(concurring in part and dissenting in part). I agree with the majority’s conclusion that the defendant’s conviction should be affirmed. I dissent, however, from the majority’s holding that a defendant must testify at trial to preserve for review a claim of improper impeachment with a prior conviction under MRE 609.
REJECTION OF THE LUCE RULE FOR MICHIGAN PRACTICE
Until today, it has been well settled in Michigan that a defendant need not testify to preserve the issue of impeachment by prior conviction for ap*532pellate review under MRE 609.1 See, e.g., People v *533Allen, 429 Mich 558, 612; 420 NW2d 499 (1988) (defendants Pedrin, Allen, and Smith); People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983); People v Williams, 413 Mich 72, 74; 318 NW2d 462 (1982); People v Baldwin, 405 Mich 550, 552; 275 NW2d 253 (1979) (defendant Woolfolk).
Now the people ask us to overturn this rule on the basis of Luce v United States, 469 US 38, 43; 105 S Ct 460; 83 L Ed 2d 443 (1984), which declared a new rule for the federal courts:
We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.
With all due respect to the United States Supreme Court, I would reject this rule for Michigan practice.* 2 It has no appeal in fairness, logic, or consistency with this Court’s prior decisions.
i
Let us start with the language of the Fifth Amendment itself, which states in part:
No person . . . shall be compelled in any criminal case to be a witness against himself .... [US Const, Am V.]
Implicit in this constitutional guarantee is that no *534penalty, no sanction, no disadvantage to the defendant shall flow from his decision not to testify at trial.
Griffin v California, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965), reh den 381 US 957 (1965), held unconstitutional a statute permitting the prosecution to comment on the failure of the defendant to testify at his criminal trial. Carter v Kentucky, 450 US 288; 101 S Ct 1112; 67 L Ed 2d 241 (1981), held that the Fifth Amendment required the court, upon the request of a nontestifying defendant, to instruct the jury not to draw an adverse inference from the failure of the defendant to testify. The central theme of both cases was "that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify.” 450 US 301. (Emphasis added.)
Similarly, the Court in Lefkowitz v Cunningham, 431 US 801, 805; 97 S Ct 2132; 53 L Ed 2d 1 (1977), observed:
[Q]ur cases have established that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.
The Luce rule exacts a heavy price from the defendant for electing not to testify at his trial. He is denied the right on appeal to raise what may be a substantial issue. If Luce intended to overrule the holdings of Griffin, Carter, Lefkowitz, and similar cases, that "a defendant must pay no court-imposed price” for failing to testify, a clearer statement from the Court that it is doing so is warranted. I would hold that the Fifth Amendment and the Michigan Constitution3 bar us from adopting Luce.
*535II
Further, Luce’s requirement that a defendant testify to preserve the impeachment issue is inconsistent with the spirit, if not the precise holding, of two of the Supreme Court’s own decisions. In Brooks v Tennessee, 406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972), relying on the Fifth Amendment, the defendant challenged the constitutionality of a Tennessee statute which required a defendant to be his own first witness if he were to take the stand at all. The defendant in that case elected not to testify, yet the Supreme Court was able to reach the constitutional issue. It struck down the Tennessee statute and reversed the defendant’s conviction.
In New Jersey v Portash, 440 US 450; 99 S Ct 1292; 59 L Ed 2d 501 (1979), the defendant chose not to testify at his criminal trial when the trial judge refused to rule in limine that the prosecution could not use the defendant’s grand jury testimony which had been given under a grant of transactional immunity. The Court rejected the state’s argument that the issue was not preserved for review because the defendant failed to testify:
The State contends that the issue presented by Portash is abstract and hypothetical, because he did not, in fact, become a witness. Portash could have taken the stand, testified, objected to the prosecution’s use of the immunized testimony to impeach him, and appealed any subsequent conviction. Absent that, the State would have us hold that the constitutional question was not and is not presented. This argument must be rejected. First, it is clear that although the trial judge was concerned about making a ruling before specific questions were asked, he did rule on the merits of the constitutional question. [Id., 454.]
