(dissenting) — The earliest reported case involving the question of whether the hypnosis of a witness so tainted subsequent testimony as to make that testimony inadmissible appears to be Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1967), cert. denied, 395 U.S. 949 (1969). As recently as 1979, the Illinois Court of Appeals said no case had been brought to its attention which had ruled the testimony of a previously hypnotized witness to be inadmissible. People v. Smrekar, 68 Ill. App. 3d 379, 385 N.E.2d 848 (1979). As noted by the United States Court of Appeals for the Ninth Circuit, per Wright, J.:
*731We have held that the fact of hypnosis affects credibility but not admissibility. Kline v. Ford Motor Company, Inc., 523 F.2d 1067, 1069 (9th Cir. 1975); Wyller v. Fair-child Hiller Corp., 503 F.2d 506, 509 (9th Cir. 1974).
Other courts considering this problem in the context of criminal trials have generally followed the same approach. State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312, 315-16 (1971); Harding v. State, 5 Md.App. 230, 246 A.2d 302, 311-12 (1968). Reversals have been predicated only on the failure to disclose the fact of hypnosis. United States v. Miller, 411 F.2d 825 (2nd Cir. 1969); Emmett v. Ricketts, 397 F.Supp. 1025 (N.D.Ga. 1975) (habeas writ issued). We believe this reasoning is sound.
United States v. Adams, 581 F.2d 193, 198 (9th Cir.), cert. denied, 439 U.S. 1006 (1978).
Until the late 1970's most jurisdictions, although recognizing the possibility that a jury might misinterpret and misuse the testimony of those who had been previously hypnotized, believed this danger was outweighed by the probative value of the testimony of the witness. See, e.g., United States v. Awkard, 597 F.2d 667 (9th Cir.), cert. denied, 444 U.S. 885 (1979); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); Chapman v. State, 638 P.2d 1280 (Wyo. 1982). See Chapman v. State: Hypnotically Refreshed Testimony — An Issue of Admissibility or Credibility, 1983 Utah L. Rev. 381. This approach is consistent with the policy of liberal admissibility included in the Federal Rules of Evidence, the Model Code of Evidence, and the rules of this court, ER 401, 402; CrR 6.12. See E. Cleary, McCormick on Evidence §§ 184, 185 (2d ed. 1972). As McCormick notes:
The common law rules of incompetency have been undergoing a process of piecemeal revision by statutes for over a century, so that today most of the former grounds for excluding a witness altogether have been converted into mere grounds of impeaching his credibility.
E. Cleary § 61, at 139. See ER 601, 607. See Beaver, Memory Restored or Confabulated by Hypnosis — Is it Competent? 6 U. Puget Sound L. Rev. 155, 182-85 (1983).
Since 1980 it appears a majority of courts which have *732examined the question have held posthypnotic testimony inadmissible. Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983); State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983) (overruling Harding v. State, supra); People v. Shirley, 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243, cert. denied, 459 U.S. 860, 74 L. Ed. 2d 114, 103 S. Ct. 133 (1982); State v. Culpepper, 434 So. 2d 76 (La. App. 1982); State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); People v. Gonzales, 108 Mich. App. 145, 310 N.W.2d 306 (1981); State v. Palmer, 210 Neb. 206, 313 N.W.2d 648 (1981); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); State v. Mack, 292 N.W.2d 764 (Minn. 1980).
Subsequent to their opinions in Mena and Palmer, however, the Arizona and Nebraska courts abandoned the rule of inadmissibility per se and now hold hypnosis does not render a witness incompetent to testify to those facts recalled prior to hypnosis. State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983). See also People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983); State v. Koehler, 312 N.W.2d 108 (Minn. 1981). This is the rule adopted by the majority here.
