(concurring in part and dissenting in part).
[¶ 98.] The lead opinion purports to justify to the reader that no error occurred below or that the errors were harmless or nonprejudicial. I write specially to analyze these claims independently and conclude that substantial prejudicial error tainted Guthrie’s trial. Therefore, I dissent. We should reverse and remand for a fair trial.
[¶ 99.] 1. IMPROPER EXPERT OPINION TESTIMONY THAT GUTHRIE MURDERED HIS WIFE BECAUSE IT WAS NOT SUICIDE.
[¶ 100.] Dr. Berman’s testimony as a suicidologist was relevant and helpful to the jury. This testimony was crucial evidence concerning the ultimate issue of whether Sharon’s death was caused by suicide, accident or murder. The necessity of such testimony was reinforced by the State’s theory of the case. The State contended from the outset that by eliminating the other potential causes of death, it would prove that Sharon was murdered by Guthrie. However, in so doing, the State was bound to use admissible expert testimony. See State v. Werner, 482 N.W.2d 286, 291 (S.D.1992); United States v. St. Jean, 1995 WL 106960 *2.
[¶ 101.] As the lead opinion recognizes, Dr. Berman’s testimony “moved from imparting typical characteristics and whether Sharon met a suicidal profile, to declaring that based on her profile she did not commit suicide.” (Emphasis added). I agree with the lead opinion’s determination that such testimony was inadmissible expert testimony. Such psychological profile failed to meet the criteria under Daubert to declare with certainty that a person committed suicide. In fact, even with the proper scientific basis, such opinion testimony would necessarily have invaded the province of the jury.
[¶ 102.] Such testimony is improper where an expert attempts to opine on the ultimate issue squarely before the jury. See Zens v. Harrison, 538 N.W.2d 794, 796 (expert cannot determine negligence as that role is exclusively for a jury); State v. Hill, 463 N.W.2d 674, 677 (S.D.1990) (the “proper subject matter” of expert testimony does not include experts testifying as the credibility of witnesses as that role is exclusively for a jury). Though trials are sometimes a battle of experts, the experts should not decide them, juries should.
[¶ 103.] I agree with the lead opinion that the trial court abused its discretion by allowing such testimony. However, I part company with the conclusion of the lead opinion that any error was harmless. The State’s method of prosecuting this case, though in all fairness a proper method, clearly highlights the prejudicial effect of this improper testimony. From the outset, the State operated under the theory that Guthrie was guilty of murder because there was no other explanation for this tragic death. This expert’s testimony was necessary for the State to dispense with Guthrie’s theory that Sharon died as a result of suicide, thereby prejudicially damning Guthrie.
[¶ 104.] The lead opinion incorrectly concludes, “we cannot say that in the ab*435sence of Dr. Berman’s ultimate opinion the jury verdict would have been different.” I am convinced that an expert’s statement that the decedent did not commit suicide and therefore the only remaining option was murder contributed to the verdict. There is little that would have been more harmful in the context of this prosecution. As this testimony unduly influenced and infected the trial, I dissent from the lead opinion’s determination that this error was harmless.
[¶ 105.] Both the lead opinion and the special concurrence get it half right. I agree with the lead opinion’s conclusion that this testimony was relevant to a certain point. However, once that threshold was crossed and the expert was allowed to state, with the pretense of scientific certainty, that the decedent did not commit suicide, it became clearly improper. It both invaded the province of the jury and was without proper scientific foundation. However, even the concurrence recognizes that if the lead opinion is accepted, its unwillingness to recognize this as harmful error is absurd. The concurrence rhetorically asks, “[therefore, as long as an expert testifies to the basis of his conclusion before stating [the] ultimate opinion, how can there ever exist reversible error?” My addition to this exchange is simple, expert testimony embracing an issue to be resolved by the jury without the proper scientific foundation is reversible error.24
[¶ 106.]2. TAPE RECORDED CONVERSATION BY GUTHRIE’S DAUGHTER.
[¶ 107.J The lead opinion determines that the admission of the daughter’s recording coupled with the written transcript was acceptable. In so doing, the lead opinion ignores an important mistake of law that occurred below based on admitted facts. Though defense counsel has not argued this point with proper emphasis, I dissent to the conclusion of the lead opinion.
[¶ 108.] Suzanne Hewitt, Guthrie’s oldest daughter, met with her father and recorded a conversation in which she confronted him about her mother’s death. On a motion to exclude this testimony, Suzanne testified that she went to the police station to help and was not sure who suggested the tape recording device, that the recording device was supplied by the officers, and that “at the end of the [recorded] conversation he said he needed to talk to his attorney before he could talk to me anymore.” Additionally, during examination of DCI Agent Lindberg the following exchange occurred:
Q: Do you remember during that conversation Suzanne mentioning something about an attorney that [Guthrie] had talked about?
