¶1¶71 (dissenting) — The majority permits the admission of expert testimony concerning the credibility of a criminal defendant’s accuser. The Sixth Amendment to the United States Constitution, however, prohibits expert testimony concerning the credibility of a criminal defendant’s accuser as “unfairly prejudicial.” State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Both Charles Kirkman and Ruben Juarez Candía were convicted on the basis of a doctor’s testimony concerning their accusers’ credibility. Both are entitled to a new trial. Accordingly I dissent.
¶2¶72 The admission of testimony concerning the credibility of a criminal defendant’s accuser unconstitutionally invades the province of the jury. Under the Sixth Amendment, the jury must remain “ ‘the sole judge of the weight of the testimony and of the credibility of the witnesses.’ ” State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (quoting State v. Crotts, 22 Wash. 245, 250-51, 60 P. 403 (1900)). Therefore “[n]o witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.” Black, 109 Wn.2d at 348 (emphasis added) (citing State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967)). Here, the trial courts admitted Dr. John Stirling’s testimony concerning his opinion of the credibility of Kirkman’s and Candia’s accusers.
¶3|73 The majority characterizes Stirling’s testimony as “content neutral,” suggesting he didn’t discuss the “substance” of the accusations against Candía. Majority at 933. But Stirling was only qualified — and only permitted — to discuss the “substance” of the accusations, namely whether or not physical evidence of sexual abuse existed. And yet, *941his testimony addressed the credibility of the accusers, a question entirely unrelated to his medical examination. Stirling testified he believed Kirkman’s accuser, even though he conceded no physical evidence supported her accusations. And he testified the behavior of Candia’s accuser was consistent with the behavior of a victim of sexual assault.
¶4¶74 None of this testimony reflects legitimate medical findings. The absence of physical evidence cannot support a medical finding of sexual assault. And as we recognized in Black, “the State may not introduce expert testimony which purports to scientifically prove” an alleged crime victim’s “emotional or psychological” state reflects the truth of an allegation. 109 Wn.2d at 349. An expert witness may provide an expert opinion on matters legitimate within his or her field of expertise. But only the jury may evaluate the credibility of a witness. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
¶5¶75 Nor can the majority dismiss a constitutional violation as harmless error. “It is true enough that the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.” United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409 (2006). On the contrary, “[i]t commands, not that a trial be fair, but that a particular guarantee of fairness be provided.” Id.One element of this guaranty is the right to trial by a free and independent jury. “ ‘The safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded ....’” State v. Reeder, 46 Wn.2d 888, 893, 285 P.2d 884 (1955) (quoting State v. Montgomery, 56 Wash. 443, 447, 105 P. 1035 (1909)). We must not disregard them here.
¶6¶76 I dissent.