Nevertheless, since 1980 a number of jurisdictions have refused to hold posthypnotic testimony incompetent and have allowed it to be admitted. Chapman v. State, supra; State v. Brown, 337 N.W.2d 138 (N.D. 1983); State v. Beachum, 97 N.M. 682, 643 P.2d 246 (Ct. App. 1981); Pearson v. State,_Ind._, 441 N.E.2d 468 (1982) (but cf. Peterson v. State,_Ind._, 448 N.E.2d 673 (1983)); People v. Gibson, 117 Ill. App. 3d 270, 452 N.E.2d 1368 (1983); Brown v. State, 426 So. 2d 76 (Fla. Dist. Ct. App. 1983); United States v. Waksal, 539 F. Supp. 834 (S.D. Fla. 1982); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981).
The majority begins its analysis by extending the Frye rule to the admissibility of hypnotically induced testimony. Although this extension of Frye has achieved some popularity {see People v. Shirley, supra), I believe it rests on a fundamental misunderstanding of the rule. In Frye v. *733United States, 293 F. 1013 (D.C. Cir. 1923), the question before the court was whether an expert witness for the defendant could testify as to the result of a "systolic blood pressure deception test". The testimony by the expert would go to the truth or falsity of what the defendant stated and would be solely based on the reactions of the defendant as interpreted by the expert witness. In reporting the testimony of the expert witness, the court stated:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
293 F. at 1014.
This court explicitly adopted the Frye standard in State v. Canaday, 90 Wn.2d 808, 812-13, 585 P.2d 1185 (1978) (Breathalyzer). See also State v. Woo, 84 Wn.2d 472, 527 P.2d 271 (1974) (polygraph). In Canaday we stated:
The rationale of the Frye standard is that expert testimony may be permitted to reach a trier of fact only when the reliability of the underlying scientific principles has been accepted by the scientific community. See United States v. Franks, 511 F.2d 25 (6th Cir. 1975). See also J. Richardson, Modern Scientific Evidence §§ 6.2, 6.3 (2d ed. 1974). In other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate. This court adheres to the rule that the reliability of scientific evidence must be shown as a prerequisite to its admission.
90 Wn.2d at 813.
The thrust of Frye and of the court's opinion in Canaday *734is to prevent expert witnesses from testifying as to the truth of statements obtained by scientific methods unless there has been an acceptance by the scientific community of the underlying principles of the procedure.
In a recent unanimous opinion, the Wisconsin Supreme Court detailed the reasons for the inapplicability of Frye to hypnotically induced testimony. I find the reasoning of the Wisconsin court persuasive:
Even if this court applied the test set out in Frye, that test could not be used to determine the admissibility of hypnotically affected testimony. Frye applied to the admissibility of "expert testimony deduced from a well-recognized scientific principle." 293 F. at 1014. Here, it is not expert testimony that is challenged. Rather, it is the admissibility of an eyewitness’ post-hypnosis identification which is in question.
In the case of expert testimony deduced from a scientific technique, under Frye, as an initial matter, it is the technique which is in effect on trial before the court. However, the trial judge is not required to do an independent examination as to the scientific principles which underlie the technique. He does not have to have experiments conducted in court to verify the reliability of the technique. Instead, he evaluates the opinions of people who have spent sufficient time in the study of the field to qualify as an "expert." If there is a sufficient number of "experts" who accept the validity of the technique, the judge will allow an expert to testify regarding deductions he has made from that technique.
But it is not the reliability of hypnosis to put one in a hypnotic trance that is at issue when the witness testifies. It is the reliability of a specific human memory as affected by hypnosis that must be examined. There are no experts who can testify as to what specific effects hypnosis has had on the witness' memory; just as there are no experts who can testify that a normal waking memory of an event is in fact a completely accurate representation of what actually occurred. The most a trial judge can do is review the hypnotic session to ensure that no impermissible suggestiveness has occurred. However, in such a review, it is not the reliability of hypnosis that is to be examined. Rather, it is the effect of a specific hypnotic session that is to be determined.
*735(Footnote omitted.) State v. Armstrong, 110 Wis. 2d 555, 567-68, 329 N.W.2d 386 (1983).
