¶1dissenting.
¶2I respectfully dissent. The majority holds that the State can preclude a defendant from questioning an eyewitness with *742exculpatory testimony because a State agent hypnotized that witness. The majority cites many of the vast number of cases and articles concerning hypnosis, and misapplies them to create a rigid, inflexible, illogical, and probably unconstitutional per se rule of exclusion precluding a defendant from calling a witness or questioning the witness because the State interrogated that witness under hypnosis.
¶3Post-hypnotic testimony unquestionably has some value, but it is fraught with potential problems. As one evidence text notes, “the most directly pertinent studies do suggest that in certain circumstances hypnosis can enhance memory. The problem is that it also appears that it can alter memory.” John W. Strong, 1 McCormick on Evidence § 206, at 918 (4th ed.1992) (emphasis in original)(footnote omitted). Over 100 years ago, in what was probably the first case to deal with the issue of hypnotized witnesses, a court made the statement, “the law of the United States does not recognize hypnotism.” People v. Ebanks, 117 Cal. 652, 49 P. 1049, 1053 (1897). Without any critical analysis of the divergent issues associated with hypnosis, this Court expands the above statement into an inflexible, rigid, and unreasonable approach. While I agree that statements made by a person while under hypnosis are suspect and should generally not be admitted, at least not without safeguards, the instant case concerns a slightly different issue—the admissibility of post-hypnotic testimony of a witness whose recollections have been enhanced or possibly evoked by the party objecting to the witness’s testimony. This is analogous to saying that a defense eyewitness may be precluded from testifying because a police officer beat the witness to enhance the witness’s memory. In neither case should the improper actions of the State bar the defendant from calling the witness. If the State, without the consent of the defendant, has done something to a witness that may have impaired the witness’s memory, then that ought to be a basis for impeachment by the State, not disqualification of the defense witness. The State should not be able to unilaterally make witnesses unavailable to the defense by secretly hypnotizing them as part of the police investigation.
¶4*743THE IMPORTANCE OF THE HYPNOTIZED WITNESS
¶5It was not clearly established where the stabbing of Jeffrey Fiddler actually occurred. In the instant case, as well as in the trial of the co-defendant Edward Stouffer, the State seemed to present alternative inferences as to where the killing occurred. As we noted, “the State’s evidence as to where the beating or the killing occurred was in dispute. There was some evidence indicating that it may have occurred in or just outside of Robert Schell’s apartment at 12 Elizabeth Street, in Hagerstown; other evidence suggested that it occurred in a field or parking lot.” State v. Stouffer, 352 Md. 97, 100, 721 A.2d 207, 208 (1998). If, in fact, the stabbing occurred just outside 12 Elizabeth Street, then Lisa Wallech was an eyewitness to the stabbing and would have given testimony that it was Robert Schell, and not the defendant, who did the stabbing.
¶6The defendant told the police that Robert Schell was the killer. This contention was belittled by the State in its opening statement and throughout the trial, but it would have been supported by the excluded testimony of Ms. Wallech. In her first statement to the police, Ms. Wallech said she saw a fight outside of 12 Elizabeth Street between Robert Schell and a person whom she at first believed was Jimmy Fiddler (the victim’s brother). The defense’s contention was that it was the victim, not the victim’s brother, that Ms. Wallech saw Schell fighting with and that during this fight the victim was stabbed. When questioned by police as to whether she was “sure this fight was between Jimmy [Fiddler] and Bobby [Schell] and not between Bobby and Jeff [Fiddler],” Ms. Wallech responded, “I can almost swear to it.” When police continued to press her about whether Bobby Schell was fighting with the victim or the victim’s brother, Ms. Wallech said she was “almost positive” the fight involved the victim’s brother and not the victim. In response to the question: “But you are not positive are you?” She answered, “No.” The hypnosis session with Ms. Wallech was held at the request of a Hagerstown police detective. The reason given was: “[s]he was drinking the night of the murder and she is having *744trouble remembering details of the events that occurred the night of the murder.” The hypnotist was a Maryland State Police “Investigative Hypnotist.”
