GORDON, Vice Chief Justice:
This special action was brought to vacate the order of the Honorable Judge Brown granting defendant’s motion in limine which requested that victims who had undergone hypnosis not be permitted to testify. Taking jurisdiction pursuant to A.R.S. Const.Art. 6, § 5(1), we uphold the ruling of Judge Brown and vacate the stay order so that the case may proceed to trial.
Over a three year period, from August, 1977 to May, 1980, eighteen reported rape incidents occurred in unpopulated areas in west Phoenix. There is some variance among the assaults but essentially they followed a similar pattern. Couples in vehicles were approached by a masked, heavyset male armed with a pistol and carrying what the state characterizes as a “rape kit,” consisting of ropes, blindfolds, ground cloth, and toilet paper. In each instance the assailant informed the couple he was going to steal their car or take their money and proceeded to tie and blindfold the couple. After using the ground cloth for the rape, the assailant would use the toilet paper to clean the woman, and then untie the victims, return the paraphernalia to his tote bag, and leave the area on foot.
The Phoenix Police Department and the Maricopa County Sheriff’s Office investigated the case for several years, taking statements, analyzing fingerprints, sending hair samples to the F.B.I. lab, and increasing patrols in the area. To obtain addition* [182]*182al information on the identification of the assailant seven victims were hypnotized.
On July 1, 1980 defendant Silva was arrested as he approached an undercover decoy vehicle containing a male and female officer in plainclothes. Silva was wearing a mask, armed with a pistol, and carrying the “rape kit.”
Silva was charged with forty felony counts involving kidnapping, sexual assault (under the new criminal code for the post-October 1,1978 crimes), and rape (under, the old criminal code for the pre-October 1, 1978 crimes). The charges are contained in two separate cause numbers and have been consolidated for trial.
Silva’s appointed counsel became aware of our decision in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981), and filed a motion in limine to preclude the testimony of the seven previously hypnotized witnesses. Mena, supra, was handed down after the Rule 16.1(b), Arizona Rules of Criminal Procedure, deadline precluding any further pretrial motions. Judge Brown held an evidentiary hearing and granted defendant’s motion in limine, thereby precluding any testimony of the seven witnesses at trial. The state then filed this Special Action. Necessary additional facts will be related as we address the specific issue.
TIMELINESS OF MOTION IN LIMINE
At the outset the state argues that defense counsel should have been precluded from asserting the motion in limine under Rule 16.1(b), Arizona Rules of Criminal Procedure. The defense’s motion, addressing the admissibility of the testimony of persons previously hypnotized, is treated as a motion to suppress by this Court and must comply with the time constraints of Rule 16.1. A motion in limine is not addressed by name in our rules of criminal procedure but,
“[Ajppears to be frequently used, however, to exclude anticipated prejudicial evidence before the evidence is actually offered by the opposing party. It is apparent that in criminal cases, a ‘motion in limine’ is nothing more than a motion to suppress specifically authorized by Rule 20 * * *
State v. Rodriguez, 126 Ariz. 28, 30, 612 P.2d 484, 486 (1980). Rule 16.1(c) reads:
“Any motion * * * not timely raised under Rule 16.1(b) shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it.” (Emphasis added.)
In this case the deadline for filing motions was December 19, 1980. This Court’s decision in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981), was not filed until February 3, 1981. Defense counsel’s motion in limine was filed on May 26, 1981. Exercising reasonable diligence defense counsel could not have anticipated the modification in the law. Further in considering the permitted time periods for a Motion for Rehearing and opposition to the same and the lag time before the decision appears in the advance sheets of the legal reporters, we cannot say that defense counsel did not raise the issue “promptly upon learning of it.”
The applicable standard of review for the instant motion in limine is that a trial judge’s ruling will not be disturbed absent a clear abuse of discretion. State v. Superior Court, 128 Ariz. 583, 627 P.2d 1081 (1981); State v. Dupuy, 116 Ariz. 151, 568 P.2d 1049 (1977); State v. Wright, 125 Ariz. 36, 607 P.2d 19 (App.1979).