*536The Luce Court attempted to distinguish these two cases on the ground that they related to Fifth Amendment challenges to state court rulings that operated to dissuade defendants from testifying, while Luce dealt with a federal court’s preliminary ruling under FRE 609. 469 US 42-43. The Court did not articulate any reason for distinguishing between constitutional claims and evidentiary claims in requiring a defendant to testify to preserve his right of appellate review for the latter. We see no basis for such distinction. As long as it is clear that the trial judge did "rule on the merits,” the ruling should be subject to appellate review the same as any other interlocutory ruling.
The other rationales offered by the Luce Court to support its ruling also do not survive close scrutiny.
hi
In reaching its decision, the Luce Court explained why it believed the defendant’s trial testimony was required:
A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under [FRE] 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify. [469 US 41.]
I would reject this premise. If a court can "know the precise nature of the defendant’s testimony” only by hearing a defendant’s actual trial testimony, then motions in limine would have no *537meaning. Such a preliminary ruling, so Luce seems to say, is meaningless because the court is ruling in the dark, and no matter how specific and detailed, an offer of proof will not dispel the darkness. If the Luce Court found hearings in limine unhelpful in resolving FRE 609 claims, it should have, to be consistent, accompanied its ruling with a firm directive to trial judges not to rule in limine on this issue, but to reserve such rulings until after the defendant had testified on direct examination.4
Contrary to the implications of Luce, however, motions in limine and offers of proof are an efficient means of avoiding trial delays regarding the admissibility of potentially inflammatory evidence, and litigants are encouraged to use them.5 The motions allow the trial judge ample time to decide the issue without interrupting trial. In United States v Cook, 608 F2d 1175, 1186 (CA 9, 1979), which involved an impeachment issue parallel to the present case, the court noted:
Motions in limine have proven their value in litigation. They save jury time, and avoid the waste that sometimes results from haste when side-bar matters have to be urged in the course of *538the trial. To persist in holding that rulings made in advance of trial are unreviewable unnecessarily discourages the use of such motions.
If a judge must await the defendant’s trial testimony before making his ruling, inevitably there would be a delay at the conclusion of the defendant’s direct examination to consider the issue. It would not be long before some sophisticated jurors would assume that such a delay meant that the defendant had a criminal record. This would be unfair not only to a defendant with a record, but even more so to one without a record whose cross-examination was delayed for other, unrelated reasons.
The Luce Court also said that a proffer of testimony would be no substitute for the actual trial testimony of the defendant because it could "for any number of reasons, differ from the proffer.”6 Proffers of evidence or offers of proof under FEE 103 and MEE 103 are well-recognized procedures in both civil and criminal practice, and we have made significant rulings on the basis of them. It may be that an offer of proof will vary significantly from the evidence subsequently introduced at trial, but it is the experience of the profession that this would be the exception rather than the rule. It is telling that Luce cites not a single instance where an offer of proof and the subsequent trial evidence in any setting, impeachment or otherwise, varied materially. At best, Luce premised a rule for all cases on the exceptional rather than the norm. I would decline to plow under the wheat field to destroy a few weeds.
For at least a hundred years, the federal courts have assumed that offers of proof have been made in good faith. Scotland Co v Hill, 112 US 183, 186; *5395 S Ct 93; 28 L Ed 692 (1884), held that if a trial court rejects an offer of proof and
allows a bill of exceptions which shows that the offer was actually made and refused, and there is nothing else in the record to indicate bad faith, an appellate court must assume that the proof could have been made, and govern itself accordingly.
In United States v Clemente, 482 F Supp 102 (SD NY, 1979), the defendants moved in United States District Court to suppress evidence obtained by the government through electronic surveillance. The court noted that the scope of permissible surveillance was to be measured in relation to the magnitude of the alleged illegal activity, and found:
The alleged scope of defendants’ activities is truly massive. At this stage in the proceedings, we deal solely with the allegations of the indictment and the Government’s offer of proof submitted in opposition to defendants’ motions to sever. We have and venture no opinion as to the validity of these allegations except to observe that no basis has been offered to question the good faith of the Government in their [sic] assertion. [Id., 107. Emphasis added.]
