concurring in part and dissenting in part.
The majority concludes in Part III of its opinion that a party seeking to offer hyp-
*1022notically enhanced testimony has the burden of establishing by a preponderance of the evidence “whether the trial testimony of a witness who has been hypnotized will be sufficiently reliable to qualify for admission.” Maj. op. at 1016. In recent years most scientific scholars and researchers examining the efficacy of hypnosis in the context of adjudicatory proceedings have concluded that hypnotically enhanced testimony is inherently unreliable and is not susceptible to testing for reliability in particular cases by experts or by laypersons employing traditional methods of ascertaining witness reliability. Yet, in Rock v. Arkansas, — U.S.-, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), a majority of the United States Supreme Court held that a defendant in a criminal case has a right grounded in sixth amendment principles to testify even though the testimony has been enhanced hypnotically. I can see no principled basis to suggest that a defendant has no such right to offer a witness who will present hypnotically enhanced testimony, and, similarly, the prosecution must also be able to introduce such evidence. Based on the current consensus of scientific exploration of the forensic use of such testimony, I am far from confident that persons who have been hypnotized can be presumed to remain competent to testify in judicial proceedings. However, in view of Rock, I am unable to conclude that courts may prohibit the introduction of hypnotically enhanced testimony in criminal proceedings. I, therefore, reluctantly agree with the majority’s conclusion that such evidence is admissible in limited circumstances.
I do conclude, however, that a party seeking to offer such evidence must do more than satisfy a preponderance of the evidence standard in seeking to demonstrate the “reliability” of what to a reasonable degree of scientific certainty appears to be inherently unreliable evidence. I believe a clear and convincing evidence standard is required. I also conclude that the testimony of Bieber and Officer Showalter is inadmissible even under the majority’s less stringent preponderance of the evidence standard, and therefore dissent to that portion of the majority opinion approving the admission of the testimony of these two witnesses.
I
The medical use of hypnosis has long been recognized as a legitimate tool in therapeutic settings. American Medical Association, Medical Use of Hypnosis, 168 J.A. M.A. 186 (1958). However, as Dr. Martin Orne, one of the foremost authorities on hypnosis, has noted, while techniques employed in a therapeutic setting to “relive” and “remember” events in the patient’s life may prove quite beneficial in relieving a psychological symptom regardless of whether the events “remembered” actually occurred, the use of hypnosis in forensic settings requires closer scrutiny. M.T. Orne, D. Soskis, D. Dinges, E.C. Orne & M. Tonry, Hypnotically Refreshed Testimony: Enhanced Memory or Tampering with Evidence? 1985 National Inst, of Just., Issues and Practices in Crim. Just. 1, 14-16 [hereinafter Hypnotically Refreshed Testimony ]. Dr. Orne notes that most individuals, even those who are only moderately hypnotizable, characteristically undergo a suspension of critical judgment while in the hypnotic state and, therefore, display an increased willingness to report as accurate details of a prior event that they would normally reject as too uncertain to report. Id. at 6-7, 19. The hypnotic state by its very nature is one in which the hypnotized individual becomes especially susceptible to suggestion — far more susceptible, for example, than a nonhypnotized individual being subjected to leading questions. Id. at 6-10. When exposed to express or inadvertent suggestion by the hypnotist, to preconceptions about what will occur during the hypnosis session or to the pressure of being asked to provide specific details about a prior event, the hypnotized person frequently responds by “confabulating” — i.e., filling in the gaps in memory with what appear to be quite plausible details extracted from the imagination or from actual events that occurred at another time. Id. at 6-10. Dr. Orne concludes that when an individual obtains “information about the event from the media, from *1023comments made prior to, during, or after an interrogation, or from the hypnotic session itself,” there is “a significant likelihood that this information ... will become inextricably intertwined with the [hypnotized individual’s] own memories of the event.” Id. at 30. Moreover, subsequent to being hypnotized, an individual typically displays an extreme degree of confidence and certitude in the “memories” evoked during hypnosis, including the inaccurate details seemingly “recalled,” and neither experts nor laypersons are capable of discerning, without independent factual corroboration, which details reported by the individual are accurate and which are inaccurate. Id. at 25-27.
