concurring in result.
I concur in the result the majority reaches upon Issue I. While the record discloses a violation of Defendant’s right to counsel at the hypnotic interview, I am convinced that in this case the hypnosis did not alter the prosecutrix’s firm belief, which she had previously communicated to the police, that Defendant was her assailant. I cannot join the majority opinion, because it overlooks the violation of Defendant’s right to counsel and misinterprets our prior case law in this area.
Defendant was arrested only hours after the incident occurred. The charging instruments bear a filing date of October 3, 1980. Thus, when the prosecutrix underwent hypnosis on October 20,1980, Defendant’s Sixth Amendment right to counsel had attached. Estelle v. Smith, (1981) 451 U.S. 454, 469-70, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359, 373 (cases cited therein). The United States Supreme Court requires the presence of counsel at “critical stages” in the prosecution before trial in order to preserve the accused’s right to confront the evidence against him. Coleman v. Alabama, (1970) 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387, 395-96 (cases cited therein) (plurality opinion).
In United States v. Wade, (1967) 388 U.S. 218, 228-32, 87 S.Ct. 1926, 1933-35, 18 L.Ed.2d 1149, 1158-60 the Court discussed the dilemma confronting the uncounseled accused at a pre-trial line-up and concluded that such a defendant is wholly unable to *477protect himself against improper and suggestive influences, overt or otherwise, which may prompt the witness to make a positive identification. He cannot reproduce a record, the participants in the pretrial confrontation are not likely to be alert for suggestive influences and techniques, and the tension of the event may preclude the accused from detecting abuses as may the rule of impeachment by prior conviction. Consequently, the presence of counsel provides a meaningful opportunity for the accused to cross examine any subsequent in-court identification as it may have been effected by a suggestive out-of-court lineup.
A pre-trial interview of a witness under hypnosis carries at least the same, if not more, potential for extraneous influences to alter the witness’ recollections and perceptions of the criminal event than does a line-up. The majority acknowledges the hyper-suggestibility of a hypnosis subject, the subject’s predilection to comply with the hypnotist’s requests, and the phenomenon of confabulation. More importantly, the majority recognizes that after hypnosis, fact and fantasy harden into fact in the subject’s memory, rendering Defendant incapable of exposing the fantasy by cross-examination. Given these characteristics of hypnosis, in a case such as this, where there was but one eyewitness to the event, the use of hypnosis potentially deprived Defendant of the ability to confront the State’s evidence. Officer Stateler, the arresting and investigating officer, who was present at the hypnotic interview, underscored the reason for the hypnosis:
“Q. That being the case, why did that hypnotic interview on October 20th take place?
“A. Not to identify her attacker to possibly to come by more information or evidence that would assist in presenting this case to the jury. Possibly, maybe he was wearing a ring or to, one of the things I was interested in is what he did have over his face. That was one of the things. Anything we gained I figured was to our benefit. It wasn’t to identify him. We already knew who he was. It was to convict him.” R. at 608-09. (Emphasis added).
Consequently, when the State hypnotized the prosecutrix, it engaged in a “critical stage” of the prosecution at which Defendant was entitled to have counsel present.
The above mentioned attributes of hypnosis were related at trial by expert witnesses for the defense. Despite this evidence, the majority does not consider its bearing upon Defendant’s motion to suppress the prosecu-trix’s testimony filed before trial, raised again after the prosecutrix related introductory evidence, and raised again after she concluded her testimony. The motion contains multiple grounds, as evidenced by the following allegations:
“5. That no one representing Mark Pearson was present during the hypnotic interview. * * *
“8. That the hypnotic induced memory of (the prosecutrix) by the State of Indiana, with respect to the alleged assault is not sufficiently reliable to merit admission and that permitting her to testify to this memory under the circumstances of this case, would deny the defendant his rights to confrontation and to cross-examination given to him by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 13 of the Constitution of the State of Indiana. That any in-court identification of the defendant by the victim would be tainted by this hypnotic interview by the State of Indiana conducted on October 20, 1980.” R. at 132-33. (Emphasis added).
