ZINTER, Justice (on reassignment).
[¶ 1.] John Ball was convicted on two counts of first degree rape. On appeal, he asserts that the trial court erred in: (1) denying his request for a mistrial for a discovery violation; (2) denying him access to Department of Social Services records; (3) denying his motion for a judgment of acquittal on one count of the indictment; (4) denying his request for a mistrial because the prosecutor commented on his failure to testify; and (5) imposing a cruel and unusual punishment. Because we conclude that the prosecutor improperly commented on Ball’s constitutional right to remain silent, we reverse and remand on Issue 4. We also review the discovery question in Issue 2.
Background
[¶ 2.] We relate the facts in a light most favorable to the verdict. State v. Hage, 532 N.W.2d 406, 410 (S.D.1995). On December 29, 2000, Tonya Arendt, the mother of M.B., contacted Box Elder Police Detective Chris Misselt. She informed him that M.B. had made allegations of sexual abuse by John Ball, M.B.’s father.1 Arendt was concerned because M.B. reported two incidents of Ball “sniffing” her during visitations that year. On January 1, 2001, Misselt interviewed M.B. In the interview, M.B. reported seven incidents of inappropriate contact by Ball, including the two allegations of sexual penetration that are the subject of Ball’s rape convictions in this appeal.
[194]*194[¶ 3.] The first incident allegedly occurred on a day the two were involved in a vehicular accident. Although M.B. believed that it occurred some time in February 2000, it was later determined that the accident occurred on January 1, 2000. On that day, Ball’s car struck two concrete poles and ruptured a gas line. Ball and M.B. left the scene of the accident before the police arrived and proceeded to the Dakota Rose Motel where they were staying. After returning to the motel, M.B., age eight at the time, began to take a shower. According to M.B., when she asked Ball to bring her a towel, he came into the bathroom, disrobed and got into the shower with her. She indicated that Ball got down on his knees and took her by the hips and began to “lick her privates,” sticking his tongue and fingers into her. Although M.B. indicated that she escaped from the bathroom, sexual activity continued. She alleged that she later went to bed, but awoke to find herself naked and felt her father pulling her legs apart and inserting his tongue in her. Around one or two that morning, while Ball was asleep, Arendt picked M.B. up at the motel and took her home. M.B. did not apparently report this incident at that time.
[¶ 4.] M.B. testified that the second incident occurred on Christmas Eve, December 24, 2000. On this occasion, M.B. was visiting Ball at his apartment in Box Elder. She indicated that during the visit, Ball “kissed, licked and sucked her private parts” and “rubbed his penis on her butt.” However, actual penetration sufficient to constitute rape became a matter of dispute in M.B.’s subsequent statements and testimony at trial.
[¶ 5.] The first of M.B.’s subsequent statements was made four days after M.B. first reported the Christmas incident. On this occasion, she spoke to school counselor John Barnett about the matter. M.B. told Barnett that while she was visiting Ball on Christmas Eve, he kissed, licked, and sucked her private parts. Barnett testified to this conversation at trial.
[¶ 6.] Dr. Lori Strong conducted a physical examination of M.B. on March 13, 2001. Although M.B. denied any sexual penetration of her mouth or vagina in this statement, and although M.B. denied any anal penetration at trial, she reported to Dr. Strong that Ball had penetrated her anally with his penis during the Christmas incident.
[¶ 7.] M.B.’s initial reports to Detective Misselt were turned over to Pennington County Deputy Sheriff Misti Gray. Gray first met with Ball on February 21, 2001, but no specific questions were asked. Later, on March 2, 2001, Ball contacted Gray’s office and asked to speak with her. Ball repeatedly denied his daughter’s allegations, specifically denying any of the rape allegations while saying that he did not remember other things. At one point, when asked if his child had been lying, he replied, “She is not lying. I am not lying. I just don’t remember.” Ball also conceded that “[s]ome of the things” were true. He said he was sorry he “hurt her.” Ball expressed his wish to not go to jail. He was later arrested and made an initial appearance on March 26, 2001.
