¶24 (dissenting) — I agree with the majority that a prosecutor in closing argument may address the legal issues set forth in the instructions. Majority at 540. But here the prosecutor’s argument, which consisted of an attempt to explain the Rules of Evidence and the *542reliability of hearsay evidence, was far afield of the court’s instructions, conflicted with the instructions, and was confusing to the jury. And the trial court’s initial ruling, as well as its subsequent failure to rule, lent legitimacy to the erroneous legal argument. Based on these errors, Mr. Sandoval was denied a fair trial. I must, therefore, respectfully dissent.
Schultheis, A.C.J.*542¶25 Erik Sandoval argues that the deputy prosecutor made two improper remarks in her closing argument: first, she attempted to explain the Rules of Evidence and the excited utterance exception to the hearsay rule and, second, she stated that evidence admitted under the hearsay exception is “deemed reliable.”* 1 The trial judge overruled Mr. Sandoval’s objection to the first remark and he did not rule on the second remark in front of the jury, but he denied Mr. Sandoval’s motion for mistrial during a bench conference.
¶26 Upon the first objection to the evidentiary rule discourse, the trial judge ruled that the deputy prosecutor was free to explain the Rules of Evidence as long as the argument did not “distract” from the court’s instructions. Report of Proceedings (Dec. 9, 2004 afternoon session) (RP) *543at 122. That is incorrect. It is a well-settled rule that counsel’s statements to the jury upon the law must be limited to the law as set forth in the court’s instructions to the jury. State v. Estill, 80 Wn.2d 196, 199, 492 P.2d 1037 (1972) (citing State v. Ellsworth, 40 Wn.2d 375, 242 P.2d 1019 (1952); State v. Brown, 35 Wn.2d 379, 213 P.2d 305 (1949)); State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000). The Rules of Evidence are not explained in the jury instructions. And for good reason — such an explanation would only confuse the jury. Jurors are instructed in every civil and criminal case that evidentiary rulings are for the trial court and the jury is not to be concerned with the reasons for those rulings. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.02 & notes on use (2d ed. 1994) (WPIC); 6 Washington Practice: Washington Pattern Jury Instructions: Civil 1.02 & notes on use (5th ed. 2005).
¶27 The deputy prosecutor went on to state that evidence admitted under the hearsay exception is “deemed reliable.” See RP (Dec. 9, 2004 afternoon session) at 123. This was an incorrect statement of law that improperly emphasized the trustworthiness of the statements admitted under the hearsay exception. The reason for the excited utterance exception to the hearsay rule is not because the statement is deemed reliable. Instead, the evidence is admissible — and justifies an exemption from the preferred test of evidence by cross-examination and direct confrontation — due to circumstantial evidence of its trustworthiness. State v. Chapin, 118 Wn.2d 681, 685-86, 826 P.2d 194 (1992); State v. Davis, 141 Wn.2d 798, 845-46, 10 P.3d 977 (2000); 6 John Henry Wigmore, Evidence in Trials at Common Law § 1747, at 195-96, § 1749, at 199 (James H. Chadbourn rev. ed. 1976). Testimony admitted under the excited utterance exception is not any more or less intrinsically reliable than any other testimony. Jurors are the sole judges of the weight to apply to evidence and the credibility of witnesses. E.g., Otter v. Dep’t of Labor & Indus., 11 Wn.2d 51, 57, 118 P.2d 413 (1941). See also State v. Alvis, 70 Wn.2d 969, *544975-76, 425 P.2d 924 (1967) (holding that it is an improper comment on the evidence to instruct the jury in any manner that conveys a personal opinion or view of the trial court regarding the credibility, weight, or sufficiency of some evidence introduced at trial). Here, the deputy prosecutor’s remarks created an impression that the hearsay witnesses’ testimony was of a particular type regarded for its inherent reliability.
¶28 Further, the State’s argument conflicted with the court’s instructions that the jury is sole judge of the weight to apply to the evidence and to disregard rulings on evidence admissibility. Clerk’s Papers at 42 (paraphrasing WPIC 1.02). The argument was therefore confusing to the jury. The rule restricting argument to the facts in evidence and the applicable law is intended to prevent such jury confusion. Perez-Cervantes, 141 Wn.2d at 474.
¶29 When the prosecution argues an incorrect statement of the law not in harmony with the court’s instructions to the jury and which exceeds the scope of argument, and the defendant is prejudiced, reversal is warranted. State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984).
¶30 The court’s instruction concerning the nature of attorney argument did not cure the error. Having received mixed messages from the trial court’s rulings and instructions, the jury was undoubtedly confused. Because the trial judge did not rule on the second objection in front of the jury or properly instruct the jury in response to the objection, the trial court expressly approved the deputy prosecutor’s legal interpretation of the Rules of Evidence. So, when the deputy prosecutor immediately thereafter lent credibility to the hearsay evidence, she also communicated to the jury that her remarks are to be regarded as a correct statement of law due to the trial court’s silence as tacit approval. Under these circumstances, the trial court’s improper ruling and silence lent “an aura of legitimacy” to the argument. Davenport, 100 Wn.2d at 764. Moreover, the trial court’s incorrect ruling on the first objection and failure to rule on the second objection compounded the error. Cf. State *545v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990) (finding no prejudicial error where objection was made and sustained and the jury was instructed to disregard the improper argument). Also, the denial of the motion for mistrial was based on an incorrect ruling and a failure to rule — errors of which the trial judge was obviously unaware. These are untenable grounds for the denial of the motion.
f 31 A mistrial is warranted when a remark is so prejudicial to the jury that the defendant cannot receive a fair trial. State v. Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983). Here, because Shawn Thacker did not testify, the credibility of the other witnesses was critical. Thus, the comments likely affected Mr. Sandoval’s right to a fair trial and I cannot say that the comments did not affect the jury’s verdict. See Davenport, 100 Wn.2d at 762 (“a case will not be reversed for improper argument of law by counsel unless such error is prejudicial to the accused, State v. Estill, [80 Wn.2d at] 200, and only those errors which may have affected the outcome of the trial are prejudicial”).
¶32 Because I believe Mr. Sandoval was prejudiced by the deputy prosecutor’s improper remarks and the court abused its discretion by failing to grant a mistrial, I would reverse.
The following exchanges occurred during the State’s closing argument:
I told you in voir dire, we talked about it, that probably the victim was not going to join in this prosecution so you were allowed to hear from her sister and from the doctor what happened that day, and the reason that is allowed is because there is a book called the Rules of Evidence. That is what we have to abide by any time we are doing courtroom work.
And these Rules of Evidence allow for certain types of exceptions to the hearsay rule. You saw two of those in this trial. You saw that exception of excited utterances.
[DEFENSE COUNSEL]: I am going to object at this point. I don’t know if we need to approach, hut I think it is inappropriate to explain the Rules of Evidence. The jury has the rulings of the Court and it may be an unfair comment on the evidence that comes in, and I think the evidence speaks for itself.
THE COURT: In argument the attorneys can select evidence and instructions and apparently contrast those if they don’t distract from the instructions that have already been given. Continue.
[DEPUTY PROSECUTOR]: Thank you, Your Honor. Those exceptions are allowed because they have been deemed reliable.
[DEFENSE COUNSEL]: Objection, if we may approach.
Report of Proceedings (Dec. 9, 2004 afternoon session) at 122-23.