dissenting.
In rebuttal to the closing argument of Potts’ counsel at trial, counsel for the prosecution personally assured the jury that Potts was guilty. She informed the jury of her personal belief that the victim, S.P., was telling the truth. Urging the jury to base its decision on its sympathy for the victim and its dislike of Potts, the prosecutor emphasized that she personally hoped the jury did dislike Potts. She went on to state, “You ought to for the kind of person he is.” The prosecutor went on to propose that the jury convict Potts “because he is a child molester.” Then, after reassuring the jury that the state and the police do not prosecute innocent people and that Potts was a sick man who needed help, the prosecutor intimated that it had been necessary to bring Potts to trial only because he refused to get help on his own. The upshot of the argument, of course, was to encourage the jury to help Potts by convicting him.
The majority of the court apparently acknowledges the impropriety of the prosecution’s rebuttal but concludes that the error was neither substantial nor obviously prejudicial. I respectfully disagree.
Three arguments are advanced by the majority in attempting to justify its conclusion that the state’s rebuttal, while error, was not plain error. First, the majority intimates that the state’s improper remarks were mere passing comments, unlikely to influence the jury. Second, it speculates that Potts’ counsel, an experienced criminal attorney, failed to object for tactical reasons. Third, it attempts to explain its conclusion by invoking the doctrine of invited reply. I would reject the majority’s first two arguments out of hand. Its third argument should be rejected as a matter of law.
It makes little sense to suggest, as does the majority, that the prosecutor’s improper comments were passing in nature and unlikely to influence the jury. The improper rebuttal argument best speaks for itself.1 This argument, ably and effectively delivered, was eloquent in its impropriety. From all appearances it was intended to influence the jury’s deliberations and verdict. Presumably it did.
It is, furthermore, difficult to believe that the defense counsel’s failure to challenge the state’s improper rebuttal resulted from a tactical decision to forego an objection. I can conceive of no plausible explanation for the failure to object other than a desire to avoid antagonizing the jury by interrupting the state’s rebuttal. Yet solicitude for the jury cannot account for the lack of an objection here. Had Potts’ counsel been fearful of arousing the jury’s ire by interrupting the rebuttal, he could readily have asked to be heard outside the jury’s presence after the prosecutor concluded her remarks. Beyond cavil, such an objection would have been deemed timely.2 Under the circumstances, it seems fairly obvious to me that the defense counsel in this case simply failed to recognize the prosecu*396tion’s error. The fact that Potts was represented by experienced counsel — far from indicating a tactical decision to bypass an objection — only underscores the appropriateness of finding plain error.
Finally, I think the majority’s reliance on the doctrine of invited reply is problematical on both legal and factual grounds. I have serious misgivings about the wisdom of the invited reply doctrine. Its practical effect is to disregard and thereby encourage a profoundly subversive form of prose-cutorial misconduct, the impact of which is invariably difficult to gauge with accuracy.3 I find Justice Brennan’s dissenting opinion in United States v. Young, 470 U.S.-,-, 105 S.Ct. 1038, 1049-57, 84 L.Ed.2d 1, 16-25 (1985), to be particularly convincing. I would therefore favor categorically rejecting the invited reply doctrine.
Indeed, unless I misread the decision in Williams v. State, 629 P.2d 54, 59-60 (Alaska 1981), the Alaska Supreme Court has already taken a substantial step in this direction. Speaking of the invited reply doctrine, the court in Williams said:
Moreover, we are reluctant to approve any rule which encourages unprofessional conduct by prosecutors as retaliation. We agree with the Tenth Circuit, which has held:
We can give no comfort to the proposition that unprofessional conduct upon the part of defense counsel opens the door to similar conduct by government counsel. The government’s remedy, of course, lies with proper objection made to the trial court during the course of the trial.
