(dissenting). Defendant is appealing his conviction for assault with intent to rob while armed. I cannot agree that this conviction is made unsound by the trial judge’s declining to prohibit all cross-examination as to defendant’s felony record. I cannot join the Court’s application of the decision in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973) to this case and its retroactive effect as to Wayne County. I do not share the Court’s misgivings about the trial judge presiding at the remand identification hearing.
FACTS
Because the facts are important, I add to those set forth in the majority opinion.
The robbery occurred July 1, 1970 at the Terminal Bar in Detroit. A complaint alleging assault with intent to rob was issued July 27, 1970. De*348fendant was arrested for this crime on August 5, 1970.
Defendant waived his right to trial by jury. During trial Elizabeth Petrenas, a barmaid and part owner of the bar, identified defendant. After the robbery she had selected defendant’s picture when shown photographs of nine individuals. Subsequently, she also identified defendant from a lineup. Defendant’s attorneys did not object to admission of this testimony.
At the close of the evidence, the court said the case "really boils down to the question of identity”. The court did not believe the testimony of defendant’s sole alibi witness. The court did emphasize Mrs. Petrenas’ "ample opportunity to see the alleged robber”. Defendant had been in the bar previously and she had talked to him. During the robbery it was defendant who went behind the bar to empty the cash register. The judge was sure Mrs. Petrenas "got a mental picture of the alleged assailant that she won’t forget for a long time to come”. The judge was "satisfied beyond a reasonable doubt that she was able to identify her assailant and that her assailant was, in fact, this defendant”.
Defendant moved for a new trial. The judge said "there was sufficient basis for concluding that the in-court identification had an independent basis separate and apart from the exhibition of the photographs”. He felt the circumstances and length of observation dispelled any fear that the identification was "tainted or colored by the fact that she was shown photographs”.
In an opinion filed June 28, 1972, the Court of Appeals said:
"The crux of this matter seems to be whether or not the in-court identification of the defendant was tainted *349by the lack of defendant’s legal representation at the time of his previous photographic identification, made prior to formal accusation.”
Despite the absence of objection, the Court remanded for a hearing "to determine whether complainant’s in-court identification was of independent origin”.
Hearings were held in August and September 1972. The transcript runs over 100 pages. The trial judge said when defendant first entered the bar "he asked for the latrine, which was an expression [Mrs. Petrenas] was unfamiliar with and had not heard it before and that attracted her attention”. The fact that defendant left without purchasing anything also attracted her attention. Coupled with factors noted above, this led the judge to conclude "that in this case the witness did have an independent basis for her identification here in court of the defendant”.
Defendant’s delayed application for leave to appeal the decision of the Court of Appeals was granted by this Court April 30,1973.
DISCUSSION
I
The Court has reversed defendant’s conviction believing that error was committed when the judge failed "to recognize that, in the exercise of discretion, he might have refused to allow the impeachment of Jackson by reference to his prior conviction record”. Error should not be predicated on this failure because the prosecutor had a statutory right to impeach defendant by reference to his prior convictions. The judge does have discretion to limit the testimony, but not to prohibit impeachment inquiry.
*350MCLA 600.2159; MSA 27A.2159 provides that if a witness has been convicted of a crime, such conviction "may be shown for the purpose of affecting his credibility”. The common law prohibited any defendant or convicted person from testifying. The latter disability was removed by the Revised Statutes of 1846.
1861 PA 125 removed the defendant’s disability:
"Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify but any such defendant shall be at liberty to make a statement to the court or jury and may be cross-examined upon any such statement.”
1881 PA 245 introduced the predecessor of MCLA 600.2159:
"No person shall be disqualified as a witness in any criminal case or proceedings * * * by reason of his having been convicted of any crime; but such * * * conviction may be shown for the purpose of affecting his credibility.”
When the defendant takes the stand, he is treated in the same manner as any other witness. To date, the statute remains the sole expression of state policy. There is no court rule to the contrary as an expression of this Court’s policy. There is considerable Michigan case law supporting the contention that the prosecutor has the right, during cross-examination, to offer defendant’s prior convictions as evidence bearing on his credibility. The judge’s discretion should prevent such a cross-examination from exceeding permissible limits.