[¶ 8.] At trial, the State called M.B., Arendt, Barnett, Dr. Strong, Misselt, Gray, Officer Johns, and Kay Lindgren as witnesses. The defense witnesses were Lynette Barse and Troy Fegueroa. Ball did not testify. The jury found Ball guilty on both counts of first degree rape of a child less than ten years of age. He appeals, asserting the following issues: (1) “The trial court erred in denying Ball’s motion for a mistrial for the violation of the discovery order and failure of the State to give proper notice under the medical exception to the hearsay rules.” (2) “The [195]*195trial court erred in denying Ball access to the requested Department of Social Services records.” (3) “The trial court erred in denying Ball’s motion for a judgment of acquittal on count II of the indictment.” (4) “The trial court erred in not finding the prosecutor’s comments during closing arguments about the fact that Ball did not testify improper and denying Ball’s motion for a mistrial.” (5) “The trial court’s sentence shocks the conscience and constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.” We address Issue 2 (discovery) and Issue 4 (prosecuto-rial comments).
Discovery of DSS Records
[¶ 9.] The trial court performed an in camera review of the confidential Department of Social Services (DSS) records and found nothing of relevance. Ball asks us to review the sealed records to ensure that the trial court did not err in its review. We review a trial court’s decision on release of confidential records under an abuse of discretion standard. State v. Cates, 2001 SD 99, ¶ 17, 632 N.W.2d 28, 36.
[¶ 10.] Our review of the one thousand pages reflects that most of the material was irrelevant. However, we found the following: “Ann [the mother of a child named ‘R’] stated that [R] has been helpful with a girlfriend [M.B.] that confided in [R] about some sexual abuse and that she may have to testify in court.' Ann stated that many of [R’s] friends feel comfortable in talking with her about their problems.”
[¶ 11.] While this passage may have been relevant, nothing in this note suggests that M.B. gave a contradictory rendition of events to R. More importantly, R’s name was listed in the police report attached to the complaint along with a rendition of what M.B. told her. R was also subpoenaed to testify at a June 18, 2001 evidentiary hearing. She did not, however, testify. Both the subpoena and the police report are in the record. Thus, the defense had knowledge of R, what M.B. had purportedly told her, and what R reported to law enforcement. Therefore, the trial court was within its discretion in refusing to open the confidential DSS records.
Request for Mistrial — Prosecutor’s Comments on Ball’s Refusal to Tell “Us” What Happened
[¶ 12.] Although Ball did not testify, the prosecutor made three comments in closing argument that Ball “knows [not knew] what happened.” The prosecutor also pointed out that Ball admitted some things, and then the prosecutor asked the rhetorical question “what’s true John?” The prosecutor concluded by conceding that although there was no physical evidence of trauma, Ball “knows what happened, but he’s not talking. He’s not telling us what happened.” The prosecutor specifically commented:
So again, folks, look at what’s going on. [M.B.] was there. In the traffic accident [M.B.] is a fine witness for him. Now when she says he molested her and raped her, [M.B.] is lying and making it up and out to get him. Don’t get lost in all this, all this smoke that’s being put up. Mr. Ball knows what happened and we know that by his statements. He can’t hide from those.
He told Misti Gray that some of the things are true, some of the allegations, “Tell-my daughter I’m sorry I hurt her.” He said he didn’t want to go to jail and he needed a psychiatric ward, he needed counseling. Again, look at the parameters of which he was talking about, allegations of a rape. He’s saying that he doesn’t want to go to jail. That was what he followed up with when he said, “Some of the things are true.” “What’s [196]*196true, John ?” “I don’t want to go to jail.” For running around naked and handing your daughter a towel, you’re going to jail?
The defendant knows what happened. He raped her. He wouldn’t tell law enforcement. He stopped giving the details as far as the allegations, although some of the allegations are true.
Defense will point out there’s no signs of trauma on [M.B.]. Again, that’s been brought out. Dr. Strong stated it’s very [unjcommon you’ll have any sort of damage on a child for rape. We talked about that in voir dire. It doesn’t happen all the time. This wasn’t a forced act. This wasn’t something that left scars or injuries or bruising. The examination took place sometime thereafter, but even so, pen[ile] penetration, the doctor said that wouldn’t leave anything. It’s a flexible opening. Oral contact with genitals, common sense, folks, that’s not going to leave anything whatsoever. Finger penetration, again, that’s not going to do it because there’s different levels of the vaginal area where the hymen is. It’s not going to leave scarring. The defendant knows what happened, but he’s not talking. He’s not telling us what happened. As far as he’ll say, “Some things are true.”