¶7The day after Ms. Wallech was hypnotized she gave a second written signed statement to a Hagerstown police detective. This nine-page statement is in question and answer form. It is initialed on each page by Ms. Wallech, and on the last page, she signed the statement, indicated she read it, and stated that the matters set forth were true. Because her statement is in writing and signed by Ms.Wallech, had she been permitted to be questioned by the defendant the statement could be introduced as substantive evidence if her testimony deviated from its contents. Maryland Rule 5-802.1(a). Thus, the defendant was precluded from eliciting exculpatory eyewitness testimony from Ms. Wallech.
¶8Ms. Wallech’s second statement contained extremely important exculpatory evidence and was much more detailed than her first statement. Her second statement relates that she now remembers that it was the victim Jeffrey Fiddler that Bobby Schell was fighting with outside of 12 Elizabeth Street. She accurately describes the clothing each was wearing and the knife Bobby Schell was wielding during the fight. In addition, although she never clearly observed the knife penetrate. the victim, she did see that during the fight the victim’s back was slashed. This is consistent with the autopsy report indicating a “transversely oriented 1 x % inch slit-like [wound] with a sharp commissure toward the right” on the victim’s back. Ms. Wallech further described how the victim received a bloody nose and a slash on the right hand, which are also consistent with the autopsy report and the autopsy photographs.
¶9Ms. Wallech acknowledged in her second statement that she previously told the detectives that she initially thought it was the victim’s brother who was in the fight with Bobby Schell, but that now she is positive that Bobby Schell was fighting with the victim while brandishing the knife. She stated that a reason why her earlier version was incorrect was that “Bobby *745kept on telling me to forget about everything that happened that night, and I was under the influence of alcohol, so I did, and that’s why I didn’t remember the fight.”
¶10The description of the wounds Ms. Wallach saw being inflicted, which matched the victim’s injuries, are strong corroboration of her post-hypnotic eyewitness account of Bobby Schell fighting with and stabbing the victim. There was also no indication that the victim’s brother sustained any wounds or bruises that evening. To apply a per se rule precluding the defense from calling this exculpatory eyewitness because the State chose to have her hypnotized by a State investigative hypnotist denies the defendant due process of law.
¶11ADMISSIBILITY OF POST-HYPNOTIC TESTIMONY
¶12This Court holds that, because Ms. Wallech’s change in memory came after she was hypnotized, under the Frye/Reed test, see Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), that there is insufficient scientific proof that her post-hypnotic memory is reliable. This converts the Frye/Reed test from a test for admissibility of questionable scientific evidence into a rule of exclusion of eyewitness testimony. The Frye/Reed test is primarily a way to determine whether new scientific test results ought to be admissible in evidence. If the new test results are generally accepted in the scientific community, then they ought to be accepted in the courtroom. In the instant case, we are not dealing with admissibility; we are dealing with exclusion of eyewitness testimony from a sane, mentally competent witness. Eyewitness testimony, even if based on refreshed recollection, is generally admissible unless it is proven to be so unreliable as to be of no assistance to the finder of fact. See Md. Rule 5-402. There is certainly no general acceptance in the scientific community that hypnosis always produces unreliable memory; we know that sometimes it enhances memory and sometimes it evokes memory. Should uncertainty be enough to exclude refreshed eyewitness testimony or should there be a case-by-case analysis, albeit *746with a strong presumption against the reliability of posthypnotic memory?
