OPINION

SINGLETON, Judge.

These consolidated cases present a single question: whether the complaining witness to a crime, who prior to trial has been hypnotized to refresh her recollection, is incompetent to testify at trial to a subsequent eyewitness identification of her assailant. We hold that hypnotism prior to trial does not per se render such a witness incompetent. See A.R.E. 601.

I. PROCEEDINGS IN TRIAL COURT A. CONTRERAS

Joseph Contreras was indicted for five felonies: kidnapping, former AS 11.41.300(a)(1)(C); assault in the third degree, AS 11.41.220; and three counts of sexual assault in the first degree, former AS 11.41.410(a)(1). The indictment charges Contreras with kidnapping Ms. S.J. and Mr. E.L. with intent to sexually assault them or place them in apprehension that they would be subject to serious physical injury or sexual assault. In addition, Contreras was indicted for assaulting S.J. with a dangerous weapon, and sexually assaulting both S.J. and E.L.

Prior to the arrest of Contreras, S.J. was hypnotized by an Anchorage police officer to help her identify her assailant. She subsequently identified Contreras. Contreras moved for a protective order suppressing evidence of the identification on the ground that the hypnotic session influenced S.J.'s identification of him. After hearing evidence from the parties, including expert testimony regarding the effect of hypnosis on memory, Judge Serdahely granted the requested protective order in part and ruled that S.J. could not testify at trial regarding any matter discussed by her with the hypnotist during the hypnotic session. This ruling effectively suppresses any identification by S.J. of Contreras. The state has petitioned for review, contending that Judge Serdahely erred in suppressing the testimony of S.J. We agree and reverse.

B. GRUMBLES

Ricky Glen Grumbles was charged in an indictment with burglary in the first degree, AS 11.46.300(a)(2)(A); attempted murder in the first degree, AS 11.41.100(a)(1), former AS 11.31.100; and theft in the second degree, AS 11.46.130(a)(2). The indictment was based upon testimony that Mary Hall discovered Grumbles in the process of burglarizing her residence. Grumbles shot Hall in the thigh and escaped with her property. Hall was hypnotized by a police officer to aid the police in identifying her assailant. She later identified Grumbles. Grumbles moved to suppress her identification on the ground that it was improperly influenced by the hypnotic session. Judge Buckalew, at the request of the parties, reviewed a transcript of the expert testimony introduced in Contreras' case and after hearing argument denied the protective order. Judge Buckalew specifically ruled that any influence the hypnotic session might have had on Hall's identification was a matter affecting her credibility to be determined by the jury and not a matter of competency to be determined by the court. Grumbles petitions for review of the denial of the protective order. We grant the petition and affirm.

Given the difference of opinion between the trial courts in these two cases, the importance of the issue, and the substantial difference of opinion reflected in decided case law throughout the United States, we have granted the petitions for review to resolve the issue prior to completion of the trials in question. Alaska R.App.P. 402(b)(2).

II. THE RULES OF EVIDENCE

Alaska Rule of Evidence 402 provides that relevant evidence is admissible unless a specific rule, statute or constitutional provision excludes it. The testimony of an alleged eyewitness is clearly relevant. See A.R.E. 401. Consequently, eyewitness testimony is admissible unless expressly excluded. Contreras and Grumbles argue for exclusion based in part on Evidence Rules 403 and 601, and in part on the state and federal constitutions.

These arguments may be summarized as follows: Witnesses who have been subjected to hypnosis prior to testifying, although able at the time they testify to understand their duty to tell the truth and express themselves intelligibly, are unusually susceptible to memory distortion through "suggestion" and "confabulation." Suggestion may occur intentionally or unintentionally through unconscious cues which the hypnotist conveys verbally or nonverbally to the person hypnotized. Confabulation is a process whereby a person who is under substantial pressure to remember a perception, such as details of the appearance of an assailant, but in fact had no perception to remember, is encouraged to unconsciously manufacture those details from her other experiences or her imagination. "Suggested" details come from outside the subject and may supplant the subject's actual perceptions, while "confabulated" details generally occur only in the absence of an actual perception capable of being remembered. Details that are suggested or confabulated become part of the witness's memory. Neither the witness nor any expert psychologist or psychiatrist who subsequently interviews her will be able to distinguish those details from her own memory of her actual perceptions.

In addition, it is argued that a hypnotized subject will exhibit a demeanor manifesting a high degree of confidence in her "restructured" memory, including any misinformation she received through suggestion or confabulation. Therefore, the subject achieves substantial insulation from effective cross-examination. She may appear to the jury supremely confident that she accurately remembers, when in fact she merely imagines. In contrast, it is argued that a typical witness who is unsure of an identification will manifest that lack of assurance by appearing hesitant and uncertain. Some authorities have considered this "tampering" with the witness's demeanor to effectively render the witness permanently unavailable for cross-examination, and conclude that her testimony at trial is the equivalent of hearsay and constitutes a violation of the defendant's right to confront the witnesses against him.

Having reviewed the record, and having considered both the arguments of the parties and the authorities cited from legal and psychological literature addressing eyewitness testimony and hypnotism, we decline to adopt a per se rule rendering the complaining witnesses in these cases, S.J. and Hall, incompetent to testify at trial regarding the matters covered in their pre-trial hypnotic sessions. See A.R.E. 601. We therefore affirm the decision in Grumbles' case and reverse the decision in Contreras' case on the issue of competency.

III. STATEMENT OF FACTS A. CONTRERAS

The following facts were developed before the grand jury and in the evidentiary hearing held on the motion to suppress.

S.J. and E.L. were college students working at a restaurant in Anchorage during their summer vacation in 1980. On the night of August 5, 1980, S.J. and E.L. were talking in S.J.'s vehicle outside the restaurant when a man, later identified as Contreras, asked directions to a local cocktail lounge. Neither S.J. nor E.L. were previously acquainted with Contreras. He returned a few minutes later, pulled a knife, and forced his way into the car. As he drove, he held the knife at S.J.'s neck. Several times Contreras threatened to kill them both. During the ride, Contreras demanded that E.L. remove S.J.'s clothing and penetrate her with his finger to get her sexually aroused. E.L. complied with these demands. Contreras eventually turned off the road in the Potter Flats area south of Anchorage. He then demanded that E.L. take off his own clothes so that Contreras could watch E.L. and S.J. have intercourse. He ordered S.J. to perform fellatio upon E.L., and became angry when E.L. did not become sexually aroused. Contreras then required both S.J. and E.L. to perform fellatio upon himself, which they did. He finally ordered them to get out of the car, stating that he was going to kill them. S.J. and E.L. fled naked into the rainy night. Contreras chased them for more than an hour before abandoning his pursuit. Several hours later S.J. and E.L. obtained assistance.

S.J. and E.L. were interviewed by the police. Each gave a sketchy description of their assailant. At this time, the police had no suspects. Approximately one week later, S.J. underwent hypnosis by Investigator Eugene Parmeter of the Anchorage Police Department for the purpose of obtaining more details regarding the assailant. Investigator Parmeter had deliberately avoided learning any information about the case except the fact of the crime, the fact that S.J. had spent time in the assailant's company, and the approximate date of the assault. The police artist, Investigator William Casto, attended the session so that he could draw a picture based on S.J.'s description. Investigator Russell, who was primarily responsible for the investigation, was in an adjoining room videotaping the entire session through a two-way mirror.

Under hypnosis S.J. described her conversation with E.L. in her vehicle, her initial contact with the assailant, and the ride through the Anchorage area up to the point where the assailant pulled off the highway. She was not asked to describe the assaults. She was asked to give as much detail as possible about the assailant with her eyes closed while Investigator Casto made a drawing. Then she was asked to open her eyes to comment upon the drawing. She suggested some alterations. After the sketch was completed she was taken out of the hypnotic state. No videotape was made of Investigator Parmeter's initial contact with S.J. or his parting comments to her after the completion of the hypnotic session.

Within the next several weeks, E.L. and S.J. were shown a number of photographic lineups by the police. During one session, E.L. identified a man other than Contreras, but changed his mind when he saw the man in person. When Contreras was arrested during the latter part of August for a similar rape, his photo was placed in a lineup and shown to S.J. and E.L.S.J. picked Contreras as the one who "looked a lot like" the assailant and made a definite identification after another lineup which contained a more recent photograph of Contreras. E.L. also made a positive identification of Contreras as the assailant.