In this instance the trial judge indicated at the outset of the evidentiary hearing that Mena, supra, was a more definite pronouncement on the issue of posthypnotic testimony than State v. La Mountain, 125 Ariz. 547, 611 P.2d 551 (1980), and granted defendant’s motion in limine excluding all testimony of witnesses who had undergone hypnosis.
The trial judge, noting that Mena, supra, had come down subsequent to the deadline for pretrial motions, did not find that the defendant’s motion in limine was untimely. We do not find an abuse of discretion.
[183]*183TESTIMONY OF HYPNOTIZED WITNESSES
Six rape victims and one attempted rape victim underwent hypnosis between November, 1977 and January, 1980. The record indicates that prior to the hypnotic sessions at least some of the victims had given written statements to the sheriff’s department.
Fred Fiore, an experienced deputy sheriff, conducted the hypnotic sessions. Deputy Fiore has been involved in forensic investigative hypnosis since 1977 and belongs to the following professional organizations: The Society of Investigative Forensic Hypnosis; The Association for the Advancement of Ethical Hypnosis; and The Arizona Society of Professional Hypnosis. The hypnotic sessions were recorded on audio tape although one tape was inaudible and another was lost or erased. A sheriff’s deputy was present at all the hypnotic sessions. The record from the evidentiary hearing indicates that the questions put to the victims concerned the assailant’s physical description, race, height, eyes, teeth, skin, voice, and any vehicles seen in the area.
For several centuries people have experimented with hypnosis. Some persons view the art of hypnotic induction as a mystical, spiritual occurrence while others attempt to scientifically or medically define it.
“Perhaps the most inclusive definition is one which is neither per se medical nor judicial: hypnosis is a ‘sleeplike state that nevertheless permits a wide range of behavioral responses to stimulation.’ ”
Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N.U.L.Rev. 1, 2 (1977) (quoting 9 Encyclopedia Britannica Hypnosis 133 (1974)).
Our concern today is that hypnosis, although still largely untested, has seen a great upsurge in use in the criminal justice system. It is not uncommon for police departments to pay for training of police officers in induction techniques or to have hypnotists on their payroll. See Margolin, Hypnosis-enhanced Testimony: Valid Evidence or Prosecutor’s Tool?, Trial, The National Legal Newsmagazine, Oct., 1981, at 42; Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313 (1980).
The testimony of persons who have undergone hypnosis is inadmissible for two distinct reasons: the process of hypnosis and its outcome is inherently unreliable; and to permit posthypnotic testimony would violate the defendant’s sixth amendment right to cross examination.
POSTHYPNOTIC TESTIMONY IS UNRELIABLE
Suggestion
It is uncontested that we humans as social beings respond to outside stimuli throughout our waking hours. Educators have for decades studied the impact of positive and negative reinforcement and behavioral modification on animals and human subjects. People will react favorably or unfavorably to the tone of voice and body language of a speaker. During the state of hypnosis a person is even more susceptible to outside influences and may strain to produce the desired feedback. Two common characteristics of a subject in a hypnotic trance are hypersuggestibility and hyper-compliance. Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981). “Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist.” Diamond, supra, at 314. “[A] hypnotized subject is highly susceptible to suggestion, even that which is subtle and unintended.” State v. Mack, 292 N.W.2d 764, 768 (Minn.1980). Suggestions implanted wilfully or unwittingly linger with the hypnotized person. The previously hypnotized witness can sincerely believe these suggestions to be what actually occurred. In “a series of laboratory tests * * * false guilt was induced in experimental subjects through hypnosis. The subjects were so convinced of their guilt that they were unable to pass a lie detector test thereafter.” Margolin, supra, at 43-44. The admissions of guilt, although objectively untrue, were sincerely [184]*184believed by the subjects and registered as truths on the polygraph. The hypnotist may not be able to avoid the possibility of indicating that certain responses are desirable.
