concurring specially.
[¶ 29] I concur in the result. I write specially to suggest much graver legal problems lie in the shadows of this case than the *500singular tactics of Breding’s defense at trial left for post-conviction review.
[¶ 30] Neither the jury nor this court (in the direct appeal from Breding’s convictions) knew hypnotically aided testimony by the father of the dead children had been used by the prosecution. Breding’s defense counsel chose to “not seek a cautionary instruction or have an expert ... testify that it might be questionable evidence” because “the expert that I had wouldn’t tell me that it was questionable evidence, ... and ... I didn’t want to draw attention to it.” Given the critical content of the father’s testimony on waking to the sound of liquid pouring just before an exploding fire, and the shifting state of the law on hypnotically developed testimony, specifically, and “scientific” evidence, generally, this singular trial stratagem seems to have been oddly calculated for the complex dimensions of a double murder defense.
[¶ 31] In 1983, this Court held hypnotically enhanced testimony was not incompetent because hypnosis only affected the credibility of the testimony. State v. Brown, 337 N.W.2d 138, 151 (N.D.1983). The Court there recognized “such a procedure, as a means of obtaining accurate recall, has not ‘gained general acceptance in the particular field in which it belongs,’ ” id. at 148, but “believe[d] that an attack on credibility is the proper method of determining the value of hypnotically induced testimony.” Id. at 151 (citations omitted). The members of that Court thought they were “align[ing] ourselves with the majority of jurisdictions which have held that hypnosis affects credibility but not admissibility.” Id. Yet, both the law and science have changed significantly since then.
[¶ 32] These trends make the use of hypnotically enhanced testimony much more dubious than the Brown Court anticipated, and even more so than cautioned in Justice VandeWalle’s concurrence in Brown. Today, hypnotically enhanced testimony is quite suspect; it should never go into evidence unchallenged for its reliability.
[¶ 33] Currently, at least twenty-three states, “an emerging majority,” hold hypnotically enhanced testimony wholly inadmissa-ble, Gary M. Shaw, The Admissibility of Hypnotically Enhanced Testimony in Criminal Trials, 75 Marq. L.Rev. 1, 16 n. 83 (1991), except for confrontation clause reasons; when a criminal defendant has previously been hypnotized and chooses to testify, the prosecution may not use a per se prohibition to exclude any of that defendant’s testimony. Rock v. Arkansas, 483 U.S. 44, 62, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Additionally, at least nine states hold a witness may only testify to posthypnotic memories if varying prophylactic guidelines, different in each state, were followed in the hypnotic sessions. Shaw, 75 Marq. L.Rev. at 16. Only five states, including North Dakota, and two federal circuits have held hypnosis only affects credibility, not admissibility. Id. at n. 80. According to a note by Dean R. Gallego, Hypnosis and Criminal Defendants: Life In the Eighth Circuit and Beyond, 53 Mo. L.Rev. 823, 826 (1988), North Dakota is the only state of seven in the Eighth Circuit that will admit hypnotically aided testimony without any safeguards against potential abuse. There are important reasons why so few courts allow hypnotically produced evidence without safeguards.
[¶ 34] The accuracy of hypnotic recall has no scientific foundation. Rock at 58-59, 107 S.Ct. 2704 (summarizing the conclusions of the Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 JAMA 1918, 1918-19 (1985)). Without canvassing vast scientific literature, I rely on the succinct dissent by Chief Justice Rehnquist for four members of the Court in Rock, who deftly summarized the current scientific views:
[A] hypnotized individual becomes subject to suggestion, is likely to confabulate, and experiences artificially increased confidence in both true and false memories following hypnosis. No known set of procedures ... can insure against the-inherently unreliable nature of such testimony.
Id. at 62, 107 S.Ct. 2704. See also Shaw, 75 Marq. L.Rev. at 6-44. Thus, even if hypnotically aided recollections do come into a criminal trial, the scientific community generally deems the evidence “inherently unreliable.”
[¶ 35] “We believe that an attack on credibility is the proper method of determining *501the value of hypnotically induced testimony.” Broivn at 151. That expectation led this Court to conclude hypnotically enhanced recollections should not be excluded as incompetent. But the adversary system did not function as the Court imagined it would. The supposed “attack on credibility” did not take place in Breding’s defense.
[¶ 86] If a prosecutor permitted a defendant to testify to recollections dramatically enhanced by hypnosis, without directly challenging before the jury the credibility of that testimony for lack of scientific foundation, the judiciary, and the public, too, would be startled. A similar stratagem by the defense, as in this ease, might not be quite so startling, but is still puzzling.