In the meantime, subsequent to S.J.'s hypnotic session but prior to Contreras' arrest, Lynette Camfferman phoned S.J. to apologize for the incident. Camfferman told S.J. that she was Contreras' live-in girlfriend and that on the night in question Contreras had disclosed to her that he had robbed a young couple. He allegedly showed her the property he took from the couple including their driver's licenses. Camfferman used this identification to locate S.J. to make her apology. During the phone conversation S.J. learned Camfferman's address; S.J. turned this information over to the police.

The case was presented to the grand jury. Among the witnesses who testified were the two victims, Comfferman, and Investigator Russell, who testified about the lineups. The grand jury indicted Contreras for the crimes.

B. GRUMBLES

The following facts also developed before the grand jury and in the evidentiary hearing held on Grumbles' motion for a protective order.

On March 15, 1981, at approximately 12:00 a.m., Mary Hall was at her fiance's home when she received a telephone call from Alaska General Alarm informing her that the burglar alarm at her residence had been activated. She thought that her dog may have triggered the alarm, so she went home to investigate. When she entered the house she noticed that the kitchen window was broken, and then discovered an intruder whom she later identified as Grumbles. The intruder shot at her several times, hitting her once in the thigh.

Prior to entering her house, Hall had observed a yellow Gremlin with dark pinstrips parked in front of her house. When she looked outside after the assault, it was gone. Several hours later the police located a yellow Gremlin with red stripes on the sides in the parking lot of a cocktail lounge. Hall was brought to the restaurant to identify the vehicle as the one she had observed outside of her residence. Friends of Grumbles testified to the grand jury that Grumbles had been driving the Gremlin on the night of the burglary. After obtaining consent from Grumbles' live-in girlfriend to search their residence, police discovered a .38 caliber Smith and Wesson revolver taken from Hall's residence as well as the .22 caliber weapon with which Hall had been shot. When contacted, Grumbles admitted that he knew about the burglary and assault because his friend Scott had told Grumbles that he had committed the offense and had given Grumbles the guns.

On March 17, 1981, Investigator Parmeter met with Hall for the first time to discuss hypnotism as a means of helping her identify her assailant. She expressed concern that the session might make her relive the physical and psychological trauma of the assault. Investigator Parmeter assured her that certain techniques could be used that would insulate her against any fearful situation. This preliminary discussion was not videotaped or recorded.

The next day Investigator Parmeter hypnotized Hall using the same procedures that had been used with S.J. The only difference was that because Hall had exhibited some signs of mental distress, Dr. Clifford Hunt, a licensed Ph.D in psychology, was present during the hypnotic session to care for Hall in the event that emotional distress was triggered. An attempt was made to videotape the session but the camera failed. An audio record of the session was obtained and was reviewed by the trial court.

IV. STANDARD OF REVIEW

Before discussing the expert testimony introduced in Contreras' case and adopted by reference in Grumbles' case, it is necessary to determine the standard governing our review of the trial court's fact findings. We agree with the parties that a trial court's findings regarding memory and the effects of interrogative techniques on eyewitness testimony and hypnosis in general are questions of legislative rather than adjudicative facts. See State v. Erickson, 574 P.2d 1, 4-6 (Alaska 1978). Consequently, we are free to exercise our independent judgment. In contrast, fact findings regarding the specific cases would be adjudicative facts reviewed under the clearly erroneous standard.

V. EYEWITNESS TESTIMONY

In order to understand the expert testimony which was given at the Contreras evidentiary hearing and relied upon by Judges Serdahely and Buckalew, it is necessary to briefly summarize recent psychological and legal literature dealing with eyewitness testimony and the use of hypnotism in the investigation of crimes.

Within the last few years, legal and psychological literature has contained a number of books and articles discussing cases in which people have been wrongly convicted of crimes and imprisoned upon the basis of inaccurate eyewitness testimony. In England, a special commission was appointed under Lord Devlin to study the problem of identification evidence in light of two demonstrated miscarriages of justice resulting from faulty eyewitness identification. See Report to the Secretary of State for the Home Department Committee on Evidence of Identification in Criminal Cases, H.C. April 26, 1976. In the United States similar research has been conducted. See E. Loftus, Eyewitness Testimony (1979); P. Wall, Eye-witness Identification in Criminal Cases (1965). See generally Marshall, Marquis Oskamp, Effects of Kind of Question and Atmosphere of Interrogation on Accuracy and Completeness of Testimony, 84 Harv.L.Rev. 1620 (1971); Levine Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby, 121 U.Pa.L. Rev. 1079 (1973); Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969 (1977).

The problem appears most forcefully, it is argued, where the only evidence against a defendant is the eyewitness testimony of a stranger. Jurors (and judges) tend to give undue weight to eyewitness testimony even when it is substantially impeached and contradicted. However, an eyewitness's perception of a crime is frequently distorted by the experience. The witness's memory may be further distorted by subsequent events, particularly the process of interrogation by police officers and lawyers. These risks are aggravated, some psychologists argue, by the general misconception that our eyes function like a video camera and our memory like an attached recorder so that every thing we see, and by extention sense, is somehow recorded and available for recall through a process akin to playback. In fact, modern research indicates that we only selectively store information perceived. More significantly, subsequent experiences may be incorporated into our memory and combined with earlier perceptions making it virtually impossible to sort out the original perceptions from subsequent accretions at a later time.

Information perceived after an event will frequently alter a witness's memory when it is planted through conscious or unconscious suggestion or when it is merely picked up through reading about the event or hearing others discuss it. In her experiments, Dr. Loftus discovered that misleading information had the greatest effect on memory when it was received substantially after the event perceived:

During the time between an event and a witness's recollection of that event — a period often called the "retention interval" — the bits and pieces of information that were acquired through perception do not passively reside in memory waiting to be pulled out like fish from water. Rather, they are subject to numerous influences. External information provided from the outside can intrude into the witness's memory, as can his own thoughts, and both can cause dramatic changes in his recollection.

People's memories are fragile things. It is important to realize how easily information can be introduced into memory, to understand why this happens, and to avoid it when it is undersirable.

E. Loftus, Eyewitness Testimony at 86-87.

Problems of confabulation and suggestion are magnified by certain investigative techniques. Often the person interviewed will develop a rapport with the interviewer and subconsciously wish to please him or her by giving answers which the suspect is led to believe the examiner desires. This risk is particularly high when the subject has a substantial interest in the outcome of the investigation. These answers then become a part of the witness's memory. The more a witness repeats her story the more fixed it becomes in her mind. In addition, the interviewer may unintentionally supply information that becomes part of the witness's memory by the manner in which questions are asked.

We have quoted at some length from Dr. Loftus' books. Her studies of eyewitness testimony and the effect of various circumstances on an eyewitness's memory in the absence of hypnotism serve to establish a control so that we can better evaluate the evidence regarding hypnotism and how it affects an eyewitness's memory. The argument that previously hypnotized witnesses should be disqualified from testifying gains force only if hypnotism creates a risk of distorting memory that is substantially greater than, or qualitatively distinct from, the risk ordinarily posed by interrogating a victim who has rapport with her questioner and who has a vital interest in the identification and conviction of her assailant. In contrast, if improper interrogative techniques and the normal experiences encountered by eyewitnesses account for virtually all instances of memory distortion, then no special rule for hypnotism would appear warranted.

VI. HYPNOTISM

The term hypnotism conjures up a number of images which make a dispassionate consideration of its impact on eyewitness testimony difficult. Who can forget the classic films with John Barrymore as Svengali controlling the helpless Trilby, or Bela Lugosi as Dracula peering into the eyes of his enchanted victims, or Orson Wells as Cagliostro, using mesmerism to steal the diamond necklace which would topple the throne of France. Dwelling on these images will make the difficult task of sorting myth from fact impossible. When we objectively examine the literature, hypnotism becomes far more prosaic and loses its aura of mystery and legerdemain.

