concurring.
I agree with the majority on the issues of prosecutorial misconduct, sufficiency of the evidence, and sentencing, but I file this concurring opinion because I would hold that the videotaped statements of the officer that attack the veracity of Elnicki were inadmissible and should either have been redacted or a cautionary instruction should have been given. In my view, the majority’s “better practice” should be elevated to an evidentiary requirement. Finding the error harmless in this case, however, I would not reverse tire convictions.
The State defends the admissibility of such statements on the basis that they were part of tire interrogation process. The State included in its brief several authorities that recognize that confrontation of the suspect with strong accusations of not telling the truth can be successful in convincing the suspect that it is futile to continue to resist telling the truth. See, e.g., Inbau, Reid & Buckley, Criminal Interrogation and Confessions 131 (3d ed. 1986). Frankly, this approach may be successful in the interrogation of criminal suspects, but I find such authorities completely immaterial on the issue of admissibility at trial.
*279Our Supreme Court has consistently held that the determination of the truthfulness of a witness is for the jury, and that it can be reversible error to permit witnesses to express their view on issues of credibility. See, e.g., State v. Plaskett, 271 Kan. 995, 1008-09, 27 P.3d 890 (2001). My review of these cases demonstrates that the usual target of an opinion regarding credibility is an accusing witness; when the target is the defendant, the constitutional stakes are at least as high, if not higher.
Most courts that have addressed this issue have concluded that admission of such statements is error, especially if not accompanied by a cautionary instruction. The majority of the Washington Supreme Court in State v. Demery, 144 Wash. 2d 753, 765-73, 30 P.3d 1278 (2001) (tíre concurring and dissenting opinions), as well as the Pennsylvania Supreme Court in Commonwealth v. Kitchen, 1999 Pa. Super. 100, 730 A.2d 513, 521 (1999) concluded that it is improper to admit officers’ opinions of credibility of a criminal defendant. Moreover, the Idaho Court of Appeals concluded that admission of such evidence is error if not accompanied by a limiting instruction. State v. Cordova, 137 Idaho 635, 51 P.3d 449, 456 (Idaho App.), rev. denied (Aug. 8, 2002).
“When the troopers stated to Appellee, ‘You’re lying’, or we know that you’re lying’ or phrases to that effect, their statements were aldn to a prosecutor offering his or her opinion of the truth or falsity of tire evidence presented by a criminal defendant, and such opinions are inadmissible at trial. [Citation omitted.] The troopers’ statements could also be analogized to a prosecutor’s personal opinion, either in argument or via witnesses from the stand, as to the guilt or innocence of a criminal defendant, which is inadmissible at trial.” Kitchen, 730 A.2d at 521.
Although the Ninth Circuit United States Court of Appeals in Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000), concluded that there was no error in admitting such statements, the case is not particularly comforting, given that: (i) the issue was raised in a .habeas proceeding and the court applied a standard requiring that the statements must have so fatally infected the proceedings as to render them fundamentally unfair; and (ii) the court was especially influenced by the fact that the trial court gave two specific cautionary instructions, which were presumed to have cured any prejudicial impact.
*280Consistent with these authorities, I would hold that the barrage of officers’ accusations that Elnicki was “a liar” or “was weaving lies” either should have been redacted or should have been admitted with a cautionary instruction. To admit such evidence without the instruction was error.
Even the majority concedes that this is the “better practice”; I respectfully suggest that the majority opinion does not foster the better practice, but rather assures that police officers will routinely include their personal opinions on the credibility and guilt of the accused in every taped interview they conduct, knowing that this is the most likely way to get their otherwise inadmissible opinions before a juiy. See Demery, 144 Wash. 2d at 773 (Sanders, J., dissenting).- Nemo potest facere per obliquum quod non potest facere per directum.
Although I would find error in the failure to redact without giving a cautionary instruction, the error was harmless in this case. I have reviewed the entirety of the taped interview and conclude without difficulty that redaction would not have changed the outcome in this case. See State v. Bell, 266 Kan. 896, 920, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).