In explicit recognition of the substantial unreliability of hypnotism as a method of enhancing accurate recollection of details by witnesses, Dr. Orne has recommended that forensic hypnotism be restricted to use in investigative situations only, and then only in conjunction with implementation of a series of imperative “safeguards,” including hypnosis by a psychiatrist or mental health professional in a neutral setting, videotaping of all contact between hypnotist and subject, allowing only the hypnotist and subject to be present at the hypnosis session, conducting a pre-hypnosis psychological examination of the subject and requiring that observers outside the room communicate questions to the hypnotist only in writing. Id. at 41-49. The vast consensus among scientific researchers and commentators, based on substantially similar findings reached by virtually every reputable clinical and other scientific study in the area, accords with Dr. Orne’s views that hypnosis cannot serve as a reliable means of accurately refreshing an individual’s memory and, therefore, should be limited to therapeutic and investigative use only. E.g., Report of the Council on Scien-tifie Affairs, American Medical Association, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J.A.M.A. 1918 (1985) [hereinafter American Medical Association]; R. Udolf, Forensic Hypnosis (1983); Hypnotically Refreshed Testimony at 32 n. 10 (noting that the International Society of Hypnosis and its constituents, American Society of Clinical Hypnosis and Society for Clinical and Experimental Hypnosis, all composed of physicians, psychologists, dentists and clinical social workers, overwhelmingly endorsed a 1979 resolution strongly opposing the use of hypnosis by law enforcement personnel); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313 (1980).1
Although hypnotized persons on occasion provide useful investigative leads to police personnel, such as a partial identification of a critical license plate number, it appears that the efficacy of hypnosis as an investigative tool is limited primarily to situations where the facts in question are not known or presumed by law enforcement authorities. Hypnotically Refreshed Testimony, supra, at 5, 30-31; see also American Medical Association, supra, at 1922 (noting lack of scientific support for anecdotal claims of success of hypnosis as an investigative tool, but concluding that hypnosis may be useful in the purely investigative setting, where many inaccurate facts are recalled, if even a single accurate recall provides a useful lead to important evidence). Even in those circumstances, however, use of hypnosis may seriously mislead investigative efforts of law enforcement officers. Hypnotically Refreshed Testimony, supra, at 31.
In People v. Anderson, 637 P.2d 354 (Colo.1981), this court concluded that the results of polygraph tests and testimony *1024concerning those results were per se inadmissible as evidence in criminal proceedings. This conclusion was predicated upon the lack of general acceptance of the accuracy of polygraph test results in the relevant scientific communities, the unreliability of polygraph testing techniques and the lack of qualification standards for examiners. These factors led this court to conclude that admission of polygraph evidence at trial had a serious potential for misleading the jury and would cause unfair prejudice. Here, as in Anderson, we are confronted with an evidence-eliciting technique which has in recent years been found unreliable in forensic settings by a substantial majority of the relevant scientific community. Under these circumstances, hypnotically refreshed testimony must be deemed admissible against a defendant in a criminal trial only under the most stringent of safeguards, and then only to the extent the testimony is clearly shown to have a pre-hypnotic foundation. The imposition of a burden on the proponent of post-hypnotic testimony to establish the reliability thereof with reference to corroborating pre-hyp-nosis facts by clear and convincing evidence will diminish the likelihood that fundamentally unreliable evidence will be introduced in criminal proceedings.2
The predominant view among courts considering the issue in light of the views of most scientific experts that hypnotic refreshment of recollection produces dangerously unreliable testimony is that post-hypnotic testimony as to “recollections” enhanced or elicited under hypnosis is inadmissible. Some courts conclude such testimony is per se inadmissible; others conclude that such testimony is admissible only with regard to matters the witness related prior to hypnosis. E.g., Contreras v. State, 718 P.2d 129 (Alaska 1986) (witness may only testify to facts related by witness prior to hypnosis); Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982) (same result); State ex rel. Elliotte v. State, 515 A.2d 677 (Del.1986) (witness
may testify within scope of pre-hypnotic recollection if pre-hypnotic recollection can be reliably ascertained and proponent shows by clear and convincing evidence that right to cross-examine witness not substantially impaired); Bundy v. State, 471 So.2d 9 (Fla.1985) (hypnotically refreshed testimony per se inadmissible), cert, denied, — U.S.-, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986); Walraven v. State, 255 Ga. 276, 336 S.E.2d 798 (1985) (witness may only testify to statement made prior to hypnosis; proponent of identification must show clear and convincing evidence that identification did not arise from hypnosis); State v. Moreno, 709 P.2d 103 (Haw.1985) (witness may only testify to matters recalled prior to hypnosis); People v. Wilson, 116 Ill.2d 29, 106 Ill.Dec. 771, 506 N.E.2d 571 (1987) (same result); Drake v. State, 467 N.E.2d 686 (Ind.1984) (testimony which can be shown by clear and convincing evidence to have basis independent of hypnosis is admissible); State v. Haislip, 237 Kan. 461, 701 P.2d 909 (witness may only testify to matters recalled prior to hypnosis), cert, denied, 474 U.S. 1022, 106 S.Ct. 575, 88 L.Ed.2d 558 (1985); Commonwealth v. Kater, 394 Mass. 531, 476 N.E.2d 593 (1985) (same result); State v. Nixon, 421 Mich. 79, 364 N.W.2d 593 (1984) (same result; noting that witness’ deposition could be taken prior to hypnosis to preserve testimony); State v. Koehler, 312 N.W.2d 108 (Minn. 1981) (witness may only testify to matters unequivocally disclosed by witness prior to hypnosis); Alsbach v. Bader, 700 S.W.2d 823 (Mo.1985) (witness may only testify to matters recalled prior to hypnosis; testimony inadmissible because facts did not demonstrate pre-hypnosis corroboration); State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986) (witness may testify only to matters recalled prior to hypnosis), cert, denied, — U.S.-, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E. 2d 484 (1983) (same result); State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984) *1025(same result); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981) (hypnotically refreshed testimony inadmissible until court is presented with more conclusive proof of reliability); State v. Martin, 101 Wash.2d 713, 684 P.2d 651 (1984) (witness may only testify to facts recalled prior to hypnosis). I find the imposition of a clear and convincing evidence burden on the proponent of such testimony, together with the requirement of corroboration by pre-hypnosis evidence and the caveat that any hypnosis session must be conducted in accordance with the procedural safeguards articulated in the majority opinion, constitutes an acceptable prophylactic approach to the problems created by the fact of hypnotic enhancement.
II
In this case, the testimony of Bieber and Officer Showalter should have been rejected even under the minimal test adopted by the majority. The People did not establish by a preponderance of the evidence that certain precautions were taken to at least reduce, though not eliminate, the likelihood of unreliability.3 A review of the transcript of the October 1981 suppression hearing indicates that during Bieber’s first hypnosis session she was hypnotized in the sheriffs office by Captain Kelly. Two other police officers were present and asked questions. Bieber was told specifically that she would remember things she had forgotten before, and she was eager to assist the police by providing new information. The setting and the presence of numerous police interrogators is scarcely sufficient to satisfy concepts of neutrality and independent examination.
A week before her second hypnosis session, Bieber was interviewed by Officer Phil Wilson. After she stated that the man she saw leaving the Northern Hotel behind the victims had an Afro hairstyle, Officer Wilson told her that Joe Salas had an Afro hairstyle at the time of the murders. The second hypnosis session was also conducted at the sheriff's office by a police officer, Officer Del Bean, with Officer Wilson present. During hypnosis Bieber stated that she could not see the face of the man who left the Northern Hotel behind the victims, but then identified that man as Joe Salas. When asked, “Has anybody else told you they thought it was Joe Salas?”, she replied, “Yes, Mr. Wilson.” Neither of the hypnosis sessions was videotaped, and only portions of the audiotapes recorded during the sessions were audible. No independent evidence was introduced to corroborate Bieber’s identification of Joe Salas as *1026the person in whose company the victims were last seen alive.4 Bieber’s explanation that she did not identify Salas immediately after the murders because she did not meet Salas until approximately a year later is directly refuted by her own testimony at the suppression hearing that she in fact had seen Joe Salas prior to the time of the murders and would have recognized him before she was formally introduced to him in May of 1979.5
Officer Showalter was also hypnotized under highly suggestive circumstances. The hypnosis session was conducted by Captain Kelly, Showalter’s superior officer, in the Fort Collins police station. At that time, he knew Porfirio Romero and Joe Salas had been arrested for the murders in question. During the hypnosis session, Showalter was told by the hypnotist that any blocks to memory would be removed. The hypnotist also asked Showalter, “What are we supposed to recall for the [sheriffs office]?” Prior to the hypnosis session, Showalter did not document in any written report that he had seen the defendant, Porfirio Romero and Joe Salas, at the hotel together on the night in question, although he stated at the suppression hearing that he had informed police investigators of that fact some time before he was hypnotized.6
Based on the requirements that the hypnotic session must be performed in a neutral setting, and must be conducted by an independent, scientifically trained hypnotist, these sessions fell far below the acceptable level of neutrality. No independent confirmation of critical “refreshed” recollections was introduced; to the contrary, the evidence shows that Bieber knew who Salas was, though not his first name, before she “remembered” that she had seen him. The hypnotist who conducted Showalter’s hypnotic session strongly suggested that Showalter was expected to recall something not previously reported. Given these factors, and considering the strong likelihood that both witnesses responded to overt and non-overt suggestions of police officers rather than to any independent refreshed recollection, I would conclude that the People failed to establish by a preponderance of the evidence that the testimony of these witnesses was reliable.