There is nevertheless a great deal of controversy as to precisely what hypnotism is. In a much-quoted article in the Encyclopedia Brittannica, Dr. Martin Orne says:

Despite active empirical study of hypnotic phenomena, there is no single generally accepted explanatory theory. Some theorists influenced by Pavlov think of hypnosis as a state of altered consciousness or partial sleep in which a person tends to respond to suggestions automatically and uncritically. While this view does not ignore increased suggestibility, it still holds that a subject not at the moment responding to a suggestion may nevertheless be in a trance state. There may be neurophysiological components of such a state. Such a position would be consistent with the notion, not generally accepted, that some animals can be hypnotized, as when a chick, suddenly placed on its back, tends to remain immobile in that position. . . .

Other theorists stress the social or interpersonal interactions that hypnotic behaviour involves. They emphasize how an actor willingly and wittingly permits a director to guide him into living a part; how a patient may be relieved of a headache if given a pill that is actually pharmacologically inert (a placebo); how an uncommitted person becomes an enthusiastic supporter of crowd feeling at a demonstration; how a spectator flinches and jabs along with his favourite fighter; and how a student changes his views to those of an admired teacher. Hypnosis is held to consist of nothing more than events like these, there being no need to assume additional special states such as the inhibition of parts of the brain. Hypnotic events are results of interpersonal influences in which various abilities, skills, and response propensities are brought into play.

Evidence can be found to support both major theoretical approaches. Neural changes indeed do occur in hypnosis, but a unique physiological basis for the phenomenon remains to be established. Perhaps this reflects incomplete understanding of physiological alterations that may produce psychological change. Social-interaction theorists find it difficult to explain why posthypnotic suggestions are carried out even when the hypnotist neither knows nor apparently cares about the subject's behaviour. While most current investigators tend to work within one or the other explanatory framework, most feel free to use propositions from both if they seem consistent with experimental or clinical observations.

9 Encyclopedia Britannica, Hypnosis 133, 135 (1974). Illustrative of the first view which assigns special significance to the induction procedure and the trance state is the work of Ernest R. Hilgard. See E. Hilgard, Hypnotic Susceptibility (1965). Illustrative of the second view which assigns special significance to the subject's interest in the experiment and rapport with the hypnotist is the work of Thomas Barber. See T. Barber, Hypnosis: A Scientific Approach (1969); T. Barber, Suggested ("Hypnotic") Behavior: The Trance Paradigm Versus an Alternative Paradigm, reprinted in E. Fromm R.E. Shor, HYPNOSIS: Developments in Research and New Perspectives, 217 (2d ed. 1979); Barber Calverley, Empirical Evidence for a Theory of Hypnotic Behavior: Effects on Suggestibility of Five Variables Typically Included in Hypnotic Induction Procedures, 29 J. Consulting Psych. 98 (1965).

Those authorities in general agreement with Hilgard use the term "induction" to describe the procedure for placing a person in a "trance." The hypnotist first establishes rapport with the subject and then creates a passiveness that will make the subject receptive to suggestions, typically by engendering eye fatigue through focusing on a close object such as the hypnotist's eyes, a swinging time piece suspended on a chain or a jewel rotating in a pendant. Finally, the hypnotist induces a trance through a series of suggestions requiring increased distortion of perception until it is clear that the subject is hypnotized. 9 Encyclopedia Britannica, Hypnosis 133, 135 (1974). A person in a trance is believed to be in the "hypnotic state," which Hilgard and his followers argue is fundamentally different from the waking and sleeping states. A subject is identified as being in the hypnotic state by his susceptibility to suggestions and his ability to perform certain feats which cannot be performed by someone who is awake. The level of hypnosis is partially judged by the subject's overt and subjective responses to test suggestions, which may include suggestions for limb rigidity, age regression, analgesia, hallucination, amnesia, and postexperimental ("posthypnotic") behavior. These responses, which for forensic purposes should be expanded to include memory distortion, constitute "hypnotic behavior." Dr. Diamond, the primary proponent for holding previously hypnotized witnesses incompetent, generally accepts Hilgard's model.

In contrast, Dr. Barber denies the existence of a "trance state," and explains hypnotic behavior as a function of the subject's attitudes, motivations and expectations regarding a given experiment. Essentially, a person exhibiting signs of being under hypnosis is simply one who is highly motivated to cooperate with the hypnotist. His

actions "under hypnosis" simply reflect this motivation and his confidence in, and respect for, the examiner. Dr. Barber and his followers argue that they can duplicate any instance of behavior attributed to hypnosis without an induction procedure and without hypothisizing a trance state.

In dividing the world of hypnosis theorists into two camps, we have followed the lead taken by Dr. Orne in his article in the Encyclopedia Britannica. We recognize that this underplays substantial differences between the experts which we have placed within the two camps and that purists might distinguish three or even more substantially distinguishable "camps." See Orne, The Nature of Hypnosis: Artifact and Essence, 58 J. of Abnormal and Soc. Psych., 277 (1959). In this article Orne identifies three "camps" of hypnosis theorists and indicates that his fourth view is eclectic. Nevertheless, for purposes of this case, we believe that our dichotomy is useful.

For our purposes, it is sufficient to recognize that the proponents of the various views concede that their opponent's views are scientifically tenable. Both Dr. Hilgard's and Dr. Barber's views were mentioned at the Contreras evidentiary hearing. Judge Serdahely concluded that both, among others, were part of the scientific community whose views were relevant to an understanding of the issues presented by Contreras' motion for a protective order.

VII. THE EFFECT OF HYPNOTISM ON EYEWITNESS TESTIMONY

A number of recent articles discuss the possibility that hypnotizing a witness might lead to distortions in memory. See, e.g., Kroger Douce, Hypnosis in Criminal Investigation, 27 Int'l J. Clinical Experimental Hypnosis No. 4, 358 (1979). The writers note that hypnotized subjects are susceptible to the same influences that Dr. Loftus found in studying unhypnotized witnesses. They accept the Hilgard model and use the term hypnotism to include three components: (1) the induction, (2) the resulting trance state, and (3) the subsequent interview or interrogation. Id. at 361-64. Our analysis of the effects of hypnotism on eyewitness testimony requires that we isolate the effects of hypnotism as such, i.e., induction plus trance, from the effects of interrogation techniques which might be as readily used with nonhypnotized subjects. In this context we define "hypnotized subjects" in conformity with the Hilgard model to include those who have been through an induction and believe themselves to be in a trance.

We have only found one article cited in the case law and the literature which purports to support with experimental data the proposition that the memories of hypnotized subjects are more susceptible to distortion through suggestion and confabulation than nonhypnotized subjects. See Putnam, Hypnosis and Distortions in Eyewitness Memory, 27 Int'l J. Clinical Experimental Hypnosis No. 4, 437 (1979). Dr. Putnam chose sixteen college students based on presumed equal susceptibility to suggestion. He showed them a videotape of a simulated accident and asked that they pay close attention, but not memorize details. He instructed them to imagine that they had witnessed the "accident" and told them they would be interviewed by the police. He arranged for one-half of the group to be hypnotized, and told them that they would have total recall under hypnosis. He asked the hypnotized students leading questions which included misinformation. He asked the same questions of the control group. The results of the test were as follows:

The Ss [subjects] made more errors when answering leading questions under hypnosis than in a normal waking state. This finding supports the hypothesis that Ss are more suggestible in the hypnotic state and are, therefore, more easily influenced by the leading questions. This result argues strongly that great caution should be exercised when using hypnosis to question eyewitnesses in criminal investigations. The need for caution is further emphasized by the analysis of the confidence ratings that were given by Ss for their responses. Even though the hypnotic Ss made more errors, they were just as confident as the normal Ss who made fewer errors. Moreover, when the hypnotic Ss were asked if they felt that they were more accurate under hypnosis than if they had answered the questions in a waking state, they all felt that they had been more accurate under hypnosis. These Ss also stated that they would prefer to be questioned under hypnosis if they witnessed an actual accident or crime. All of these effects seem to indicate quite clearly that under hypnosis, Ss answer more leading questions incorrectly and they are unaware that their responses are inaccurate.

It is important to note that five of the leading questions consisted of merely changing the article "a" to "the," but this rather subtle change had substantial effects. For example, asking Ss if they saw "the license plate" when it was not visible at all, not only elicited positive responses from some of the hypnotic Ss, they also offered partial descriptions of the license plate number. One S said it was a California license plate which began with W or V. This constructed information was not obtained under any coercion. There is every reason to believe that the tendency to distort recall would be even greater in a real criminal investigation, where the witness may have a vested interest in recalling the information.