(Emphasis added.) This was not the only improper comment by the prosecution on Ball’s failure to tell “us” (the court and jury) what happened. Earlier, without objection, the prosecutor told the jury:
Folks, allegations is what he knew was coming at him: first degree rape, oral sex, placing a penis next to a butt. It wasn’t running around a room naked. Is that an allegation? It wasn’t handing a daughter a towel that was an allegation. Watching him masturbate, that’s not an allegation. He said the allegations, that some of the allegations, some things were true. Would he tell us anymore? No, he wouldn’t.2
[¶ 13.] Significantly, these present tense comments stood in stark contrast to the prosecutor’s other permissible comments on Ball’s past statements to Misti Gray. Later in his argument, after the defense objection was made, the prosecutor clearly demonstrated his ability to make a permissible past tense comment on Ball’s lack of memory with Misti Gray. The prosecutor argued:
Ladies and gentlemen, defense went through and said the defendant denied [197]*197the specific allegations, pen[ile] contact, digital contact, oral contact, but yet, again, he told Misti Gray that some of the allegations are true. Those are the exact allegations defense said he denied. He didn’t deny them. He wouldn’t go into detail about what allegation was true. The allegations were oral contact on the day of the Dakota Rose Motel and pen[ile] contact after Christmas. He said those didn’t happen, but then in the same breath he said, “Some of the allegations are true. Some things [M.B.] said are true.”
(Emphasis added.)
[¶ 14.] Ball only objected after the first series of comments cited in ¶ 12. Defense counsel approached the bench and, in an off the record discussion, preserved an objection and a mistrial motion.3 Defense counsel then presented Ball’s closing argument. When arguments were completed and the jury began deliberations, counsel made her record objection and motion for mistrial based on the prosecutor’s comments. Counsel argued that the prosecutor’s statements were an impermissible present tense comment on the defendant’s failure to testify: defendant “knows,” (not “knew,”) what happened, but he’s not talking, he’s not telling “us” what happened.
THE COURT: Ms. Harris, during closing you indicated you wanted to preserve your record on a point. You can do that now.
MS. HARRIS: Thank you, Your Honor. Your Honor, during closing [the prosecutor] made a statement. I wrote it down. “He’s not talking” was in the present tense. As defense counsel, we’re in this dilemma at that time whether to object and draw attention to the matter and make it even more pronounced for the jury or so preserve the issue. I asked the Court if we could preserve the issue at this time.
Of course, it is an impermissible comment by the prosecutor on the defendant not taking the stand and testifying. What’s significant about the statement that he made was that it was in the present tense. It was not in a reference to the statement made to Misti Gray and, therefore, it was inappropriate. That’s the basis of our motion, Your Honor.
[¶ 15.] In response, the prosecutor argued that he had only commented on Ball’s statements to Misti Gray; i.e., that some of what M.B. said was true, but defendant would not specify to Misti Gray what was true.4 The trial court, also basing its decision upon the comments to Misti Gray, agreed. The court denied the motion, stating that the comment was “in direct reference to Misti Gray’s testimony.” Ball appeals, contending that the prosecutor’s comments were an impermissible reference to the defendant’s present tense knowledge of what happened and his refusal to testify, and therefore, they violated his Fifth Amendment right against self-incrimination.
[¶ 16.] Ordinarily, “[t]he denial of a motion for mistrial will not be overturned unless there is an abuse of discretion. Motions for mistrial are within the discretion of the trial judge[.]” State v. Johnson, 2001 SD 80, ¶ 9, 630 N.W.2d 79, [198]*19882 (quoting State v. Alidani, 2000 SD 52, ¶ 9, 609 N.W.2d 152, 155). However, this case does not involve trial court fact finding. The sole issue here is whether the prosecutor’s comments on Ball’s failure to testify violated the Fifth Amendment guarantee against self-incrimination. Therefore, the central question in this case is whether the factually undisputed comments cited in ¶ 12 violated Ball’s constitutional rights.