United States v. Ludwig, 508 F.2d 140, 143 (10th Cir.1974) (footnote omitted). Accord People v. Bain, [5 Cal.3d 839, 97 Cal.Rptr. 684] 489 P.2d 564, 569 (Cal. 1971).
Williams v. State, 629 P.2d at 59-60 (footnote omitted).4
Yet even if the doctrine of invited reply remains intact, it would not insulate the prosecution’s improper argument in this case. At most, the invited reply doctrine allows the prosecution to neutralize improper defense arguments. It does not license improper affirmative attacks. See Williams v. State, 629 P.2d at 59. Potts’ defense counsel, in his closing argument to the jury, questioned the state’s good faith for prosecuting Potts and speculated that Potts’ former wife had influenced Potts’ daughter, S.P., to commit perjury. This argument — while plainly improper because it was made without any discernible eviden-tiary foundation — cannot fairly be said to have “invited” an improper response directed at Potts’ ostensible need for treatment or his purported unwillingness to obtain treatment. Neither can it be said to have invited a gratuitous and wholly unsubstantiated comment implying that Potts’ refusal to seek treatment was the real reason it was necessary to have a jury trial.
I am particularly troubled by the prosecutor’s comment on Potts’ decision to exercise his right to a trial:
It’s really one of the sorrows of incest ... that she’s been molested by her own dad, and she still loves him and she wants to get him some help, and she had to come here to do it, because he's not willing to get help on his own. The jury verdict is about the only way that he’ll get it, because it’s the only way that any of us are going to convince Dennis Potts he’s committed incest. [Emphasis added.]
*397This argument in effect constituted a request for the jury to reach a guilty verdict based on facts outside the record, namely, the implication that Potts had refused to receive psychological treatment but would receive such help if convicted. This amounted to an improper exhortation to jurors to “do their job” by convicting the defendant. See United States v. Young, 470 U.S. at -, 105 S.Ct. at 1054, 84 L.Ed.2d at 22 (Brennan, J., concurring & dissenting).
Moreover, this argument violated the ethical rule against comment on the consequences of a verdict. I ABA Standards for Criminal Justice 3-5.8(d) (2d ed. 1980). See Anderson v. State, 384 P.2d 669, 674 (Alaska 1963). It amounted to a plea for the jury to convict Potts not on the sole basis of the evidence, but rather on his ostensible need for help, his purported reluctance to get it on his own, and its presumed availability upon conviction. In essence, this argument telegraphed the message that Potts’ need for treatment, not his guilt or innocence under the evidence, was the true issue for the jury.
Especially pernicious, however, was the prosecutor’s argument that S.P. “had to come here [to trial], because [Potts is] not willing to get help on his own.” This statement could easily be interpreted as a comment on Potts’ motives for exercising his right to a trial. It clearly implied — without any evidentiary support — that a formal prosecution and trial were necessary because of Potts’ own recalcitrance. I believe this implication clearly impinged on Potts’ right to insist that the state bear its burden of establishing his guilt beyond a reasonable doubt. Hardly a passing or obscure reference, the remark in effect penalized Potts for deciding to exercise his constitutional right to a jury trial. Cf. Elson v. State, 659 P.2d 1195 (Alaska 1983) (disapproving comment on refusal to relinquish fourth amendment rights); Dorman v. State, 622 P.2d 448, 457-58 (Alaska 1981) (disapproving comment on the exercise of the right to remain silent).
Upon due reflection, I would conclude that this final portion of the prosecutor’s rebuttal was, in itself, sufficient to amount to plain error. Accordingly, I dissent.5
APPENDIX
REBUTTAL ARGUMENT OF PROSECUTION
[THE PROSECUTOR]: I was prepared, after listening to the beginning of [Defense Counsel’s] closing argument, to make an extensive rebuttal argument. I felt that from the way he started, I should start getting out my pen and making a list, and making a list of inaccuracies in my argument, making a list of multiple contradictions in [S.P.’s] testimony, making a list of all the evidence that supported his theory that this child was influenced by relatives, a police [officer], and a prosecutor to lie in front of a grand jury and a trial jury. And I was prepared to answer those propositions. My rebuttal will be very short. And that’s because most of what [Defense Counsel] said, although a very fine American Civics lecture, didn’t have anything to do with the evidence in this case.