Id. at 444.

In evaluating Dr. Putnam's conclusions, it is wise to bear in mind an observation Drs. Barber and Calverley made in considering the results of an earlier experiment which sought to distinguish between the test results of those who were hypnotized and those who were not:

The above formulation [rejecting the assumption that induction followed by a trance per se accounts for differences between test responses distinguishing hypnotized from nonhypnotized subjects] is based on the following reasoning. When literate subjects in Western culture are told that they have been allocated to a hypnosis group and are to be hypnotized, they are being told implicitly that they are participants in an important and unique experiment in which it will not only be possible but also easy to respond to test suggestions of arm levitation, limb heaviness, amnesia, and so on, and that they are expected to cooperate fully and to try to the best of their ability to experience that which is suggested. Furthermore, since literate individuals in our culture associate suggestions of relaxation, drowsiness, and sleep with hypnosis, such suggestions serve to emphasize to them that the situation is hypnosis in which high response to test suggestions is not only possible but is also desired and expected. Conversely, when literate individuals are not given motivational instructions but are simply told that they have been assigned to a "control group" and will not be hypnotized . . . they are being told by implication that they are not expected to show a high level of response to test suggestions of the type associated with the word hypnosis, for example, test suggestions of limb and body rigidity, hallucination, and amnesia.

Barber Calverley, supra at 106 (emphasis in original).

It is significant that Dr. Putnam's subjects had all previously been through "hypnosis." The subjects were students who had no particular stake in the outcome of the simulated investigation except the interest generated by the experiment itself. No effort was made to give the control group an independent incentive to "correctly" recall the videotape by, for example, telling them in advance that "correct" answers would be rewarded in some way. It is not unreasonable to assume that the hypnotized group might be more interested in the "experiment" and therefore pay closer attention to the person supplying information or asking questions than the members of the control group who may have been bored by the whole experiment. Dr. Loftus' conclusions would suggest that if the hypnotized group believed that they had total recall, confabulation (which she calls refabrication) would be encouraged whether or not they were in fact hypnotized, i.e., in an altered state of consciousness. These considerations at least cast doubt on the assumption that hypnosis itself increases the risk of memory distortion where the subject has an independent incentive to provide correct answers, such as when she is the alleged victim of a crime striving to identify and punish her assailant. Conversely, Putnam's experiments might be persuasive in dealing with eyewitnesses who were otherwise uninvolved bystanders.

Putnam's experiments might have been more useful for our purposes if his control group had received some incentive to arrive at a correct recollection of the events portrayed on the videotape. In this way the subjects would more closely approximate rape victims who are typically highly motivated to aid in the apprehension of their assailant once they agree to testify. In order to aid in the accurate evaluation of the relative effect of induction and trance on susceptibility to cues in leading questions, the hypnotized group should probably have received similar "motivation."

In summary, Contreras and Grumbles and the authorities upon which they rely raise three objections to the competency of previously hypnotized witnesses. They argue: (1) that the hypnotist may "suggest" details to the witness which will be incorporated into her memory and become a part of her subsequent testimony; (2) that where the subject has no memory of an event but is pressed to give details and wishes to please the examiner, she will confabulate those details out of unrelated experiences and imagination and incorporate the confabulated details into her subsequent testimony; and (3) that the process of hypnosis will give the subject such confidence in her "restructured memory" that she will become immune to cross-examination because her demeanor will exude confidence and mislead the jury.

Dr. Martin Orne suggests certain standards as safeguards. Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J. Clinical Experimental Hypnosis No. 4, 311 (1979). These standards address the risk of suggestion and confabulation by requiring that the examiner have no knowledge of the event to communicate to the subject and requiring that the procedures used avoid pressuring the subject to provide details. In addition, Orne's standards recognize that a hypnotic session may result in mental or emotional injury to the person hypnotized and seek to limit that risk.

VIII. THE EXPERT TESTIMONY AT THE CONTRERAS EVIDENTIARY HEARING

Three expert witnesses testified at the Contreras evidentiary hearing regarding use of hypnosis as an investigative tool. The state called Dr. Martin Reiser. He indicated that he had reviewed the videotape and was satisfied that no impermissible suggestion had taken place. He noted that several times S.J. responded, "I don't know" to questions, indicating resistance to confabulation. Finally, Dr. Reiser criticized the proposed standards for conducting an investigative hypnosis session developed by Dr. Orne.

Dr. Bernard L. Diamond testified on Contreras' behalf. Dr. Diamond testified that a prospective witness who is hypnotized tends to produce a memory that is a mixture of real experience and confabulation or fantasies. While he conceded that the normal individual has a tendency at times to embellish his memories by filling in missing details and organizing them into a coherent whole, this process is normally subject to self-criticism. An honest individual, Dr. Diamond said, will readily acknowledge and communicate doubts. Hypnosis by its very nature interferes with this process of self-criticism, not necessarily by eliminating it, but by distorting it so that the individual loses the capacity to make distinctions between what she really remembers and what she has drawn from other thoughts or experiences. In effect, Dr. Diamond cautioned, a hypnotized person develops "source amnesia." Dr. Diamond stressed that an individual, particularly an eyewitness submitting to hypnosis, is under substantial psychological pressure to please the hypnotist and will try to produce what is expected by the interviewer even if it means confabulating all of the details.

Dr. Diamond was particularly critical of the procedure used by Investigator Parmeter and recommended by Dr. Reiser, i.e., telling the witness that her mind is like a camera with sophisticated lenses that permit her to "freeze motion" or go back in time to view past experiences in a detached manner. Dr. Diamond explained that since the average individual's memory is faulty, and since a witness probably does not perceive all the relevant details of a description, a belief in total recall and a desire to supply details to satisfy the examiner will necessarily result in confabulation. He concluded that once this process is complete, most hypnotized subjects have the persistent belief that they knew the confabulated material all along. Dr. Diamond testified: "[I]t is my conviction that once an individual has been hypnotized, their memory has been irrevocably contaminated in such a way that it cannot anymore be decontaminated. . . ."

According to Dr. Diamond it is impossible, either through additional hypnosis, analysis by an expert, or any other technique available in a legal setting, to distinguish between the facts that would have been obtained if the individual had not been hypnotized and those that are attributable to hypnosis. Dr. Diamond described hypnosis as "a form of systematic tampering with the memory." In his opinion, the most serious contaminating effect of hypnosis is its role in altering the demeanor of a witness by creating subjective confidence in false memory.

On cross-examination, Dr. Diamond conceded that psychological problems exist with all eyewitness testimony. He could not deny that some of the risks associated with hypnotically induced evidence may also apply to the testimony of any witnesses who have been interrogated but not hypnotized. He insisted, however, that there are quantitative and qualitative differences between the testimony of previously hypnotized witnesses and the testimony of witnesses who have merely been coached or subjected to suggestions or leading questions. Dr. Diamond admitted that his view, which would render any witness hypnotized during a criminal investigation incompetent to testify, is perhaps the most extreme view held by experts in the field.

The heart of the problem presented by Investigator Parmeter's hypnosis of S.J., as Dr. Diamond perceived it, was not that facts may have been implanted in her mind through suggestions, but rather that there was a risk of confabulation. S.J. was put in a position where (1) she was made to feel that she should supply details about the crime in response to persistent questioning, and (2) she was made to believe that by virtue of hypnosis she was capable of giving those details. She was prompted to provide the details demanded even though she may not have had an accurate memory of those details. Thus, Dr. Diamond hypothesized, S.J. supplied details from her general experience. Although some of them may have reflected the incident, some may not have; there was no way to determine which details were accurate.

On cross-examination Dr. Diamond was asked, "Is it true that confabulation, source amnesia and fantasy which [the witness now believes] to be true, occur in persons other than those who have been hypnotized?" He answered affirmatively. Dr. Diamond had read the literature concerning eyewitness testimony in general. Although he had not reached any general conclusions, he did say, "I think in fairness one has to say that every contaminant that can occur in hypnotized witnesses can under some circumstances occur in nonhypnotized witnesses, but what I don't know is how frequently, how often, under what circumstances, when, how you detect it, and what you do about it." On further cross-examination, Dr. Diamond conceded that he could not be certain that S.J.'s testimony would be unreliable or false. He emphasized, however, that it was "not possible to accurately determine how much or how little contamination occurred as a result of the hypnotic experience." When asked why witnesses are allowed to testify at all when it is also impossible to determine whether a nonhypnotized witness is telling the truth, Dr. Diamond replied: "Well, you're getting into the whole problem of eyewitness testimony, it has been proposed that no one should be able to testify. As I say, this is a serious problem. I'm not yet prepared to give an opinion about this."