If we are to reject offers of proof as being unreliable in the area of Rule 609 issues, then why should we not reject them in other areas? If the Luce reasoning had been applied in Clemente, the government would have been forced to conduct a minitrial before the court could have ruled on the motion for severance. Applying Luce’s reasoning generally, the progress of both civil and criminal jury trials would be extensively delayed to consider what presently is more conveniently considered before trial.
*540Of course, if an offer of proof is made in bad faith, it usually would not be too difficult to detect and deal with appropriately.7 In a civil case, an offer of proof may be quite complicated, summarizing the testimony of several witnesses and voluminous documents. Even so, the courts are not prevented from detecting offers of proof made in bad faith. See, e.g., Bonime v Doyle, 416 F Supp 1372 (SD NY, 1976). The task is easier in criminal cases involving a Rule 609 issue. The offer of proof is factually simple, dealing solely with the testimony of one witness, the defendant on trial.
iv
In further support of its decision, the Luce Court noted:
When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction. [469 US 42.]
This argument is specious. When a prosecutor opposes a motion in limine in this area, we can assume that he does so for a clear purpose, i.e., to use the defendant’s prior conviction for the purpose of impeachment. To argue that the government might change its mind is speculative at best. Further, even if it does, the prosecution can easily make a record of this and preclude the defendant from raising the prior conviction issue on appeal *541by clearly renouncing its intent to use the impeaching evidence at any point before the defendant rests his case.
v
The Luce Court also said "a reviewing court cannot assume that the adverse ruling [on a Rule 609 motion in limine] motivated a defendant’s decision not to testify.” 469 US 42. It seems the Court is saying that, absent some proof from the defendant, made in some way unspecified by the Court, it will assume that the defendant chose not to testify for reasons unrelated to the Rule 609 ruling. On the contrary, I would hold that if a reviewing court finds that a defendant was improperly threatened with impeachment by prior convictions (following a timely but unsuccessful motion in limine raising the Rule 609 issue), the reviewing court should normally assume that the defendant’s decision not to testify was out of fear of the impeachment.8
This rule is not unduly harsh on the prosecution. First, its application does not mandate automatic reversal.9 Second, many legal scholars, including some past and present members of this Court, believe that in criminal cases the defendant *542should never be impeached by prior convictions.10 However, this is not the rule in Michigan. All I would say today is that if the prosecution has a strong case, it has no real need for the impeaching evidence; if it has a weak case, it cannot be said that improper impeaching evidence allowed or threatened to be allowed against the defendant is harmless.
This kind of hard decision making for a prosecutor is not unique to impeaching evidence. For example, 1 ABA Standards for Criminal Justice (2d ed), The Prosecution Function, Commentary on Standard 3-5.6, p 3-83, provides in part:
A prosecutor should exercise great care in deciding what evidence to use. A strong case should not be jeopardized by introducing evidence that is essentially cumulative but that may bring about a reversal. It is obviously not easy to forgo using reliable and probative evidence when it is at hand, but the prosecutor must do so in many instances. A high level of experienced litigation judgment is often required, and a prosecution office should have its senior litigation lawyers available for consultation on these difficult decisions.
VI
The Luce Court also stated:
Requiring that a defendant testify in order to preserve Rule 609(a) claims . . . will also tend to discourage making such motions solely to "plant” reversible error in the event of conviction. [469 US 42.]
*543Nearly every rule of exclusion based either on the common law or on Fourth, Fifth, and Sixth Amendment rights can be used to " 'plant’ reversible error.”11 We should have no objection to a defense counsel in a criminal case vigorously defending his client with every legitimate weapon available. We encourage and indeed require it with our canons of ethics. The remedy of the Court should not be to diminish the protection afforded by Rule 609, but instead to recognize meritless claims of violation of the rule when they are presented. We did just that in People v Wakeford, supra.
In Wakeford, we had no difficulty assessing a claim of error under MRE 609, even though the defendant did not testify:
No alibi defense was ever suggested, either before or after the trial judge’s ruling. On appeal, defense counsel suggests that the defendant could have testified that he was not attending school at the time the identifying witness and alleged former classmate testified that they had attended school together. However, in light of the unrebutted evidence introduced by the defendant on that point, ... as well as the overwhelming evidence of guilt, we agree with the Court of Appeals that the error, if any, was harmless beyond a reasonable doubt. [418 Mich 117-118.]
