(concurring in the result):
Although I concur in the result reached by the majority, I cannot adopt the hypotheses or philosophies of the opinion except the one ground on which we place common reliance, namely, disclosure of the hypnosis. For the first time to my knowledge — and research does not produce recorded precedents— we are faced with the unique situation of a witness, who with his consent was hypnotized on behalf of the government in advance of trial in an assumed endeavor to search for that will-o-the-wisp —the truth. This fiction — a conscientious search for the truth — endures despite the fact that every jurist and defense counsel know that the search for and the disclosure of the truth is the last thing a guilty defendant desires.
Truth has been sought by divers methods from the rack of centuries ago to the modern truth serum and lie-detector devices. The probing of the subconscious as a means of reliably ascertaining the truth has not yet become an established part of our fact-finding system. But certainly it is not for a court or the judges thereof to rule out the possibilities inherent in penetrating into the subconscious by psychiatrically or medically acceptable processes, including hypnosis. Although much has been written on the subject of hypnosis, its practice, as the public generally conceives it to be, would appear to be limited to exhibitions at county fairs or before audiences interested in public entertainment. If amongst the many consenting subjects of such hypnoses there have been any untowards, lasting or dire effects on their minds, any such consequences have not yet become public knowledge.
Here then is a science — if such it can be denominated — which is in a comparative infancy and which, insofar as its use in a court is concerned, is not even on the threshold. In such a posture, what are or should be the rules of the game? For courtroom purposes, they have not even been drafted.
The privilege of dealing with the problem in an abstract way is not afforded us here. We are confronted with actual facts: Caron was a key witness; identification of Miller was all-important; Caron was hypnotized and interrogated by the government in advance of trial (and I assume for purposes of developing the truth); defense counsel were not notified of the hypnosis and had no opportunity by examination or cross-examination to explore whatever might have been found at that time in Caron’s subconscious mind or memory; defense counsel were not aware of the pre-trial hypnosis before or during the trial or that the prosecuting attorney had participated therein.
Specifically, I do not join in the majority’s reference to the defendant’s claim that he had led a blameless life and that because he asserted that “the prosecution got the wrong man,” we should be willing to pay the price of “the ultimate escape of a guilty man.” Any such philosophy strikes at the heart of our jury system. They saw, heard and convicted. It is what they saw and heard that is crucial. Of course no innocent man should be convicted. And this is no time or place to debate the philosophy, at odds with society’s experience in most other fields, that it were better that ninety-nine guilty escape rather than one innocent man be convicted. If mistakes there have been, they have been the mistakes of the judgments of the defendants’ fellow men.
Thus' the only question open here in my opinion is: did the jury have all *834the facts before them essential to a fair appraisal of Caron’s testimony? With full knowledge of the hypnosis incident, the jury might well have been satisfied with Caron’s testimony. But this question is for the jury — not for our speculation. On this subject, I add my complete concurrence with the majority’s statement that this “decision is not to be taken as implying any view that Caron’s hypnosis disqualifies him from testifying on a new trial.”
Lastly a word about Butler’s supposed influence over Caron. Naturally, to capitalize on the incident to the maximum, the defense would depict Butler as a modern Svengali and Caron (to up-date the simile) as merely his Charlie McCarthy-like puppet. Here again is a jury question. Very few criminal jury cases are tried by equally-matched counsel. A few highly gifted members of the Bar in that field seem to possess extraordinary talents in eliciting testimony that their less talented brethren fail to develop. This disparity may be countered — and usually is in jury summation — by comment on this very disparity in counsel’s abilities. Many a David has overcome a courtroom Goliath. Whether such an appeal has been the cause or not must be kept securely locked in the jury room. Therefore, despite the interesting statistics and speculations of Messrs. Kal-ven & Zeisel, I prefer to leave to the future jury here their own appraisal of the effectiveness or influence of such counsel as may appear before them. And with similar thoughts in mind, I would refrain from comment on any evidence adduced on the former trial or on any language in our previous opinions relating thereto.
Thus, because the use of hypnosis as a means of attempting to ascertain the truth is, to say the least, novel and apparently subject to differing medical opinions, I believe that under the circumstances of this particular case, the jury should have had this fact before it in weighing Caron’s testimony.