(dissenting):
I respectfully dissent.
On appeal, Morehouse claims he was denied his right, under the sixth amendment to the United States Constitution, to effective assistance of counsel at trial because of each of the following two instances of alleged incompetency by his retained counsel: (1) counsel kept Morehouse from testifying in his own behalf based on counsel’s erroneous belief that the rules of evidence would allow the defendant to be impeached on cross-examination by the introduction of all his previous criminal convictions; and (2) counsel failed, both before and during trial, to seek exclusion of evidence seized in warrantless searches of the gas station after the night of the fires, as well as the expert opinion testimony based thereon. I do not address the second alleged error by counsel, although it adds fuel to the issue of prejudice, because the first is constitutionally dispositive.
In order to succeed in his claim, More-house must demonstrate that his trial counsel’s specific act or omission fell below an objective standard of professional reasonableness and that the deficiencies in representation resulted in prejudice to him. State v. Archuleta, 747 P.2d 1019, 1023 (1987); State v. Frame, 723 P.2d 401, 405 (Utah 1986) (adopting the two part standard for ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
QUALITY OF REPRESENTATION
With regard to the first claimed error by appellant’s counsel, there is no question that Morehouse has met the first part of the Strickland test by showing a specific action that falls outside the wide range of professionally competent assistance. See State v. Frame, 723 P.2d at 405. At their first consultation, Morehouse told the attorney that he wanted to testify in his own behalf. He had alibi witnesses1 for the entire evening of November 1, except for the thirty minutes just prior to the first fire report. He had been in a public place with friends for an extended period of time and was home with his wife within one-half hour, where another witness phoned him. Only he could tell the jury where he was and what he was doing at the time the initial fire started. Only he could explain what he observed and what he did inside the building prior to the second fire. Before entering, he and his wife had been sitting in their car in front of the gas station for a long period, in full view of everyone, including his neighbor-customer (later key prosecution witness) across the street. Only he could share with the jury a first-person account of his claims of innocence.
But his attorney deprived him of his constitutional right to testify. Counsel erroneously advised him not to testify because he could be cross-examined concerning all his numerous prior convictions, thereby keeping Morehouse off the witness stand and prohibiting his testimony.
*221After Morehouse’s conviction and sentencing on April 14, 1986, counsel filed a motion for a new trial. At the hearing on that motion, counsel admitted his legal error in misunderstanding the applicable rule of evidence, Utah R.Evid. 609, and its effect on Morehouse. He testified that he did not call Morehouse to the stand solely because of the defendant’s prior convictions, and that he had advised Morehouse that, if he took the stand, he would be required “to respond not only as to the fact of his prior convictions, but as to the number and nature,” making it impossible “to make Morehouse presentable to the jury.” Counsel claimed that he subsequently realized his error in not filing a pretrial motion to restrict the use of Morehouse’s convictions for impeachment purposes when he read the opinion of the Utah Supreme Court in State v. Banner, 717 P.2d 1325 (Utah 1985), issued the day of Morehouse’s sentencing.
Counsel would not proceed on those adverse admissions as an appeal tactic if they were not true. He considered his erroneous advice to be of serious proportions and prejudicial. He was the only person, other than Morehouse, who knew the full story. However, my colleagues, without the benefit of any greater knowledge, deem the matter harmless. I do not.
Appellant’s attorney failed to know and understand Utah R.Evid. 609, even though it was adopted on April 14, 1983, three years before Morehouse’s trial, and became effective September 1,1983. It is true that the rule, when adopted, conflicted with the last sentence of Utah Code Ann. § 78-24-9 (1987), allowing a witness to be cross-examined on any previous felony conviction. But, even though Banner was the first Utah case to explicitly declare that portion of the statute superseded by Utah R.Evid. 609, the Preliminary Note to the 1983 Utah Rules of Evidence declared that any existing statute inconsistent with the rules was impliedly repealed with their adoption and that the new rules provided a fresh starting place for the law of evidence in this state. The pertinent subsections of Rule 609 state:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Morehouse’s prior convictions were: 1964 Burglary ,
1972 Possession of a weapon by a restricted person
1973 Burglary and theft
1976 Possession of a controlled substance
1982 Driving under the influence
Under subsection (a)(1) of Rule 609, the DUI conviction was not admissible because not punishable by more than one year’s imprisonment. The 1964 and 1972 convictions, being more than ten years old, were inadmissible under subsection (b) unless the court determined that their probative value outweighed their prejudicial effect, an unlikely result given the nature of the *222convictions and the fact that they occurred 22 and 14 years, respectively, before More-house’s trial for aggravated arson. The 1973 conviction was potentially admissible under subsection (a), because Morehouse had been reimprisoned for that offense and not released until 1978, less than ten years before this trial.2 See Utah R.Evid. 609(b). But both that conviction and the 1976 possession conviction were admisssible via Rule 609(a)(1) only after the trial court determined that their probative value outweighed their prejudicial effect.3 State v. Gentry, 747 P.2d 1032, 1033 (Utah, 1987).
In short, reasonably competent defense counsel would have sought to restrict the prosecutor’s use of Morehouse’s convictions at a pre-trial hearing conducted in accordance with Rule 609, at which it would have been the prosecution’s burden to persuade the court that their probative value outweighed their prejudicial effect. State v. Banner, 717 P.2d at 1334. Furthermore, reasonably competent defense counsel would have known the content of Utah R.Evid. 609 and its applicability to appellant’s circumstances and would have been able to give Morehouse correct legal advice about the rule’s impact on his right to testify in his own defense.
