dissenting. I disagree with the manner in which the majority has disposed of this case. Although I am in accord that the trial court erred iñ allowing Cicala to testify as to his plea of guilty, I cannot accept the majority’s conciusion that this error was harmless beyond a reasonable doubt. I also cannot subscribe to the majority’s assertion that evidence of a co-conspirator’s guilty plea is always admissible insofar as it bears upon the co-conspirator’s credibility as a witness.
I
The overwhelming majority of the courts which have addressed the issue have held that a eo-eonspirator’s guilty *440plea is inadmissible as substantive evidence of the existence of a conspiracy in which a defendant has participated. See, e. g., United States v. Harrell, 436 F. 2d 606 (5th Cir. 1970); United States v. Toner, 173 F. 2d 140 (3rd Cir. 1949); State v. Felton, 131 N. J. Super. 344 (App. Div. 1974), certif. den. 68 N. J. 140 (1975). The reasons underlying this exclusionary rule have been ably summed up by the United States Court of Appeals for the Third Circuit:
From the common sense point of view a plea of guilty by an alleged fellow conspirator is highly relevant upon the question of the guilt of another alleged conspirator. If A’s admission that he conspired with B is believed, it is pretty hard to avoid the conclusion that B must have conspired with A. This is one of the cases, therefore, where evidence logically probative is to be excluded because of some countervailing policy. There are many such instances in the law.
Acquittal of an alleged fellow conspirator is not evidence for a man being tried for conspiracy. So, likewise, conviction of an alleged fellow conspirator after a trial is not admissible as against one now being charged. The defendant Aals] a right to have his guilt or innoeenee determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.
[U. S. v. Toner, supra, 173 F. 2d at 142 (citations omitted, footnotes omitted) (emphasis supplied)]
See Babb v. United States, 218 F. 2d 538, 542 (5th Cir. 1955); United States v. Hall, 178 F. 2d 853 (2d Cir. 1950). These same considerations support the conclusion that such guilty plea evidence is inadmissible whether or not the co-conspirator is present in court and subject to cross-examination. In either situation, the defendant being tried is entitled to a verdict based solely upon proofs relating to whether he himself committed an offense, and not upon evidence bearing on the manner in which an alleged co-conspirator’s case has been settled.
As the above cited passage from Toner emphasizes, evidence of a co-conspirator’s guilty plea is not excluded because it *441lacks relevance to the issues being adjudicated in the defendant’s trial. Reasonable minds could logically infer from such a plea that a conspiracy did indeed exist. Rather, such evidence is inadmissible on grounds of fundamental fairness. It is patently unfair to subject a defendant to criminal sanctions merely because his alleged co-conspirator has not elected to stand trial. In effect, the guilty plea evidence cannot be introduced because its relevance is far outweighed by its potential prejudicial impact upon the jurors’ deliberations.
Although acknowledging as much, see ante at 430-433, the majority nevertheless concludes that guilty plea evidence can be introduced by the prosecutor over the defendant’s objections if utilized solely “to affect [the co-conspirator’s] credibility as a witness.” See ante at 433. This conclusion negates the policies underlying the general exclusion of guilty plea evidence. Moreover, it is premised upon a wholly unrealistic conception of the impact which this evidence will have upon jurors’ deliberations.
N. J. 8. A. 2A :81-12 does, at first glance, seem to authorize the prosecutor’s introduction of guilty plea evidence for purposes of credibility. That statute provides:
For the purpose of affecting the credibility of any witness, his interest in the result of the action * * * or his conviction of any crime may be shown by examination or otherwise * * *.
The precise parameters of this statute cannot be appreciated, however, without a consideration of Evid. B. 4, which states in part that
The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will ... (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.
In State v. Sands, 76 N. J. 127 (1978), decided less than six months ago, Justice Schreiber speaking for this Court *442squarely held that N. J. S. A. 2A :81-12 “do [es] not support the conclusion that every criminal conviction is automatically admissible ... to affect the .credibility of a criminal defendant.” Id. at 138 (emphasis supplied). Although all prior convictions of a witness may in some way reflect upon his credibility, we acknowledge that with respect to certain convictions “admission will create undue prejudice.” Id. at 147. Hence, we ruled that a trial judge must consider all the circumstances of a ease prior to allowing any such conviction to be introduced into evidence.