The failure of the defendant to testify neither precluded us from considering the merit of his claim of error nor from rejecting it as being harm*544less. See also our review of defendant Smith’s claim in People v Allen, supra, 612.
For the reasons discussed in §§ i-vi, I would reject the Luce rule in Michigan.
However, as a majority of this Court favors adoption of the rule, I concur in the prospective application stated in the concurring opinion of Justice Brickley.
Levin, J.The predicate of an assignment of error on the basis of a judge’s ruling, adverse to the defendant, allowing the prosecution to introduce into evidence the defendant’s prior conviction record to impeach the defendant’s credibility is that but for the adverse ruling the defendant would have testified. I therefore agree with the majority that a defendant may, consistent with his Fifth Amendment privilege against self-incrimination, properly be required to testify to preserve the issue for appellate review.
I would, however, permit a defendant to preserve the issue for review by testifying either in the presence or outside the presence of the jury.
A defendant who believes that despite the judge’s adverse ruling it is in his interest to provide the jury with his version, will testify and make the best of the judge’s ruling permitting reference to his prior conviction record. A defendant who believes that the judge’s adverse ruling will "doom his defense”1 should, however, be able —as heretofore — to rely on the presumption of innocence and refrain from testifying in the presence of the jury and yet appeal from the judge’s adverse ruling by providing for appellate review a separate record of his version made outside the presence of the jury.
*545The need on appellate review for a record of what the defendant would say if he were to testify would be as well served by a record made outside the presence of the jury as by a record made in the presence of the jury. The institutional needs of the justice system identified by the plurality can be fully served without precluding the defendant from appealing a ruling allowing reference to his prior conviction record if he exercises his constitutional right not to testify in the presence of the jury.
i
Permitting the defendant to testify outside the presence of the jury is consistent with the rationales underlying the United States Supreme Court’s decision in Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984).2 There the Court said that without the defendant’s testimony the court would be handicapped in weighing the prejudicial effect against the probative value of the prior conviction record, and in determining whether any error in allowing the admission of such evidence was harmless.
Those objectives would be accomplished as well by permitting a defendant to preserve the issue for appeal by testifying outside the presence of the jury as by requiring him to testify in the presence of the jury. Testimony outside the presence of the jury would come no later than when the defendant would last be permitted to exercise his right to testify, i.e., immediately before the defense rests. The setting would be the same: the judge would be *546there, the prosecutor would be there, everyone else who otherwise would be in the courtroom would be there except the jury. The defendant would be subject to cross-examination at the conclusion of his testimony. The prosecution would have the opportunity of rebuttal, also outside the presence of the jury. The appellate court would have fundamentally the same record to review.
ii
In Luce the Court said that there was "no commitment by the petitioner that he would testify if the motion [to preclude the government from using a prior conviction to impeach him if he testified] were granted, nor did he make a proffer to the court as to what his testimony would be.”3 The Luce opinion continued:
Requiring a defendant to make a proffer of testimony is no answer; his trial testimony could, for any number of reasons, differ from the proffer.[4]
The proposed alternative would not permit the defendant to preserve the issue by a mere proffer of proof and would require the defendant to testify either in the presence or outside the presence of the jury.
hi
The Court in Luce said that one "cannot assume that the adverse ruling motivated a defendant’s decision not to testify” and that a defendant’s commitment to testify if his motion is granted "is *547virtually risk free because of the difficulty of enforcing it.”5
Those concerns are readily obviated. We could require a defendant who seeks to testify on a separate record to commit himself to testify in the presence of the jury if the judge, after he hears the defendant’s testimony, rules in the defendant’s favor on the admission of prior conviction record or if the prosecutor decides not to use "an arguably inadmissible prior conviction.”6 If the defendant were, in violation of such a commitment, to refuse to do so, his testimony and cross-examination outside the presence of the jury could be read to the jury.
If the defendant does testify, and his testimony in the presence of the jury differs from his testimony outside the presence of the jury, he could be impeached by his testimony outside the presence of the jury.