[¶ 17.] The United States Supreme Court has specifically held that “the Fifth Amendment ... forbids ... comment by the prosecution on the accused’s silence.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965). The Supreme Court noted that “comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice’ which the Fifth Amendment outlaws.” Id. at 614, 85 S.Ct. 1229 (quoting Murphy v. Waterfront Comm., 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, 681 (1964)). Therefore, “[i]t has long been the law in this state that it is reversible error for the prosecution to call to the attention of the jury the failure of the defendant to testify.” State v. Strickland, 87 S.D. 522, 529, 211 N.W.2d 575, 580 (1973) (emphasis added) (citing State v. Brown, 81 S.D. 195, 132 N.W.2d 840 (1965); State v. Wolfe, 64 S.D. 178, 266 N.W. 116 (1936)).
[¶ 18.] If the cited comments violated Ball’s Fifth Amendment rights, it is reversible error. Therefore, the sole question in this case involves a constitutional question, which is a matter of law. Such questions of law involving Fifth Amendment constitutional questions are considered under a different standard of review. See State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488 (applying a deferential standard to the underlying factual determinations, but independent review of the ultimate Fifth Amendment question). The Stanga de novo standard of review of Fifth Amendment constitutional questions is in accord with our standard of review of other constitutional questions. We have noted that “[o]ur review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo.” State v. Lamont, 2001 SD 92, ¶ 12, 631 N.W.2d 603, 607 (citing State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603; Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993)). See also State v. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728; State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209; State v. Brassfield, 2000 SD 110, ¶ 10, 615 N.W.2d 628, 631. We have also applied this review in other Fifth Amendment contexts (“constitutional safeguard[] against involuntary confessions”). State v. Morato, 2000 SD 149, ¶ 11, 619 N.W.2d 655, 659. In considering Fifth Amendment violations, we have specifically held that it is “ ‘a legal question, requiring independent judicial review.'” Id. (citations omitted) (emphasis added).
[¶ 19.] Other courts also apply a de novo standard of review of constitutional violations. For example, the Supreme Court of Iowa reviews claimed constitutional violations de novo. Iowa v. Gardner, 661 N.W.2d 116, 117 (2003). Maryland holds that “[i]f the facts as found by the trier of fact are not clearly erroneous, our review of the application of the law to those facts, such as where impingement on an individual’s constitutional rights may be in question, is de novo.” Polk v. Maryland, 378 Md. 1, 835 A.2d 575, 579 (2003) (further citations omitted). North Dakota holds that “our standard of review for a claimed violation of a constitutional right is [199]*199de novo.” North Dakota v. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109, 111 (citing North Dakota v. Wicks, 1998 ND 76, ¶ 17, 576 N.W.2d 518). Wyoming holds: “we apply a de novo standard of review to claims of constitutional violations.” Sincock v. Wyoming, 2003 WY 115, ¶ 19, 76 P.3d 323, 332.
[¶ 20.] The federal courts agree. The Eighth Circuit Court of Appeals holds that “the ultimate issue of whether a constitutional violation has occurred is subject to ... de novo review.” Stallings v. Delo, 117 F.3d 378, 380 (8th Cir.1997) (agreeing with petitioner that the issue of whether facts relevant to his Fourteenth Amendment due process claim gave rise to a violation of his right to due process is subject to de novo review). The dissent’s reliance on United United States v. Triplett, 195 F.3d 990 (8th Cir.1999) is misplaced. See infra ¶¶ 47, 49. Although Triplett utilized the abuse of discretion standard in reviewing prosecutorial misconduct in closing argument, it recognized that “[i]t is also well established that pros-ecutorial misconduct occurs when the prosecutor comments at trial, directly or indirectly, on the defendant’s failure to testify.” Triplett, 195 F.3d at 995 (emphasis added) (citing Sidebottom v. Delo, 46 F.3d 744, 759 (8th Cir.1995)). Thus, under Triplett, if a constitutionally impermissible comment on the defendant’s failure to testify is made, prosecutorial misconduct has occurred, and a new trial is required. We finally note that the Ninth Circuit has applied de novo review in some of its cases:
Although we usually review a trial court’s discretion in controlling closing arguments for an abuse of discretion, United States v. Guess, 745 F.2d 1286, 1288 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1219, 84 L.Ed.2d 360 (1985), the issue here involves alleged violation of fifth amendment rights presenting a question of law subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
United States v. Schuler, 813 F.2d 978, 980 (9th Cir.1987). See also United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991) (stating “[w]e review a claim that the prosecutor’s closing argument violated the appellant’s fifth amendment rights de novo”); United States v. Gray, 876 F.2d 1411, 1416 (9th Cir.1989) (reviewing such a claim “independently and non-deferentially”), cert. denied, 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990).
