¶39 (dissenting) —According to the majority the numerous instances of conceded prosecutorial misconduct in Richard Warren’s second and fourth trials are not reversible error.13 I disagree; I conclude the prosecutorial misconduct in Warren’s second trial and the accumulation of errors in Warren’s fourth trial require reversal of both verdicts. Last, I would hold prohibiting Warren from com*40municating with his wife was not reasonably related to his convictions and violates his fundamental right to marriage.
I. The Prosecutorial Misconduct at Warren’s Second Trial
¶40 Normally, prosecutorial misconduct is grounds for reversal where there is a substantial likelihood the misconduct affected the verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). However, when the prosecutor’s misconduct affects a constitutional right, such as the right against self-incrimination, the court undertakes a separate analysis: the constitutional harmless error analysis. See State v. Easter, 130 Wn.2d 228, 242-43, 922 P.2d 1285 (1996); State v. Davenport, 100 Wn.2d 757, 761-62, 675 P.2d 1213 (1984). Under this review the error is harmless if the court is convinced beyond a reasonable doubt that the jury would have reached the same result. Easter, 130 Wn.2d at 242.
¶41 According to Davenport, 100 Wn.2d at 761, constitutional harmless error analysis is inappropriate for cases involving mere “trial irregularities.” “Such irregularities neither independently violate a defendant’s constitutional rights . . . nor violate a statute or Rule of Evidence .. ..” Id. at 761 n.l (citations omitted). But here, the prosecutorial misconduct directly and independently infringed on the “bedrock” of our criminal justice system: the presumption of innocence. State v. Bennett, 161 Wn.2d 303, 315, 165 P.3d 1241 (2007). Moreover, the prosecutorial misconduct violated RCW 10.58.020, providing, “[e]very person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt . . . .” As such, the constitutional harmless error analysis applies, and the court must be convinced beyond a reasonable doubt that the jury would have reached the same result. Easter, 130 Wn.2d at 242; see also State v. Fleming, 83 Wn. App. 209, 216, 921 P.2d 1076 (1996) (utilizing constitutional harmless error analysis where prosecutor improperly shifted the burden of proof, *41misstated the nature of reasonable doubt and the role of the jury, and infringed on the defendant’s right to remain silent).
¶42 In Warren’s second trial the prosecutor argued in closing it was not reasonable for the jury “to infer everything for the benefit of the defendant . . . .” Report of Proceedings (RP) (Feb. 20, 2003) at 98. Warren objected, but the trial court overruled his objection. Afterward the prosecutor reprised her erroneous interpretation of the burden of proof: “[Reasonable doubt does not mean give the defendant the benefit of the doubt. . ..” RP (Feb. 20, 2003) at 99. Later the prosecutor repeated her argument that “reasonable doubt does not mean beyond all doubt. It doesn’t mean, as the defense wants you to believe, that you give the defendant the benefit of the doubt.” RP (Feb. 20, 2003) at 104. Warren again objected and without ruling on the objection, the court instructed the jury in relevant part:
[A]fter you have reviewed all of the evidence or lack of evidence, and you continue to have a reasonable doubt then you must find the defendant not guilty. And if in still having a reasonable doubt that is a benefit to the defendant, then in a sense you are giving the benefit of the doubt to the defendant.
So I don’t want you to misconstrue the language that somehow there is no benefit here. Indeed there is, because the benefit of the doubt is if you still have a doubt after having heard all of the evidence or lack of evidence, if you still have a doubt, then the benefit of that doubt goes to the defendant, and the defendant is not guilty.
So we are playing with words here in a sense.
RP (Feb. 20, 2003) at 104-05.14
¶43 The State concedes the prosecutor mischaracterized the presumption of innocence and the burden of proof. The State argues, however, the jury was not misled by the *42prosecutor’s repeated mischaracterization because of the court’s curative instruction. I cannot agree.
¶44 The trial court overruled Warren’s first objection to the prosecutor’s clear mischaracterization, implicitly bolstering the mischaracterization. The trial court passed on Warren’s second objection, giving a curative instruction instead. Yet, the trial court’s instruction undermined its curative effect by implying the issue was merely a semantic quibble as opposed to the foundation of our criminal justice system. Moreover, given the repeated and flagrant misconduct involved here, such a tepid instruction was unlikely to cure the obvious prejudice involved in mischaracterizing the presumption of innocence. See State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996) (“ 'If misconduct is so flagrant that no instruction can cure it, there is, in effect, a mistrial and a new trial is the only and the mandatory remedy.’ ” (internal quotation marks omitted) (quoting State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988))).