The final expert witness to testify was Dr. Donald Rossi, who was called by the state in rebuttal. Dr. Rossi discussed Dr. Orne's guidelines and concluded that they had been met in Investigator Parmeter's hypnosis of S.J. Dr. Rossi was convinced after viewing the videotape that the risk of suggestion was minimal. He mentioned that the risk that Parmeter would "cue" S.J. was minimized when S.J. was requested to keep her eyes closed during hypnosis.

Dr. Rossi stressed that confabulation occurs as a byproduct of all interviews and interrogations when a witness is pushed for details whether or not hypnosis is used. In fact, he stated that in an interview conducted without a "trance," there may be more done to produce confabulation than in a properly conducted hypnotic session where measures are taken to avoid it. Dr. Rossi disputed the suggestion that a confabulation automatically becomes a part of a subject's memory. He asserted that a hypnotized subject may remember a confabulation later and correct it. Dr. Rossi pointed out that there is no generally accepted theory about how the memory works. He stressed that, in conducting an interview with a person in a fully awake state, confabulated details can only be recognized by comparing the information the witness furnishes with corroborating circumstances. Dr. Rossi conceded that hypnosis will not guarantee truth. He also conceded that a trance state introduces variables which create a greater likelihood of affecting credibility if the hypnotist is not careful. Finally, Dr. Rossi stated that the effect of hypnosis on a person's subsequent demeanor depends on the nature of any suggestions implanted. After reviewing the videotape of Investigator Parmeter's hypnosis of S.J., Dr. Rossi concluded that he did not observe anything that would have caused the contamination of S.J.'s memory.

Dr. Rossi stated that Dr. Diamond was in a small minority of those familiar with hypnosis who would argue that a person whose memory was refreshed by hypnosis should be totally incompetent to testify. He objected to the theory that previously hypnotized witnesses should be incompetent to testify because of their susceptibility to suggestion and confabulation because it does not acknowledge that the same risks apply to unhypnotized witnesses who are nevertheless presumed competent to testify. Dr. Rossi also stated that if all those knowledgeable about hypnosis and its forensic use were placed on a continuum, Dr. Reiser would be at one end concluding that no safeguards were needed, and Dr. Diamond at the other concluding that no safeguards were satisfactory. The majority would be in the middle, concluding that the same safeguards utilized to prevent distortion of memory in witnesses who were not hypnotized should be satisfactory to prevent contamination when used with hypnotized witnesses.

IX. THE CASE LAW CONSIDERING THE COMPETENCY OF PREVIOUSLY HYPNOTIZED WITNESSES

The substantial diversity of opinion about forensic use of hypnosis demonstrated by the expert testimony in the Contreras case is also reflected in the reported cases. Essentially, three positions have developed. The first group of cases views hypnosis as affecting a witness's credibility but not her competency or the admissibility of her testimony. See Clark v. State, 379 So.2d 372, 375 (Fla.App. 1979); People v. Smrekar, 68 Ill. App.3d 379, 24 Ill.Dec. 707, 712-14, 385 N.E.2d 848, 853-55 (1979); State v. Wren, 425 So.2d 756, 759 (La. 1983); State v. Greer, 609 S.W.2d 423, 436 (Mo.App. 1980), vacated on other grounds, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414, 427-29 (1978); Chapman v. State, 638 P.2d 1280, 1284 (Wyo. 1982). See also Harding v. State, 5 Md. App. 230, 246 A.2d 302, 306 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969), overruled, Collins v. State, 52 Md. App. 186, 447 A.2d 1272, 1283 (1982) (adopting approach articulated in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981)). Cf. State v. Jorgensen, 8 Or. App. 1, 492 P.2d 312, 315 (1971).

The second line of cases accepts the possibility that hypnosis could affect competency as well as credibility but permits a previously hypnotized witness to testify if the state establishes a foundation to show that the hypnosis occurred under stringent safeguards. See United States v. Adams, 581 F.2d 193, 198-99 (9th Cir. 1978), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978); State v. Hurd, 86 N.J. 525, 432 A.2d 86, 89-92 (1981) (adopting Dr. Orne's guidelines, see supra n. 18); State v. Beachum, 97 N.M. 682, 643 P.2d 246, 253-54 (N.M.App. 1981); State v. Long, 32 Wn. App. 732, 649 P.2d 845, 846-47 (1982); State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386, 394 (1983), cert. denied, ___ U.S. ___, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). See also Commonwealth v. Juvenile, 381 Mass. 727, 412 N.E.2d 339, 344 (1980).

Finally, there are a number of recent cases holding that participation as a subject in a hypnotic session for investigative purposes so distorts a witness's memory that she is rendered incompetent and cannot testify regarding any fact elicited for the first time during the hypnotic session. See State v. Stolp, 133 Ariz. 213, 650 P.2d 1195, 1196 (1982); State ex rel. Collins v. Superior Court, 132 Airz. 180, 644 P.2d 1266, 1293-95 (1982) (hypnotized witness may only testify to facts demonstrably recalled prior to hypnosis); People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 250, 641 P.2d 775, 804 (1982), cert. denied, ___ U.S. ___, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982) (witness who has been hypnotized incompetent to testify on any matter related to subject discussed under hypnosis); People v. Gonzales, 108 Mich. App. 145, 310 N.W.2d 306, 314 (1981); State v. Mack, 292 N.W.2d 764, 772 (Minn. 1980); State v. Patterson, 213 Neb. 686, 331 N.W.2d 500, 504 (1983); State v. Palmer, 210 Neb. 206, 313 N.W.2d 648, 654 (1981); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 266, 453 N.E.2d 484, 495 (N.Y. 1983); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170, 176-78 (1981).

X. THE FRYE TEST

The disagreement in the cases is in part based on their treatment of the so called Frye test. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The cases which exclude testimony of eyewitnesses who have been hypnotized do so based on their application of the Frye test. Those cases that find the Frye test inapplicable tend to admit the testimony of hypnotized witnesses.

Frye was charged with second-degree murder. He sought to introduce expert testimony that he had been given a systolic blood pressure deception test and passed it. He reasoned that this evidence would serve to strengthen his credibility with the jury. The testimony was rejected and Frye was convicted. On appeal, the Court of Appeals affirmed. Id. The court cited no authority and made no attempt to fit the rule it announced into the rules of evidence. The court merely said:

Somewhere in this twilight zone [between the experimental and demonstrable stages] the evidential force of the [scientific] 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.

Id. at 1014.

The Frye test has been frequently criticized. See, e.g., E. Cleary, McCormick on Evidence, § 203, at 489-91 (2d ed. 1972); Strong, Questions Affecting the Admissibility of Scientific Evidence, 1970 U.Ill.L.F. 1, 10-15 (1970) (the considerations which have moved courts to apply Frye to various scientific principles may be adequately accommodated within the usual rules of evidence, and within the adoption of special rules of limited ambit). Professor Wright has argued that the Frye test cannot survive the enactment of the Federal Rules of Evidence. See C. Wright K. Graham, Federal Practice and Procedure: Evidence § 5168, at 91 (1978). He reasons that the Federal Rules of Evidence control the issue of admissibility of expert testimony and leave no place for Frye to operate. Accord 3 J. Weinstein Evidence ¶ 702[03], at 702-16-18 (1982). But see Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum.L.Rev. 1197, 1229 (1980). One federal court seems to agree with Wright and Weinstein. See United States v. Williams, 583 F.2d 1194, 1197-98 (2nd Cir. 1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979). Accord State v. Hall, 297 N.W.2d 80, 84-85 (Iowa 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981) (limiting Frye under state rules patterned on federal rules).

We are concerned that those cases using the Frye analysis to justify a per se rule rendering incompetent any eyewitness whose memory has been "refreshed" by pre-trial hypnosis suffer from at least four defects in their treatment of Frye.

