(dissenting). Defendant was convicted by a jury of entering without breaking with intent to commit larceny, MCL 750.111; MSA 28.306, and sentenced to a prison term of 30 to 60 months. He appeals his conviction as a matter of right, raising two allegations of error, one of which is dispositive of this appeal.
Defendant contends that the trial court committed error requiring reversal by partially denying his motion in limine to suppress evidence of his prior convictions. Four prior convictions were at issue: larceny under $100 in 1977; larceny in a building in 1978; attempting to unlawfully drive away an automobile in 1978; and attempted entering without breaking in 1979. Of the four convictions, only evidence on the 1979 attempted entry *767without breaking was ruled excludable. The following excerpt from the trial transcript constitutes the entire discussion of defendant’s motion:
7Defense attorney]: Your Honor, as to the 1979 conviction which is the same as this one attempt entering without breaking, given the rule in this case, in these cases concerning impeachment by prior convictions, I would call the court’s attention to People v Dale Crawford.
"The Court: I don’t think you need belabor that, let me hear from the prosecution.
"With respect to that conviction that is for the same offense as this one that occurred in 1979, have you any objections to excluding that?
7Prosecuting Attorney]: No, your Honor, I have no objection to excluding that but I would ask the court if the defendant does elect to testify, I could ask him about his other larceny conviction.
"The Court: I am going to take them one at a time, that one we will exclude. What are the others?
7Defense attorney]: There is a 1977 conviction, your Honor, for larceny under $100.
"The Court: That does not involve breaking and entering?
7Defense attorney]: No, your Honor, it doesn’t.
"The Court: That’s a misdemeanor?
7Defense attorney]: That is correct, your Honor, but my understanding of the statute is that—
"The Court: It involved larceny?
7Defense attorney]: Yes, I would ask the court given the highly prejudicial nature in crimes of a similar nature, this one involving breaking and entering with the intent to commit larceny and that crime also involving larceny, I think that if Mr. Steele chose to testify, it would be very difficult for the jury to separate the probative value of that offense over the prejudicial value.
"The Court: That misdemeanor is the only other conviction he had?
"[Defense attorney]: No, unfortunately, your Honor, it *768is not. In 1978, he also has larceny in a building and 1978 attempt unlawfully driving away an automobile.
'The Court: No. I will, as I said, exclude the 1979 conviction that involved breaking and entering. The other convictions that involved larceny, I believe that the probative value on the issue of credibility outweighs the incidental relationship between those convictions and this charge.”
Defendant did not testify in his own behalf nor were any other defense witnesses called.
Decisions regarding the admissibility of evidence of prior convictions are within the trial judge’s discretion. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). In People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), the Court stated: "the trial court must positively indicate and identify its exercise of discretion”, in allowing or barring testimony regarding prior convictions. The factors which the judge must consider in making his determination on the admissibility of evidence of prior convictions for impeachment purposes were set forth in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), and succinctly restated in People v Clay, 95 Mich App 152, 161; 289 NW2d 888 (1980):
"(1) the nature of the prior offense and its bearing on defendant’s credibility, (2) whether it is for substantially the same conduct for which defendant is on trial, with closely related offenses requiring close scrutiny due to the likelihood of prejudice, and (3) the effect on the decisional process if the defendant does not testify out of fear of impeachment.”
Whether the court adequately considered the Crawford criteria need not be addressed by this Court since the colloquy quoted earlier indicates that the court placed the burden on the defendant *769to persuade the court that his criminal record should be excluded. Crawford, supra, 38.1
I contend that this error requires reversal. The people bear the burden of justifying admission of evidence of prior convictions. People v McCartney, 60 Mich App 620, 625; 231 NW2d 472 (1975). In the instant case, the prosecutor did not participate in the discussion regarding the suppression of evidence of the three prior convictions which the court refused to exclude. Since the court ruled on the motion without hearing from the prosecution, the burden of persuasion was deary misplaced.
I acknowledge that the McCartney decision, placing the burden on the prosecutor, was recently criticized by a panel of this Court. People v Huff, 101 Mich App 232; 300 NW2d 525 (1980), rev’d 411 Mich 974; 308 NW2d 110 (1981). The Court of. Appeals in Huff noted that Michigan cases deciding MRE 609 issues placed great weight on Luck v United States, 121 US App DC 151; 348 F2d 763 (1965), and Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967).
