¶1(concurring in part and dissenting in part). I join the result and reasoning of the other portions of the lead opinion, though I must write separately to express my dissent from the lead opinion’s analysis of the "similar acts” issue in part iii(b).
¶2I cannot join the reasoning of part iii(b) since I would hold that it was an abuse of discretion for the trial court to have admitted the testimony of *98the similar acts witnesses at defendant’s trial. The similar acts testimony simply does not support the inference that the defendant was about to entice the two young girls into his car, or that he was about to engage them in some other improper or criminal conduct. While this inference is necessary to support the admission of the evidence under MRE 404(b), it would be an abuse of discretion to infer that fact from this record.
¶3If I accepted the lead opinion’s reading of the record, however, I might find that the similar acts evidence is admissible under MRE 404(b). See People v Golochowicz, 413 Mich 298, 309-312; 319 NW2d 518 (1982). For example, if the testimony did show that the actor had stalked his victims, or sought to attract the two little girls into his car by physically reaching out to them or verbally urging them into his car for no apparent proper purpose, then I might deem such acts to satisfy the requirements of MRE 404(b). On this record, however, the similar acts simply are not so unusual and distinctive as to serve the purposes for which such evidence may be considered by the jury.
¶4i
¶51 accept the summary of the testimony of the similar acts witnesses contained in the lead opinion. (Ante, pp 90-91.) The lead opinion summarizes the testimony of Amy Combs and Judy Sanchez accurately.
¶6*99The lead opinion characterizes the similar acts testimony in a manner that the record does not support by describing the two witnesses’ version of events according to what may have occurred when the black man stopped the two young girls, rather than what actually happened to them. The acts of the man who stopped Amy Combs and Judy Sanchez may have been a prelude to a child abduction, as the lead opinion suggests (ante, p 95), but the girls did not testify to that.
¶7Indeed, I am persuaded the record fails to support the lead opinion’s interpretation of the testimony of the similar acts witnesses.
¶8The similar acts evidence shows only that a man *100stopped the two young girls on February 6, 1979, to urge them to come closer to his car (i.e., as close as six feet), at which time he asked them the time of day and for directions. Any speculation by this Court about whether this man intended to carry out some improper (or criminal) intent is only speculation and has no record support. The circumstances of this incident do not indicate that the man intended to abduct the two young girls, though he may have secretly harbored such an unlawful intent. Moreover, the man’s behavior can as well be explained as motivated by a totally innocuous purpose.
¶9Perhaps, this Court could assume facts not in evidence because the "similar acts” incident bears such a close resemblance to the fears of all parents who have worried that their children will talk to a stranger while walking alone to school. I would reject that approach, however, for obvious reasons. This Court cannot simply take judicial notice of the fact that a black man who stops young white girls to ask them the time of day and for directions is engaged in acts that are a prelude to a child abduction. Since the lead opinion makes unsupportable assumptions about the quality of the similar act that are necessary to the finding that the similar act was so unique and distinctive when compared to the charged offense as to constitute a "signature,” Golochowicz, supra at 310-311, I must dissent.
¶10ii
¶11The reasoning of the lead opinion does not ad*101dress the question whether the similar acts evidence will be admissible on retrial. Rather, the lead opinion holds only that "[w]hile the prosecutor’s use of the evidence was inappropriate in this trial, on this record, the evidence was admissible.”
¶12We simply do not know whether there will be any additional evidence to supplement this record in proving that the charged offense was committed by a black man driving a black car. The evidence in this record contains proof of that fact only if the hypnotized witnesses’ testimony is admissible. Yet, the evidence is necessary to show the uniqueness and distinctiveness of the "similar act” because it links the similar act to the charged offense in the manner required by MRE 404(b).
¶13Under the first prong of the Golochowiczfour-part evidentiary safeguards, there must be "substantial evidence that the defendant actually perpetrated the bad act sought to be introduced,” id. at 309. In analyzing this prong of the test, the lead opinion finds that there was substantial evidence to show that the defendant was the perpetrator of the similar act. The lead opinion reaches this conclusion, despite the tentativeness of the witnesses’ eyewitness identification of him, because of two additional, and crucial, facts:
*102[1] the man had a black car and that defendant drives a black car, [and]
[2] that defendant did not go to work on February 6 . . . .[8 ]
¶14The fact that the defendant did not go to work proves very little, since it is the prosecutor’s burden of production and persuasion to prove by substantial evidence that the defendant committed the similar act.