Hypnosis is typically employed by authorities where there is little evidence and the victim of the crime is extremely enthusiastic to aid the police in any manner. “[T]he subject is so susceptible to suggestion and receptive to the hypnotist’s verbal and nonverbal communications, the subject may respond in accordance with what he or she perceives the desired response to be, in order to ‘please’ the hypnotist.” Comment, Hypnosis: A Survey of Its Legal Impact, 11 Sw.U.L.Rev. 1421, 1442 (1979). “Even when the hypnotist consciously attempts to avoid emitting signals, the problem may not be avoided. The hypnotic individual need not receive direct suggestions in order to try to please the hypnotist.” Commonwealth v. Nazarovitch, 496 Pa. at 104, 436 A.2d at 174 (citing Levitt, The Use of Hypnosis to ‘Freshen’ the Memory of Witnesses or Victims, Trial, The National Legal News-magazine, April, 1981 at 57).
“The hypnotized subject may respond to implicit stimuli unintentionally emanating from the hypnotist, and unrecognized by him. The desire to please the hypnotist may induce the subject to mirror the attitude detected in the hypnotist’s questions and his behavior. A further complicating factor involves the subject’s own beliefs and expectations regarding the appropriate behavior for hypnotized individuals. In conclusion, then, if the hypnotist is unaware of the source of the response, or is not cognizant of its significance to the subject, any conclusions drawn regarding the reliability or veracity of the response might be inaccurate and misleading.”
Spector & Foster, Admissibility of Hypnotic Statements: Is The Law of Evidence Susceptible?, 38 Ohio St.L.J. 567, 578 (1977).
This Court is not intimating that police authorities in this state would purposefully attempt to elicit responses they desired from a hypnotized subject. But as in the present case, other stimuli beyond the obvious leading question could and may have induced the subject to answer in a particular way. The record of the evidentiary hearing before us indicates that Detective Fiore knew that the young women he hypnotized and questioned were involved in the “ski mask rapist” case. Detective Fiore admitted that the hypnotized women could have been influenced in subtle ways by such things as the hypnotist’s clothing, the environment in which the hypnosis was undertaken, or the presence of police officers in the room. The hypnotic sessions in question took place at the Maricopa County Sheriff’s Office, not in a neutral environment. The young women were certainly anxious to assist the police in the pursuit of the man that had accosted them and may have reacted in the appropriate way, that is, the way that met the approval of the hypnotist.
The technique of posthypnotic suggestion enables the subject to recall posthypnotically what transpired during the session. The grave danger is that what subjects “remember” during the session will become their permanent memory. The experts on hypnosis seriously doubt if a suggestion-free hypnotic session can be conducted. This Court will not take a position on the question of whether a suggestion-free session is possible, but we cannot approve posthypnotic testimony in a criminal trial where a witness may be testifying from a memory influenced by undetectable suggestion.
Confabulation
The human mind assimilates information through sensory signals — what is seen, felt, heard, and smelled. Hypnosis is often viewed as a tool to enhance memory. Admittedly there are instances where a person will be unable to recall a phone number or license plate and then successfully “regains” this memory loss through hypnosis. We can only remember what was initially experienced through our senses, however. For example, if it is dark and perception is impaired hypnosis cannot retrieve a memory of a perception that never existed. These remarks lead us to another concern [185]*185of hypnotically induced testimony — the willingness of subjects to “fill in the gaps” in their memories, that is, to confabulate. “[SJince memory consists of perception, registration and recall, if the elements of perception or registration are missing, hypnosis will not aid the subject’s memory, since there is nothing to recall.” Radish, Brofman, Peskin & Baccus, The Polygraph, Hypnosis, Truth Drugs and the Psychological Stress Evaluator: Admissibility in a Criminal Trial, 4 Am.J. Trial Advocacy 593, 607 (1981).
