dissenting.
I agree wholly that the trial court erred in admitting Eugene’s two prior convictions. I disagree that the error is harmless.
Harmless error is defined as “any error, defect, irregularity or variance which does not affect substantial rights.” NDRCrimP *6972(a). Stated simply, harmless error is error that is not prejudicial to the defendant. State v. Schimmel, 409 N.W.2d 335, 339 (N.D.1987). We have held many evidentiary errors to be harmless error. See, e.g., Schimmel, 409 N.W.2d at 335 [admission of on-site chemical screening results]; State v. Padgett, 410 N.W.2d 143 (N.D.1987) [admission of codefendant’s conviction]; Blotske v. Leidholm, 487 N.W.2d 607 (N.D.1992) [admission of hearsay testimony].
Only twice before have we held harmless an erroneous admission related to a defendant’s prior conviction. In State v. Bohe, 447 N.W.2d 277 (N.D.1989), two prior misdemeanor theft convictions were erroneously admitted to impeach the defendant. Id. at 282. The Bohe court found this to be harmless in light of the fact that nine prior burglary convictions were properly admitted to impeach the defendant. Id. In State v. Johnson, 231 N.W.2d 180 (N.D.1975), a prior conviction was properly admitted against a defendant, but an error was made in admitting too much information about it. Id. at 185. The Johnson court found this to be a “technical error.” Id. Both of these cases are distinguishable from this case: none of Eugene’s prior convictions should have been admitted at all.
The very reason prior convictions are so carefully segregated and regulated by our Rules of Evidence is that they are intrinsically prejudicial. It is a basic principle of evidence law that the bad character of a defendant cannot be used to prove present guilt. 1A J. Wigmore, Evidence § 57 at 1185 (Tillers rev. 1983). “The deep tendency of human nature to punish not because our victim is guilty this time but because he is a bad man and may as well be condemned now that he is caught is a tendency that cannot fail to operate with any jury, in or out of court.” Id. Regardless of this truism, however, many states, including North Dakota, long allowed the free use of prior convictions to impeach testifying defendants. See State v. Pfaffengut, 77 N.W.2d 521, 522 (N.D.1956). This practice was obviously in tension with the fact that “the divulgence of his criminal past exposes the witness to the hazards of jury prejudice.” 3 Weinstein’s Evidence ¶ 609[02] at 609-29 (1995). Ultimately, “[t]he combination of low probative value of prior conviction evidence and the high possibility of prejudice — particularly in the case of criminal defendants” prompted reform of the rules governing admissibility of prior convictions. Id. ¶ 609[02] at 609-31. Federal Rule of Evidence 609 was a product of the movement to reform evidence rules, and reflects an awareness of the “unique risk of prejudice” faced by criminal defendants who wish to testify on their own behalf.1 Id. ¶ 609[04] at 609-42.
This court has recognized that NDREv 609 is “almost identical” to Federal Rule 609. State v. Eugene, 340 N.W.2d 18, 31 (N.D.1983). Therefore, it is appropriate to consider how the federal courts interpret this rule. State v. Farzaneh, 468 N.W.2d 638, 641 (N.D.1991). Federal courts, applying Rule 609, have recognized that an inherent risk of prejudice exists when prior conviction evidence is admitted against a criminal defendant. In United States v. Roenigk, 810 F.2d 809 (8th Cir.1987), the court held an admission of prior criminal conduct evidence against the defendant to be improper when the evidence was not introduced for purposes of impeachment and when it was irrelevant to the offense charged. Id. at 816. The court stated that “[t]he problem with excessive references to the details of prior criminal conduct is that the jury is likely to infer that the defendant is more likely to have committed the offense for which he is being tried than if he had previously led a blameless life.” Id. at 815. Emphasizing the need for great caution in the admission of prior conviction evidence against a criminal defendant, the court in United States v. Brown, 794 F.2d 365 (8th *698Cir.1986), observed that “[w]hen the accused takes the stand, there is an obvious danger that the jury will view evidence of past conviction as evidence of present guilt.” Id. at 366. In cases in which the lower courts erroneously admit prior conviction evidence against a criminal defendant, the federal courts tend to find such admission harmful when the case otherwise is close. See United States v. Slade, 627 F.2d 293 (D.C.Cir.1980) [erroneous admission of prior conviction evidence harmful when the record showed that other evidence against the defendant was weak or unreliable]; United States v. Barb, 20 F.3d 694 (6th Cir.1994) [erroneous admission of prior conviction evidence harmful when the case was hard fought and it was possible that prior conviction evidence had a significant impact on the jury].
Therefore, we exclude evidence of prior convictions because their prejudice often outweighs any probative value. If that is so, how can their erroneous admission, that is in a situation where their prejudice outweighs their probative value, be harmless, that is, nonprejudicial?
I respectfully dissent.
. Montana went even farther than the federal government when it adopted its own version of Rule 609: its rule flatly disallows the use of prior conviction evidence for impeachment. Mont. R.Evid. 609. The Montana commissioners indicated that allowing admission of prior convictions to impeach can discourage defendants from testifying on their own behalf and lead to undue prejudice when they do testify. Mont.R.Evid. 609 Comm’n Comments. The commissioners also stated that they did not "accept as valid the theory that a person's willingness to break the law can automatically be translated into willingness to give false testimony.” Id.