IV
Luce does not in terms require that the defendant testify in the presence of the jury. The Court said: "We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify .”7 (Emphasis supplied.) To be sure, the Court indicated elsewhere that Luce had failed to "testify at trial.”8 It is unclear whether testimony on a separate record during the trial would satisfy the Luce holding — binding on federal but not state courts— that the defendant "must testify.”9_
*548V
A trial judge is required by decisions of this Court to rule before the defendant testifies in the presence of the jury whether his prior conviction record will be admitted. This Court has said:
In order to decide his trial strategy, including whether to testify in his own behalf, the defendant was absolutely entitled to a ruling whether his record of prior convictions would be admitted against him. [People v Hayes, 410 Mich 422, 427; 301 NW2d 828 (1981). Emphasis supplied.]
Where the judge rules that a defendant’s prior conviction record is admissible, and the defendant nevertheless chooses to testify, the judge might, during or upon the conclusion of the defendant’s testimony — whether the defendant testifies in the presence or outside the presence of the jury — and any rebuttal by the prosecutor, reconsider his prior ruling that the defendant’s prior conviction record will be admitted. The judge might then decide that the probative value of the defendant’s testimony is such that he should be permitted to testify without incurring the prejudice that would result from admission of his prior conviction record.
Implicit in a judge’s initial ruling adverse to the defendant is that the prosecutor indicated to the judge, when the question arose whether reference to prior conviction record would be permitted, that he desired to impeach the defendant, should he testify, by introducing his prior conviction record. The prosecutor, as well as the judge, might, after listening to the defendant’s testimony, change his view concerning the importance of introducing evidence of the prior conviction record.
The Court in Luce said that when the defendant *549does not testify, the reviewing court does not know whether the prosecutor would have actually sought to impeach with the prior conviction record. The Court hypothesized a government case so strong that the prosecutor "might elect not to use an arguably inadmissible prior conviction.”10 If the judge were to affirm his ruling against the defendant after the defendant testifies outside the presence of the jury, the prosecutor could indeed nevertheless change his view and elect not to use an "arguably inadmissible prior conviction.”
I do not suggest that the judge or prosecutor should be obliged to reconsider their initial decisions. Rather, to the extent that providing an opportunity to revise an initial decision adverse to the defendant is a purpose of requiring the defendant to testify, this can be accommodated by permitting the defendant to testify outside the presence of the jury as well as by requiring him to testify in the presence of the jury. Any need or desirability of providing the judge with an opportunity to reconsider his initial ruling or the prosecutor an opportunity to reconsider his position, would be served under the proposed alternative permitting the defendant to testify outside the presence of the jury.* 11
vi
If the judge were to revise his ruling after hearing the defendant’s testimony outside the presence of the jury or if the prosecutor elects not *550to use an "arguably inadmissible prior conviction,” the defendant would then, under the proposed alternative, be called upon to repeat in the presence of the jury the testimony he has just given. There would again be cross-examination and possible rebuttal, all repetitive. This repetition would be time consuming and arguably a burden on the judge, the prosecutor, and others who would sit through the testimony a second time. This is indeed inefficient, but it is an inefficiency that results from the judge’s initial ruling adverse to the defendant and either his subsequent decision to change his ruling after he hears the defendant’s testimony or reassessment by the prosecutor.
Relatively little repetition would actually occur in practice. The judge will recognize that if he changes his ruling, there will be repetition when the defendant testifies in the presence of the jury. The judge is therefore likely to revise his ruling, if at all, after he has listened to the gist of the defendant’s testimony long before a full separate record is completed.
VII
Because the defendant is entitled to a ruling by the judge before he decides whether to testify in the presence of the jury, People v Hayes, supra, the possibility that the judge might change his ruling after the defendant testifies — whether in the presence or outside the presence of the jury— is unavoidable.
Suppose that the judge changes his initial ruling after the defendant has testified on direct and cross-examination and has been impeached with his prior conviction record in the presence of the jury. The judge might then be obliged to offer the *551defendant a mistrial12 unless he is prepared to say, in advance of closing argument, instructions, and decision by the jury, that his earlier erroneous ruling was harmless.
If the judge offers the defendant a mistrial and he accepts the offer, the entire case must be tried again. That is far more inefficient than merely hearing the testimony of the defendant and any rebuttal witness a second time. Because of the burden on the prosecutor’s and defendant’s witnesses of a mistrial, requiring the defendant to testify in the presence of the jury might discourage the judge from revising his ruling in light of the defendant’s testimony.