“The hypnotized subject is influenced by a need to ‘fill gaps.’ When asked a question under hypnosis, rarely will he or she respond, T don’t know,’ ” Mack, 292 N.W.2d at 768. “It is also possible for a subject to imagine certain events out of whole cloth. * * * In this latter situation, the subject may recall fabricated memories after he has been brought out of a hypnotic trance and believe them to be true and accurate.” Dilloff, supra, at 5.
“ ‘The hypnotic suggestion to relive a past event, particularly when accompanied by questions about specific details, puts pressure on the subject to provide information for which few, if any, actual memories are available. This situation may jog the subject’s memory and produce some increased recall, but it will also cause him to fill in details that are plausible but consist of memories or fantasies from other times. It is extremely difficult to know which aspects of hypnotically aided recall are historically accurate and which aspects have been confabulated * * *. Subjects will use prior information and cues in an inconsistent and unpredictable fashion; in some instances such information is incorporated in what is confabulated, while in others the hypnotic recall may be virtually unaffected.’ ”
State v. Hurd, 86 N.J. 525, 537-540, 432 A.2d 86, 92-93 (1981) (quoting Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical & Experimental Hypnosis 311, 317-318 (Oct.1979)).
Dr. Bernard Barber, a specialist called by the state at the evidentiary hearing, noted that subjects confabulate during hypnosis. Hence, implicit in the use of forensic hypnosis are the dangers of confabulation and of eager subjects providing the “clue” to crack the case by filling in their memory with the “appropriate responses.”
Incorrect Recall
Another concern over the use of hypnotically induced recall during trial is that it may be totally incorrect. In a recent Arizona Court of Appeals case the victim’s posthypnotic recall of the circumstances of the crime materially differed from the statements she had given to the police prior to the hypnosis session.
“Immediately after the crime, the victim told the police officers that the license plate number of her assailant’s car was PGP 112. His actual license number was PGB 112. * * * Under hypnosis the victim stated that the license number was P — 121, and she was unable to remember the other letters.” (Emphasis in original.)
State v. Grier, 129 Ariz. 279, 282, 630 P.2d 575, 578 (App.1981). This case demonstrates that a witness can recall circumstances incorrectly. In Grier the mistaken hypnotic memory helped the defendant. But the peril exists that the erroneous recall could implicate an innocent person where a conviction rests on the weight given to the hypnotic testimony.
Purposeful Lying
A person in a hypnotic trance can willfully lie. The problem arises where the subject wants to implicate a suspect or “remember” particular information that will facilitate the police investigation. “The authorities state that while hypnosis often can produce remarkably accurate recall, it is also prone to yield sheer fantasy, willful lies, or a mixture of fact with gaps filled in by fantasy.” (Emphasis added.) Hurd, 86 N.J. at 538, 432 A.2d at 92. “Most authorities agree that a person can lie while under hypnosis. However, many laymen believe that the power of hypnosis, clothed in its veil of mystery, prevents willful deception.” Dilloff, supra, at 5.
[186]*186
Undue Weight Given By The Jury
Hypnosis is cloaked in a veil of mysticism to the layperson. It seems to be a magical thing indeed that can produce fantastic recall and startling results. A jury is likely to place undue emphasis on what transpired during a hypnotic session. “[A] great danger in the use of hypnosis is the credibility which laymen commonly associate with the technique.” Dilloff, supra, at 9. Opposing counsel, voicing the concerns noted by this Court, could attempt to impeach either the hypnotic induction technique or the hypnotist, but it is our opinion that a typical juror will place greater emphasis on posthypnotic testimony than it warrants.