[¶ 21.] Considering our own application of the de novo standard of review in similar Fifth Amendment questions, see Stanga, supra ¶ 18, we review the quoted statements de novo. This is not to say that we no longer defer to trial courts on their firsthand impressions and findings of fact. See dissent at ¶ 52 (relying upon a civil case5 involving a trial court’s affirmative attempts to correct non-constitutional error in closing argument). On the contrary, “[w]e review findings of fact under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. [And,] an alleged violation of a constitutionally protected right is a question of law reviewed de novo.” Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d at 209 (internal citations omitted).
[¶ 22.] We next turn to the substantive test to determine whether the prosecutorial comments on a defendant’s silence violate the Fifth Amendment. See [200]*200Butler v. Rose, 686 F.2d 1163, 1170 n.6 (6th Cir.1982) (discussing “universal application” of the test). “[T]he test is whether the language used [by the prosecutor] was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, 224 F.2d 168, 170 (10th Cir.1955). See also United States v. Sanders, 547 F.2d 1037, 1042 (8th Cir.1976); United States v. Lyon, 397 F.2d 505, 509 (7th Cir.1968) (citing Knowles), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117. Although the Knowles test has yet to be adopted in South Dakota, many states embrace this rule.6 Today, we adopt this test.
[¶ 23.] Accordingly, in reviewing a prosecutor’s challenged comment, we first examine whether it was the prosecutor’s “manifest intention” to refer to the defendant’s silence. A prosecutor’s intent is not “manifest” if there is an equally plausible explanation for the prosecutor’s remarks. United States v. Collins, 972 F.2d 1385, 1406 (5th Cir.1992), cert. denied, 507 U.S. 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444 (1993). Furthermore, challenged remarks must be considered in the context in which they were made. United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir.1993).
[¶ 24.] Under prosecution’s manifest intent inquiry, one could accept the state’s argument that part of the prosecutor’s two initial comments (Ball “knows” what happened) related to the Misti Gray interview and were therefore not “manifestly intended” to be a comment on the defendant’s failure to testify. As the trial court found, “I heard the statement [a singular, not plural reference] and it was in direct reference to Misti Gray’s testimony, what Mr. Ball discussed with her, and [the prosecutor] was summarizing the events in the arguments and says he’s not talking ... it was not intended to be in the present tense and reference to Mr. Ball not taking the stand.” (Emphasis added.)
[¶ 25.] However, this finding of an unintentional and singular comment relating to Misti Gray does not end the inquiry because the prosecutor went beyond one comment on statements made (and not made) to Misti Gray. Moreover, we must also examine all comments under the second prong of Knowles to determine if they were “of such character that the jury would naturally and necessarily take [them] to be a comment on the failure of the accused to testify.” Knowles, 224 F.2d at 170. Or, as we have previously stated “[w]hen the comments are indirect allusions, the test is whether a reasonable intelligent jury would understand these to point out defendant’s failure to testify.” [201]*201State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980) (citing State v. Winckler, 260 N.W.2d 356 (S.D.1977)).7
[¶ 26.] Unfortunately, this second inquiry is complicated by the fact that Ball objected during closing arguments, but was permitted to obtain a trial court ruling after the jury was deliberating. Consequently, while the trial court’s ruling on one comment made concerning Misti Gray may have been accurate, the record reflects that it was only a part of a string of improper comments, in addition to the one ruled on by the trial court. A review of the final argument actually reveals four comments made at the time of the objection. See supra ¶ 12. In chronological order the four comments were:
(1) a present tense comment that the defendant “knoivs ” (not knew) what happened;
(2) a present tense rhetorical question asking the jury “what’s true John?”;
(3) two more references to the fact that the defendant “knows” (not knew) what happened; and
(4) the concluding comment “but he’s not talking. He’s not telling us what happened.”