¶13Since Ms. Wallech now claims to have an accurate memory of seeing the fatal fight,
¶14The majority seems to suggest that the overwhelming weight of authority adopts a per se exclusion of post-hypnotic refreshed memory. This is incorrect. The federal courts and a significant number of states recognize that the more reasoned approach is that there should be an individualized determination of whether the manner in which the hypnosis was performed and the circumstances of the case indicate that *747the witness’s post-hypnotic memory is too unreliable to be of benefit to the trier of fact. See Borawick v. Shay, 68 F.3d 597, 605 (2d Cir.l995)(“[T]he approach most frequently taken by the federal courts is a so-called case-by-case or totality-of-the-circumstances approach. … [T]hese courts conclude that the district court should be given discretion to balance all of the factors to determine the reliability of the evidence and the probative versus prejudicial effect of the testimony.” (Citations omitted), cert. denied, 517 U.S. 1229, 116 S.Ct. 1869, 134 L.Ed.2d 966 (1996)); Harker v. State of Maryland, 800 F.2d 437, 442 (4th Cir.l986)(“[T]he general view of federal courts [is] that prior use of hypnosis on a witness goes to the weight to be given his testimony rather than its admissibility.”); State v. Brown, 337 N.W.2d 138, 147, 151-53 (N.D.1983)(“The majority of jurisdictions appear to have declared that hypnotically induced testimonial recall generally poses no barrier to admissibility, but, rather, affects only the weight of the testimony.”). See also Armstrong v. Young, 34 F.3d 421, 429-30 (7th Cir.1994), reh’g denied en banc; Boykin v. Leapley, 28 F.3d 788, 793 (8th Cir.1994); White v. Ieyoub, 25 F.3d 245, 247 (5th Cir.1994); Beachum v. Tansy, 903 F.2d 1321, 1326 (10th Cir.), cert. denied, 498 U.S. 904, 111 S.Ct. 269, 112 L.Ed.2d 225 (1990); Bundy v. Dugger, 850 F.2d 1402, 1414-20 (11th Cir.), reh’g denied en banc, 859 F.2d 928, and cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1988); Robison v. Maynard, 829 F.2d 1501, 1507-08 (10th Cir.1987); Clay v. Vose, 771 F.2d 1 (1st Cir.1985); McQueen v. Garrison, 814 F.2d 951, 958 (4th Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 332, 98 L.Ed.2d 359 (1987); United States v. Awkard, 597 F.2d 667, 669 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 and 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 383 (1979); Boykin v. Bloomsburg Univ., 893 F.Supp. 400, 407 (M.D.Pa.1995), aff'd without op., 91 F.3d 122 (3rd Cir.1996), cert. denied by Mirin v. Eyerly, — U.S.-, 117 S.Ct. 739, 136 L.Ed.2d 678 (1997); Stafford v. Maynard, 848 F.Supp. 946, 957-58 (W.D.Okla.1994); Barnes v. Henderson 725 F.Supp. 142 (E.D.N.Y.), aff'd without op., 923 F.2d 843 (2d Cir.), cert. denied, 499 U.S. 925, 111 S.Ct. 1323, 113 L.Ed.2d *748255 (1989); United States v. Waksal, 539 F.Supp. 834 (S.D.Fla.), rev’d on other grounds 709 F.2d 653 (11th Cir.1982); United States v. Narciso, 446 F.Supp. 252, 281 (E.D.Mich.1976); Chamblee v. State, 527 So.2d 173, 174-76 (Ala.App.1988); People v. Romero, 745 P.2d 1003, 1016 (Colo.), cert. denied, 485 U.S. 990, 108 S.Ct. 1296, 99 L.Ed.2d 506 (1987); State v. Iwakiri, 106 Idaho 618, 682 P.2d 571, 577-80 (1984); House v. State, 445 So.2d 815, 826-27 (Miss.1984); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); State v. Varela, 112 N.M. 538, 817 P.2d 731, 733-36 (N.M.Ct.App.1991); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 264-68, 453 N.E.2d 484 (N.Y.1983); State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898, 903-07 (1988); State v. King, 84 Or.App. 165, 733 P.2d 472, 479-80 (Or.Ct.App.), review denied, 303 Or. 455, 737 P.2d 1248 (1987); State v. Adams, 418 N.W.2d 618, 622-24 (S.D.1988); State v. Glebock, 616 S.W.2d 897, 904-05 (Tenn.Crim.App.1981); Zani v. State, 758 S.W.2d 233, 243-44 (Tex.Crim.App.1988)(en banc); State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386, 391-98 (Wis.), cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983); Prime v. State, 767 P.2d 149, 153 (Wyo.1989). This might be the better approach, especially in light of the almost universal recognition that hypnosis can be therapeutic and can be an aid to memory. There should, however, be a presumption against admissibility of post-hypnotic changes of memory, and a jury should be instructed as to the dubious reliability of post-hypnotic memory, but there should be no per se exclusion of all post-hypnotic memory.
¶15In State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983), this Court held that hypnotically enhanced recollections are not admissible. Perhaps we should modify that absolute rule of inadmissibility to a presumption of inadmissibility, but we need not address this in the instant case because there is a constitutional due process reason why the majority is wrong. Regardless of any general rule precluding testimony concerning post-hypnotic memory, the defendant’s constitutional right to call witnesses on his own behalf should require that Ms. Wallech be permitted to testify.
