(dissenting) — Kevin Coe was originally convicted of four counts of first degree rape. This court, however, reversed his convictions and remanded the case for retrial, in part because much of the evidence against him came from witnesses who had previously been hypnotized. State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984). This court gave the trial court explicit instructions on what portion of the hypnotized witnesses' testimony could be admitted at the subsequent retrial. "Upon remand, the admissibility of the testimony of the previously hypnotized *851witnesses should be determined in accordance with our holding in State v. Martin, [101 Wn.2d 713, 684 P.2d 651 (1984)]." Coe, at 786. Unfortunately, this mandate was not followed, and I feel this court has no choice but to reverse all three convictions against Coe. I write separately both to clarify further our prior ruling in State v. Martin, supra, and State v. Coe, supra, and why I believe the majority's decision to affirm the first rape conviction is legally impossible.
Inadmissibility of Hypnotic Testimony
The majority bases its decision to reverse the second and third convictions on our decision in State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984). While I do not quarrel with the majority's analysis, I believe that since our decision in State v. Coe, supra, expressly mandated that the trial court follow our decision in State v. Martin, supra, the majority's analysis should be confined to that opinion. Martin became the law of the case and Laureano, which is somewhat different in its conclusions than Martin, should not be relied on as dispositive.
The recent decision of the United States Supreme Court in Rock v. Arkansas, _ U.S. _, _ L. Ed. 2d _, 107 S. Ct. 2704 (1987) does not apply to this case. Rock held that Arkansas' statute excluding the posthypnotic testimony of a criminal defendant infringes impermissibly on the defendant's due process right to testify on his or her own behalf. There are no such constitutional considerations surrounding the issue of posthypnotic memories of witnesses against Coe.
In State v. Martin, supra, we held that hypnotism-aided testimony cannot be admitted into evidence.
Many of the problems associated with hypnotically induced testimony make its use in trial particularly dangerous. After hypnosis, neither subject nor expert observer is able to distinguish between confabulations and accurate recall in any given case, absent corroborating evidence. See Beaver, Memory Restored or Confabulated by Hypnosis — Is it Competent?, 6 U. Puget *852Sound L. Rev. 155, 199 (1983). The subjective conviction in the truth of the memory after hypnosis eliminates fear of perjury as a factor ensuring reliable testimony. Additionally, effective cross examination is seriously impeded, as the witness cannot distinguish between facts known prior to hypnotism, facts confabulated during hypnosis to produce pseudomemories, and facts learned after hypnosis. Finally, jury observation may be adversely affected, as the witness, as a result of the hypnosis, will have absolute subjective conviction about a particular set of events, whether or not his perceptions are objectively accurate. Beaver, at 200-01. It is this tendency toward immunization from meaningful cross examination in particular that leads us to conclude that a person, once hypnotized, should be barred from testifying concerning information recalled while under hypnosis. Hypnosis in its current state simply does not meet the [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)] standards of reliability and accuracy.
(Italics mine.) State v. Martin, supra, at 721-22.
The effect of the hypnotic testimony in this case was especially prejudicial to Coe. Only one of the four raped women identified Coe without hypnosis, and her original identification was not definite. While the three other women were more positive of their posthypnotic identification of Coe, their certainty was tainted by hypnotic sessions. Sherry South, one of the complaining witnesses, testified as follows:
Q. [By Mr. Allen] Sherry, before you went into hypnosis when you weren't clear on a lot of things, they told you that they were trying to see why you couldn't remember a lot of things and that's why they recommended hypnosis to you, is that right?
A. I don't know what things you mean that I don't remember, so I really—
Q. But it is true that you were unsure of a lot of things before you went into hypnosis, is that right?
A. No, I don't believe so.
Q. Sherry, I'm going to ask you to take a look at a page of the transcript from the last trial. This is page 407, and ask you to take a look at line 14, and I'll read that along to you. This is page 407, line 14: "Before I *853went into hypnosis, when I wasn't clear on a lot of things, they were trying to see why I couldn't remember a lot of things. They wanted to narrow it down. So they figured maybe hypnosis." And then the question is, "Who told you that?" And you said, "I don't remember." And the question was, "One of the officers?" And you answered, "I think it was Joan." Is that right? Is that what is down there?