[¶ 37] Without an expert to educate the jury on the inherent unreliability of the hypnotically induced evidence, our rule of automatic competence fails miserably. See Little v. Armontrout, 835 F.2d 1240, 1245 (8th Cir.1987)(the state’s refusal to provide the defendant access to an expert on hypnosis violated due process); see also Ake v. Oklahoma, 470 U.S. 68, 86-87, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)(indigent criminal defendant entitled to expert assistance). This sparse record leaves largely unexplained why Breding’s defense did not make more use of the expert the trial court authorized for his assistance, or why his defense did not return to the trial court to authorize another expert to testify at Breding’s trial to explain the lack of reliability of the father’s hypnotically aided evidence.
[¶ 38] Moreover, the failure of Breding’s defense to request a cautionary instruction is also mostly unexplained. An implication that an instruction would unduly “draw attention” to the evidence is unpersuasive. Jurors are not dummies. When properly educated by counsel and the court, they can readily grasp the implications of scientific evidence or of the lack of scientific authenticity.
[¶ 39] In a state where hypnotically enhanced evidence is automatically excluded, failure to object to its admission, let alone failure to request a judicial caution to the jury, would undoubtedly be ineffective assistance of defense counsel in the defective sense. Compare Little v. Armontrout, 819 F.2d 1425, 1434-35 (8th Cir.1987)(holding failure to use procedural safeguards to ensure the reliability of hypnotically induced testimony reduces its value so far that its use was constitutional error), vacated and modified en banc, 835 F.2d 1240 (8th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988) (rev’g sub nom State v. Little, 674 S.W.2d 541 (Mo.1984)(en banc), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985)); State v. Munson, 886 P.2d 999, 1003-04 (Okla.Crim.App.1994)(post-conviction reversal of murder and kidnaping convictions affirmed where prosecution deliberately withheld exculpatory evidence, including hypnosis of a witness that would have made testimony inadmissible). The failure in this case to fulfill the judicial expectations of expert evidence, cross-examination, and requested instructions to educate the jurors on the complete lack of reliability of hypnotically aided recollection demonstrates a need for North Dakota to reconsider the standards for use of hypnotically assisted testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (emphasizing “gatekeeper” role of trial court in admitting or excluding “scientific” evidence). “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 591-92, 113 S.Ct. 2786. The trial court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93, 113 S.Ct. 2786. See also General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997)(trial court did not abuse its discretion in excluding expert opinions based upon animal studies that “were not sufficient, whether individually or in combination, to support their conclusions that [litigant’s] exposure to PCBs contributed to his cancer”); United States v. Scheffer, — U.S. -, 118 S.Ct. 1261, 1265, 140 L.Ed.2d 413 (1998) (citations omitted)(affirming per se rule against admission of polygraph evidence favorable to the accused in court martial proceedings):
[T]he exclusion of unreliable evidence is a principal objective of many evidentiary rules.
*502Id. Considering the trends of the law, North Dakota should reconsider the automatic admission of hypnotically aided recollections without safeguards for reliability.
[¶ 40] But that relief was not sought in this ease. Therefore, I hesitantly agree with the majority’s conclusion that defense counsel’s “unsuccessful trial strategy does not make defense counsel’s assistance defective” because we should not “second-guess counsel’s defense strategy through the distorting effects of hindsight.” Yet, I remain very uneasy.
[¶41] This defense counsel’s choices are very troubling when he did not at all contest the reliability of a key piece of hypnotically developed testimony, did not at all contest the admissibility of several key admissions of a juvenile defendant who was unassisted by counsel during questioning, and did not permit the juvenile’s anguished mother to witness for him. Despite counsel’s statement that he “didn’t think I needed witnesses because I was satisfied in my mind that the state [had] failed in its proof ...,” his singular stratagem in a circumstantial homicide case is barely comprehensible. What may be aptly classed as failed trial strategy in this case gives me little confidence in the accuracy of the verdict.
[¶ 42] Given the relevant trends of law and science on the subject, I believe no defense counsel should be able hereafter to disclaim responsibility for not vigorously contesting the reliability of such evidence before the jury itself. Neither the jury nor a reviewing court should ever again be left uninformed about the suspect character of a significant piece of evidence in an important felony case like this.
[¶43] With considerable concern, I reluctantly concur in this result.
[¶ 44] Herbert L. Meschke