(specially concurring in part and dissenting in part):
I cannot concur in whole with the majority opinion and must dissent from its modification of the original opinion in this case.
After the filing of both the original opinion of State ex rel. Collins v. Superior Court, 131 Ariz. 180, 644 P.2d 1266 (1982), and the opinion on rehearing, my understanding of Arizona’s position on the evidentiary use of testimony of a previously hypnotized witness is that: the witness is not totally incompetent to testify as a witness after hypnosis; (2) the witness can only testify posthypnotically to what he or she was able to recall before hypnosis; and (3) any recall of that witness in addition to, or different from his or her prehypnotic recall is still inadmissible as evidence, because (a) hypnosis as a procedure is scientifically unreliable as it does not presently satisfy the Frye test; (b) safeguards or standards on the use of hypnotic sessions do not make hypnosis reliable; and (c) any new recall that came after the hypnotic session is presumed to have been tainted by this unreliable process.
The opinion on rehearing modifies the law on hypnotically enhanced testimony by now ostensibly giving the witness the right to say on the witness stand what was remembered before being hypnotized.
As laudable as this concession by the new majority may be, this new facet of the law suffers from some obvious flaws:
(1) As stated by the majority in support of its argument that hypnosis causes unreliable recall, prehypnotic memory ceases to exist after the witness is hypnotized. The act of hypnotizing the witness does away with the witness’s prehypnotic recall. The new memory may be influenced by purposeful or inadvertent suggestion, and embellished with confabulation and even lies. The new memory may be rigid and the witness may possess an unshakeable conviction that it is the correct version of the facts. See authorities cited in State ex rel. Collins v. Superior Court, 131 Ariz. 180, 644 P.2d 1266 (1982).
(2) The witness will frequently be required to testify as to a state of facts — the prehypnotic memory — in which he or she does not presently believe. Regardless of how improper it may seem to the witness or anyone else, the witness will be required to “stick to the script.”
*212(3) The prosecution will have to instruct a witness what can and cannot be said on the witness stand. Coaching a witness1 not to say what he or she presently believes to be the truth may run afoul of tenets of ethics this Court has promulgated. See DR 7-102(AK4), (5) & (6).2
(4) The prosecution dares not question a state’s witness beyond the facts included in prehypnotic recall without risking a mistrial or reversible error.
(5) The quandary of defense counsel is the worst of all. Defense counsel is limited on cross-examination in ways not only we as lawyers cannot understand but in ways upon which scientists knowledgeable in this field as yet do not agree. Defense counsel, in a legal sense, cannot adequately probe the prehypnotic recall on cross-examination because the witness no longer possesses the prehypnotic memory and because of the risk of bringing out additional recall tainted by hypnosis — which we say is so unreliable. The defendant’s right to effectively cross-examine is thereby severely restricted. If the defense proceeds and if the new recall is damaging to the defendant, expert witnesses must then be put on in order to convince the jury that hypnosis has caused the new unreliable memory. If the new recall is favorable to the defense, the prosecution must now impeach its own witness by the same type of expert testimony.
I spare the readers from a lengthy repetition of my concerns for the potential violation of a defendant’s right to effective cross-examination. See State ex rel. Collins v. Superior Court, 132 Ariz. at 187-189, 644 P.2d at 1273-1275 (1982). The majority fails to discuss or even mention this right that may be abridged in permitting testimony on prehypnotic statements in criminal trials. This unexplained omission is unjustifiable when treading upon a right that has been so carefully guarded by the United States Supreme Court.
(6) The rule the Court adopts adds to the judge’s usual duties the obligation of making sure the parties understand the risks of straying from the script and then keeping track of whether anyone has. If a witness does stray and experts on hypnosis are called, then the judge must interrupt the trial to hold additional hearings to determine the competency of these witnesses and their testimony before it is offered to the jury.
The majority at p. 1296 requires that a prehypnotic statement be recorded and preferably videotaped and states the failure to do so will be error if prejudicial. I also dissent from this position and would require that all prehypnotic sessions be videotaped to insure against the possibilities of undisclosed suggestion. See State ex rel. Collins v. Superior Court, 132 Ariz. at 183-184, 644 P.2d at 1269-1270 (original opinion 1982). I would further require that the use of hypnosis at any stage of litigation be disclosed to opposing parties.
*213I further dissent from the majority’s position of merely suggesting that “litigants adopt, some, if not all of the Orne standards” to insure a taint-free hypnotic session. Merely suggesting standards is unfair to those who will use hypnotic techniques. I would not have litigants guess at which or how many standards would be enough to satisfy this Court that prehypnotic testimony was properly admitted. Clear adoption or rejection of standards may have drawbacks, but it is preferred to the foreseeable onslaught of appeals arguing what, if any, standards are sufficient.
Finally, I presume because the majority failed to address the prospective/retrospective application of the rule it sets today that the holding is prospective only. See State ex rel. Collins v. Superior Court, 131 Ariz. at 189-191, 644 P.2d at 1275-1277 (1982).
I specially concur with the majority on the issues of retaining the Frye rule and rejecting the adoption of standards or safeguards on the hypnotic process, that being my position in the original opinion in this matter.
The problems outlined above force me to dissent from the majority’s position. The result of the majority’s opinion will cast counsel, the court, and witnesses into new roles. To accommodate this change, the constitution, evidentiary rules, and lawyers’ rules for professional conduct will need to be altered. Although it may be a sign of my age and/or the typical judicial resistance to change, I agree with the Supreme Court of California when recently it exhaustively considered the problems involved in hypnotically induced testimony and concluded “the game is not worth the candle.” 3 People v. Shirley, 31 Cal.3d 18, 40, 181 Cal.Rptr. 243, 255, 641 P.2d 775, 787 (1982).
. Witnesses are concededly coached not to mention other particular matters, e.g., the fact of insurance in negligence actions, Gallagher agreements, receipt of funds from collateral sources, and subsequent remedial measures. Testimony is prohibited on these matters because it is wholly collateral to the issue before the court and may prejudice the trier of fact. In contrast, the testimony of previously hypnotized witnesses may go to the very issue to be decided. Witnesses must take the stand and mouth the prehypnotic statement even though they may have since clarified points or completely changed their minds. The jury may also become confused. A compromised witness is not a believable witness and the jury, picking up on the displayed lack of sincerity, may discount the entire performance.
. “JOR 7-102. Representing a Client Within the Bounds of the Law
“(A) In his representation of a client, a lawyer shall not:
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“(4) Knowingly use perjured testimony or false evidence.
“(5) Knowingly make a false statement of law or fact.
“(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
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. The court went on to hold that posthypnotic testimony is per se inadmissible.