Hypnotic Inducement Not Scientifically Reliable
The hypnotic process and the memory that is “reconstructed” is a matter of controversy. See 9 Encyclopedia Britannica Hypnosis 133,137 (1979). The admissibility of posthypnotic testimony can be likened to that of polygraph and truth serum results. See Kadish, supra; People v. Diggs, 112 Cal.App.3d 522, 169 Cal.Rptr. 386 (1980). The underlying principles of hypnotic procedure must gain general acceptance by the experts in the field in order that its validity be recognized by this Court. State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); see Scales v. City Court, 122 Ariz. 231, 594 P.2d 97 (1979); People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976).
There is little agreement among the authorities and courts on the issue of the admissibility of posthypnotic testimony on the basis of its scientific reliability. In Hurd, supra, although the New Jersey high court permitted the hypnotically refreshed testimony if sufficient safeguards were followed, the hypnotic testimony was likened to the results of a polygraph examination or voice print analysis.
“[T]he credibility of recall stimulated by hypnosis depends upon the reliability of the scientific procedure used. If the procedure is not capable of yielding reasonably reliable results, then its probative value may be outweighed by the risks entailed in its use in a criminal trial.”
Hurd, 86 N.J. at 536, 432 A.2d at 91.
In Hurd the court goes on to cite the dangers of prejudice to the defendant of eyewitness identification, confusion of the jury by expert testimony, and the tremendous consumption of trial resources if the reliability of hypnotic induction were to be litigated in each case. The New Jersey court held that hypnosis is not a truth determining process but a procedure to restore memory, therefore hypnosis is reliable if it is able to yield recollections as accurate as those of an ordinary witness. This Court disagrees with the reasoning of Hurd and takes the position that until hypnosis is recognized and generally accepted in the scientific community as a reliable tool to enhance memory accurately it is inadmissible in a criminal trial. We agree that
“Although hypnotically-adduced ‘memory’ is not strictly analogous to the results of mechanical testing, we are persuaded that the Frye rule is equally applicable in this context, where the best expert testimony indicates that no expert can determine whether memory retrieved by hypnosis, or any part of that memory, is truth, falsehood, or confabulation * * *. Such results are not scientifically reliable as accurate.”
Mack, 292 N.W.2d at 768.
Safeguards Cannot Insure Posthypnotic Testimony Is Reliable
Several courts have chosen to permit hypnotically recalled testimony if requisite safeguards are taken to avoid the pitfalls of a hypnotic session. It is this Court’s opinion that although proper safeguards should be used by the police if hypnosis is used during investigations, these safeguards cannot insure that hypnotically recalled testimony is reliable and therefore cannot render it admissible. A recent Massachusetts case Commonwealth v. Juvenile,- Mass. -, 412 N.E.2d 339 (Mass.1980), remanded the case to the trial court requesting findings concerning the hypnotic procedures. The Court noted, “It may be that we will conclude, as a matter of law, that no procedures are adequate.” 412 N.E.2d at 343.
[187]*187Safeguards cannot render the hypnotically recalled testimony reliable and therefore admissible.
“[A] complete record of the hypnotic experience is never possible for * * * influences exerted both before and after the hypnotic session become integrated into the hypnotic experience and significantly distort the validity of recall.”
Diamond, supra, at 339. Videotaping of the pre- and posthypnotic discussions may lessen the possibility of suggestion but subjects react unconsciously to the place of hypnosis, the status of the hypnotist, and the mere suggestion of being hypnotized. The effect of these factors in any particular case cannot be documented for a jury view. Therefore, procedural safeguards do not render hypnotically recalled testimony admissible.