[¶ 27.] Had the trial court reviewed the entire string of present tense references to Ball’s knowledge, which included (1) the rhetorical question asking the jury “what’s true, John” and (2) the concluding comment “but he’s not talking. He’s not telling us what happened,” it would have granted the mistrial. The record reflects it would have done so because the trial court expressly ruled that “[h]ad the prosecutor made a direct comment, ‘[tjhere sits the defendant and he hasn’t said a word about this,’ that would have been an entire present tense context and I’d be granting your motion.” (Emphasis added.) Because the prosecutor made many such present tense comments, coupled with a rhetorical question to the jury and the specific comment that Ball was not telling “us” (the jury) what happened, the mistrial motion must be granted.
[¶ 28.] This conclusion is justified giving the prosecutor’s comments the required review in context. A contextual review reveals that the first comment was made in the first paragraph of the quoted comments. In that paragraph, the prosecutor was not discussing Ball’s statements to Misti Gray. Instead, he was discussing Ball’s defense that the victim was lying. The prosecution responded to that defense by encouraging the jury to not get lost in “all this smoke that’s been put up” because “Mr. Ball knows what happened .... ”
[¶ 29.] As the trial court pointed out, the prosecutor then began the argument that involved statements Ball made to Misti Gray (“and we know that [Ball knows what happened] by his statements”). Although there were subsequent references to various statements Ball made (and didn’t make) to Gray, the prosecutor responded by rhetorically asking the jury “What’s true John ?” Although a rhetorical question has generally not constituted reversible error when the question is vaguely phrased such as “and what has the defense had to say?,” that is not the case when the [202]*202question refers to the defendant See 2 Childress and Davis, Federal Standards of Review § 12.01, 12-9 (2d ed 1989). Here, the prosecutor went even further and improperly asked “what’s true John.” Moreover, the prosecutor then made another present tense comment: “the defendant knows what happened. He raped her.”
[¶ 30.] The prosecutor then completely left the discussion of the statements made to Misti Gray and discussed the absence of physical trauma and the State’s explanation for that absence (Dr. Strong indicated why the rape would not leave scarring). The prosecutor responded to that absence of physical trauma defense by unequivocally commenting in present tense that: “the defendant knows what happened, but he’s not talking. He’s not telling us what happened.”
[¶ 31.] Thus, although we agree that the prosecutor could properly comment on prior statements made to Misti Gray, the prosecutor went further than such permissible comment. He also made three present tense comments that Ball “knows what happened” followed with the comment “but he’s not talking. He’s not telling us8 (the court and jury) what happened.” He also asked the jury the rhetorical question “What’s true John?” Although it is suggested that “[t]he prosecutor never argued that the jury should infer guilt from the defendant’s silence at trial,” infra ¶ 44, these comments, when considered together, were more than an indirect reference. Moreover, a direct reference was not necessary:
When the alleged infringement consists of statements which do not comment directly on the defendant’s failure to testify or suggests that an inference of guilt should be drawn from this fact, a reviewing court must look at all the surrounding circumstances in determining whether or not there has been a constitutional violation.
Butler, 686 F.2d at 1170.
[¶ 32.] Here, when considered in context, the comments that Ball “knows” what happened, the rhetorical question to the jury and comment that Ball was not telling the jury what happened, were together, of such a character that a jury would naturally and necessarily take them to be a comment on the defendant’s failure to testify in violation of part two of Knowles, 224 F.2d at 170. In fact, they are quite similar to the improper statements in Griffin, 380 U.S. at 611, 85 S.Ct. 1229 (the defendant “knows” or “would know” but he’s not seen fit to take the stand and deny or explain). We conclude that the prosecutor’s comments were improper comment on Ball’s constitutional right to remain silent.9
[203]*203[¶ 33.] Under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the State may, however, prove that the error was harmless beyond a reasonable doubt. Three elements are considered: (1) the persuasiveness of the comments, (2) the relative strength of the State’s case, and (3) the effectiveness of the trial judge’s response to the comments. Id. at 22, 87 S.Ct. 824.