VIII
The plurality predicts that were the proposed alternative adopted, a hearing outside the presence of the jury would be held in "every case.” They argue that this would be inefficient and that the proposed alternative would fail to discourage defendants’ motions to exclude past conviction records made solely to plant error requiring reversal in the event of a conviction.13
A well-advised defendant who — although he intends in the event of conviction to appeal an adverse ruling on the use of prior conviction record — intends to testify without regard to the judge’s ruling permitting use of prior conviction record will eschew first testifying outside the presence of the jury to avoid providing the prosecutor an opportunity to rehearse his cross-examination *552outside the presence of the jurors before he cross-examines in their presence.
Nevertheless, before allowing a defendant to testify outside the presence of the jury, the judge could and probably should generally require the defendant to waive testifying in the presence of the jury in the event the judge affirms his initial ruling adverse to the defendant on the use of prior conviction record and the prosecutor still desires to do so.
There thus would not be a separate record hearing in "every case.” Only a defendant who waives his right to testify in the presence of the jury would be entitled to testify on a separate record outside the presence of the jury. There would be "inefficient” repetition of testimony only if the judge or prosecutor changes the initial decision or position. There could be no manipulation to plant error because a defendant’s election not to testify could be made irrevocable, absolutely or in the discretion of the judge.
IX
The plurality states that the "fundamental purpose” of requiring the defendant to testify is "providing meaningful appellate review.”14 A separate record of a defendant’s testimony, cross-examination, and any rebuttal made at a hearing outside the presence of the jury would provide as adequate a basis for determining whether any error in admitting the prior conviction record was harmless as would a record of such testimony made in the presence of the jury.
Under both the procedure mandated by the majority and the proposed alternative, the review*553ing court would decide whether the defendant’s testimony, unembarrassed by the erroneous admission of the prior conviction record, might have resulted in a jury finding of reasonable doubt and hence acquittal.
When the defendant testifies in the presence of the jury and is found by the appellate court to have been erroneously impeached with his prior conviction record, the reviewing court must additionally consider whether the admission of the prior conviction record was so prejudicial that a new trial is required. The reviewing court must then consider the possible improper use by the jury of the prior conviction record to convict the defendant because he is a bad person. This improper use of a prior conviction record by a jury is indeed the reason for excluding reference to such a record:
The sharpest and most prejudicial impact of the practice of impeachment by conviction (as is true also of cross-examination as to misconduct, see § 42, above) is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a "record” of past convictions, particularly if the convictions are for crimes similar to the one on trial, there is an obvious danger that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to the legitimate bearing of the past convictions on credibility. The accused, who has a "record” but who thinks he has a defense to the present charge, is thus placed in a grievous dilemma. If he stays off the stand, his silence alone will prompt the jury to believe him guilty. If he elects to testify, his "record” becomes provable to impeach him, and this again is likely to doom his *554defense. [McCormick, Evidence (3d ed), § 43, p 99. Emphasis supplied.]
This Court in People v Hayes, supra, p 426, said:
As Chief Justice, then Judge Burger [the author of the Luce opinion] recognized:
"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that ’if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” (Footnote omitted.) Gordon v United States, 127 US App DC 343, 347; 383 F2d 936, 940 (1967).
When judges are called upon to balance the "probative value” of a prior conviction for impeachment purposes against its "prejudicial effect,” it is manifest that closer attention to possible prejudicial effect is necessary when the witness sought to be impeached is the defendant. [Emphasis supplied.]
If the defendant had testified outside the presence of the jury, the reviewing court would have no heed to think about the prejudicial effect of the admission of the prior conviction record, and could focus its inquiry solely on whether the defendant’s testimony, unembarrassed by the admission of the prior conviction record, might have created a reasonable doubt. The proposed alternative thus may *555make appellate review less difficult for the reviewing court. The procedure mandated by the majority may make the reviewing court’s task more complicated than the proposed alternative and thereby increase the risk of error by the reviewing court.
x
While requiring the defendant to testify provides the judge and the prosecutor with opportunities to avoid reversal on the basis of an erroneous ruling and facilitates determination by an appellate court of whether error is harmless, the majority, in addressing the institutional concerns identified in Luce, has mandated a procedure that may have an adverse effect on the defendant.