PREJUDICE TO DEFENDANT
Having determined that trial counsel’s representation of Morehouse was demonstrably incompetent, the next question is whether that deficiency was prejudicial to appellant.4 State v. Frame, 723 P.2d at *223405. In order to substantiate a claim of ineffective assistance of counsel, appellant must show that a “reasonable probability” exists that, but for counsel’s error, the outcome of the trial would have been different. A “reasonable probability” is one sufficient to undermine confidence in the reliability of the verdict. Id.; State v. Lairby, 699 P.2d 1187, 1204-D6 (Utah 1984). See Strickland, 466 U.S. at 491, 104 S.Ct. at 2066.
The evidence in this case, although legally sufficient to support a conviction, was meager. There was no affirmative evidence that Morehouse caused the first fire; moreover, his behavior the remainder of the night appears inconsistent with that of the second fire’s instigator. The purported motive — that Morehouse wanted to bum himself out of his business lease — is highly suspect.
Testimony by Morehouse to explain the half-hour gap in his alibi was crucial to his case, especially since the prosecutor’s argument focused the jury on the gap. As previously stated, only he could explain to the jury why he was sitting in a car at the gas station, in plain view of the neighbors and all others on the busy street, until minutes before the second alarm was called in. Only he could tell what went on inside the building when he entered it.
Morehouse’s trial counsel considered that testimony consequential enough to raise a “reasonable probability” of a different outcome. Otherwise, trial counsel would not have filed the highly embarrassing post-trial motion for. a new trial.
The jury was deprived of the benefit of both hearing and observing this critical witness. It was not for his attorney to muzzle him in this manner. Wright v. Estelle, 572 F.2d 1071, 1078 (5th Cir.1978) (Godbold, J., dissenting), cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978). “Where the very point of a trial is to determine whether an individual was involved in criminal activity, the testimony of the individual himself must be considered of prime importance.” United States v. Walker, 772 F.2d 1172, 1179 (5th Cir.1985). Plainly, More-house’s testimony had exculpatory potential and would have enhanced his defense. Id. (quoting United States v. Larson, 596 F.2d 759, 779 (8th Cir.1979)).
After a careful review of the testimony and evidence presented at trial, I am compelled to conclude that there is a reasonable probability that the jury verdict would have been different if counsel had competently understood the rules of evidence and not kept Morehouse from testifying. Therefore, defendant’s conviction ought to be reversed and the case remanded for a new trial.
. Although the alibi defense was pursued through Morehouse’s other witnesses (without objection from the prosecution), trial counsel apparently did not file and serve a written notice of intention to claim alibi, as required by Utah Code Ann. § 77-14-2 (1982).
.Contrary to the view expressed by the trial judge at the hearing on the motion for new trial, appellant’s 1973 conviction for burglary was not admissible under subsection (a)(2) as involving "dishonesty or false statement," i.e., without the determination required by subsection (a)(1). In order to interpret that phrase in our rule, Utah courts must look to the federal decisions interpreting Fed.Rule Evid. 609(a)(2), State v. Gray, 717 P.2d 1313, 1317 (Utah 1986), recognizing that the federal courts are not in full agreement on what constitutes “dishonesty or false statement" under their rule. See Annotation, Impeachment of Witness by Evidence of Prior Conviction, 39 A.L.R.Fed. 570, 596 (1976). I find more persuasive and better-reasoned those decisions holding that burglary and theft not arising from fraudulent conduct are not crimes involving "dishonesty or false statement" within the meaning of Rule 609(a)(2).
By the phrase, "dishonesty and false statement” the Conference means crimes such as perjury or subornation of peijury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.
United States v. Smith, 551 F.2d 348, 362 (D.C.Cir.1976), (quoting H.R.Conf.Rep. No. 93-1597, 93d Cong., 2d Sess. 9, reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 7098, 7103). The rule’s intent was to limit introduction of prior convictions for impeachment purposes only to those crimes that bear directly on a witness’s propensity not to tell the truth. Otherwise, one could argue that any crime could be introduced to impeach. See United States v. Millings, 535 F.2d 121, 123 (D.C.Cir.1976). Burglary and ordinary theft are not crimes of dishonesty or false statement within the meaning of Rule 609(a)(2) because they do not involve the credibility-deteriorating quality contemplated in the rule. See United States v. Glenn, 667 F.2d 1269 (9th Cir.1982); United States v. Entrekin, 624 F.2d 597 (5th Cir.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 350 (1981); United States v. Seamster, 568 F.2d 188 (10th Cir.1978).
. The factors that should be considered by the trial court in balancing probative value against prejudicial effect for purposes of Utah R.Evid. 609 are enumerated in State v. Banner, 717 P.2d at 1334.
. I note that at least one federal district court has declined to apply this second part of the Strickland test where trial counsel’s incompetency kept a criminal defendant from testifying in his own behalf.
This Court considers a defendant’s right to testify in a criminal proceeding against him so basic to a fair trial that its infraction can never be treated as harmless error, which is in essence the inquiry required to be made by the second, prejudice to the defendant, prong of Strickland.
United States v. Butts, 630 F.Supp. 1145, 1148 (D.Me.1986). Although, as here, the issue as presented to the court was the denial of a sixth amendment right to effective assistance of counsel, the Butts court instead recognized a due process right of the defendant to testify in his own behalf because counsel’s actions had "affected the very fairness of the trial process itself." Id. Defendant’s motion for a new trial was granted, with the court holding that, where ineffective assistance of counsel deprives a defendant of his right to testify, prejudice is sufficiently proven from that deprivation. However sympathetic I may be to this analysis, this court is constrained to apply both parts of the Strickland test to the case before us, in light of the *223conclusion in State v. Banner, 717 P.2d at 1335, that the trial court’s error in not excluding use of defendant’s convictions for impeachment purposes — which kept defendant from testifying in his own behalf — "does not reach constitutional proportion.’’