Additional persuasive arguments against the applicability of the Frye rule to hypnotism are given by Professors Spector and Foster in Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St. L.J. 567, 584 (1977):
Conceptual bars to judicial recognition of hypnosis as a valid evidentiary technique evolve from the courts' negative assessment of hypnotic processes as a reliable indicator of veracity. Unfortunately, hypnosis has become linked in the minds of courts and commentators with the polygraph and narcoanalysis as a technique for mechanically ascertaining the truth of the witness' testimony. Requiring hypnosis to perform a truth-determinant function, however, distorts the scientific process and aborts its potential benefit to litigation. The value of hypnosis lies in its scientifically-established reliability as a device for retrieving relevant testimony previously forgotten or psychologically suppressed, regardless of the factual truth or falsity of that testimony.
Factual accuracy of testimony is not an inflexible requirement for admissibility. Psychologists concur in their estimation that eyewitness testimony is often factually inaccurate and unreliable, being riddled with fantasy, prejudice, misperception, and bias. Yet such testimony is routinely admitted for jurors' consideration because it is insulated to some degree from the dangers of ambiguity, erroneous recall, flawed perception, and prevarication by the enforcement of procedural safeguards, such as opportunity for cross-examination. Regarding hypnosis as merely a device that aids the procurement of testimony and offers no guarantees concerning its factual accuracy would permit the development of concomitant procedural safeguards. Thus, the admissibility of relevant testimony that might be otherwise unattainable would be assured, while the integrity of the judicial process would be unimpaired.
(Footnotes omitted.) See also Note, The Continuing Controversy of Hypnosis in the Legal Setting — The Need for a More Flexible Approach, 12 Mem. St. U. L. Rev. 471, 515 (1982); Brown v. State, supra.
*736In his concurrence and dissent in State v. Collins, 296 Md. 670, 710-11, 464 A.2d 1028 (1983), Chief Judge Murphy of the Maryland Court of Appeals points out the analytical error made by those who would adopt Frye in hypnosis cases:
The "result" of hypnosis is not an assertion that the testimony is necessarily true or accurate. Although some proponents of hypnosis have suggested that memory retrieved by hypnosis is similar in accuracy to a videotape replay, no such claim has been made in this case and such a position is not generally accepted. Rather, the "result" of hypnosis is the ability to produce recall where there was little or none before. In tbis connection, there is little, if any, dispute that hypnosis is reliable in producing more recall. See, e.g., Note, The Admissibility of Testimony Influenced by Hypnosis, 67 Va. L. Rev. 1203, 1208-14 (1981). Instead, those who oppose hypnosis in the courtroom focus attention on the accuracy of the recall. In effect, they (and the majority here) would seemingly require that hypnosis prove, as a matter of general acceptation, that all testimony based on memory recalled under hypnosis is historically accurate. Such a standard is virtually impossible to meet and, if applied to other evidence, would bar virtually all testimony and most other forms of evidence. Such a standard flies in the face of the truth-seeking process, by which the fact-finder is allowed to sift through the widest possible range of evidence, some of which, inevitably, is inaccurate, in order to best determine what actually occurred. Only where the scientific process itself purports to answer ultimate questions of truthfulness and credibility of evidence should the [Frye] test impose such a difficult standard. In the case of hypnosis, the claim is only that the recall produced is at least as accurate as other testimony.
The Frye test does not apply to hypnotically induced witness testimony. Rather it is concerned with the admission of scientific expert testimony. The majority fails to recognize this distinction and thus the logic of its position collapses. Nevertheless, since there are serious questions as to the circumstances under which this testimony (and, of course, any testimony) can be admitted, I will set forth *737what I believe to be appropriate safeguards and procedures to be followed.
Psychologists and psychiatrists have pointed out the dangers inherent in any sort of memory retrieval, including that which is hypnotically induced. See People v. Shirley, 31 Cal. 3d 18, 57-62, 641 P.2d 775, 181 Cal. Rptr. 243, cert. denied, 459 U.S. 860, 74 L. Ed. 2d 114, 103 S. Ct. 133 (1982); Beaver, op. cit. at 155-56; Spector & Foster, op. cit. at 585. Note, The Admissibility of Testimony Influenced by Hypnosis, 67 Va. L. Rev. 1203 (1981). For an excellent discussion of this problem see State v. Hurd, 86 N.J. 525, 540-43, 432 A.2d 86 (1981); Brown v. State, supra. See also Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 335 (1980) and Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J. of Clinical & Experimental Hypnosis 311, 317-18 (1979). (Both Dr. Orne and Dr. Diamond have been articulate leaders in opposition to the use of witnesses who have been hypnotized. See People v. Shirley, supra at 63 n.45.)