[¶ 34.] Considering those elements, the State has not met its burden of establishing that the State’s error was harmless beyond a reasonable doubt. First, as noted above, the comments by the prosecutor were not isolated. They involved multiple uses of the present tense form of the verb “knows.” Moreover, the comments involving Ball’s present tense knowledge of what happened were coupled with a rhetorical question to the jury and the concluding comment that “[t]he defendant knows what happened, but he’s not talking. He’s not telling ms what happened.” Thus, the comments were not a single reference to Ball’s earlier statements to Misti Gray. The comments were also not benign or a “slip of the tongue.” United States v. Dorsey, 819 F.2d 1055, 1061 (11th Cir.1987). They were extensive and repetitive comments that were more serious than a single, isolated statement. See Anderson v. Nelson, 390 U.S. 523, 524, 88 S.Ct. 1133, 1133-34, 20 L.Ed.2d 81, 83 (1968) (per curiam); Chapman, 386 U.S. at 26, 87 S.Ct. 824. They were repeated present tense comments on Ball’s knowledge of what happened, coupled with a direct comment on Ball’s refusal to tell the jury what happened. This type of request of jurors to infer guilt from silence is the most improper. See Anderson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81.
[¶ 35.] Second, the relative strength of State’s case was not overwhelming in comparison to the defense. Because there was no physical evidence of sexual abuse, the State’s case relied entirely on the victim’s statements, both dir.ect and hearsay. However, M.B.’s statements were inconsistent in two important respects. First, they were inconsistently reported to the three hearsay witnesses (Officer Misselt, Dr. Strong, and M.B.’s counselor, Barnett). As a result, the prosecutor readily conceded the deficiencies of M.B.’s story:
Was [M.B.’s testimony] good? I don’t think I would go that far. It definitely wasn’t great. Was her story exactly like she told law enforcement? No. Was it exactly like she told the counselors? No. Was it exactly like she told Dr. Strong? No.
Second, the prosecutor conceded that the child’s version of the events at trial was not the same as her prior testimony. In fact, as it related to the second count, M.B. denied sexual penetration at trial and in her statement to counselor Barnett.
[¶ 36.] In light of these deficiencies, the defense focused on M.B.’s lack of credibility. The defense alleged that the child’s allegations arose because of a custody dispute between Ball and M.B.’s mother, and that a spanking occurred, which would also explain the incidents. The defense also argued that M.B. had been lying to her family and counselor to the extent that she required treatment.
[¶37.] Finally, the defense offered an explanatory theory that some of the sexual incidents, short of the rape, did occur. Defendant offered this defense to explain Ball’s partial admissions to Misti Gray. To the extent that he could not explain his other statements, Ball argued that medication prevented his recall of some facts and that explained his inability to remem[204]*204ber all details when discussing it with the investigating officers. Therefore, under the defense strategy and the improper prosecutorial comments, the jury was required to assess M.B.’s credibility against Ball’s failure to explain M.B.’s allegations. Under those circumstances, one cannot conclude beyond any reasonable doubt that the comments did not contribute to Ball’s conviction. That conclusion is reinforced by the fact that due to the timing of the motion, the trial court was not in a position to give a curative instruction to minimize the comment’s impact on the jury.
[¶ 38.] Consequently, we conclude that the State has not demonstrated harmless error beyond a reasonable doubt.
Comment on the failure of the accused to testify is different from comment on his failure to produce evidence in his defense, when it appears within his power to do so.... It is a matter which the prosecutor must approach with caution and if [the prosecutor] oversteps the line as to call attention of the jury that accused has not taken the stand or offered himself as a witness, the court should grant a new trial.
Brown, 81 S.D. at 199, 132 N.W.2d at 842 (citing State v. Williams, 11 S.D. 64, 75 N.W. 815 (S.D.1898)). As this Court stated more than 100 years ago, “the only practical way to remedy [this error] is to grant a new trial.” Williams, 11 S.D. at 74, 75 N.W. at 817. For those reasons, the conviction must be reversed and remanded for a new trial.
[¶ 39.] Reversed and remanded.
[¶ 40.] SABERS, and MEIERHENRY, Justices, concur.
[¶ 41.] GILBERTSON, Chief Justice and KONENKAMP, Justice, dissent.