concurring specially.
[¶ 24] I concur in the result reached by the majority opinion. I write separately with respect to part II of the majority opinion concerning Breding’s out-of-court statements. The majority relies on In Interest of B.S., 496 N.W.2d 31, 32 (N.D.1993) for the statement that the “stages of any proceedings” under N.D.C.C. § 27-20-26, “include circumstances ... where the officer has focused his investigation on a particular suspect. ...” In Interest of B.S., relies on In Interest of J.D.Z., 431 N.W.2d 272 (N.D. 1988), which in turn relied on In re J.Z., 190 N.W.2d 27 (N.D.1971). I concurred in the result, without opinion, in B.S. and J.D.Z. My concern was not with the result in those cases but with reliance on the “focus” test to define a “stage of the proceeding” within the meaning of N.D.C.C. § 27-20-26(1).
[¶ 25] When J.Z. was written, in 1971, this court arguably applied the then prevailing principle that the “focus” of an investigation was a stage of a proceeding which required the giving of Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). See State v. Iverson, 187 N.W.2d 1 (N.D.1971), cert. denied, 404
U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971). Subsequent to that decision, and following Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), this Court, in State v. Fields, 294 N.W.2d 404, 407 (N.D.1980), explicitly rejected the concept that mere investigatory focus requires Miranda warnings prior to any questioning and held that such warnings are required only in the inherently custodial interrogation for which Miranda was designed.
[¶ 26] Although J.D.Z. recognizes the holding in Fields, it observes it was “in the context of adult criminal proceedings where we were considering the application of the Miranda warnings, not a statutory right to counsel under the Juvenile Court Act (Chapter 27-20 N.D.C.C.).” J.D.Z., at 275 n. 4. That statement is factually correct, but it and the cases on which it relies provide no principled discussion of why the “focus” test is appropriate for determining a stage of the proceedings for which counsel is required for juveniles but not for adults. There may be principled and persuasive reasons for so concluding but our prior cases do not discuss them. Because of the result reached by the majority opinion, this case is not an appropriate vehicle for that discussion. However, rather than continuing to concur in the result without opinion where the prior cases are followed and cited as support, I take this method to express my doubts as to the soundness of their holdings. I do so in the hope that in future cases where the issue arises, the parties and the Court will analyze the basis and the logic for the decisions.
[¶27] Finally, my reservations expressed in State v. Brown, 337 N.W.2d 138, 154 (N.D.1983) (VandeWalle, J., concurring specially) have not diminished. I agree with Justice Meschke that we should reconsider the automatic admission of hypnotically aided recollections if there are no safeguards for reliability when the issue is properly before us.
[¶ 28] Gerald W. Vande Walle, C.J.