For the foregoing reasons, I respectfully dissent to part III of the majority opinion.
. In addition to the inherent suggestibility of having a police officer conduct the hypnosis session, there is some basis for concern that the individual being hypnotized may be harmed by the recall of emotions associated with traumatic events. The consensus of the medical and mental health communities is that law enforcement personnel are ill-trained to deal with such an occurrence and may well exacerbate the harm. E.g., American Medical Association, supra, at 1921; Hypnotically Refreshed Testimony, supra, at 32; see also Or.Rev.Stat. §§ 136.675, 136.685 (1985) (law enforcement personnel required to inform subject of risks of psychological side effects of hypnosis; subject may request hypnosis be conducted by licensed physician or licensed psychologist at no cost to subject).
. The issue of whether hypnotically refreshed testimony is admissible against a defendant is, of course, entirely distinct from the issue, decided in Rock v. Arkansas, — U.S.-, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), of whether a defendant in a criminal trial has a right to present his or her own hypnotically refreshed testimony.
. Cf. State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (adopting the following “safeguards” originally proposed by Dr. Orne: A psychiatrist or psychologist experienced in the use of hypnosis must conduct the session; the professional conducting the session should be independent of and not regularly employed by the prosecution, police or defense; any information given to the hypnotist prior to the hypnotic session must be recorded; before inducing hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them; all contacts between hypnotist and subject must be recorded; and only the hypnotist and subject should be present during hypnosis). Accord, e.g., House v. State, 445 So. 2d 815 (Miss.1984); see also Cal.Evid.Code § 795 (West 1985) (testimony of witness in criminal proceeding is not inadmissible if all the following met: testimony limited to matters recalled and related prior to hypnosis; pre-hyp-notic memory was preserved prior to hypnosis; written record was made of subject’s pre-hypno-sis recall and of information provided to hypnotist; subject gave informed consent; all interviews between subject and hypnotist were videotaped; hypnosis was performed by independent licensed medical doctor or psychologist; prior to admission, court holds a hearing at which proponent proves by clear and convincing evidence that pre-hypnosis recall is not unreliable and that ability to cross-examine is not substantially impaired). Here, the majority’s list of suggested factors for the trial court to consider in determining admissibility is apparently patterned after the Hurd test, although the Hurd court required that the proponent of the hypnotically refreshed testimony establish its admissibility by clear and convincing evidence. Dr. Orne, whose view is shared by the vast majority of the relevant scientific community, has indicated that strict compliance with all of the guidelines will at most reduce the possibility of suggestiveness, but will not prevent subjects from inadvertently distorting memories or placing undue confidence in these distorted memories. Hypnotically Refreshed Testimony, supra, at 41-51; American Medical Association, supra, at 1922-23.
. Because the sources of memories become confused as a result of hypnosis and, therefore, witnesses who have been hypnotized often later assert that the new recall preceded rather than followed the hypnosis session, it is particularly inappropriate to rely on the post-hypnotic testimony of the subject to establish which memories existed prior to hypnosis. See Hypnotically Refreshed Testimony, supra, at 35-36.
. The following colloquies took place between counsel and Bieber at the suppression hearing:
Q You did not know Joe Salas in May of 1978; is that correct?
A I knew he was a Salas, but I didn’t know his name. I didn’t know his first name.
Q You had seen him before.
A I had seen him but not to have a conversation with him or not even to say hi. I knew that he was a Salas because I know his brother, Raul, his older brother Raul; and when we were all kids in the neighborhood, I knew
he was his young brother, and that’s how I knew Joe before that, but I never had a conversation with him.
Q In April of 1979, did you realize that Mr. Salas had been arrested?
A In April 1979?
Q Yes.
A (Pause)
Q After the death of the Mata girls.
A Yes. I was aware that he was arrested.
Q You knew his name at that time.
A Yes.
Q Do you know what he looked like at that time?
A Not in April, no. I mean — if I seen him walking across the street, I would know that he was Joe Salas, yes.
.See supra note 4.