Through paragraphs 5 and 8, this motion sought to suppress the prosecutrix’s in-court identification of the defendant. The majority errs in its reliance upon Forrester v. State, (1982) Ind., 440 N.E.2d 475 wherein Defendant had raised the effect of hypnosis upon the victim’s competency to testify at all as opposed to her competency to make an in-court identification. Thus, the record at bar reveals a violation of the right to counsel, which was timely brought to the trial court’s attention.
*478A violation of the right to counsel is, nevertheless, subject to the constitutional rule of harmless error, which applies here because Defendant’s conviction did not hinge upon the prosecutrix’s in-court identification. Compare Hatcher v. State, (1981) Ind., 414 N.E.2d 561, 566.
Defendant and the prosecutrix lived in adjacent trailers in the same trailer court. Laboratory analysis of evidence recovered from the scene, the prosecutrix’s trailer, proved inconclusive about the perpetrator’s identity. However, the prosecutrix testified that during the assault, she had bitten her assailant, who was wearing blue jeans, as hard as she could on the inside of his left thigh, above the knee. Shortly after the arrest, Officer Stateler photographed Defendant’s left thigh. At trial the photograph was admitted into evidence along with Stateler’s testimony that there appeared to be an “abrasion” on the inside of Defendant’s left leg above the knee. We note that the photograph depicts a noticeable mark on Defendant’s left thigh which could be a bite mark. At trial, Defendant testified that the mark appeared on the day of the offense when the bottom of a fence post hit his leg as he had “jacked” (pulled) the post out of the ground.
At trial Defendant presented an alibi that he left his family’s trailer at 11:05 p.m. to visit a friend, Gene (Sherman) Miller, who lived in a nearby trailer. Defendant knocked at the friend’s door, waited five (5) minutes without receiving an answer, and returned home. Defendant’s father, who had spent the evening with Defendant drinking beer and watching television, testified that his son was gone ten (10) to fifteen (15) minutes. When deposed, he had testified that he did not know when his son had returned.
Defendant and his father remembered the hour that Defendant left the trailer because a television program, “Streets of San Francisco,” was coming on. It had been delayed from its usual time of 10:30 p.m. by a special news broadcast. The pros-ecutrix testified that she had left work, the Beef House Restaurant, located two (2) miles from her trailer, at about 10:40 p.m. that night, and that she had driven home without stopping. She also testified that her quitting time varied, depending on the dining room in which she worked. Under Defendant’s theory, it appears unlikely that he left his trailer before the prosecutrix arrived home. Consequently, he would not have been in her living room behind the drapes when she entered. Defendant’s father testified that before 11:05 p.m. Defendant was sitting next to him on the “davenport” when he, the father, heard the prosecutrix’s car come into the drive; yet, when Defendant left, ostensibly only a few minutes later, he did not notice the prosecu-trix’s car parked anywhere. Further, Defendant’s friend, Miller, testified that he went to bed at 10:00 p.m. and was not awakened that night. Defendant’s credibility probably suffered a shattering, if not fatal, blow when, as a tactical matter, he revealed two prior convictions for breaking and entering both of which had resulted in his being placed on probation.
After the incident, the prosecutrix drove to her boyfriend’s house. He was not home, so she telephoned a friend, who summoned the police. They met the police at an ice cream store just outside Covington. The prosecutrix stated that Defendant, identifying him by name, had raped her. She repeated his name again in subsequent statements given to the State Police at a hospital in Danville, Illinois later that morning. This out of court pre-hypnosis identification came into evidence through police officers without objection. See Dean v. State, (1982) Ind., 433 N.E.2d 1172, 1185. Clearly the prosecutrix had made up her mind, either during or almost immediately after the incident, that Defendant, with whom she was acquainted, was the person who had attacked her. Under these circumstances, I doubt that any amount of hypnosis, no matter how suggestive, would have changed her mind.
Nevertheless, the hypnosis may have added details, which the prosecutrix could not or did not remember herself. For this reason I cannot join the majority’s overbroad *479treatment of the use of hypnosis, for it purports to decide cases which are not yet before us and in so doing it misapplies the cases we have already decided. In addition to Forrester v. State, supra, the majority misreads Strong v. State, (1982) Ind., 435 N.E.2d 969 where we stated:
“Assuming, arguendo, that the hypnotic session was impermissibly suggestive, we must, nevertheless, determine whether or not the State demonstrated, through clear and convincing evidence, that the in-court identification of the defendant has a factual basis independent of the hypnotic session.” Id. at 969-70.