The considerations which led to our holding in Sands apply with equal force to the situation here under review. The admission of a co-conspirator’s guilty plea may indeed bear somewhat upon his credibility as a witness. However, its probative value is far outweighed by its prejudicial impact upon a defendant’s ease. Regardless of the presence of limiting instructions, it cannot reasonably be expected that jurors will appreciate the legal niceties outlined by the judge and utilize such evidence only for credibility purposes. Rather, they are likely to consider this plea as substantive evidence of the existence of a conspiracy in which the defendant participated.
Were “relevance” the only concern in this situation, guilty plea evidence would have to be deemed admissible as substantive evidence that a defendant committed an offense. As noted earlier, reasonable minds could logically infer from such a plea that a conspiracy did indeed exist. It is absurd to take account of the prejudicial impact inherent in such evidence when the guilty plea is relevant to the existence of a conspiracy but not when such a plea bears upon a witness’ credibility.
I would therefore hold that unless the defendant otherwise agrees, a trial court may never allow the introduction of evidence dealing with a co-conspirator’s guilty plea to crimes for which a defendant is presently being tried. The probative value of such evidence is outweighed by its prej*443udicial impact. Hence, it should be excluded pursuant to Evid. R. 4.
A defendant may, however, wish to introduce such evidence in order to call into question the veracity of a prosecution witness. Tn such a case, it would be unfair to prohibit the prosecutor on direct examination from first eliciting such evidence in order to negate its potential adverse impact upon the State’s case. Prior to the calling of a convicted co-conspirator to the stand, a trial judge should therefore ask defense counsel whether he intends to question the witness as to his plea of guilty. If he answers in the affirmative, then the prosecutor can introduce the plea into evidence on direct examination. Otherwise, he cannot.
II
In the present case, Cicala’s guilty plea was clearly introduced in order to demonstrate that a conspiracy actually existed. In summing up his case before the jury, the prosecutor remarked:
>h * *■ young man named Joseph Cicala pleaded guilty to conspiracies to break, enter and commit larceny inside the Bruno home. [Defendants] said it never happened, you see. Mr. Cicala pleaded guilty to something that didn’t happen. Ladies and gentlemen, isn’t your intelligence being insulted by an argument like that? X mean, aren’t these defendants talking down to you as if you were a hunch of five year old children?
Thus, even accepting the majority’s formulation of the exclusionary rule, the introduction of such evidence constituted error. The majority, however, labels this error “harmless”. A review of the record below demonstrates the unsoundness of such a conclusion.
At no point did the trial judge instruct the jury that Cicala’s guilty plea could be considered solely for the purpose of credibility. Several courts have held that such a limiting instruction is a' prerequisite to a finding of harmless error when a co-conspirator’s guilty plea is introduced into evidence. See, e. g., United States v. Harrell, 436 F. 2d 606, *444614-16 (5th Cir. 1970); Freije v. United States, 386 F. 2d 408, 411 (1st Cir. 1967). Indeed, the courts of this State have emphasized the need for a jury instruction in this context. See, e. g., State v. Costa, 11 N. J. 239, 249 (1953); State v. Felton, 131 N. J. Super. 344, 348-350 (App. Div. 1974), certif. den. 68 N. J. 140 (1975).
Moreover, the evidence of guilt adduced below was not so overwhelming as to compel a finding that the trial court’s error was harmless beyond a reasonable doubt. The State’s case was primarily circumstantial in nature. Aside from Cicala’s testimony, the only direct evidence implicating defendants in the conspiracy was the testimony of co-conspirator Gerald Eesta. Given Eesta’s extensive criminal record and his interest in the outcome of the case, the jurors might very well have doubted his veracity. Thus, there clearly exists a reasonable possibility that testimony regarding Cicala’s guilty plea “led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N. J. 325, 336 (1971).
The majority asserts that due to Cicala’s testimony concerning his dealings with Eesta, “his guilty plea add[ed] little, if any, extra evidential weight to the proofs establishing the existence of a conspiracy as between himself and Eesta.” See ante at 436. The soundness of this conclusion is belied by the prosecutor’s decision to stress that very guilty plea during his summation. It seems to me, as it must have to the prosecutor, that a jury is likely to be influenced to a much greater extent by the presence of a conviction than by the mere narration of events culminating in a conviction.
Accordingly, I would affirm the judgment of the Appellate Division and remand this case for a new trial.
Scheeibee, J., concurring in the result.
For reversal and reinstatement — Chief Justice Hughes, Justices Sullivan, Clieeoed, Scheeibee and Handlee and Judge Coneoed — 6.
For affirmance — Justice Pashman — 1.