¶17By adopting its inflexible per se inadmissibility test, this Court seems to be taking judicial notice that post-hypnotic recall can never be reliable enough to be admissible in evidence. That view was rejected by the Supreme Court on constitutional grounds in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). In Rock, the Supreme Court held that there is no scientific evidence that “hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her [post-hypnotic] version of the events for which she is on trial.” 483 U.S. at 61, 107 S.Ct. at 2714, 97 L.Ed.2d at 52. If, as the Supreme Court held in Rock, there can be no per se rule excluding a defendant’s post-hypnotic testimony, then there should be no per se rule excluding a defense witness’s post-hypnotic testimony.
¶18The majority analyzes Rockas being exclusively applicable to the defendant as a witness and having no applicability to other defense witnesses. It states: “There is no doubt but that Rockitself was carefully confined to the testimony of the defendant. That is apparent not only from the footnote added by the Court but from the overall text of the majority opinion.” 352 Md. 707, 736, 724 A.2d 65, 79 (1999). There is, however, far more historical and constitutional protection for the defendant’s right to call witnesses than for the defendant’s right to testify. As the Supreme Court pointed out in Rock, at common law criminal defendants were precluded from testifying because of the possible untrustworthiness of a party’s testimony. Rock, 483 U.S. at 49, 107 S.Ct. at 2708, 97 L.Ed.2d at 45. In addition, the Constitution contains no express provision granting a defendant the right to testify, but there is an express provision in the Sixth Amendment that grants a defendant the right to call “witnesses in his favor.” Rock, 483 U.S. at 52, 107 S.Ct. at 2709, 97 L.Ed.2d at 46. In fact, the Supreme Court in Rockrecognized that a defendant’s right to testify may be derived from the defendant’s constitutional right to call witnesses. Thus, there is little justification for *750saying that the Constitution precludes a state from adopting a per se rule barring a defendant’s right to offer post-hypnotic testimony but the Constitution does not preclude a state from adopting a per se rule barring defense witness’s post-hypnotic testimony.
¶19The majority’s references to Supreme Court decisions that cite Rockas support for a defendant’s right to testify on his or her own behalf in no way undermine Rock’s obvious implications regarding a defendant’s constitutional right to call witnesses. The Court in Rockexplicitly compared the right of a criminal defendant to testify on his or her own behalf to one’s right under the Compulsory Service Clause to “call witnesses in his favor.” 483 U.S. at 52, 107 S.Ct. at 2709, 97 L.Ed.2d at 46 (quoting the Sixth Amendment). The Court reasoned that the Sixth Amendment right to call witnesses is incomplete unless it is interpreted to include the defendant’s own right to testify. Id.While my research uncovered no cases that either rejected or accepted an extension of the Rockholding to a witness called by the defendant, and the majority cites no such cases, the applicability of the Rockban against per se rules of inadmissibility to witnesses called by the defendant seems self-evident. As Colorado Supreme Court Justice Lohr observed:
“Although the actual holding of Rockis limited to a rejection of a per se rule that prevents a defendant from testifying, the language of the opinion has broader implications. The right to testify protected in Rockis grounded in part in the sixth amendment’s compulsory service clause, which grants the defendant the right to call ‘witnesses in his favor,’ and this suggests that the approach in Rockshould also apply to the defendant’s witnesses.... [I]t is difficult' to find a principled basis for allowing the defendant to offer post-hypnosis testimony while excluding that of other witnesses---- The opinion in Rockseems to say that the federal constitution requires flexible guidelines that leave the trial court with discretion to assess the reliability of the testimony in each individual case.”
¶20*751People v. Romero, 745 P.2d 1003, 1021 (Colo.1987)(specially concurring).
¶21It is also obvious that a party should not be able to unilaterally disqualify the other side’s witnesses. The State’s choice to interrogate a witness by its own “investigative hypnotist” raises an additional due process reason why Ms. Wallech’s post-hypnotic testimony should not be excluded in the instant case. Should a state agent, ie., a police investigative hypnotist, be permitted to interrogate a witness in a manner that precludes that witness from later being called by a defendant to give exculpatory evidence? The answer should be a resounding “no.” In fact, some cases have even held that a defendant may be entitled to a dismissal of the charges where the prosecution has hypnotized an eyewitness on the theory that an improper hypnotic interview deprived the defendant of a material witness who could not be rehabilitated. See, e.g., State v. Long, 32 Wash.App. 732, 649 P.2d 845 (1982).
