(dissenting) — The majority concludes a recorded expression of an officer’s opinion that a suspect is lying is admissible at trial even though the same officer would not be permitted to offer such an opinion in live testimony. I see no distinction between the two. It matters not whether the opinion was rendered in the context of an interrogation interview or in context of direct testimony in open court. The end result is the same: The jury hears the officer’s opinion.
A witness may not offer opinion testimony regarding the guilt or veracity of a defendant. Majority at 759. See also State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (“No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.”); State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967) (Whether a defendant is guilty is a question “solely for the jury and [is] not the proper subject of either lay or expert opinion.”); State v. Farr-Lenzini, 93 Wn. App. 453, 459-60, 970 P.2d 313 (1999) (“Because it is the jury’s responsibility to determine the defendant’s guilt or innocence, no witness, lay or expert, may opine as to the defendant’s guilt, whether by direct statement or by inference.”); City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (“The general rule is that no witness, lay or *768expert, may ‘testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.’ ” (quoting Black, 109 Wn.2d at 348)). Further, the credibility of a witness may not be attacked with opinion evidence. ER 608(a). See also Heatley, 70 Wn. App. at 577 (“Because issues of credibility are reserved strictly for the trier of fact, testimony regarding the credibility of a key witness may also be improper.”).
The majority posits, “One major issue involved in this case is whether statements made by police officers during a taped interview fall within the purview of ‘opinion testimony.’ ” Majority at 759. Not so. Whether such statements are properly characterized as “opinion testimony” is wholly immaterial for purposes of determining their admissibility under ER 608. By focusing on whether the statements in the taped interview constitute “testimony” the majority makes the same mistake as the trial court below: it confuses “testimony” with “evidence.”
A plain reading of ER 608(a) clearly demonstrates no evidence (as opposed to testimony) of a witness’s character may be admitted in the form of an opinion. The rule provides:
(a) Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of reputation, but subject to the limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
ER 608(a). This differs markedly (and intentionally) from the comparable federal rule which does authorize the introduction of character evidence in the form of opinion. See Fed. R. Evid. 608(a) (“The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation....”). The Comment to the Washington rule specifically states:
*769This rule differs from Federal Rule 608 in that it does not authorize the introduction of evidence of character in the form of an opinion.... The drafters of the Washington rule felt that impeachment by use of opinion is too prejudicial and on a practical level is not easily subject to testing by cross examination or contradiction.
ER 608 cmt. to section (a).
At trial the State argued the defendant’s taped statement was admissible even though it conceded the officer could not testify on direct examination that he thought the defendant was lying. Report of Proceedings (RP) at 44, 55. Demery argued the taped statement was inadmissible because no witness may directly or indirectly comment on the guilt or credibility of the defendant. RP at 47-55 (citing City of Seattle v. Heatley)', RP at- 48. The trial court distinguished Heatley because it, and the cases it cites, involved a testimonial statement. The court specifically queried Demery on the import of this factual distinction:
The Court: What about the fact that this is not testimony?
Mr. Sepe: I don’t think it matters. It is evidence. I don’t think it is relevant whether it is testimony or not. It is a comment. It is evidence that comments on the credibility [of the witness].
RP at 59. But the court nevertheless admitted the officers’ statements “since they [were] not testimonial in nature.” RP at 61. During his closing argument, the prosecutor read the jury a portion of the taped interview in which the police officer accused Demery of lying. RP at 393. Demery’s attorney responded: “Objection. Comment on the credibility of a witness [is an] improper argument.” RP at 393. The court overruled the objection because the prosecutor was reading from the transcript which had been admitted previously. RP at 393.
This was error. Rule 608(a) permits a party to attack the credibility of a witness by admitting evidence of the witness’s reputation for truthfulness or untruthfulness. The rule prohibits the admission of evidence, not limited to testimony, which constitutes an attack on the veracity of a witness in the form of an opinion. Nothing in the rule itself, *770nor in the comments which follow, suggests direct testimony in open court is the only evidence a party may use to attack the credibility of a witness. A conclusion that the evidence here was not opinion “testimony” is therefore irrelevant. The majority mistakenly treats the word “testimony” as if it were a synonym for “evidence.” It is not.
Moreover, as Demery argued on appeal, our case law does not hold testimony from the witness stand which comments on the guilt or credibility of a witness is the only form of evidence forbidden. Br. of Appellant at 23. Warren v. Hart, 71 Wn.2d 512, 429 P.2d 873 (1967) determined the issuance or nonissuance of a citation by an investigating law enforcement officer is inadmissible opinion evidence. We did not conclude issuance or nonissuance of a citation constitutes inadmissible opinion testimony. Rather, as the majority concedes, we found issuance or nonissuance of a citation constitutes inadmissible opinion evidence:
“While an arrest or citation might be said to evidence the on-the-spot opinion of the traffic officer as to respondent’s negligence, this would not render the testimony admissible. It is not proper to permit a witness to give his opinion on questions of fact requiring no expert knowledge, when the opinion involves the very matter to be determined by the jury, and the facts on which the witness founds his opinion are capable of being presented to the jury. Johnson v. Caughren, 55 Wash. 125, 104 Pac. 170 [(1909)]; Bruenn v. North Yakima School Dist. [No. 7], 101 Wash. 374, 172 Pac. 569 [(1918)]. The question of whether respondent was negligent in driving in too close proximity to appellant’s vehicle falls into this category Therefore, the witness’ opinion on such matter, whether it be offered from the witness stand or implied from the traffic citation which he issued, would not be acceptable as opinion evidence.”