The defendant in People v Eddington, 387 Mich 551; 198 NW2d 297 (1972) had been cross-examined about other charges then pending against him. This Court felt the "trial judge should exer*351cise his discretion in such a way that a defendant is not cross-examined, under the guise of testing credibility, merely to prejudice the jury”. Such questioning must be controlled and limited "so as to prevent a miscarriage of justice”. The judge’s discretion should control cross-examination, not prohibit it.
In People v Di Paolo, 366 Mich 394; 115 NW2d 78 (1962), the defendant was cross-examined as to prior convictions. The Court said there was no question that "the people had the right to such cross-examination, if properly conducted * * * the purpose being to assist the jury in determining the credibility of defendant as a witness in his own behalf’. (Emphasis added.) It was the trial court’s duty to insure that cross-examination was properly conducted.
The prosecution in People v Finks, 343 Mich 304; 72 NW2d 250 (1955) did not introduce defendant’s criminal record until he had a lapse of memory on cross-examination. The Court said the "right to show these convictions for the purpose of determining credibility is established” by statute (emphasis added):
"In determining the weight to be given the defendant’s testimony the jury had a right to know what manner of man he had been in the past. See Van Goosen v Barlum, 214 Mich 595 [183 NW 8 (1921)]; People v Cummins, 47 Mich 334 [11 NW 184 (1882)].
"In Lunde v Detroit United Railway, 177 Mich 374, 378 [143 NW 45 (1913)], this Court held:
" 'The extent of cross-examination for the purpose of showing the true character of the witness, so as to enable the jury to properly judge the weight to give the testimony, should be and is left to the discretion of the trial judge, and will not be reviewed unless this discretion is clearly abused.’
"There was no effort made to enlarge upon the details *352of the convictions and the record was offered with credibility of the witness as the sole issue.”
The Court in People v De Camp, 146 Mich 533; 109 NW 1047 (1906) found no error in the trial court’s admitting evidence that defendant had been convicted of other crimes:
"Defendant was a witness, and this evidence was competent to affect his credibility. Helwig v Lascowski, 82 Mich 621 (10 L.R.A. 378 [46 NW 1033 (1890)]), and cases there cited.”
In Helwig, the Court said:
"While it is competent on cross-examination to interrogate a witness fully as to his past life, so that the jury may know what manner of man the witness is and has been, still there must be a limit beyond which such inquiry should not go, and the trial judge must, in the exercise of a sound discretion, determine when that limit is reached. Only a clear abuse of that discretion will be reviewed on error.”
Justice Levin cites only People v Cummins, 47 Mich 334; 11 NW 184 (1882) as precedent provided by this Court which found that it is "within the discretionary authority of the trial judge to permit” questions as to prior convictions. However, the Court in the same paragraph further said:
"The defendant had voluntarily offered himself to the court and jury as a general witness, and his right to testify and their duty to receive his testimony and consider it were clear and unqualified. It is evident that the course of inquiry referred to was not carried beyond reasonable bounds, and certainly it was not wrong to permit him to be requested in the mode pursued to inform the judgments of the triers as to his former life and behavior.”
Acting in the aforesaid legal milieu the judge, in *353my opinion, did not err in concluding that he could not totally prohibit cross-examination as to prior convictions. However, it is agreed that such an examination should be carefully circumscribed to insure that it does not produce a miscarriage of justice.
It is, however, fruitless to analyze the legal question presented in this case by referring to established precedent. This case is being used as the first step in the march to eliminate use of prior convictions to attack a defendant’s credibility. This decision is being used to change a policy established by statute and precedent.
The majority opinion poses a problem of a practical nature which should have been addressed. If the judge is to use his or her discretion in deciding whether to exclude evidence of prior convictions, such convictions must be timely revealed so that the judge can make a fully informed decision.
Therefore, I would have provided that a pretrial determination be made in a hearing in which the interested parties would be present to consider this question and also to dispose of questions raised by Loper v Beto, 405 US 473; 92 S Ct 1014; 31 L Ed 2d 374 (1972) and United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972) as to use of convictions unconstitutionally obtained.
THE FUTURE
It is important to look ahead. If there are obstacles in the path of truth, of course they must be removed or rendered harmless. Therefore, this "first step”, this departure from history and Michigan statutory and judicial precedent, must be viewed with appropriate caution and its goal studied in depth.