¶15The fact that the perpetrator of the charged offense was a black man and drove a black car plays an important role in the lead opinion’s finding that this "similar acts” evidence was properly admitted for an additional reason. Under the second prong of the Golochowiczstandard, when (as here) "the only conceivable justification for admission of such similar-acts evidence is to prove the identity of the perpetrator, . . . '[t]he [commonality of circumstances] [between the act and the charged offense] must be so unusual and distinctive as to be like a signature,’ ” id. at 310-311 (citation omitted);
¶16In analyzing the second prong of the Goloehowicz standard, the lead opinion relies, in large part, on the fact that a black man driving a black car was seen both during the commission of the charged offense and during the similar act; indeed, this fact serves as the key factor which proves the similarity between the charged offense and the similar act that MRE 404(b) requires.
¶17Given today’s holding that the testimony of the hypnotized witnesses who saw a black man in a black car at the scene of the charged offense "is inadmissible absent proof by clear and convincing evidence that the testimony being offered [to show that it] was based on facts recalled and related prior to hypnosis,” (ante, p 86), the testimony of these witnesses may be inadmissible upon retrial.
¶18I need not address whether or not there was substantial evidence to show that the defendant was the man who committed the similar acts (on February 6, 1979), Golochowicz, supra at 309, given that the testimony of the similar acts witnesses cannot suffice to meet the requirements of the second prong of the Golochowicztest, id. at 309, 310-312.
¶19 The testimony of the two girls varies somewhat, although they generally testified that the man stopped his car and put *99one foot outside the door. He asked them for the time and the location of Hall Street. The girls responded to the questions, and after doing so the man motioned to the girls to come closer to the car. Both girls testified that they were scared and that the man recognized their fear. Judy had apparently run from the car, but Amy had stayed longer. As Judy gradually came back, the girls testified that the man got into the car and left. [Ante, p 90.]
¶20 The lead opinion interprets the similar acts testimony as follows:
[T]he manner and circumstances of stalking and attracting victims can be and is, in this case, sufficiently distinctive and unique that it can pass the Golochowicz"signature” requirement. Child abduction cases, in the overall scheme of criminal activity, are rather rare and unique .... The coaxing of these two girls to the actor’s car is in and of itself somewhat distinctive and, when coupled with the similarities in place and time, lend to the entire act a uniqueness and distinctiveness. [Ante, pp 94-95.]
¶21Ante, p 95.
¶22 The lead opinion suggests that the actions of the man who stopped these two young girls is analogous to "child abduction.” {Ante, p 95.) Yet, on this record, with only the testimony of the two girls to *100describe what happened on February 6,1979, the trial court could not have legitimately drawn the inference that the similar acts testimony was evidence of an attempted abduction. On appeal, the prosecutor conceded that the man’s behavior does not even amount to an inchoate crime of any sort.
¶23 Ante, p 97.
¶24See discussion below.
¶25Ante, p 93.
¶26 The defendant is not required to give proof of an alibi in his own defense in order to justify the exclusion of evidence of extrinsic acts if the prosecutor cannot prove with substantial evidence that, given the qualities of the charged offense and the similar act, he was the perpetrator of both acts.
¶27 The finding of similarity between the similar act and the charged offense cannot be dispensed with since it, "assures thereby that evidence of the separate offense is probative of some fact other than the defendant’s bad character . . . [namely, that] the circumstances and manner in which the two [acts] were committed are '[s]o nearly identical in method as to earmark [the charged offense] as the handiwork of the accused ....’” Id. at 310, citing McCormick, Evidence (2d ed), § 190, p 449.
¶28 In Hall, the plurality stated that "[t]o be sure, where the prosecution uses similar acts to prove the identity of a perpetrator, the commonality of circumstances must be unique and distinctive.” While *103this language is dicta from a plurality opinion by Justice Boyle (joined only by Justice Griffin and Chief Justice Riley), that sentence is nevertheless an accurate statement of the law.
¶29 The lead opinion reasoned that the similar act is sufficiently unusual and distinctive when compared to the charged offense because both acts share four factors in common:
The similarity between the two incidents upon which the prosecutor bases its admission are that (1) both incidents involved a black man driving a black car, (2) each occurred in the early morning hours when children would be walking to school, (3) both incidents involved young girls, and (4) both occurred in the same general area. [Ante, p 94.]
¶30 The fact that the charged offense was committed by a black man in a black car was established at the first trial by the testimony of the hypnotized witnesses. In fact, these witnesses were the only ones who identified the racial background of the perpetrator of the charged offense and the color of the car he drove at the scene of the abduction on February 12,1979. i
¶31The trial court considered the testimony of the hypnotized witnesses in making a preliminary ruling on the admissibility of the "similar acts” evidence under MRE 404(b).
¶32The lead opinion states:
*104[The testimony of the two girls] alone probably does not constitute substantial evidence to show that it was defendant who committed the bad act. [Ante, p 92.]