Heretofore, a defendant could, after an adverse ruling on the admission of a prior conviction record, decline to testify and obtain a new trial if the ruling was erroneous.
Under the procedure mandated by the majority, if the judge initially rules that a defendant’s prior conviction record will be admitted, the defendant must, to preserve for appeal a claim that the judge’s ruling was erroneous, relinquish the right, which he had until today, to refrain from testifying and to rely in lieu of testifying on his due-process rights to be presumed innocent and to be convicted only if the jury is convinced beyond a reasonable doubt.'
The procedure mandated by the majority presents the defendant with a dilemma. If he testifies, the jury may ignore instructions on the limited use to be made of prior conviction record and convict him on the basis of his prior conviction record because he is a bad person. McCormick, supra. If he does not testify to avoid impeachment *556by prior conviction and being convicted as a bad person because of his prior conviction, he runs the risk that the jury will ignore instructions and infer guilt from his failure to testify, but he cannot appeal the adverse ruling that caused him not to testify.
Under the procedure mandated by the majority, a defendant convinced that the admission of his prior conviction record "is likely to doom his defense” (McCormick, supra) — that the jury will not find a reasonable doubt if his prior conviction record is admitted — must nevertheless testify or forego challenging the ruling that would so "doom his defense.”
Assuming that the institutional concerns identified in Luce should take priority, the "grievous dilemma,” McCormick, supra, facing the defendant should be avoided if there is a means by which the institutional concerns can be accommodated without so tipping the scales against the defendant. The proposed alternative would accommodate the institutional concerns and yet permit a defendant, as before, to preserve his claim that the judge erred in ruling that the defendant’s prior conviction record may be admitted in evidence if he testifies without waiving his constitutional right to refrain from testifying in the presence of the jury.
There is no need to present the defendant with this dilemma to accommodate the institutional needs that the procedure mandated by the majority seeks to address. The defendant should be permitted to preserve the issue by testifying outside the presence of the jury.
XI
In sum, considered in terms of the trial judge having an opportunity to revise his ruling and the *557prosecutor an opportunity to change his position, permitting a defendant who, absent a revision of the judge’s initial ruling or a change in the prosecutor’s position, will not testify in the jury’s presence, to preserve for appeal a challenge to the correctness of the judge’s ruling by testifying outside the presence of the jury, would work just as well as or better (no risk of mistrial) than the procedure mandated by the majority.
The defendant may be required to waive his right to testify in the presence of the jury as a precondition to being allowed to make a separate record to preserve the issue for appeal. There will thus be occasion for repetition in the presence of the jury of separate record testimony only when the judge changes his initial ruling on the admission of prior conviction record or the prosecutor changes his position after they hear the defendant’s separate record testimony.
Considered in terms of appellate review, the determination of the harmlessness of the error would be more readily made where the defendant testifies on a separate record because the appellate court would have no need to consider the effect of the erroneous admission of the prior conviction record (the possible improper use by the jury of a prior conviction record to convict the defendant because he is a bad person) and could confine its inquiry simply to whether the defendant’s testimony might have created a reasonable doubt, a less complicated inquiry which must be made under either approach.
XII
We concur in Justice Brickley’s opinion except for the language of his opinion concurring in the language of the plurality opinion that fails to *558recognize that a defendant who wishes to preserve for appeal an adverse ruling on the admission of a prior conviction record may do so by testifying outside the presence of the jury.
Archer, J., concurred with Levin, J.Defendant was tried in February and March of 1985. At the time of his trial, MRE 609 provided:
Rule 609. Impeachment by Evidence of Conviction of Crime.
(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.
(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.
(c) Effect of pardon, annulment, or certifícate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule, except in subsequent cases against the same child in the juvenile division of a probate court. The court may, however, in a criminal case or a juvenile proceeding against the child allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the case or proceeding.