Hypnosis During The Investigative Stage
Although the unreliability of hypnosis renders it improper at the judicial stages of a prosecution, this Court recognizes that hypnosis has proven to be a valuable investigative tool. This Court does not wish to encourage mass hypnotic induction of potential witnesses because of the inherent dangers in the process. Resolutions have been adopted by the two major professional associations in the hypnotic field condemning the employment of hypnosis by minimally trained police personnel. See Margolin, supra, at 42-43. Without formally adopting these standards we suggest that those involved in the criminal process adhere to the procedural safeguards set forth in the margin.1
We note that if police investigators make the decision to hypnotize an individual, any corroborating evidence subsequently obtained is admissible in a criminal trial subject to other evidentiary objections. Corroborating evidence is not susceptible to the same dangers of unreliability as is posthypnotic testimony. There is no threat that this evidence has been confabulated or has been suggested by the hypnotist.
In conclusion, the use of hypnosis during the investigative stage is permissible if used with great reserve by trained personnel with reasonable safeguards.
VIOLATION OF DEFENDANT’S RIGHT TO CONFRONTATION
Defendants have a constitutional right to confront witnesses against them. U.S.Const. amend. VI. This right is fundamental and made obligatory on the states by the fourteenth amendment. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). The right of confrontation embodies the right of defendants to cross examine the witnesses against them.
“[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case.”
Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965). “ ‘Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without [188]*188which the jury cannot fairly appraise them.’ ” Smith v. Illinois, 390 U.S. at 132, 88 S.Ct. at 750, 19 L.Ed.2d at 959. The right to cross examine witnesses would be an empty right were a defendant not afforded the opportunity to meaningfully, effectively cross examine. “If the right to effective cross examination is denied, constitutional error exists without the need to show actual prejudice.” (Emphasis added.) Skinner v. Cardwell, 564 F.2d 1381, 1388 (9th Cir. 1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978).
The concern in the area of posthypnotic testimony is that posthypnotic memory may be different than prehypnotic memory. This memory alteration may result from purposeful or unwitting cues given by the hypnotist, the phenomenon of confabulation, and the need for the subject to achieve some sense of certainty within his or her own mind. The basic problem is that if a witness sincerely believes that what he or she is relating is the truth, they become resistant to cross examination and immune to effective impeachment to ascertain the truth.
“In the case of hypnotically induced memories, the violation of the accused’s right to confrontation is much more basic than simply a delayed cross-examination. * * * [I]t is quite possible that the witness who emerges from hypnosis is not the same witness who entered into hypnosis. Under such a circumstance, there would be no real confrontation of the witness who might conceivably be the key to conviction or acquittal. Instead, the ‘new’ witness is convinced that the newly ‘remembered’ evidence is truthful, and is therefore immune to the rigors of cross-examination.” (Emphasis added.)
Comment, supra, 11 Sw.U.L.Rev. at 1445.
The new memory of the witness may be wholly or partially fabricated and has been described by authors as pseudomemory. “ ‘Unfortunately, such pseudomemories can and often do become incorporated into the individual’s memory store as though they had actually happened * * * [and if such memories] are eminently plausible, there is no way for either the hypnotist or the subject or a jury to distinguish between them and actual recall of what occurred.’ ” Margolin, supra, at 44. “[T]he procedure can bolster a witness whose credibility would easily have been destroyed by cross-examination but who now becomes quite impervious to such efforts, repeating one particular version of his story with great conviction.” Margolin, supra, at 44 (quoting Orne, The Use and Misuse of Hypnosis In Court, 27 Int’l J. Clinical & Experimental Hypnosis 311, 332 (Oct.1979)).
“Furthermore, the hypnotic subject, upon awakening, is often inbued with a confidence and conviction as to his memory which was not present before. Prehypnosis uncertainty becomes molded, in light of additional recall experienced under hypnosis, into certitude, with the subject unaware of any suggestions that he acted upon or any confabulation in which he engaged. The subject’s firm belief in the veracity of his enhanced recollection is honestly held, and cannot be undermined through cross-examination.”
Commonwealth v. Nazarovitch, 496 Pa. at 105, 436 A.2d at 174.