Hypnosis is said to be a state of heightened concentration with diminished awareness of peripheral vision. D. Cheek & L. LeCron, Clinical Hypnotherapy 13 (1968). By its nature hypnosis is a process of suggestion; consequently, great care must be taken to insure that statements after hypnosis emanate from the subject's own recollection rather than from suggestions received while under hypnosis. United States v. Adams, 581 F.2d 193, 198-99 (9th Cir.), cert. denied, 439 U.S. 1006 (1978). One of the primary effects of hypnosis is that the subject becomes extremely receptive to suggestions from the hypnotist. Diamond, op. cit. at 333; Orne, op. cit. at 322-27. A hypnotized subject suspends critical judgment and responds to the hypnotist's demands for exact, photographic recall even when the subject's memory is vague or doubtful. Diamond, op. cit. at 340. Once a subject has been hypnotized, neither the subject nor the hypnotist can separate true memories from fantasy. Diamond, op. cit. at 348.
*738Nonetheless, my examination of the scientific authority convinces me that where the purpose of using hypnosis is to assist in the restoration of a person's memory it has been established it can be a valuable tool and is comparable in reliability to ordinary recall. See, e.g., Council on Medical Health, Medical Use of Hypnosis, 168 J. A.M.A. 186 (1958), cited in Dilloff, Admissibility of Hypnotically Influenced Testimony, 4 Ohio N.U. L. Rev. 1, 3 n.9 (1977). See L. Klob & H. Brodie, Modern Clinical Psychiatry 764-66 (10th ed. 1982); Wolberg, Hypnotherapy, in 5 American Handbook of Psychiatry 235 (S. Arieti ed. 1975); Spiegel, Hypnosis: An Adjunct to Psychotherapy, in Comprehensive Textbook of Psychiatry § 34.4 (A. Freedman & H. Kaplan ed. 1967); Spector & Foster, op. cit. at 582; Perry, The Trend Toward Exclusion of Hypnotically Refreshed Testimony — Has the Right Question Been Asked?, 31 U. Kan. L. Rev. 579 (1983).
As the court observed in State v. Hurd, 86 N.J. 525, 542-43, 432 A.2d 86 (1981):
The fallibility of human memory poses a fundamental challenge to our system of justice. Nevertheless, it is an inescapable fact of life that must be understood and accommodated. Rather than require historical accuracy as a condition for admitting eyewitness testimony, we depend on the adversary system to inform the jury of the inherent weaknesses of evidence.
(Citations omitted.) See also People v. Shirley, supra at 76 (Richardson, J., concurring).
Although I believe pretrial hypnosis affects the credibility rather than the competency of the witness and am thus unwilling to adopt the per se rule of inadmissibility for matters recalled subsequent to hypnosis as does the majority, neither would I go so far as some courts, see, e.g., Chapman v. State, 638 P.2d 1280 (Wyo. 1982), and hold the value of the testimony of a previously hypnotized witness should be determined solely by an attack on the witness' credibility. While I share the view of the dissent of Justice Pro Tempore Thompson that the fundamental issue *739is one of credibility rather than competency, I believe some procedural safeguards are necessary.
A number of procedural safeguards have been suggested. Essentially, they strive to reduce the possibilities for suggestiveness and attempt to provide a means to verify independently the recall of a witness who has been hypnotized. Courts have held testimony in a criminal case of the identification of the accused as the culprit must be excluded if the identification has been tainted by a prior or unduly suggestive procedure and has no independent origin. See Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); United States v. Adams, 581 F.2d 193 (9th Cir.), cert. denied, 439 U.S. 1006 (1978).