¶45 In the final analysis a jury is “made up of human beings, whose condition of mind cannot be ascertained by other human beings. Therefore, it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946). I am not convinced beyond a reasonable doubt the jury would have reached the same result had the prosecutor not mischaracterized the presumption of innocence and its high burden of persuasion.
II. The Cumulative Error at Warren’s Fourth Trial
¶46 Whether the prejudicial effect of an individual instance of error independently requires reversal, the cumulative effect of numerous errors may be such that reversal is required. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984) (reversal required because of accumulated evidentiary errors and prosecutorial misconduct). After analyzing the prosecutorial misconduct from Warren’s *43fourth trial, I would hold the cumulative error requires reversal.
¶47 As stated above, when alleged prosecutorial misconduct does not directly infringe a constitutional right, the defendant must establish the prosecutor’s improper conduct and its prejudicial effect. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing Pirtle, 127 Wn.2d at 672; State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993)). The court evaluates the conduct in light of the total argument, issues, evidence, and jury instructions. State v. Davis, 141 Wn.2d 798, 872, 10 P.3d 977 (2000).
¶48 Normally, where the defendant fails to object to the prosecutor’s allegedly improper conduct, the defendant waives any resultant error unless the conduct is “so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Reversal is also not required if the prejudice could have been cured by a jury instruction, which the defendant did not request. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
¶49 Here, however, the trial judge rendered futile any objection based on factual mischaracterizations during closing arguments. Therefore, we should analyze the prosecutor’s conduct and defense counsel’s failure to object with this limitation in mind. The prosecutor committed three instances of misconduct.
¶50 First, the prosecutor improperly vouched for the testimony of the victim witness, stating the testimony had the “badge of truth” and “the ring of truth.” RP (Nov. 18, 2003) at 12. “It is improper for a prosecutor personally to vouch for the credibility of a witness.” State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (citing State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)); see also RPC 3.4(e). A prosecutor may argue reasonable inferences from the evidence, but a prosecutor may not make a “ ‘clear and unmistakable’ ” expression of personal opinion. Brett, 126 Wn.2d at 175 (quoting Sargent, 40 Wn. App. at 344).
*44¶51 The State argues the prosecutor was merely drawing reasonable inferences from the testimony. The prosecutor’s hyperbole, however, went beyond drawing reasonable inferences from the testimony; the prosecutor’s statements were a clear expression of opinion. It is one thing to emphasize the reliability of one witness over another; it is something else to state a personal belief that a witness told the truth.
¶52 Second, the prosecutor improperly argued facts not in evidence, discussing “the phenomenon of delayed disclosure” of sexual abuse. RP (Nov. 18, 2003) at 9. This line of argument would have been proper had the State offered some expert testimony on the claimed phenomenon of delayed reporting of sexual abuse. But as it was, the prosecutor impermissibly argued prejudicial facts not in the record, permitting the jury to speculate on facts not before it. See State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963); see also Belgarde, 110 Wn.2d at 508 (“A prosecutor has no right to call to the attention of the jury matters or considerations which the jurors have no right to consider.”).
¶53 Last, in rebuttal the prosecutor disparaged Warren’s counsel by arguing Warren’s counsel mischaracterized the facts. Disparaging counsel is clearly misconduct. See State v. Reed, 102 Wn.2d 140, 146-47, 684 P.2d 699 (1984).
¶54 The State concedes the prosecutor committed misconduct by arguing facts not in evidence and disparaging defense counsel; yet the majority does not perceive reversible error. See majority at 29-30. The jury was left with the impression it should not disbelieve the victim-witness despite her delay in reporting the incident, and it should not believe defense counsel. “While it is possible that some of these errors, standing alone, might not be of sufficient gravity to constitute grounds for a new trial, the combined effect of the accumulation of errors most certainly requires a new trial.” Coe, 101 Wn.2d at 789.