He mentioned no inaccuracies in my argument, his anger seemed a little bit out of place. He mentioned no substantial contradictions in [S.P.’s] testimony. You never heard anybody come in here and say “[S.P.] told me her father never molested her.” If she’d said that, yes, I would be troubled, and I would have some explaining to do. But that never happened. The child from *398the very beginning has remained consistent about the general type of things that her father did to her sexually, and she’s never changed from that. No points were made with her on cross-examination that were not explained upon redirect examination. And so I have nothing to respond to.
I can tell you, however, that [Defense Counsel] and I disagree a little bit about whether or not you can bring your emotions into the jury deliberations. There’s nothing in the Judge’s instructions that says you can’t have honest, human feelings in this case. There’s nothing that says that you have to like Dennis Potts. You can like him and convict him, you can dislike him and convict him. I hope you do dislike him; you ought to for the kind of person he is. And frankly, if you’re going to convict him of sexual abuse of a minor and attempted sexual intercourse with his daughter, you probably are not going to like him very much. That’s okay. I mean, most people don’t like child molesters, ladies and gentlemen of the jury, and I’m sure [Defense Counsel] wouldn’t expect you to like them.
Now of course we’re not arguing that just because Dennis Potts is a rotten parent you should convict him. We’re saying you should convict him because he’s a child molester. And you can certainly disapprove of him after you reach your verdict.
And there’s also certainly nothing wrong with liking [S.P.], and with finding sympathy for her. Anybody would. She’s a child molest[er’s] victim. Most people do feel sympathy for children who are molested by their fathers. Certainly your sympathies shouldn’t keep you from seeing whether or not [S.P.’s] testimony supported the charges. But there’s nothing wrong with liking her better than him. And there’s nothing wrong with taking that feeling into the jury room. And keep this in mind, there’s nothing wrong with each and every one of you remembering how you felt when [S.P.] finished her testimony. There’s nothing wrong with feeling “I believed her. I feel sorry for her. I’m sorry she has to be here, and I’m really sorry her dad did molest her,” and there’s nothing wrong with that, because those feelings that you had when [S.P.] was testifying, [are] what tells you now that she was telling the truth.
I asked you in the opening statement to look at how she testified, watch the expressions on her face, listen to her voice. Watch how she handles the sexual matters, look at everything about her testimony, and try and evaluate her credibility. And some of you no doubt, came away with a firm belief by the time [S.P.] finished testifying, that you believed her. Remember that belief, explain to your fellow jurors what it is about her that made you believe it, and you’ll reach the just and true verdict in this ease, which is guilty as charged.
[Defense Counsel’s] theory of this case is that this child is lying. That’s all it is. She’s lying. Why is she lying? She’s lying because her mother made her lie. She’s lying because, although she was really only upset about porno magazines, her mother convinced her to create an incest story, and to come before a grand jury and trial jury and testify under oath falsely. And her mother did that because she really wanted to stop visitation, and this was the only way she could stop it, and her mother had sexual hangups and she really hated Dennis Potts, and she was out to get him, and she used her daughter to get him.
Well, it’s a very fine theory; there’s no evidence. Not a shred of evidence. If [Defense Counsel] wanted to get evidence on that, all he had to do was ask questions of Mrs. Potts. If he was actually going to try to prove it, why didn’t he ask her questions? Why? Because he knew there wasn’t any evidence like that out there. He knows that’s a cooked up, trumped up theory, with nothing to back it up.