¶33(dissenting in part and concurring in part). We dissent. The majority has applied the Frye/Davis test and reversed the defendant’s conviction despite the fact that the defendant was identified by witnesses who were never subjected to suggestion. Further, the majority fails to engage in any meaningful separate analysis of the testimony of each witness. The overwhelming evidence in this case convinces us that the conviction of Albert Lee, III, did not constitute a miscarriage of justice. We concur only in Justice Brickley’s result that the prior act testimony, MRE 404(b), was properly admitted, although we do not endorse the reasoning.
¶34The point ignored by the majority in this case is that at the time of the initial hypnosis, the identity of the defendant was unknown to the police officers. Thus, on this record it is indisputable that there was no connection between that hypnosis and the witnesses’ later selection of the defendant from a lineup. Secondly, since the defendant’s expert witness, Dr. Martin Orne, testified that hypnosis had no bearing on the identification of the car by the four witnesses who identified it before, during, and after hypnosis as a clean, black Grand Prix, it is indisputable on this record that identification of the vehicle was reliable. Thirdly, Dr. Ome testified that the defendant’s ownership of the car was corroborative evidence of the reliability of the identification of the defendant. Finally, and most significantly, Dr. Orne also testified that the identification of the defendant by Jack Hill and Jack Vos was not the product of the *105hypnotic sessions. Despite these undisputed facts, the majority simply avoids any meaningful discrete analysis of the testimony and erroneously concludes that the conviction must be reversed because the identification was corrupted by the "suggestive effect of hypnosis,” on the unfounded assumption that the hypnosis somehow induced the identification testimony.
¶35The assumption that hypnosis renders a witness incompetent to testify is a proposition we rejected in People v Nixon, 421 Mich 79; 364 NW2d 593 (1984). While we did say in Nixonthat a witness could testify on the basis of facts recalled and related prior to hypnosis, we did not say that this was the only way that "the party offering the testimony” could establish its reliability. Nixon, supra, p 90. As this case illustrates, such a broad prophylactic rule is unwarranted.
¶36The majority opinion gives the state another opportunity to show reliability at the retrial it orders today. However, the fallacy in the majority’s formulation is that it would appear that comparison of a witness’ general description of a suspect with the defendant’s actual appearance would rarely produce a conclusion that the taint is dissipated, except in the rare case of a defendant who has unique identifying characteristics. On this record, the majority formulation in application thus all but obliterates the distinction drawn in Nixon.
¶37Even more disturbing, the majority’s wholesale application of Nixonto all the witnesses who were hypnotized, obscures any meaningful examination of prejudicial error. MCL 769.26; MSA 28.1096. Inexplicably ignored is the fact that the defendant admitted to a cellmate that he "accidentally” killed the victim while attempting to sexually molest her. Consciousness of guilt was shown by a *106false exculpatory statement that the defendant was at the Secretary of State’s office at the time of the abduction. On the morning of Linda Vanderveen’s abduction, two men observed a black male, who smoked Kool cigarettes and drove a black car with bicentennial plates, throw something into a dumpster located within one mile of where the victim’s body was found. Other evidence established that the defendant smoked Kools, had bicentennial plates, and drove a black car. Linda’s knapsack was recovered from the dumpster. Only three black men in Kent County, one of whom was the defendant, owned a 1976 or 1977 Grand Prix with a red interior. A barrette, feathers that came from mittens similar to those of the victim, and long blond hairs were found in the defendant’s car. A number of short black Negroid type hairs were found on Linda’s body, as were orange carpet fibers similar to those in the defendant’s car. The testimony of Amy Combs and Judy Sanchez indicated that the defendant had approached two young girls for directions six days before Linda Vanderveen’s abduction, one mile from where she was kidnapped. The defendant’s admission to his cellmate, if believed by the jury, was itself sufficient to support the verdict. Absent the "tainted evidence,” the remaining evidence of guilt was compelling. The case was magnificently tried by two able advocates before a scrupulously fair judge. Upon a review of the entire evidence, it cannot be said that Albert Lee, III, did not receive a fair trial. We would affirm the conviction below.
¶38i
¶39In People v Gonzales, 415 Mich 615; 329 NW2d 743 (1982), modified 417 Mich 968 (1983), we applied the Frye test to hypnosis and concluded that *107testimony which had been "tainted” by hypnosis should be excluded from criminal trials. Two years later, in People v Nixon, supra, p 90, we declined to declare incompetent any witness who had been hypnotized, holding instead that a witness could testify subsequent to hypnosis when the party offering the testimony could show by clear and convincing evidence that the testimony was "based solely on facts recalled and related prior to hypnosis .. . .” We are persuaded that Nixon’s rejection of the rule of incompetence per se is correct. However, having there held that the testimony of a witness who has been hypnotized is admissible if shown to be reliable, it must follow that Frye v United States, 54 App DC 46, 47; 293 F 1013 (1923), should not be applied in these circumstances.