A. Yes, that's what is there.
Q. And the next question is, "And, it is true that there were a lot of things that you were unsure of before you went under hypnosis, isn't that truel"
And you answered, " True," isn't that right?
A. Yes.
(Italics mine.) Verbatim Report of Proceedings, at 1890-91. Similarly Fitzpatrick testified:
Q: And, at that time didn't you state that you didn't get that good of a look?
A: [Fitzpatrick] Well, I didn't really remember at that time. I was kind of confused. But, after I was hypnotized, I kind of remembered that I was looking at him when he—
Q: You were hypnotized alsol
A: Yes.
Q: [By Mr. Gigler] Now, your memory evidently improved after you were hypnotized, is that correct?
A: Yes. I guess.
Q: Did you separate what you remembered before you were hypnotized from what you remembered after you were hypnotized?
A: Well, I remembered most of, you know—
Q: [Mr. Gigler] Ok. Go ahead.
A: (Continuing) — What I told the police officers. But, I remembered more of — I remembered that I looked at him when I was getting my money out. But, I could see more, remember more of what he looked like.
(Italics mine.) Brief of Appellant, at 21-22.
Moreover, the inconsistencies in their testimony was very apparent. For example, prior to being hypnotized, one of the victims, Diane Fitzpatrick, selected a different individ*854ual from a series of photographs shown to her. Verbatim Report of Proceedings, at 1733. Another victim, Mary Patricia Strange, chose two individuals other than Coe from a montage shown to her prior to her being hypnotized. She also described her attacker as having acne or pockmarks even though ample testimony at trial indicated that Coe never had facial blemishes. Verbatim Report of Proceedings, at 2029, 2820. A third victim, Sherry South, identified her assailant as having shoulder length blond hair, and possibly driving a yellow car. Verbatim Report of Proceedings, at 177, 1853. Coe neither had long hair nor owned such a car.
Considering the inconsistency of these women's testimony before and after the hypnosis, it would be imperative for Coe's counsel to attempt to impeach these victims' credibility. However, with the effectiveness of cross examination reduced or eliminated because of the apparent subjective conviction the witnesses achieved as a result of the hypnosis, it is clear in my mind that Coe did not receive a fair trial. Three of the four victims' identification of Coe as the rapist, the crucial issue in this case, was rendered unreliable by the hypnosis.
The trial judge erred, therefore, by allowing these women to testify about events they remembered after the hypnosis session. Although in State v. Coe, supra, we had specifically allowed for a witness to testify as to facts recalled prior to hypnosis, we prohibited evidence provided after the hypnosis even if the trial court believed it to be untainted by the hypnotic session.
So long as the trial court is careful to limit testimony to the witness' prehypnotic memory of events, and opposing counsel has the opportunity to demonstrate to the jury that the witness has been subjected to hypnosis, the danger of prejudice is minimized.
(Italics mine.) Coe, at 722. Since hypnosis taints all memories of a given event, unless those prehypnotic memories are recorded prior to the hypnotic session {i.e., in a police report, conversation to officers or family, signed statement, *855etc.), no posthypnotic testimony can be admitted.
The trial court totally disregarded this mandate and, after a 7x/2-day hearing designed to separate pre- and posthypnotic memories, allowed the victims to testify about identifications made after hypnotic sessions. This was reversible error. The Martin case indicated that such an approach would give trial courts the impossible task of deciphering a maze of conflicting and confusing data. Martin, at 722; see Beaver, Memory Restored or Confabulated by Hypnosis — Is it Competent?, 6 U. Puget Sound L. Rev. 155, 194 (1983). The evidence presented against Coe was not reliable because of the hypnosis, and Coe's counsel could not effectively cross-examine the victims to impeach their testimony. At a minimum, therefore, Coe will have to be retried on the second and third rape charges (counts 5 and 6). The victims will have to relive those horrible moments yet again, although this time their testimony will be confined to those prehypnotic memories. It is with great regret that I agree to remand this case, but trial court error leaves this court no other choice.
Second Rape Charge
Both the majority and I agree that the second rape charge (Strange) must be reversed. Conspicuously absent from the majority opinion, however, is whether that charge and for that matter the third rape charge (Fitzpatrick) should be dismissed for lack of sufficient admissible evidence, or remanded for retrial. Because of the earlier difficulties with this case, I believe we abrogate our duty to the public, the victims and to the defendant by not clarifying this issue.