You’ve heard no evidence that [the] child was improperly influenced to report this crime at all. Not by me, not by [the police officer], not by her mother. And you certainly didn’t hear it from [S.P.]. She didn’t say that the only time he ever did anything sexual was the last weekend and it all had to do with magazines. She said from the *399very beginning [that] ... he was molesting her, and she told in great detail how that happened. There’s no evidence that [the] child was influenced by anybody. And if he wanted to find out if she was, and if she’s so easy to lead in getting her to say what you want her to say, why didn’t he ask her if anybody had influenced her to testify this way? You know why. Because it didn’t happen.
[Defense Counsel] says he’s going to testify and ask the jury’s forgiveness for this being a child molesting case. “Please, please, there may be an injustice done here, because I made a tactical error. I didn’t cross-examine the victim.” Do you really believe that a man with the skill that he has, could not have gently cross-examined the victim and got every point he wanted to make, if he really felt there [were] any points to make by further questioning? Of course not. When he questioned her, he was a perfect gentleman. I don’t think anybody here took offense at what he said, and on redirect she told what the facts were. Nobody took offense at that. We were all prepared not to take offense at that. So why didn’t he question her? Because he had the answer, that’s why; not because he was trying to be easy on her. Yes, don’t hold any remiss on his part against his client, but my goodness don’t hold [it] against us either. Don’t speculate about what [Defense Counsel] could have asked; don’t speculate about what he may have asked Mrs. Potts if he [weren’t] such a gentleman.
Wrong, ladies and gentlemen. Reasonable doubt is not based on speculation. Reasonable doubt is not based on some theoiy that any of us can cook up about what happened. Reasonable doubt is based upon evidence and common sense; that’s what it’s based on, and if he wanted to argue a theory like that, he should have got[ten] it in the record, and he should have asked questions, and he should have established it, but he didn’t. Not even his own client testified about it. His client was practically a prosecution witness in this case, ladies and gentlemen. Certainly his confessions and his statements were. He didn’t have any evidence, and he doesn’t have it now. And don’t speculate about what the evidence could have been.
And based on his theory, ... he could have just as easily gotten up here and argued something like this: Well, [S.P.] was not molested by her father, she was really molested by her grandfather, but her grandfather, who is a man of cunning, skill and courage, told her “don’t say it was me, say it was your dad, in case it ever comes out. You know if you start getting in trouble by it and everything, if your mother ever asks, you know, say it was dad instead of me, and that’s what really happened, and that’s how the whole story got cooked up.”
Ladies and gentlemen, that theory has just about as much basis in the evidence as the one he argued.
You don’t have any evidence that Mrs. Potts improperly influenced that child. You saw Mrs. Potts, you saw what a fine lady she appears to be, and you saw what kind of a guy he is, not [Defense Counsel], please don’t let it be thought I’m pointing at him; definitely it’s his client; and you ask yourself, do you really believe that stuff? That Mrs. Potts would put her daughter through what she went through in this trial? That [her] aunt wasn’t there for coaching? Did you see [the] aunt say anything to her? Did you see her do anything but be there for moral support? No.
[Defense Counsel] would have you believe that the District Attorney’s office is operating a sexual gestapo in the State of Alaska. That we are out here to make sure that everybody who does innocent things with their children are prosecuted, and maybe, when will we start checking into your background ladies and gentlemen of the jury, maybe we ought to start checking on everybody’s, and we’re just out to find people guilty, and we’re just out here to put innocent people on trial.
Believe me, I’ve got enough to do without doing that. There are enough child molesters around without me worrying about what people are doing in their bed*400rooms innocently; and certainly that’s true for the police officers in this case. We’re not here because we went out and sought out this case, and because we like bringing little children into the courtroom to have to testify against their fathers. We’re here because there [are] people like Dennis Potts in this world.