First, they assume the Hilgard model for hypnosis without subjecting this assumption to the Frye standard which requires general acceptance within the scientific community. See, e.g., State v. Mena, 128 Ariz. 226, 624 P.2d 1274, 1276-77 (1981), modified, State ex rel Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266, 1269, 1286 (1982); People v. Gonzales, 310 N.W.2d at 309; State v. Palmer, 313 N.W.2d at 654; Commonwealth v. Nazarovitch, 436 A.2d at 173. This assumption overlooks the work of Barber and his followers and thus neglects to address a highly significant inquiry central to the validity of their use of the Frye test to support a per se rule rendering incompetent eyewitnesses who have undergone pre-trial hypnosis.

Second, in considering memory distortion, they fail to distinguish the effects of the interrogation procedure alone from the effects of induction, trance and interrogation together. Putnam is the only authority for the proposition that hypnotized witnesses are more susceptible to memory distortion than nonhypnotized witnesses and his single experiment hardly qualifies as general community acceptance.

Third, they erroneously assume that a per se rule, in preference to a case-by-case analysis under local equivalents to A.R.E. 403, will avoid both a time consuming and expensive battle of experts and the confusion engendered by diverting the jury's attention from the defendant's guilt to possible hypnotic distortions of a witness's memory. See State ex rel. Collins v. Superior Court, 644 P.2d at 1283; People v. Shirley, 641 P.2d at 787-88; State v. Mack, 292 N.W.2d at 766; State v. Palmer, 313 N.W.2d at 654-55. It appears that these cases have only considered the tip of the iceberg. Under a per se rule any witness who undergoes pretrial hypnosis to refresh her recollection is incompetent to testify (in Arizona regarding facts not demonstrably recalled prior to hypnosis and in California regarding all matters relating to events in issue). Since defense counsel will always be motivated to prevent a crime victim from testifying, they will naturally try to show that the victim has been interrogated under hypnosis, and the trial court must allow some opportunity to make this showing. As we have seen, one tenable paradigm of hypnosis, ascribed to by Barber and his allies, includes within it any subject, whether undergoing an induction and trance or not, who enters into a special relationship of trust with the interviewer and has a substantial incentive to see the investigation succeed. Does the per se rule disqualify witnesses exposed to pretrial hypnosis as defined by Barber? The interaction between the crime victim and the investigating officer or prosecutor would frequently appear to satisfy this test. In any event, one can easily foresee that consideration of the question would lead to a battle of experts.

It is instructive that proponents of the Hilgard view criticize the results of Barber's experiments by pointing out that the task motivational language, which he uses to build rapport and capture the subject's interest in the experiment, could itself constitute an induction and induce a "trance." P. Sheehan and C. Perry, supra n. 16 at 106. Experts in hypnosis from the Hilgard camp might well make the same contention wherever it is shown that an eyewitness with a substantial interest in the outcome of a case is subjected to pressure to identify her assailant.

Even if we assume that the courts will pragmatically, if perhaps illogically, limit the per se rule to those who have gone through an induction arguably resulting in a trance, counsel may still ask to be permitted to show that someone who was not in a trance was nevertheless subjected to the same kind of memory distorting experiences and therefore subject to the per se rule. It appears that Dr. Loftus and her colleagues are prepared to give testimony about factors leading to distortion in eyewitness testimony in general which is virtally indistinguishable from Dr. Diamond's testimony regarding memory distortion in hypnotized witnesses. See State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, 1217-19 (1983) (holding exclusion of such expert testimony an abuse of discretion under the Arizona counterpart to A.R.E. 403, where an identification by an eyewitness who was not hypnotized was not corroborated). It would appear, therefore, that the per se rule will increase rather than minimize the battle of the experts.

Fourth, proponents of the per se rule fail to consider the possibility of corroboration as a validator of an eyewitness identification by a previously hypnotized witness. See People v. Gonzales, 310 N.W.2d at 310 n. 4 (quoting affidavit of Dr. Martin Orne which suggests external corroboration can be used to distinguish between confabulation and accurate recall). Since the cases adopting per se rules are frequently cases in which the eyewitness testimony was not corroborated, it is strange that the courts do not even consider limiting the per se rule to cases in which no corroboration exists. See State v. Mack, 292 N.W.2d at 772; People v. Shirley, 641 P.2d at 776-77. It is possible that the Shirley court rejected this alternative because it thought that hypnotism tended to clothe the witness's entire testimony in an artificial but impenetrable aura of certainty, see 641 P.2d at 806, but this seems to be a misunderstanding of the effect of distortion on memory and confidence levels. As we have seen, whether hypnotized or not, most witnesses whose memories have been distorted are confident about both false information and actual perception and are unable to tell the difference between them. It is significant that Putnam, the only expert who has attempted to test this assumption, found that the hypnotized subjects, while more apt to accept false information than the control group, were equally as confident, but no more confident, than the unhypnotized control group about the false information accepted. Putnam, Hypnosis and Distortion in Eyewitness Memory, 27 Int'l J. Clinical and Experimental Hypnosis No. 4, 437, 444 (1979). Thus both the California Supreme Court and the New York Court of Appeals appear to have misread Putnam when they cite him as proving that hypnotized witnesses are more confident about those parts of their memories proved to be distorted than the unhypnotized control group is about equally false memories they hold. See People v. Shirley, 641 P.2d at 803-04; People v. Hughes, 466 N.Y.S.2d at 260, 453 N.E.2d at 489.

Further, to apply the Frye test here would require more than a finding that it survives enactment of the Alaska Rules of Evidence. Strictly speaking, no expert is involved; S.J. and Hall would simply testify like any other witnesses. There would be no need to mention that they had been hypnotized. Courts relying on the Frye test to exclude such testimony attempt to avoid this problem by finding that the induction process and the "trance" which presumably follows it somehow produces the hypnotized witness's subsequent testimony. See People v. Shirley, 641 P.2d at 796. But this seems plainly wrong. All the authorities on hypnotism reject the contention that the subject is simply a ventriloquist's dummy parroting the hypnotist's testimony. See 9 Encyclopedia Britannica, Hypnosis 133, 139 (1974).

Justice Mosk seeks to justify use of the Frye test by arguing:

it appears that hypnotizing a witness to improve his memory is not in fact like "any other method" of refreshing a witness' recollection. These sources reveal that the hypnotic process does more than permit the witness to retrieve real but repressed memories; it actively contributes to the formation of pseudomemories, to the witness' abiding belief in their veracity, and to the inability of the witness (or anyone else) to distinguish between the two. In these circumstances, as noted above, the resulting recall of the witness "is dependent upon, and cannot be disassociated from" the underlying hypnosis. And if the testimony is thus only as reliable as the hypnotic process itself, it must be judged by the same standards of admissibility.

641 P.2d at 795-96 (citation omitted). Justice Mosk fails to distinguish between hypnotized and nonhypnotized witnesses, ignoring the distinction between the effect of interrogation techniques and the effect of the induction and the trance state on the subject's memory. As we have seen, the danger of confabulation, the danger that information supplied through suggestion will become a part of the witness's memory, and the danger that the witness will be as confident about the inaccurate recollections as the accurate recollections, are possible side effects of the interrogation process to which any witness is vulnerable regardless of induction and trance.

Further, if Dr. Barber is correct, any hypnotic effect will be duplicated with a subject who has not been hypnotized, so long as the subject has sufficient interest in the success of the experiment and rapport with the experimentor. Induction and trance under Barber's view are thus irrelevant even with those who are hypnotized, except to the extent that they serve to enhance the subject's interest in the outcome of the investigation and create an attitude of cooperation. It would appear that a rape victim who had overcome the embarrassment and pain caused by the incident so that she was willing to testify, even without hypnotism, would be highly motivated to cooperate, would have a substantial interest in the outcome of the investigation, and would probably identify with the police and prosecutors seeking to convict her assailant. In summary, Dr. Barber's views are part of the relevant scientific community as Judge Serdahely found. Moreover, unless Dr. Barber's views are rejected, it would be inappropriate to say that a previously hypnotized witness's trial testimony was any more the product of the hypnotic session that a nonhypnotized witness's trial testimony is the product of the interviews she previously had with police and prosecutors.