¶22We can assume the reason why the police chose to have Ms. Wallech hypnotized was because the investigative officers believed hypnosis would be a reliable aid in refreshing the witness’s memory. The State should not be permitted to now claim that its hypnotic interrogation of the witness rendered the witness’s memory so unreliable that the defense cannot call that witness to testify. If there is no absolute or per se bar to a defense witness’s post-hypnotic testimony, the defendant in the instant case is entitled to a new trial with an individualized determination to be made about the reliability of Ms. Wallech’s post-hypnotic recall. At that hearing the State should have the burden of proving why its hypnosis of Ms. Wallech rendered her post-hypnotically-refreshed memory of no benefit to the trier of fact. Little, if any, weight should be given to any State complaint that its chosen “hypnotic investigator” was incompetent or was biased against the State. In addition, the trial judge may consider the fact that the witness’s post-hypnotic memory seems to be more detailed, and perhaps more reliable since many aspects of the second statement, including her extensive description of the victim’s multiple wounds, were verified.
¶23*752EXCLUSION OF DEFENSE WITNESS BASED ON STATE’S ACTION AFFECTING THE WITNESS’S MEMORY
¶24In footnote 9, the majority makes its own fact finding that Ms. Wallech was not “hypnotized in order to render her incompetent as a defense witness.” This may be true, but we do not have any evidence or trial court fact finding, and how the majority divines this is certainly not contained in the record. All we know is that the State arranged for the hypnosis and now objects to the testimony about the witness’s vastly enhanced and fully substantiated hypnotically revived memory. There is no basis for ruling out the possibility that this State agent was afraid that the witness’s initial foggy memory might in time be naturally revived in a way not helpful to the State, and the purpose of the hypnotic session was to assure that it would be revived in a way the State agents desired. If so, the State could omit any mention of the hypnosis, or if they did not like what the hypnotically revived memory revealed, the State could disclose the hypnosis and preclude the witness’s post-hypnotic testimony. The majority ascribes some bad motives to the detective, but excludes the possibility that his motive was to do what the State eventually did, i.e., bar the witness’s post-hypnotically refreshed memory when it proved to be unfavorable to the State.
¶25We know the use of hypnosis by law enforcement agencies is on the increase and is now being used extensively. “Since the early 1970’s, a growing number of law enforcement agencies have been hypnotizing crime victims and witnesses in order to penetrate clouded or repressed memories of the episode and elicit details useful as new investigate leads, to facilitate the identification of a suspect, or to resolve contradictions or fill gaps in the subject’s expected courtroom testimony.” 77 A.L.R. 4th, § 2[a], at 932-33 (footnote omitted). We know the State Police employ at least one investigative hypnotist. While I do not like raising the possibility of improper police action, there is the theoretical possibility that the police will use hypnosis to interrogate witnesses with foggy memories, and if the memory adduced under hypnosis is *753favorable to the prosecution, the police hypnotist would implant the post-hypnotic suggestion that the witness will not remember any hypnotic interrogation. On the other hand, if the witness’s hypnotically enhanced memory is unfavorable to the prosecution, the hypnosis will bar use of that testimony by the defendant.
¶26This Court’s holding that a witness’s observations recounted for the first time during hypnosis are inadmissible in a trial may cause incalculable harm. If the State can preclude a witness from testifying about memories first disclosed under hypnosis, I assume defendants may also do so. Just by way of example, say a parent who has been abusing a child suspects the police are going to interview the child, so the parent takes the child to a hypnotist. Under hypnosis the child is asked for the first time if there was abuse by the parent. Of course, the child will answer in the affirmative but, according to the majority’s holding, the child will never be able to testify to the abuse because the memory was first disclosed under hypnosis. For the many reasons expressed herein, I respectfully dissent.
¶27Chief Judge BELL has authorized me to state that he joins in the views expressed in this dissenting opinion.
¶28. Although Ms. Wallach was uncertain as to whether the victim was Jimmy or Jeffrey, she was certain about the nature of the wounds inflicted, the clothing worn during the incident, and that the perpetrator was Robert Schell.