You said something else in voir dire that I’d like to remind you of, which was that none of you have a problem believing that people like him exist. There are actually people that walk the face of the earth that molest their own daughters; and all of you said you don’t have a problem accepting that. Ladies and gentlemen, gaze on the face of a man who’s just that kind of a person. And you know he is from the way he responded to questions on cross-examination, and you know that [S.P.] was telling the truth. And you know when he says he molested her for sexual treatment, medical treatment, you know that’s a pure and simple lie. The child said that’s not why it happened. You know why she didn’t remember the cream; because the cream is totally innocent, it didn’t have anything to do with what her dad was doing. It didn’t have anything to do with what her dad was doing to her, which wasn’t nice, which showed that her dad had a problem, which showed that he needed help.
Ladies and gentlemen of the jury, most people would not find it incredible that [S.P.] still loves her father, if you know how children think. Probably most of you, unlike [Defense Counsel], did not find it incredible that that child’s first reaction— one of the first reactions to the police officers was, “I just want dad to get some help.”
You know when adult rape victims are raped, their immediate reaction is going to be anger, and I’ve been a victim. It’s really one of the sorrows of incest that she’s been molested by her own dad, and she still loves him, and she wants him to get some help, and she had to come in here to do it because he’s not willing to get the help on his own. The jury verdict is about the only way that he’ll get it; because it’s the only way that any of us are going to convince Dennis Potts he’s committed incest.
One thing that didn’t surprise me about [Defense Counsel’s] opening statement, or closing argument, is that he called [S.P.] a liar. He didn’t come right out and call her a liar, but that’s what he called her. Let’s remember what the defendant said about his daughter, and whether she’s telling the truth. Is she lying? Dennis Potts doesn’t think so. He said she’s telling the truth about what I did; he says he doesn’t think he did anything wrong; he doesn’t think there’s anything wrong with “doing the things I did,” but she’s told the truth about what I did.
You’re never going to hear more evidence than you heard in this case; it’s going to be a rare jury that listens to a child molesting case with a confession. But it’s that statement, and the statements of the man on the witness stand, that proves he’s guilty. If Dennis Potts doesn’t think she’s lying, why should you say she’s lying by acquitting him? You should find him guilty, because he thinks he’s guilty too.
Thank you.
. I have attached the entirety of the prosecution’s argument on rebuttal as an appendix to my dissent.
. Cf. United States v. Young, 470 U.S.-,-, 105 S.Ct. 1038, 1045-46, 84 L.Ed.2d 1, 11 (1985) (indicating that the proper time for objection to improper final argument, by either the prosecution or the defense, is at the conclusion of the improper argument). See also Williams v. State, 629 P.2d 54, 59 (Alaska 1981) (objection to statement made by counsel during jury voir dire deemed sufficiently timely to permit review when made on the day after the challenged remark).
. As Aristotle said, “If you want to excite prejudice you must do so at the close, so that the jurors may more easily remember what you said.” Aristotle, Rhetoric, Book III, Chap. 14, cited in United States v. Antonelli Fireworks Co., 155 F.2d 631, 642 n. 2 (2d Cir.1946) (Frank, J., dissenting).
. In retrospect, the Alaska Supreme Court's approval of the Tenth Circuit’s decision to reject the invited reply doctrine seems particularly ironic, given that the United States Supreme Court's decision in United States v. Young, which, in resurrecting the invited reply doctrine, reversed a decision of the Tenth Circuit. See United States v. Young, 736 F.2d 565 (10th Cir.1983), rev’d. United States v. Young, 470 U.S. -, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).
. I must emphasize that, in characterizing the prosecution’s rebuttal in this case as amounting to plain error — i.e., as being obviously improper and prejudicial — I do not intend to imply a personal belief that the impropriety was deliberate. There is little in the record to indicate an intentional effort to prejudice the defendant by making an improper rebuttal argument. I am convinced that the most likely explanation for the impropriety of the final arguments of both trial counsel in this case is simply their failure to appreciate the ethical constraints that govern presentation of final argument in a criminal case. Regardless of whether the misconduct was deliberate or inadvertent, its effect on the fairness of the jury’s deliberations was, of course, the same.