(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
As discussed in the lead opinion, People v Allen, 429 Mich 558; 420 NW2d 499 (1988), amended MRE 609 to vest the trial court with discretion solely regarding the admissibility of most theft offenses and to provide bright-line rules for all other prior convictions. The amended rule automatically admits prior convictions containing an *533element of dishonesty or false statement and automatically excludes those which do not. The amendment applies in cases tried after March 1, 1988. The lead opinion sets forth the relevant portion of the amended rule in n 4.
Strictly speaking, the expansive ruling in Luce was dictum. Since the defendant in Luce made no "proffer to the court as to what his testimony would be,” 469 US 39, existing federal procedural law would have provided a sufficient basis to refuse to consider the FRE 609 issue. The Court instead reached out to hold that the lack of proffer was irrelevant (footnote 5), and that the defendant’s procedural default was his failure to testify at trial.
See Const 1963, art 1, § 17.
Although it did not say so, surely Luce did not require that the court have the cross-examination testimony of the defendant as well as his direct-examination testimony in order to rule.
Even Luce seemed to recognize this. In footnote 4 of its opinion, the Court said that rulings in limine had developed in the federal practice pursuant to the inherent authority of the district court to manage the course of trials.
See also Cook v United States, 354 F2d 529, 532 (CA 9, 1965), where the court observed:
Why the government, thinking in good faith the testimony was admissible, chose the dangerous path of referring to it in the opening statement, rather than by the usual route of an offer of proof outside the jury’s presence, is difficult to understand. [Emphasis added.]
469 US 41, n 5.
United States v Oakes, 565 F2d 170, 171 (CA 1, 1977), suggested without discussion that if an offer of proof turns out to be misleading, the court may change its ruling and admit the impeaching evidence. That issue is not before us now.
In United States v LeBlanc, 612 F2d 1012, 1014 (CA 6, 1980), the court suggested that a defendant is required to state that he declined to testify out of fear of impeachment. This requirement really adds nothing to the record. Experienced counsel would always make the claim. Others might overlook the formality and risk the loss of a substantial issue on appeal.
In this respect, I disagree with the Luce Court that "the appellate court could not logically term 'harmless’ an error that presumptively kept the defendant from testifying.” 469 US 42. If, for example, the evidence of guilt is overwhelming and the substance of the defendant’s offer of proof is presented to the jury through other witnesses, it may well be that any error in allowing impeachment evidence could be considered harmless. See discussion of People v Wakeford, post, pp 543-544.
In People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), five members of the Court expressed grave doubts about allowing a testifying defendant to be impeached by prior convictions.
If by "planted” error, the Court meant to refer to invited error, such error of itself is seldom if ever grounds for reversal in either civil or criminal litigation. For example, if a defendant makes no motion in limine, but at trial objects to cross-examination about his prior convictions, he could hardly claim that the mere asking of the question was error in those circumstances. His failure to make a motion in limine would have invited whatever error there may have been.
See McCormick, Evidence (3d ed), § 43, p 99, quoted in part ix.
While some states have followed Luce, a number have not. See State v Whitehead, 104 NJ 353; 517 A2d 373 (1986); State v McClure, 298 Or 336; 692 P2d 579 (1984); State v Ford, 381 NW2d 30 (Minn App, 1986); People v Contreras, 108 AD2d 627; 485 NYS2d 261 (1985); Commonwealth v Richardson, 347 Pa Super 564; 500 A2d 1200 (1985).
Luce, supra at 39.
Id. at 41, n 5.
Id. at 42.
See n 7 and accompanying text.
Luce, supra at 43.
Id. at 39.
Cf. United States v Griffin, 818 F2d 97, 105 (CA 1, 1987).
Id.
The plurality opinion states that "Luce was not necessarily intended to benefit the trial judge in reaching the impeachment decision in the first instance. While there may be a peripheral benefit at the trial level as the judge may change the impeachment decision after hearing a defendant’s testimony, that benefit is tangential to the fundamental purpose of providing meaningful appellate review.” Ante, p 517.
When the prosecutor is permitted to introduce a prior conviction record, defense counsel frequently brings it out on direct examination in an effort to minimize the damage. The judge could caution defense counsel from doing so until the judge affirms his prior ruling after listening to defendant’s testimony.
Ante, p 521.
Ante, p 517.