The second rape charge (count 5) against Kevin Coe stemmed from the heinous attack against Mary Patricia Strange. Ms. Strange was attacked on February 5, 1981, and later that day, she described her assailant to the police. This description differed in some aspects from Coe's actual appearance. Ms. Strange described her attacker as having blond hair and pockmarks on his face (Verbatim Report of *856Proceedings, at 2025, 2035), while Coe has light brown hair and no facial blemishes. Furthermore, there were no blood or semen samples available to link Coe to this rape.
Moreover, contrary to the majority's assertion that she gave no different evidence concerning the rapist after hypnosis, she gave a police artist additional data with which to sketch a second, and in her opinion, better composite drawing. When she eventually identified Coe after being hypnotized, she qualified her identification with the words "very possibly." Of course, none of this evidence obtained after hypnosis can be admitted, because it lacks sufficient reliability due to the hypnotic session's taint.
I would hold that the evidence the State offered is insufficient to prove to a jury beyond a reasonable doubt that Coe committed the Strange rape. Ms. Strange's prehypnotic description of the rapist did not match Coe's appearance. No chemical evidence linked him to the crime. The attack on Ms. Strange differed from the other two rape convictions in that no sexual intercourse took place. Therefore, because Ms. Strange's posthypnotic recollections and identifications cannot be admitted pursuant to our decision in State v. Martin, supra, and no other competent testimony is available, I would dismiss this charge against Coe for lack of sufficient evidence.
Third Rape Charge
A detailed analysis of whether the third rape charge (Fitzpatrick) (count 6) against Coe should be dismissed is unnecessary. Ample evidence exists to show that Diane Fitzpatrick was raped on February 9,1981. Coe admitted to Dr. Robert A. Wetzler after he had been found guilty of this attack that he did commit this rape. I agree with the majority that this is a nonprivileged interview. Evidence of a crime shown by independent evidence, coupled with an extrajudicial confession by the defendant, is sufficient to sustain a conviction. State v. DePriest, 16 Wn. App. 824, 560 P.2d 1152 (1977). Of course, on remand, a jury will have to decide whether Coe's confession was truthful or, *857since he had already been convicted of the crime, merely a ploy to reduce the sentence he believed would be imposed on him. Moreover, Ms. Fitzpatrick may only testify about her recollections before her hypnotic session. Nevertheless, this charge should not be dismissed for lack of sufficient evidence.
First Rape Charge
The majority fails to address the issue of whether the first rape conviction (Harmia) should be affirmed in light of this court's decision to reverse the second and third rape convictions. The majority simply affirms the first conviction "since no hypnotic testimony was presented regarding that count." Majority, at 839. I believe the majority has misstated the issue, and that this first conviction cannot be affirmed in light of all of the other inadmissible evidence which was erroneously introduced at trial.
Of crucial importance in all three of these charges was the identity of the rapist. Inadmissible posthypnotic testimony which indicated that Coe committed the second and third rapes necessarily influenced the jury's perception that Coe in fact committed the first attack. This taint caused by the cumulative evidence is exacerbated by the fact that the first victim (count 3), Julie Harmia, who never was hypnotized, was not definite about her identification of Coe. When she identified Coe at the police lineup she wrote "close" on her identification form. Verbatim Report of Proceedings, at 1607. She also described him as having dark brown hair and a dark complexion. Verbatim Report of Proceedings, at 1582. Coe has light brown hair and a fair complexion.
I believe that because the identity of the attacker is so crucial to this trial, the cumulative evidence of Coe's identity improperly introduced at trial was highly prejudicial. In fact, I fail to see how any juror in this situation could not be influenced by the improper testimony of the second and third victims. I believe this court, therefore, has no alternative but to reverse the first conviction and remand *858for a new trial in which no posthypnotic testimony can be introduced which would influence the jury's decision as to whether Coe was the person who committed any or all of these offenses.
Conclusion
It is with regret that I would remand this case for yet another trial. For the victims to have to relive these traumatic events a third time is tragic. However, to have a man spend the rest of his life in jail on the basis of unreliable evidence of identity cannot be countenanced by this court under any circumstances.
I would dismiss the second rape charge (Mary Patricia Strange). I would remand the first (Harmia) and third (Fitzpatrick) charges for retrial without the admission of posthypnotic testimony.