In Gordon, Chief Justice Burger, then circuit judge, after discussing the Luck test, which requires the prejudice must "far outweigh” the probative relevancy to credibility, stated:
"The burden of persuasion in this regard is on the accused; and, once the issue is raised, the District Court should make an inquiry, allowing the accused an opportunity to show why judicial discretion should be exer*770cised in favor of exclusion of the criminal record.” 127 US App DC 343, 346-347; 383 F2d 939-940. (Emphasis added.)
Huff, in view of the above, believed that McCartney was in error. The Court suggested that the rule on the burden of persuasion is to the contrary. Huff, supra, 251.
Huff was not decided on the burden of persuasion issue, and the dicta suggesting McCartney is incorrect I believe to be erroneous. With all due respect to the Huff panel, the weakness in their analysis is their reliance on Gordon which, I note, elicited critical analyses in United States v Smith, 179 US App DC 162; 551 F2d 348 (1976).
The defendants in Smith were charged with armed robbery and the prosecution attempted to impeach defendants’ credibility by use of prior convictions. The issue was governed by 609(a) of the Federal Rules of Evidence which became effective July 1, 1975, eight years after the Gordon decision.
The court, after an exhaustive compilation of legislative history, concluded that FRE 609(a) "manifests an intent to shift the burden of persuasion with respect to admission of prior conviction evidence for impeachment”. Smith, 179 US App DC 162, 173; 551 F2d 359. The Gordon test, the various subcommittee versions, and the adopted rule, were compared by the Smith court. The court reasoned that the variations were not purely semantic and stated:
"The prosecution now must bear the burden of establishing that prior conviction evidence should be admitted. Our grammatical interpretation of the bare wording of Rule 609 is reinforced by the remarks of two leading conferees during debate on the floor of the *771House. Defending the Conference Committee product, Congressman Dennis said,
" 'What the present compromise does is to say that you can inquire on cross examination about these [sic] type of prior convictions which really bear on credibility, and you can ask about all other felonies on cross examination, only if you can convince the court, and the burden is on the government, which is an important change in the law, that the probative value of the question is greater than the damage to the defendant * * 120 Cong Rec H 12,257 (daily ed, December 18, 1974).
"Representative Hungate declared, '[T]he rule puts the burden on the proponent of [prior conviction] evidence to show that it should be used — to show that the probative value of the evidence outweighs its prejudicial effect to the defendant.’ Id., 12,254.” Smith, 179 US App DC 162, 174; 551 F2d 360.
MRE 609(a) is a modified version of FRE 609(a), varying in a number of respects.2 However, the *772purpose of MRE 609(a) is similar to that of the federal rule. Under the Michigan rule the criminal defendant’s credibility can be attacked
"but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.” (Emphasis added.)
The federal rule allows impeachment by evidence of prior felony conviction only if "the court determines that the probative value, of admitting this evidence outweighs its prejudicial effect to the defendant”. FRE 609(a)(1).
The similarity of purpose between the rules appears clear. The variations in the Michigan rule, as explained in the state’s committee notes and comments, were for purposes other than to shift the burden of persuasion. Michigan Court Rules Annotated — Evidence Rules 1979, p 344. The legislative history set forth in Smith is controlling, therefore, on who bears the burden of persuasion.
I am persuaded, therefore, that the dicta in Gordon and Huff are misguided. The burden is on the prosecutor to demonstrate that the probative value of the evidence outweighs its prejudicial effect. In the instant case, the burden of persuasion was clearly misplaced I believe.
I would reverse and remand.
The trial court must consider the effect on the decisional process if the defendant does not testify out of fear of impeachment by use of his prior convictions. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). The unique facts of this case and the defendant’s defense would be important when the court considers the effect on the decisional process if defendant did not testify. The record does not reveal that the trial court considered this factor in making its decision. The defendant ultimately did not testify and did not present any other witnesses on his own behalf in this case.
MRE 609, "Impeachment by Evidence of Conviction of Crime” reads:
"(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
■ "(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.”
FRE 609, "Impeachment by Evidence of Conviction of Crime” reads:
"(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.”