The recalling of events or creating of a new memory under hypnosis cements a witness’ story, and the testimony retold in minute detail becomes very convincing. The insistent manner of the witness and the apparent belief in the posthypnotic version of the occurrence may deprive the jury of the value of observing the demeanor of a witness as it would have been absent the hypnotic session. “The right to confrontation granted to defendants by the Sixth Amendment to the United States Constitution is also a valuable right for the trier of fact, allowing the witness’s demeanor to be observed and his credibility weighed.” State v. Thomas, 110 Ariz. 120, 125, 515 P.2d 865, 870 (1973).
If the witness honestly believes he or she is telling the truth in good faith, there may be no way to test his or her subjective belief to ascertain the objective truth.
“[T]he oath or affirmation loses its meaning, for whilst the witness may be prepar[189]*189ed to tell the whole truth and nothing but the truth as he or she sees it, what the witness honestly believes to be truth could be a purely fictitious piece of information planted in the mind of the witness during hypnosis. Even given the good faith of the hypnotist, there remains a real danger that the subject in the trance state could pick up subtle verbal cues from the hypnotist * *
Haward & Ashworth, Some Problems of Evidence Obtained by Hypnosis, 1980 Crim. L.Rev. 469, 476.
In the case before us the hypnotist Detective Fiore testified that hypnosis could change a person’s memory and a witness could be thoroughly convinced of the truth of an objectively proven untruth.
Because of the unreliability of posthypnotic testimony and the denial of the defendant’s fundamental right to effective cross examination, posthypnotic testimony is inadmissible in a criminal trial.
PROSPECTIVE APPLICATION
We now consider whether the inadmissibility of posthypnotic testimony is to be retrospectively or prospectively applied in criminal cases. The United States Constitution does not prohibit nor require the retrospective effect of judicial rulings. See Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Nor is retroactive implementation automatic depending on the particular constitutional provision involved. Brown, supra; State v. Smith, 112 Ariz. 321, 541 P.2d 918 (1975). “A state is free under the Constitution to make a choice for itself between the principle of forward operation of a ruling and that of relation backward.” State v. Gates, 118 Ariz. 357, 359, 576 P.2d 1357, 1359 (1978).
The United States Supreme Court has given us guidance in determining when principles should be retroactively applied. We should examine: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Brown, 447 U.S. at 328, 100 S.Ct. at 2219, 65 L.Ed.2d at 165 (quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203 (1967)). See also Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).
The purpose of the holding in Mena and the present case is to exclude from a criminal trial posthypnotic testimony because of its basic unreliability. “The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a ‘question of probabilities.’ ” (Emphasis added.) Stovall v. Denno, 388 U.S. at 298, 87 S.Ct. at 1970, 18 L.Ed.2d at 1204 (quoting Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882, 890 (1965)). The purpose of the Mena rule does not warrant the reexamination of unknown numbers of jury verdicts. Not every refinement of the law should result in the rejuvenation of post-conviction appeals. Additional safeguards present during trial minimize the possibility of the miscarriage of justice. The purpose of the rule in Mena “ ‘[does] not clearly favor either retroactivity or prospectivity,”’ Brown, 447 U.S. at 328, 100 S.Ct. at 2219, 65 L.Ed.2d at 165, therefore, we must examine the second and third criteria set out by the Supreme Court.
The reliance police authorities placed on the prior law is the second criterion in deciding if a principle should be retroactively applied. The apparent reliance of the police in the hypnosis area clearly weighs in favor of the prospective application of Mena and the case before us. There was no clear statement of the law proscribing the use of posthypnotic testimony prior to Mena. The police were not on notice preMena that placing persons under hypnosis would then preclude their testimony at a subsequent trial. The argument could be made that the police had notice of the incompetency of previously hypnotized witnesses after State v. La Mountain, 125 Ariz. 547, 611 P.2d 551 (1980). Mena, however, as [190]*190was noted by the trial judge below, is a much clearer statement of this Court’s position on posthypnotic testimony. Therefore, the reliance that the police placed on the admissibility of the testimony of persons hypnotized pre-Mena operates in favor of Mena having only prospective application. “The point of reliance is critical, not because of any constitutional compulsion, but because it determines the impact that newly articulated constitutional principles will have upon convictions obtained pursuant to investigatory and prosecutorial practices not previously proscribed.” Jenkins v. Delaware, 395 U.S. 213, 218, 89 S.Ct. 1677, 1680, 23 L.Ed.2d 253, 259 (1969).