A: Well, when she first came in to talk to us she said that her dad said not to talk to law enforcement unless his attorney was present and she stated I will talk to whoever I want to and she wasn’t going to be bound by that.
Q: Did you try to get information from her on who this attorney was?
A: As I recall she didn’t know who the attorney was or if there was one. She just *436said that he said not to talk to us unless his attorney was present.
THE COURT: Unless whose attorney was present?
Agent Lindberg: His. Mr. Guthrie’s.
In further examination of DCI Agent Lindberg, defense counsel elicited:
Q: And so there is no doubt, ... Mr. Lindberg, Suzanne Hewitt told you on June 14 of this year that her father told her not to talk to you until — without Mr. Guthrie’s attorney present?
A: That’s correct.
The taping of the conversation between father and daughter occurred over a month later on July 26. Later that same day, the Division of Criminal Investigation contacted Guthrie for an interview. The agents were told “he retained an attorney and wasn’t going to talk.”
[¶ 109.] Under these facts, the use of Guthrie’s daughter as an agent of the State to produce evidence in the criminal investigation constituted a violation of Guthrie’s Fifth Amendment right against self-incrimination.
[¶ 110.] As Guthrie had not been formally indicted his Sixth Amendment right to have counsel present during any questioning by a State agent had not yet attached. See Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199 12 L.Ed.2d 246 (1964); McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). However, as he was a suspect and being questioned by his daughter on behalf of the State, his Fifth Amendment privilege against self-incrimination did exist. To protect Guthrie’s right against self-incrimination he “has a right to the presence of an attorney, either retained or appointed. [Guthrie] may waive [ ] these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicated in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
[¶ 111.] “Once an accused requests the assistance of counsel the current interrogation must cease and the suspect cannot be approached for further questioning until counsel is made available. Similarly, a defendant may not be subjected to the ‘functional equivalent’ of interrogation, namely words or actions on the part of the police that are likely to elicit an ‘incriminating response.’ ” State v. Morato, 2000 SD 149, ¶ 23, 619 N.W.2d 655, 662. (Citations omitted). The protection of the defendant’s right against self incrimination recognized by Miranda and its progeny should be “strictly enforced to prohibit any questioning of an accused once counsel has been requested.” State v. Arpan, 277 N.W.2d 597, 599 (S.D.1979).
[¶ 112.] It is clear from the record that Guthrie was targeted by the Division of Criminal Investigation as a suspect in the tragic death of his wife. It is also apparent that the State must be allowed to question suspects in order to investigate crimes. However, our constitution provides all individuals with the right against self-incrimination. To protect this right, counsel is an invaluable tool and once the police are aware that a suspect has retained counsel or requests counsel questioning must cease. This includes all agents of the State. See Massiah, 377 U.S. at 206, 84 S.Ct. at 1199, 12 L.Ed.2d 246, 250 (stating that if the protections afforded “have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse”). The State cannot take advantage of a daughter’s breach of trust to her father even if it was her idea and she volunteers. Here, as in Massiah, Guthrie “was more seriously imposed upon ... because he didn’t even know that he was *437under interrogation by a government agent.” Id.
[¶ 113.] As early as June 14, law enforcement was aware that Guthrie had employed counsel or would not submit to further interrogation without counsel present. Despite this fact, on July 26, the State wired Guthrie’s daughter and elicited statements from him through the use of this intimate relationship. Guthrie ended the conversation with his daughter by stating he “needed to talk to his attorney before he could talk to [her] anymore.” This clearly establishes his expectation of privacy and confidentiality with his daughter. When we consider the State’s role in this daughter’s breach of trust to her father, it is obvious that displaying this testimony to the jury was so prejudicial it requires a new trial in its own right. As this improper recording was heard by the jury, then transcribed and distributed to the jury, I dissent.
[¶ 114.] We should reverse and remand for a new trial on both issues.
[¶ 115.] AMUNDSON, Justice, joins this special writing as to issue 6.
. In all practicality, the lead opinion and the concurrence place our trial courts in tenuous positions. The lead opinion requires the trial court to limit the expert before the testimony becomes improper. The concurrence recognizes that trial court's will have difficulty determining when that threshold has been crossed. This is wrong because difficulty in the process doesn’t justify the harm. Both result in a “just let it slide approach." I challenge this Court to do better.