*45III. The No Contact Order
¶55 Imposing a no contact order, precluding Warren from communicating with his wife, is inconsistent with the clear language of the statute. See RCW 9.94A.505(8), .030(13), .700(5)(b); see also State v. Riles, 135 Wn.2d 326, 957 P.2d 655 (1998). Moreover, the blanket no contact order impermissibly violates Warren’s fundamental right to marriage. Riles, 135 Wn.2d at 350 (observing offender limitation on fundamental right is only permitted if “reasonably necessary to accomplish the essential needs of the state and the public order” (citing State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996); State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993))).
A. The no contact order is not statutorily authorized
¶56 Under RCW 9.94A.505(8) the sentencing court may impose crime-related prohibitions. A “ ‘[c] rime-related prohibition’ ” is an order “that directly relates to the circumstances of the crime.” RCW 9.94A.030(13); see also RCW 9.94A.700(5)(b) (authorizing, as a condition of community custody, no “direct or indirect contact with the victim of the crime or a specified class of individuals”).
¶57 Therefore, the statute authorizes conduct prohibitions directly related to the facts of the adjudicated offense. “The philosophy underlying the ‘crime-related’ provision is that ‘[p]ersons may be punished for their crimes and they may be prohibited from doing things which are directly related to their crimes, but they may not be coerced into doing things which are believed will rehabilitate them.’ ” Riley, 121 Wn.2d at 36-37 (alternation in original) (quoting David Boerner, Sentencing in Washington § 4.5, at 4-7 (1985)).
¶58 For example, in Riles, 135 Wn.2d at 349, the petitioner was convicted of raping a 19-year-old woman, but the trial court ordered him not to have contact with any minor-aged children. To strike the order prohibiting contact with all minor-aged children the court reasoned,
*46[i]t would be logical for a sex offender who victimizes a child to be prohibited from contact with that child, as well as from contact with other children. It is not reasonable, though, to order even a sex offender not to have contact with a class of individuals who share no relationship to the offender’s crime.
Id. at 350. Such force of logic applies equally here.
¶59 Warren’s wife was not the victim of Warren’s crime. Warren’s wife does not belong to the class of individuals related to Warren’s crime. Warren’s wife has not even indicated a desire for a no contact order. In fact, Warren’s wife originally did not want to cooperate in Warren’s prosecution. Thus, the sentencing court was not authorized to prohibit Warren from contacting his wife.
B. The no contact order impermissibly infringes on the fundamental right to marriage
¶60 People have a fundamental right to enter into and maintain a marriage relationship. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). The fact of incarceration does not eliminate this fundamental right. See Turner v. Safley, 482 U.S. 78, 95-96, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). To the contrary, for prisoners the “expression [ ] of emotional support and public commitment . . . are an important and significant aspect of the marital relationship.” Id.
¶61 Concomitantly, while a convicted defendant’s rights are subject to some restriction as a result of a criminal conviction, such restriction may be only “to the extent it is reasonably necessary to accomplish the essential needs of the state and the public order.” Riles, 135 Wn.2d at 350. Courts have upheld this principle in other contexts.
¶62 For example in State v. Letourneau, 100 Wn. App. 424, 997 P.2d 436 (2000), the defendant was convicted of second degree rape of a child, and part of her sentence prohibited unsupervised, in-person contact with her minor children. The Court of Appeals held the condition prohibiting unsupervised contact with her minor children was not *47reasonably necessary to prevent her from sexually molesting them because there was no evidence that she was a pedophile or posed a danger to her children. Id. at 442.
¶63 Similarly in State v. Ancira, 107 Wn. App. 650, 652-53, 27 P.3d 1246 (2001), the defendant was prohibited from contacting his children because they were present when the defendant violated a no contact order protecting his wife and previously witnessed violence between the parents. The Court of Appeals determined that while limitations on contact with the children might have been appropriate, the complete prohibition was “extreme and unreasonable given the fundamental rights involved.” Id. at 655. The evidence did not show the no contact order was reasonably necessary to protect the children. Id. at 654-55. Consequently, the court held the prohibition “was not reasonably necessary to meet the State’s legitimate objectives.” Id. at 652.
¶64 The unique facts of this case, however, present a question of first impression: Whether the State may prohibit a convicted criminal defendant from contacting his or her spouse if the spouse is not the victim of defendant’s crime, but the parent of the victim. Some sister jurisdictions have addressed a similar question. See State v. Martin, 282 Or. 583, 580 P.2d 536 (1978); Dawson v. State, 894 P.2d 672 (Alaska Ct. App. 1995).