Warren, 71 Wn.2d at 514 (emphasis added) (quoting Billington v. Schaal, 42 Wn.2d 878, 882, 259 P.2d 634, 637 (1953)). We focused on whether the evidence was a comment on facts to be determined by the jury. It doesn’t matter if the opinion is given directly during testimony in open court or if it is implied in some other way (like issuing a traffic citation).
*771Nevertheless the majority permits this tape to be admitted because “the officers’ statements merely provided the necessary context that enabled the jury to assess the reasonableness of the defendant’s responses.” Majority at 764. Although these statements were made in the context of a custodial interrogation of a criminal defendant, the actual words clearly and simply state the officers’ belief that Demery was lying.7 During his closing argument the prosecutor used the. transcripts from the interrogation (over the defendant’s objection) to argue an innocent man would have reacted differently to a false accusation, RP at 393, demonstrating the State used the interrogation transcript to argue Demery was lying.
Although the majority admits, “when the trial court admits third party statements to provide context to a defendant’s responses, the trial court should give a limiting instruction to the jury, explaining that only the defendant’s responses, and not the third party’s statements, should be considered as evidence.” Majority at 761-62. But, in its next breath, the majority excuses the fact that there was no limiting instruction given here. Id. at 762. See also Resp’t’s Suppl. Br. at 8, Clerk’s Papers at 38-60. Incredibly, the majority concludes a curative instruction was not necessary “because the jury clearly understood from the officer’s testimony that the statements were offered solely to provide context to the defendant’s relevant responses.” Majority at 762. Here I am at a disadvantage. Unlike the majority I cannot read minds, especially the minds of jurors. Rather I am limited to a review of the evidence that went to the jury and the instructions provided by the court.
*772This lack of limiting instruction also distinguishes this case from Dubria v. Smith, 224 F.3d 995 (9th Cir. 2000), cert. denied, 53 U.S. 1148 (2001), upon which the majority mistakenly relies. Dubria was convicted of murder, rape, and other offenses after a jury was permitted to hear a taped interview in which a police investigator accused him of lying. Dubria, 224 F.3d at 997. The Ninth Circuit held, “[Ejven if it was error to admit the tapes and transcripts without redacting Detective Detar’s statements, any error was cured by the judge’s two cautionary instructions.” Id. at 1002 (emphasis added).
As the majority concedes, Washington cases hold where an opinion of a defendant’s guilt is expressed by a government official, such as a policeman, a jury is especially prone to influence. Majority at 762; see also State v. Carlin, 40 Wn. App. 698, 703, 700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573 (1993).
The law is similar in the Commonwealth of Pennsylvania where courts have concluded a taped interview in which police accuse a defendant of lying is inadmissible because such “statements [are] akin to a prosecutor offering his or her opinion of the truth or falsity of the evidence presented by a criminal defendant.” Commonwealth v. Kitchen, 1999 PA Super. 100, 730 A.2d 513, 521. However, this majority summarily rejects Kitchen,8 concluding the “officer’s statements made during a pretrial interview are not like statements made by a prosecutor during a trial.” Majority at 763. I disagree. The majority ignores the ultimate, impermissible, result of admitting such evidence: The jury hears the officers’ opinions concerning the veracity of a witness.
*773Conclusion
There is no meaningful difference between permitting the jury to hear an officer directly call a defendant a liar in open court and permitting the jury to hear an officer call a defendant a liar on a tape recording. If we quite clearly forbid the former there is no reason to tolerate the latter. The drafters of the Washington rules of evidence intentionally crafted a rule which does not permit impeachment by opinion because they understood such evidence is too prejudicial. ER 608 cmt. Neither the rule nor our case law limiting this prohibition applies only to testimony given in open court. Rather the rule permits only the credibility of a witness to be attacked under a very narrow set of circumstances: (1) the evidence must be in the form of reputation, and (2) “the evidence may refer only to character for truthfulness or untruthfulness.” ER 608(a). Notwithstanding, the majority here extends an open invitation for police officers to routinely include their personal opinions on the credibility and guilt of the accused in every taped interview they conduct. Today’s ruling permits the State to indirectly introduce such character evidence in the form of an opinion — even though it would be forbidden from doing so directly.
Nemo potest facere per obliquum quod non potest facere per directum.9
I dissent.
Johnson, Madsen, and Chambers, JJ., concur with Sanders, J.
The following exchange is indicative of several that occurred during the course of the interrogation:
Q How have you been treated since you’ve been here?
A I’ve been treated all right. I mean you guys are lookin’ at me, you know, [sic] talkin’ to me like I’m lying.
Q Cause you are.
Pl.’s Ex. 23, at 23.
The Kitchen court was satisfied that to admit a tape recording of a police officer’s attack on the veracity of a defendant would be tantamount to allowing a prosecutor to call the defendant a liar in open court and therefore did not address whether such statements were admissible under Pa.R.E. 608(a). Nevertheless it is worth noting the similarity between Pa.R.E. 608(a) and the comparable Washington rule. The language of the two rules is virtually identical and, like its Washington counterpart, the Pennsylvania rule does not permit the credibility of a witness to be attacked by opinion evidence. “Pa.R.E. 608(a)(1) and (2) differ from F.R.E. 608(a) in that they permit character for truthfulness or untruthfulness to be proven only by reputation evidence. Opinion evidence is not admissible.” Pa.R.E. 608 cmt. (1998); 42 Pa. Const. Stat. Ann. (West 1999).
No man can do that indirectly which he cannot do directly.