(dissenting).
I cannot agree with the ruling that evidence of appellant’s 1974 conviction for rape would have been admissible as impeachment because its probative value outweighed its prejudicial effect.1 On the contrary, the potential prejudicial effect of this evidence grossly outweighs its probative value. Furthermore, it is clear that the possible introduction of this evidence provoked appellant’s decision not to testify.
In a case such as this, where the only issue was consent, I submit that the appellant’s failure to take the stand was, in the eyes of the jury, tantamount to an admission of guilt.
■The appellant was well known to complainant and her husband. They had given him work to do in their residence. It is undisputed that on October 25, 1978, as complainant was driving home in South St. Paul from her place of employment at lunchtime, appellant, who was on foot, waved to her and she stopped to pick him up. At his request she took him to her home so that he could talk to her. Once there the statement given to the police by appellant and the testimony of the complainant are at total variance as to what occurred. Appellant sought to prove that he was seduced by the complainant and introduced evidence that she had seduced a friend on a prior occasion. She testified that she consented to intercourse only after appellant seized her by the throat and choked her.
While it is true that appellant’s version of these events was presented to the jury in the form of a statement to the authorities, it is equally true that in defending himself he was effectively denied his fundamental right to present his case to the jury from the witness stand. The court had denied his motion to exclude evidence of his prior offense if he testified on his own behalf, and the devastating effect of that ruling did not escape him.
This is not a case where the evidence of guilt is strong as in State v. Leecy, 294 N.W.2d 280 (Minn.1980), filed May 16, 1980. There a majority of the court was careful to point out that State v. Brouillette, 286 N.W.2d 702 (Minn.1979) had not overruled State v. Jones, 271 N.W.2d 534 (Minn.1978). In weighing the probative value against the prejudicial effect of introducing prior offenses, the trial court must still consider the impeachment value, the similarity of the crimes charged and the prior convictions, the importance of defendant’s testimony, and the centrality of the credibility issue.
In Gordon v. United States, 383 F.2d 936, 940-41 & n. 11 (D.C. Cir. 1967), the federal court speaking through Judge Burger, now the Chief Justice, cautioned against the use of prior records which have no direct bearing on honesty and veracity, such as acts of violence which do not involve deceit, fraud, cheating, or larceny. “A special and even more difficult problem arises” the court noted “when the prior conviction is for the same or substantially the same conduct for which the accused is on trial.” This is because of what the court describes as “the inevitable pressure on lay jurors to believe that ‘if he did it before he probably did so this time.’ ” Such convictions for the same *548crime should be admitted sparingly, the court stated. Finally, the federal court stressed the necessity for the exclusion of a prior conviction where, although relevant to credibility, in the court’s opinion “it is more important that the jury have the benefit of the defendant’s version of the case than to have the defendant remain silent out of fear of impeachment.” The judge must then “consider whether the defendant’s testimony is so important that he should not be forced to elect between staying silent-risking prejudice due to the jury’s going without one version of the facts — and testifying — risking prejudice through exposure of his criminal past.”
The appellant was here convicted of criminal sexual conduct in the third-degree. His prior conviction was for rape. However reprehensible and degrading that previous offense may have been, it did not involve fraud, perjury, deceit, or dishonesty. Except where it is permissible under Rule 609, appellant does not put his character in issue by testifying on his own behalf, and it could not have been attacked under any circumstances unless he had taken the stand and had introduced evidence of his good character. Such is the time-honored common law rule. Our Rule 609 is an exception to that rule, and, as the federal court suggests, it should be applied sparingly, with restraint, to preserve and not to erode the right of the accused to have his day in court and to plead his case before a jury unfettered by the stigma of an unrelated offense for which he has already paid his debt to society-
I would reverse and grant a new trial at which the prior record of conviction is excluded.
. The applicable rule, Minn.R.Evid. 609, provides in part:
(a) 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 ⅛ 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, or (2) involved dishonesty or false statement, regardless of the punishment.