More significantly, in Shirley, Justice Mosk seems to turn the Frye test on its head. As originally applied, the Frye test prevented an expert from vouching for the credibility of a witness and then supporting his (the expert's) testimony by reference to some scientific principle that purportedly proved that the initial witness was telling the truth, i.e., truth serum. Later, the Frye test was extended to prevent an expert from attacking the credibility of a witness and then justifying the attack by reference to a scientific principle. See, e.g., United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979) (trial court did not err in refusing to admit expert testimony on unreliability of eyewitness identification because such testimony did not clearly meet the Frye standard of reliability); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir. 1973).

In Shirley the California Supreme Court permitted an expert, Dr. Diamond, to attack the credibility of a class of witnesses, i.e., those who had been hypnotized prior to trial, based on scientific principles derived from the results of studies of the impact of improper interrogation techniques on the memory of hypnotized subjects. Based on this testimony, the California Supreme Court disqualified previously hypnotized eyewitnesses as a class. Curiously, the court did not examine whether Dr. Diamond's views had received general scientific acceptance. Dr. Diamond readily concedes that his view regarding the effect of hypnotism on memory distortion in eyewitnesses is a minority view among experts familiar with the subject.

XI. THE COMPETENCY OF S.J. AND HALL

The parties agree that the cases of Contreras and Grumbles, when considered together, provide a necessary and convenient vehicle for choosing among the alternatives discussed in the cases cited above. The parties ask us to establish general rules to govern the admissibility in Alaska of eyewitness testimony when the witness's memory has been "refreshed" by hypnosis prior to trial. We decline to do so. It is not necessary to decide the extent to which Frye survived the enactment of the Alaska Rules of Evidence or, if viable, Frye's relevance in a case of pre-trial hypnosis. We believe that the specific facts of these cases require a conclusion that Hall and S.J. should be permitted to testify subject to cross-examination. This holding has limited application beyond the facts of these cases, however, because of the substantial corroboration serving to establish the accuracy of their identifications. Such corroboration may not be present in other cases.

S.J.'s identification of Contreras is corroborated by the identification by E.L. who was not hypnotized. More significantly, Camfferman, Contreras' girlfriend, testified before the grand jury that the night of the incident Contreras came home, and told her that he had just robbed a couple. Camfferman, after identifying the victims from their stolen driver's licenses, called S.J. to apologize for Contreras' actions.

Hall's identification of Grumbles was also substantially corroborated. Prior to any hypnosis, Hall told the police that an orange or yellow Gremlin with dark pinstripes had been parked near her residence when she arrived, but that it was gone after the incident. Subsequent to Hall's hypnotism Grumbles was arrested on unrelated grounds as a fugitive from justice. Because Grumbles matched the description provided by Hall, police officers visited his residence and obtained consent to search from his girlfriend. Two firearms were seized and the serial number on the .38 caliber revolver matched that of the gun stolen during the burglary of Hall's residence. The other gun was later identified by Hall as similar to the one used by her assailant. Through weapons identification technology, comparing this weapon and the shell casings found at the scene of the burglary, the F.B.I. determined that the gun seized from Grumbles' apartment was fired in the Hall residence. Further, a friend of Grumbles testified that she had loaned her orange Gremlin to Grumbles the night of the burglary. She also testified that Grumbles had been wearing a brown leather jacket. A brown leather jacket seized at Grumbles' apartment was identified by Hall as being worn by her assailant. A glove found at Hall's residence was identified as similar to gloves known to belong to Grumbles. When interviewed, Grumbles denied being the assailant but claimed to be aware of the burglary and assault because it had been committed by his friend, Scott, who had given the guns to him. Police officers testified that they interviewed Scott and that he differed substantially in appearance from Grumbles and from the description given by Hall.

There is nothing in either record to suggest that any of the corroborating evidence which we have mentioned was in any way affected by the fact of S.J.'s and Hall's hypnosis. More significantly, nothing indicates that Officer Parmeter was aware of the corroborating evidence prior to hypnotizing either S.J. or Hall.

While cases can be hypothesized in which the only evidence against the defendant is his alleged victim's eyewitness identification and in which the arguments against permitting a hypnotized witness to testify might be extremely forceful, the facts of these cases deprive these arguments of any force they might otherwise have had. Neither Contreras nor Grumbles were suspects at the time S.J. and Hall were hypnotized. Thus, it is highly unlikely that Investigator Parmeter intentionally fed either S.J. or Hall details regarding the appearance of Contreras or Grumbles in an effort to structure an identification. There is no suggestion that S.J. knew Contreras or that Hall knew Grumbles before the incidents. Consequently, there is no basis for an inference that either would have had a conscious or unconscious bias against either assailant; nor is there a basis to find motivation for a conscious or unconscious misidentification.

The records do not show that either victim had previously seen her alleged assailant near the time of the incident under circumstances which might make her sufficiently familiar with his appearance that she would mistakenly associate that recollected appearance with the appearance of her assailant. Even if we partially discount S.J.'s and Hall's identifications because of the obviously stressful situations in which their observations took place, and the risk that their attention might have been focused on their assailants' weapons rather than on the features of the assailants' countenances, the records establish that both Hall and S.J. spent enough time in the presence of their assailants to observe and form distinct impressions of their features.

In summary, the case for a misidentification comes down to a risk that Investigator Parmeter would unintentionally communicate cues to S.J. and Hall which, in combination with their own confabulation, would lead them to falsely identify two men who coincidentally had possession of property stolen from them. Camfferman testified that Contreras confessed the crime to her the night it allegedly occurred and corroborated his confession by showing her S.J.'s identification. Grumbles admitted knowledge of the robbery and sought to blame his friend, but the evidence suggests no similarity in appearance between Scott and Grumbles. It is unlikely that Hall coincidentally confabulated the details of Grumbles' appearance rather than Scott's. By the same token, it is improbable that S.J. confabulated details regarding the appearance of a man Camfferman was coincidentally preparing to falsely accuse of assaulting S.J. Under the peculiar facts of these cases, we are satisfied that the risk of misidentification is virtually nonexistent. Consequently, we conclude that the probative value of these identifications is very high.

In addition, we are satisfied that the prejudice to the state if the identifications are excluded would be great. Both victims had substantial exposure to their assailants. A jury would naturally expect an explanation for any inability they might have to identify those assailants. The jury would naturally wonder why E.L. could identify Contreras and S.J. could not. Foreseeable explanations would either leave the jury with a mistaken belief that the victims were unable to identify their assailants, which would be unfair to the state or, alternatively, that the court was keeping a proper identification out of evidence on a technicality, which would be unfair to Contreras. Cf. People v. Hughes, 466 N.Y.S.2d at 266, 453 N.E.2d at 495. Weighing the probative value of the evidence against any possible prejudice through misidentification, we hold that the identification in both cases is admissible evidence. A.R.E. 403.

XII. THE CONSTITUTIONAL RIGHT TO CONFRONTATION

We are equally satisfied that the substantial corroboration supporting S.J.'s identification of Contreras and Hall's identification of Grumbles serves to eliminate any confrontation problem. The United States Supreme Court has held that hearsay may be admitted against a defendant without violating the confrontation clause when a two-tier test is met. U.S. Const. amend. VI. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597, 607-08 (1980). First, the declarant must be unavailable; second, the hearsay statements must bear adequate "indicia of reliability." Here, S.J. and Hall are indisputably available for purposes of cross-examination on all issues except identification. Construing the record most favorably to Contreras and Grumbles, S.J. and Hall are unavailable on the issue of identification only to the extent that their demeanor might have been affected by the hypnotic sessions. Cross-examination must be fully allowed to inquire into any conflict between their testimony and other evidence, including any prior statements they may have made. Finally, to the extent that they are unavailable on this limited issue, and their in-court identification testimony is the conceptual equivalent of hearsay, it bears adequate indicia of reliability given Contreras' admissions to his girlfriend, Grumbles' inculpatory statements, and the fact that both Contreras and Grumbles were found in possession of their victims' property. We therefore find no violation of the confrontation clause. See Van Hatten v. State, 666 P.2d 1047, 1051-54 (Alaska App. 1983).