*354The majority opinion considered together with the concurring opinions renders the route of this Court obvious. Either by court rule or precedential opinion, the Court would prohibit impeachment of the credibility of a criminal defendant by any reference to prior convictions. The credibility of all other witnesses may be impeached by evidence of prior convictions. Although all of us wish to arrive at the truth, I have deep reservations as to whether truth will be the product of our labors.
An important function of the trier of fact is to evaluate the credibility of witnesses, weighing the testimony elicited from each against the testimony of others. To date, the trier of fact has been assisted in this evaluation by appropriate evidence demonstrating what manner of person each witness may be. It appears that the trier of fact may be required to operate in a vacuum so far as the defendant is concerned, but that another set of rules would apply to others. Indeed, the victim or the complaining witness may end up in all appearances as the accused.
On the face of the instant probability, the scales of justice would be improperly balanced.
There is a large if sometimes overlooked difference between securing so far as is possible a fair trial leading to the right result (the truth of the matter) and securing to defendants the benefit of anything and everything which may give them a chance for acquittal. We appear to be headed towards the latter result.
II
The Court has affirmed and applied the decision of People v Anderson, supra, to these facts. The Court acknowledges that the Anderson rules are *355not mandated by constitutional guarantees. The Court assumes unfairness and feels compelled to readopt the rules "to preserve best evidence eyewitness testimony from unnecessary alteration by unfair identification procedures”. I believe this objective can be met by less restrictive procedures which will preserve the constitutional rights of citizens and promote efficient law enforcement. The United States Supreme Court has afforded strong and recent precedent which we ignore.
In Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972), the Supreme Court declined
"to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.”
The Court refused "to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings”. Noting Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967) the Court said:
"When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.”
In the instant case, as in Kirby, the formal proceedings on the charge complained of had not been instituted. Defendant was only a suspect as to the assault. Unlike Kirby, where there was a station house one-on-one confrontation, defendant in our case was identified from among a group of *356photographs and out of a lineup as well as in court.
After the Anderson opinion the United States Supreme Court in United States v Ash, 413 US 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973) discussed the question of
"whether the Sixth Amendment grants an accused the right to have counsel present whenever the government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender.”
Nine of ten circuits answered in the negative. The majority of state courts answered in the negative.
In Ash, the Court concluded:
'!A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identiñcation in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present * * * no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by this professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation.” (Emphasis added.)
The Court held "that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the offender”.
Kirby holds that there is no right to counsel at events preceding the institution of adversary criminal proceedings. (See Ash, p 303, footnote 3.) Ash holds that there is no right to counsel at photographic displays used for identification purposes.
*357The proceedings in the instant case fall within the rules of Kirby and Ash. I believe adoption of those rules would promote efficient criminal investigation while preserving the rights of all citizens. I do not believe Anderson as effectively serves those ends.
RETROACTIVITY
Even if I could subscribe to the result in Anderson, I would not adopt the Court’s application of that decision. Anderson has been made retroactive to June 11, 1969 but only as to appeals from Wayne County. As sole authority for this unique conclusion, the Court makes much of a one-paragraph excerpt from a prosecutor’s brief which was quoted in a footnote in a decision of the Court of Appeals. (The Court fails to note that the defendant’s conviction in that case was affirmed by the Court of Appeals.)
Upon such a gossamer thread of legal authority is hung the weighty determination that Anderson has a limited retroactive effect applicable to appeals from one county of this state. The Court has, without a substantial basis, created two classes of criminal defendants. The Court has cut across guarantees of equal protection of the laws.
Ill
The Court has expressed "misgivings” about the trial judge presiding at the hearing ordered by the Court of Appeals. The Court believes "even an upright man could not be wholly objective” in these circumstances.
The conclusion of the Court is unsupported by the record. It is not even raised by defendant in his ten allegations of error. There is no claim of *358prejudice or bias. There is no claim that due process was denied. There is no claim that the hearing was truncated or unfair.
The Court has on its own raised this issue. The remarks are inappropriate, in my opinion. The 100 page record is clear on its face. I believe that this Court does not reflect "the appearance of justice” in faulting the obviously painstaking judge. Defendant’s conviction should be affirmed.
J. W. Fitzgerald, J., did not sit in this case.