In People v. Smrekar, 68 Ill. App. 3d 379, 385 N.E.2d 848 (1979); State v. Hurd, supra; and State v. Long, 32 Wn. App. 732, 649 P.2d 845 (1982), certain procedures are set forth to enable courts to determine the admissibility of hypnotically induced testimony. See majority, at 720. In neither Hurd nor Smrekar, however, are the factors listed "considered absolute prerequisites to admissibility, nor are they exclusive. They are listed to illustrate the nature of the inquiry." State v. Hurd, at 545. While I concur with Hurd and Smrekar that the trial court must review the hypnosis session to ensure that there was no impermissible suggestiveness in the procedures, an approach has been adopted by the Wisconsin court in State v. Armstrong, 110 Wis. 2d 555, 571-73, 329 N.W.2d 386 (1983), which I believe to be both workable and more suitable to protect the interests of all parties:
Ordinarily, where the issue of the suggestiveness of an identification procedure is raised, the defense has the burden of demonstrating the suggestiveness. Neil v. Biggers, 409 U.S. 188, 196 [34 L. Ed. 2d 401, 93 S. Ct. 375] (1972). However, because of the great susceptibility a hypnotized subject has to suggestions made by the hypnotist, we conclude that in criminal cases, where the state or a defendant is attempting to use hypnotically affected testimony, the burden should be on the proponent to demonstrate that the hypnotic session was not *740affected by impermissible suggestiveness such as to render the subsequent testimony inadmissible. If the state or the defendant propose to introduce the testimony of a witness who has been hypnotized, that fact should be revealed to the other side before trial so that a timely motion to suppress may be made and a suppression hearing held.
If the trial judge in the exercise of discretion determines that the testimony of a witness who has undergone hypnosis may be admitted, the defendant then may attack the credibility of the witness by raising the hypnosis issue. Because of what some commentators refer to as a "popular misconception that hypnotized people always tell the truth," the state should not reveal the fact of hypnosis in its case-in-chief. However, if the hypnosis issue is raised by the defense, the state should be allowed to introduce expert testimony on hypnosis to aid in the jury's assessment of the witness' credibility. Such a rule will allow the defendant to challenge the credibility of the witness without the danger that the jury will give undue weight to the testimony because hypnosis was used. It will also satisfy a defendant's right to confrontation in that the defendant will be in a position to ensure that the jury has a satisfactory basis for evaluating the witness' testimony.
Similarly, if the defendant is permitted to introduce testimony of a previously hypnotized witness, both sides should be permitted to introduce expert testimony on the effects of hypnosis on memory.
(Footnotes omitted.)
These procedures are workable and will provide adequate protections for the interests of all parties. I would adopt them and direct that they be used by the courts of this state. If the guidelines such as suggested in State v. Hurd, supra, People v. Smrekar, supra, and State v. Armstrong, supra at 571 n.23, are followed by a party wishing to use a witness who has been hypnotized, the work of the trial court will be greatly facilitated in determining whether there was suggestiveness in the hypnotic session. I emphasize, however, that these guidelines are just that. Compliance would not guarantee admission of the testimony; failure to comply would not require exclusion. The reliabil*741ity of the testimony of the hypnotized witness and its admissibility would be at the discretion of the trial court.
I do not share the majority concern that the expense or length of these procedures are reasons not to adopt them. Given the complexities of much contemporary litigation, I do not believe either the time or expense which would be involved in the procedures I advocate would be unreasonable nor would it be unduly burdensome to those parties interested in the integrity of judicial proceedings, including the public.
From the record, as recited in the majority opinion, it is apparent the procedures I have set forth were substantially followed. The trial court satisfied itself as to the admissibility of testimony by the witness who had been hypnotized. Defendant raised no objections as to the qualifications of the hypnotist, nor to the admission of audio- and videotapes of the hypnotic session. Furthermore, an expert witness who had seen the videotape of the hypnotic session involving the witness whose testimony was hypnotically induced testified on behalf of the defendant. I believe the trial court properly exercised its discretion in admitting the testimony of this witness and find no error. I would affirm the conviction.
Utter, J., concurs with Dolliver, J.