XIII. SUGGESTIVE IDENTIFICATION

Contreras and Grumbles make two additional closely related arguments. First, they contend that the hypnotic sessions involving S.J. and Hall were so unnecessarily suggestive and so conducive to irreparably mistaken identifications that they were denied due process of law. See Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). In Howe v. State, 611 P.2d 16, 17-19 (Alaska 1980), the Alaska Supreme Court discussed an analogous situation:

[E]vidence of suggestive pre-trial identification procedures has not been subject to strict exclusionary rules either in the United States Supreme Court or in this court. Suggestiveness alone does not require exclusion. The test is whether, under the totality of the circumstances, the identification is reliable. In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140, 154 (1977), the Supreme Court held that "reliability is the linchpin in determining the admissibility of identification testimony. . . ." Recently, in Holden v. State, 602 P.2d 452 (Alaska 1979), we followed Manson and its suggested criteria for determining reliability.

Id. at 18 (footnote omitted). The criteria alluded to by the Howe court include:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Id. at 18 n. 2 (quoting Holden v. State, 602 P.2d 452, 456 (Alaska 1979), and Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140, 154 (1977)). See also Neil v. Biggers, 409 U.S. 188, 200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).

Judge Buckalew applied this test in Grumbles' case and concluded, first, that the hypnotic session was not "unduly suggestive," and second, that Hall's identification of Grumbles was reliable. The record supports this conclusion. In Contreras' case Judge Serdahely applied a per se rule of exclusion and, consequently, did not consider the suggestiveness of the hypnotic interview. We have examined the record and conclude as a matter of law that S.J.'s identification was sufficiently reliable to warrant its introduction. Her credibility and the weight her identification testimony should receive are jury questions. The record reflects that S.J. spent a substantial period of time with her assailant, that she observed him at close range, and that she was confident about her identification. We recognize that the hypnosis itself might have influenced her confidence. Nevertheless, viewing the totality of the circumstances, including E.L.'s independent identification of Contreras and the substantial evidence corroborating the identification, we find that S.J.'s identification was sufficiently reliable to warrant its admissibility.

XIV. FAILURE TO PRESERVE EVIDENCE

Contreras and Grumbles also argue that the state destroyed material evidence favorable to the defense and therefore denied them due process of law. They argue that, because hypnosis permanently alters a witness's demeanor, meaningful cross-examination was effectively precluded. In addition the appellants contend that the failure of the police to videotape the hypnotic interviews in their entirety deprived them of evidence necessary to challenge the respective credibility of S.J. and Hall at trial by showing police suggestions and inducements to confabulation. Cf. Catlett v. State, 585 P.2d 553, 556-58 (Alaska 1978); Torres v. State, 519 P.2d 788, 793-97 (Alaska 1974). Investigator Parmeter's initial discussions with S.J. and Hall and any dialogue occurring after S.J. and Hall were brought out of their "trances" were not recorded. In addition, the videotape machine failed during the entire hypnotic interview Parmeter conducted with Hall.

The defendants' argument has two facets. The first involves a defendant's right to confront opposing witnesses. U.S. Const. amend. VI. We have previously discussed that clause and rejected the argument that it applies to the facts of the cases before us. Our discussion is equally applicable here. The second facet of the argument rests on due process protections. See U.S. Const. amend. XIV, § 1; Alaska Const. art. 1, § 7. In Torres v. State, the Alaska Supreme Court adopted the following test from a federal decision:

[I]t is the law in this circuit that the due process requirement applies to all evidence which `might have led the jury to entertain a reasonable doubt about [defendant's] guilt,' and that this test is to be applied generously to the accused when there is `substantial room for doubt' as to what effect disclosure might have had.

519 P.2d at 795 (footnote omitted) (quoting United States v. Bryant, 439 F.2d 642, 648 (D.C. Cir. 1971).

Alaska cases discussing the prosecution's failure to preserve evidence require a finding that the evidence would have affected the outcome before a sanction, including suppression of evidence, is warranted. Where a specific rule or court decision requires preservation of certain evidence, and the defendant makes a timely request for that evidence but it is missing, prejudice to the defendant will be presumed unless the state sustains the burden of proving that it acted in good faith and that the evidence, if preserved, would not have helped the defendant. If, after considering the whole record, the court is in doubt regarding prejudice to the defendant or the prosecution's good faith, then a sanction is warranted. See Putnam v. State, 629 P.2d 35, 44 n. 18 (Alaska 1980). Where no specific rule or court decision requires the prosecution to preserve the evidence in question, however, the defendant bears the burden of proving that, if preserved, the evidence would have been exculpatory, see Alaska R.Crim.P. 16(b)(3), and that the prosecution should have recognized that it might be exculpatory and preserved it. See Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977). Similarly, where there is no timely request for the evidence, the defendant must establish the materiality of the missing evidence. See Maloney v. State, 667 P.2d 1258, 1263-67 (Alaska App. 1983); Carman v. State, 658 P.2d 131, 139-40 (Alaska App. 1983).

Contreras and Grumbles made timely requests for videotapes of the hypnotic interviews with S.J. and Hall. No rule or court decision specifically requires the police to tape interviews with eyewitnesses. Any tapes made, however, are witness statements which must be made available to the defendant. Alaska R.Crim.P. 16(b)(1)(i). Contreras and Grumbles therefore bore the burden of proving that more complete recordings would have been exculpatory, i.e., that they could lead a jury to entertain a reasonable doubt about their guilt. See Torres v. State, 519 P.2d 788, 795 (Alaska 1974). Where the missing evidence is the only evidence bearing upon the issue in question, the defendant sustains his burden if he shows that the subject matter of the evidence addresses the issues in the case. Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976). Where the record contains other evidence addressing the same subject, however, the likelihood that the missing evidence would have been favorable to the defendant must be determined from a review of the total record. See Putnam v. State, 629 P.2d 35, 43 (Alaska 1980). Thus, the question is: would better records of the hypnotic sessions create a greater possibility that a jury would entertain a reasonable doubt regarding the identifications? See United States v. Agurs, 427 U.S. 97, 107-110, 96 S.Ct. 2392, 2399-2400, 49 L.Ed.2d 342, 352-53 (1976). Given the substantial evidence corroborating the identifications in question, which will be presented to the jury, we are satisfied that no due process violation has occurred. See Catlett v. State, 585 P.2d 553, 557-58 (Alaska 1978).

In summary, we are satisfied that the various contentions of Contreras and Grumbles all present essentially the same question: do the probative qualities of the identifications in these cases sufficiently outweigh the risks of inaccuracy through hypnotic distortion so that their value is greater than the possibility of misidentification? A.R.E. 403. Having thoroughly reviewed the records in both cases, we are satisfied, as a matter of law, that the probative value of the eyewitness identifications outweighs any possible prejudice from misidentification and that the jury should be permitted to hear that evidence.

Judge Buckalew provisionally held that Grumbles could not introduce expert testimony purporting to show that hypnotized witnesses are more prone to memory distortion than nonhypnotized witnesses subjected to the same interrogation techniques. See A.R.E. 403; A.R.E. 702. Judge Buckalew reasoned that the evidence would be more prejudicial than probative since Hall's identification was substantially corroborated and the testimony would unduly prolong the trial and confuse the issues. Judge Buckalew also relied on a number of cases rejecting expert psychological testimony pointing out problems with the distortion of the memories of eyewitnesses in general. See United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir. 1973). But see State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, 1218-24 (1983).

A trial judge clearly has the authority to permit expert testimony from a knowledgeable psychologist or other qualified expert on eyewitness susceptibility to memory distortion, whether or not hypnosis has occurred, if the testimony is based on information not generally understood by lay people sitting on juries. See A.R.E. 401; A.R.E. 702. See also State v. Chapple, 660 P.2d at 1220-21. Where the evidence regarding an identification is weak and uncorroborated or sharply disputed, it may be an abuse of discretion to exclude such testimony. The same rules should apply where pre-trial hypnosis is used to refresh or enhance a witness's recollection and the defendant presents a qualified expert prepared to testify, subject to cross-examination, that hypnosis increases the risk of a misidentification.

Grumbles did not question Judge Buckalew's ruling in his petition for review, though he did mention it critically in his subsequent briefs. We assume that Judge Buckalew would be willing to reconsider his ruling, if after hearing the state's case-in-chief, it appears that such testimony might be helpful to the jury in evaluating Hall's identification. Such testimony might take on added relevance if other evidence introduced by Grumbles in support of his theory of the case independently casts doubt on the accuracy of Hall's identification.

The judgment of the superior court in the Contreras case is REVERSED and the case is REMANDED for further proceedings consistent with this decision.

The judgment of the superior court in the Grumbles case is AFFIRMED.