¶65 In Martin, the trial court imposed as a condition of defendant’s probation an absolute prohibition against association with any person who had ever been convicted of a crime, including defendant’s husband. The Oregon Supreme Court modified the condition, holding before a person may be prohibited from contacting his or her spouse as a condition of a criminal sentence, the sentencing court must “consider whether a lesser interference with defendant’s marriage would serve to rehabilitate the defendant and secure the safety of society.” Martin, 282 Or. at 589-90 (footnote omitted).
¶66 In Dawson, 894 P.2d 672, the defendant was convicted of trafficking cocaine, and as part of his sentence the *48court ordered the defendant have no unsupervised contact with his wife, believing the no contact order necessary because the wife was equally involved in cocaine trafficking. The sentencing court, however, had no information as to the wife’s substance abuse problem or possible rehabilitation. Id. at 680. Vacating the no contact order, the Alaska Court of Appeals reasoned, “[w]hile discouraging a probationer from associating with former partners in crime is obviously related to the goal of rehabilitation, precluding association between marital partners is just as obviously an extreme restriction of liberty, even when the marital partners were once partners in crime.” Id. As such, “to avoid unnecessary intrusion on marital privacy, it would seem appropriate to tailor a close fit between the scope of the order restricting marital association and the specific needs of the case at hand.” Id. at 681.
¶67 For example in People v. Jungers, 127 Cal. App. 4th 698, 25 Cal. Rptr. 3d 873 (2005), the defendant was convicted of felony domestic violence, and the court imposed a limited no contact order as a condition of probation. To uphold the order, the California Court of Appeals reasoned the order “did not impose a complete ban on association or marital privacy,” but instead only prohibited the defendant from initiating contact with his wife, permitting visits, conversations, and communications initiated by her. Id. at 705; see also Commonwealth v. LaPointe, 435 Mass. 455, 459, 759 N.E.2d 294 (2001) (“In cases where a condition touches on constitutional rights, the goals of probation 'are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.’ ” (quoting Commonwealth v. Pike, 428 Mass. 393, 403, 701 N.E.2d 951 (1998))).
¶68 These cases teach us that before a court imposes a complete prohibition on the exercise of the marital right, it should make an inquiry into whether the prohibition is actually necessary to further the State’s probation goals. In addition, the court should consider whether a less restrictive alternative condition could serve the same purpose *49with less infringement on the marital right. Such an inquiry serves two purposes. First, it preserves the record for appropriate appellate review. Second, it ensures any limitation on a fundamental right is “imposed sensitively.” Riley, 121 Wn.2d at 37.
¶69 Here, the trial court made no apparent effort to tailor the scope of the no contact order or consider less restrictive alternatives. Instead Warren was completely prohibited from communicating with his wife. Yet, there is no evidence such an order was actually necessary to further the goal of rehabilitating Warren or protecting the public. The majority speculates the no contact order was necessary to protect Mrs. Warren from Warren’s retribution. Majority at 33-35. Yet nothing in the record suggests Mrs. Warren desires no contact with Warren. The sentencing court apparently considered an e-mail purportedly from Mrs. Warren; however, that e-mail was not made part of the record. Before a person’s fundamental liberty may be infringed, the State must allege more than speculation. See Riles, 135 Wn.2d at 350.1 would strike the no contact order prohibiting Warren from communicating with his wife.
IV. Conclusion
¶70 Based on the prosecutorial misconduct and erroneous instruction in Warren’s second trial, his conviction should be reversed. Based on the cumulative error in Warren’s fourth trial, his convictions should be reversed. Lastly, I would strike Warren’s no contact order prohibiting all communication with Mrs. Warren.
¶71 The majority holds otherwise, so I dissent.
After modification, further reconsideration denied February 18, 2009.
Unlike the majority I will refer to Warren’s four trials in the order in which he was tried. See majority at 23 n.1 (disregarding Warren’s two mistrials).
I agree with Justice Madsen that an erroneous instruction from the court on the burden of proof is not subject to a harmless error analysis. I also concur with her view that this instruction, which included the language “So we are playing with words here in a sense,” was reversible error in and of itself.