563, 34 P. 317 (1893).
[Pjersons are rendered infamous ... by having been convicted of forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the *553absence of a witness, or other conspiracy, to accuse one of a crime, and barratry. . . . [T]he "crimen falsi" of the Common Law ... is one which may injuriously affect the administration of justice, by the introduction of falsehood and fraud.
. . . 2 J. Wigmore, Evidence § 520, at 730 (rev. 1979). Accord, Black's Law Dictionary 446-47 (4th rev. ed. 1968).
Burton, at 7. The distinction between a tendency toward testimonial dishonesty and simple lack of respect for the property of others is crucial, because
[t]he purpose of allowing impeachment by prior conviction evidence is to shed light on the defendant's credibility as a witness. Therefore, prior convictions admitted for impeachment purposes must have some relevance to the defendant's ability to tell the truth. Simply because a defendant has committed a crime in the past does not mean the defendant will lie when testifying.
(Citations omitted.) Burton, at 7-8. Accord, R. Aronson, Evidence in Washington 609-10 (1989). At that time we concluded that " [w]hile in a broad sense theft is always dishonest, crimes of theft in general do not contain the requisite element of untruthfulness and thus, misdemeanor crimes of theft in general are inadmissible under ER 609(a)(2) . . .". Burton, at 10. To hold, as the majority now does, that all crimes with any element of premeditation are "crimes of dishonesty" for purposes of ER 609(a)(2) is to distort the intent of the rule.
This very issue was addressed in the proposed changes to the Federal Rules of Evidence published by the American Bar Association, Criminal Justice Section Committee on Rules of Criminal Procedure and Evidence in 1987. The committee proposed changing rule 609(a)(2) so evidence that a witness has been convicted of a crime shall be admitted only if the crime
involved dishonesty or false statement, UNTRUTHFULNESS OR FALSIFICATION, regardless of the punishment, UNLESS THE COURT DETERMINES THAT THE PROBATIVE VALUE OF ADMITTING THIS EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE. THIS SUBSECTION (2) APPLIES *554ONLY TO THOSE CRIMES WHOSE STATUTORY ELEMENTS NECESSARILY INVOLVE UNTRUTHFULNESS OR FALSIFICATION.
I (Italics mine.) American Bar Ass'n, Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 356 (1987). The commentary accompanying the proposed rule states, in relevant part:
Proposed section (a)(2) both clarifies and changes the existing Rule. The current wording of (a)(2) refers to crimes of dishonesty or false statement. Endless dispute has resulted from the inclusion of "dishonesty" in the Rule. Some courts have used this provision to include crimes of stealth such as larceny, robbery, burglary or even on occasion narcotics violations. . . .
Proposed Rule 609(a)(2) applies only to convictions for untruthfulness or falsification. This change more accurately implements the intention of present Rule 609. . . .
(Citations omitted. Italics mine.) 120 F.R.D. at 359-60. These proposed changes would make the federal rule identical to the Burton rule, except that even more protection would be added in the form of a balancing test. The proposed rules are admittedly preliminary, and have only persuasive value. Nonetheless, they do offer a well reasoned interpretation of what rule 609(a)(2) was intended to achieve.
In State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989), Justice Brachtenbach, writing for a plurality of four, stated that "our heavy reliance in Burton upon federal legislative history and upon federal decisional law was misguided." Brown, at 547. After quoting a definition of dishonesty from Webster's dictionary, the plurality in that case opined:
The act of taking property is positively dishonest. . . . We perceive no reason to believe that a person's propensity to lie may be demonstrated by past acts of lying but not by past acts of dishonest conduct.
Brown, at 552.
The foregoing analysis did not persuade a majority of the *555Brown court; indeed, it was explicitly rejected by five justices in concurring opinions. As Justice Utter put it,
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 opinion 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).
Brown, at 558-59 (Utter, J., concurring). It is incomprehensible to me how a per se rule that a past conviction for petty theft is admissible regardless of its prejudicial effect (while a past conviction for murder is only admissible if it survives a balancing test) can be reconciled with the purposes of ER 609 and the evidence rules in general. One federal court has stated the issue thus: " [Precisely because it involves no discretion on the part of the trial court, . . . Rule 609(a)(2) must be confined . . . to a 'narrow subset of crimes'". United States v. Fearwell, 595 F.2d 771, 777 (D.C. Cir. 1978).
In the latest supplement to his handbook on Washington evidence law, Professor Aronson discussed the implications of the plurality opinion in State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988) (Brown I). (Although five justices in Brown I concurred in the result only, there were no concurring opinions published at that time. After rehearing was granted—and after Aronson's latest supplement was written—concurrences were published making explicit the fact that Justice Brachtenbach's opinion did not change Washington law on this point. The majority opinion was not substantially altered.) Professor Aronson stated that the rule in Brown I, the same rule now proposed by the majority, would make Washington's law "the most inclusive, least discretionary admissibility rule of any jurisdiction that has adopted Rule 609(a) or its equivalent." R. Aronson, at 609-10.
*556Washington had a lenient admissibility rule prior to the adoption of ER 609(a)(2). In adopting the rule, this court explicitly chose to impose more restrictions on admissibility. See Comment, ER 609, 91 Wn.2d 1150 (1979). It is inappropriate for the court now unilaterally to alter ER 609(a)(2) by "interpreting" it so it becomes virtually meaningless. The court ought to use extreme caution in giving different meanings to its rules depending on the majorities which rise and fall with each case. Any change in the interpretation of the rule ought to be subject to the formal rules process adopted by the court, GR 9, rather than ad hoc procedure adopted by the majority. This is particularly true in this case where the issue of admissibility under ER 609(a)(2) is not determinative. I believe the integrity of this court's rulemaking authority as well as its obligation to the bar and litigants is better served by a reconsideration of ER 609(a)(2) under the established procedures.
The majority in the instant case adds no analysis to that rejected by this court in Brown. The majority's holding regarding theft is wrong both from a statutory and from a policy standpoint and because it undermines the rulemaking procedures adopted by the court. Therefore, I dissent.
Utter and Smith, JJ., concur with Dolliver, J.