In Strong the right to counsel had not attached when the eyewitness was hypnotized; consequently, we required the State to overcome the higher threshold of clear and convincing evidence as a foundation for the admission of her in-court identification. We faced a similar situation in Merrifield v. State, (1980) Ind., 400 N.E.2d 146, 149-50. In both cases, the hypnotized witnesses had identified the defendants before the hypnosis in circumstances free from taint. We did not end our inquiry there, however, but also investigated the record to determine if there was clear and convincing evidence of an adequate independent basis for the in-court identifications. In each case we found the required quantity and quality of Evidence. By imposing a higher burden of proof upon the State, we necessarily assumed that the use of hypnosis had altered the witness’ memory to some degree. See Strong v. State, supra.1
In this case, the manner in which the police officer and hypnotist conducted the interview exemplifies why counsel should be present. At trial, the police officer admitted that he had shown photographs to the prosecutrix before she was hypnotized. He was certain that she had viewed photographs of the trailer taken shortly after the incident but did not remember if she had also viewed photographs of the defendant, which the officer had taken shortly after the arrest. Obviously, in a case where the witness has not first identified the perpetrator by name, the sight of photographs of a suspect just before hypnosis could have a devastating impact on the witness’ recall. The witness is on the verge of entering an altered state of consciousness in which his or her memory is ultra sensitive to suggestions. At trial, defense counsel adeptly placed evidence before the jury that the prosecutrix remembered the mustache and facial hair of Defendant exactly as depicted in the arrest photographs, whereas she had not remembered them in that detail when she reported the crime. He also presented evidence that she may have changed her recollection of the shirt her assailant wore. After the hypnosis, her recollection of the shirt matched, exactly, the white, insulated “long john” top which Defendant had worn in the arrest photographs. The police officer admitted that when Defendant was arrested in the middle of the night, he appeared to have just arisen from bed, which would explain .his having worn the garment.
More importantly, the participants did not record the hypnotic interview. The record refers to tape cassettes, which purportedly contained only a portion of the session. However, they were of such poor quality as to be inaudible. At the very least, counsel’s presence would have insured that Defendant would be able, at trial, to challenge the fairness and propriety of the hypnotic interview with more evidence that the mere memory of the victim, who may remember nothing and may not be disposed in his favor, or the testimony of a police officer and a hypnotist, both of whom work for the State and consequently may be unable to furnish a totally néutral account. Additionally, counsel can bring his own recording device to prevent the hazard which occurred here when the tape recorder either mal*480functioned or the microphone was simply not sensitive enough to pick, up the conversation.
Finally, this case illustrates the general lack of discretion utilized by the authorities in deciding whether to employ hypnosis. In Strong, Merrifield, and this case, the hypnotized witnesses had identified the aceuseds, prior to hypnosis, in circumstances which disclosed no taint. Nevertheless, apparently in search of detail, the authorities risked contaminating the strongest evidence they possessed, thereby possibly rendering the State unable to convict a guilty accused.
Hypnosis may be a useful tool in the investigation of crime but its inherently suggestive properties mandate that it not be used regularly and indiscriminately and that it only be used in conjunction with the traditional safeguards that protect the Defendant’s right to confront the evidence against him and thereby enhance the truth finding process. Though counsel should have been notified of and been present at the hypnotic interview as a matter of constitutional law, the record discloses that the error was harmless because the prosecutrix had fixed the identity of her assailant by name in her mind at or just after the assault. Therefore, I vote to affirm the judgment of the trial court.
. Additionally, in Strong, 435 N.E.2d at 970 n. 1, we noted that State v. Hurd, (1981) 86 N.J. 525, 432 A.2d 86, upon which the majority now relies for a deficient “laundry list” of hypnosis guidelines, was not one of the “better reasoned cases.” The guidelines therein are purely dicta in an otherwise relatively brief opinion in which the New Jersey Supreme Court correctly upheld the trial court’s suppression order because of the overbearance of a police officer during the hypnosis session.