The third criterion enunciated by the United States Supreme Court is the effect of retroactive application on the administration of justice.
“We are reluctant to apply a constitutional rule of criminal procedure retroactively as ‘[t]o characterize a past proceeding as unconstitutional and therefore void reflects seriously on the integrity of the law, * * * weakens the confidence of those who trusted in the existence and validity of the rule and undermines the doctrine of the finality of prior determinations.’ ”
State v. Ray, 114 Ariz. 380, 383, 560 P.2d 1287, 1290 (1977) (quoting in part State v. Smith, 112 Ariz. 321, 541 P.2d 918 (1975)). See Linkletter, supra.
It is possible that juries in Arizona have convicted defendants in trials where posthypnotic testimony was introduced. But the law is dynamic. It is a continuum of succeeding redefinitions. Not every refinement in the law should call into question all prior convictions. Justice does not demand judicial reexamination of all criminal trials for each new advancement in judicial thinking. The judiciary could not function if there was never any finality to decisions. It is for this reason that only where there is a denial of a basic right of constitutional magnitude that is correctable will retrospective application be invoked. This is not the case here.
There is practical consideration in addition to the taxing of trial and appellate courts in denying the retroactive employment of Mena. The fact that a witness has undergone hypnosis may not be in the record, and therefore an appellate court would be handicapped in discovering this information.
Because of the unforeseen change in the law, the burden retrospective application would place on the administration of justice, and the need for finality, we hold Mena to be prospective only.
In establishing that the holdings of Mena and the present case are to be applied prospectively, we next must decide at what point in time will the application become effective. We hold that any person hypnotized post-Mena is incompetent to testify. Any person hypnotized pre-Mena but who testified post-Mena or who has not yet testified is incompetent to testify. We further hold that any conviction presently in the appeals process in which there was hypnotically recalled testimony and where the testimony and hypnosis took place pre-Mena will be examined on a case-by-case basis to determine if there was sufficient evidence, excluding the tainted testimony, to uphold the conviction. In other words, the question in these cases is whether the introduction of posthypnotic testimony was harmless error. The time of the mandate of Mena is the controlling date. In the case before us seven of the eighteen reported rape victims were hypnotized. Even though the hypnotic sessions occurred prior to Mena the hypnotized witnesses have not yet testified and are incompetent to testify at the pending trial.
This Court is cognizant that its holding is not purely prospective but has concluded that in balancing the competing interests this was the most equitable place to draw the line. This dilemma
“highlights the problem inherent in prospective decision-making, i.e., some defendants benefit from the new rule while others do not, solely because of the fortuities that determine the progress of their cases from initial investigation and arrest [191]*191to final judgment. The resulting incongruities must be balanced against the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected. Thus, raising the specter of potential anomalies does not further the difficult decision of selecting the precise event that should determine the prospective application of a newly formulated constitutional principle.
“Once the need is established for applying the principle prospectively as the Supreme Court of New Jersey has pointed out, ‘there is a large measure of judicial discretion involved in deciding * * * the time from which the new principle is to be deemed controlling.’ ”
Jenkins, 395 U.S. at 218, 89 S.Ct. at 1680, 23 L.Ed.2d at 259 (quoting State v. Vigliano, 50 N.J. 51, 65-66, 232 A.2d 129, 137 (1967)).
It is hereby ordered that the petitioner’s prayer for relief is denied and the stay order vacated.
STRUCKMEYER and CAMERON, JJ., concur.