¶40This case vividly demonstrates that the application of Frye to identifying witnesses who have *108undergone hypnosis forces the state to choose between use of hypnosis during the investigative stage and the potential loss of the witness’ testimony at trial, Nixon, supra, p 90. We do not agree with the majority’s assertion that the loss of testimony in this case results only because the testimony of the witnesses was not preserved prior to hypnosis. Application of the Frye rule in this case and virtually all others will exclude subsequent identification if hypnosis is employed prior to actual identification of a defendant.
¶41However, while Frye should not be applied simply because of the fact of hypnosis, the basic reason for the Frye rule obtains, that is, concern whether the traditional means of assuring reliability of testimony are, in a given context, adequate to ensure prosecutorial fairness and just results. Hypnosis undoubtedly poses special problems which justify the application of the heightened reliability standard required in Nixon, that is, that reliability must be shown by clear and convincing evidence. Thus, while we would modify the Nixonformulation, we would not adopt the rule that the fact of hypnosis applies only to credibility and not admissibility. United States v Awkard, 597 F2d 667, 669 (CA 9, 1979), cert den 444 US 885 (1979).
¶42Courts have taken three basic approaches to the admissibility of posthypnosis testimony: automatic admission, automatic exclusion, and admission conditioned on compliance with detailed procedural safeguards.
¶43Under the first approach, the testimony of a witness who has been hypnotized is viewed as present recollection refreshed by hypnosis. Awkard, supra, p 669. The fact and effect of hypnosis *109apply to weight and not admissibility, id.; State v Brown, 337 NW2d 138, 151 (ND, 1983); Chapman v State, 638 P2d 1280, 1282 (Wy, 1982).
¶44The second approach, inadmissibility per se, was adopted in People v Shirley, 31 Cal 3d 18; 181 Cal Rptr 243; 641 P2d 775 (1982). Courts taking this approach typically draw their conclusions from application of the Frye rule of scientific acceptance. See State v Mena, 128 Ariz 226; 624 P2d 1274 (1981); State ex rel Collins v Superior Court, 132 Ariz 180; 644 P2d 1266 (1982); Polk v State, 48 Md App 382; 427 A2d 1041 (1981). Michigan is among those states that initially adopted a rule of inadmissibility per se but thereafter allowed a witness to testify regarding facts recalled prior to hypnosis, Nixon, supra;see also Collins, supra.As already suggested, permitting a witness to testify as to identification of a defendant after he has been hypnotized is logically inconsistent with the Frye rule, since there is not general acceptance in the scientific community of the reliability of posthypnotic testimony.
¶45The third and preferable approach allows admission of posthypnosis testimony when, in the particular case, it is found to be reliable. See People v Romero, 745 P2d 1003 (Colo, 1987); State v Iwakiri, 106 Idaho 618; 682 P2d 571 (1984); State v Woodfin, 539 So 2d 645 (La App, 1989). The reliability centered approach is articulated in State v Hurd, 86 NJ 525, 538; 432 A2d 86 (1981), in which the New Jersey court held that the use of hypnosis could satisfy Frye in certain instances.
¶46Compliance with the Orne safeguards does not guarantee admissibility of the testimony; it merely provides a basis to assess its reliability. Id., p 546. Thus, even when the safeguards are followed, circumstances may suggest that the testimony of a witness who has undergone hypnosis is not reliable. For instance, where the posthypnotic testimony is identification of a person known to be under suspicion by a witness who has been previously unable to identify the person, the danger of suggestion through hypnosis is evident. United States v Valdez, 722 F2d 1196, 1203 (CA 5, 1984). On the other hand, even where the conditions of hypnosis do not meet the Orne standards, an independent basis for posthypnosis identification may compensate for the deficiencies of the hypnotic session.
¶47*111Where posthypnosis identification is otherwise shown to be reliable, the rationale for Nixonis served and there is no purpose in limiting identification evidence to facts "related and recalled” prior to hypnosis. As the court noted in Harker v Maryland, 800 F2d 437, 442 (CA 4, 1986), suggestibility and memory hardening are concerns whenever a witness makes an identification. While exclusion would certainly remedy those problems, it would also sacrifice probative evidence which might be sufficiently reliable in a particular case to aid in the truth-finding process. In the context of posthypnosis identification particularly, the rule sweeps too broadly, eliminating reliable and unreliable evidence alike and insuring that, as a practical matter, "the police will seldom dare to use hypnosis as an investigatory tool because they will thereby risk making the witness incompetent '. . . .” State ex rel Collins, supra, p 209.
¶48The more prudent balance should be struck by requiring a preliminary determination of admissibility on a case-by-case basis. Using a flexible test informed in particular by the Orne factors, the court should, pursuant to MRE 104, make a determination of the reliability of the evidence sought to be presented. If posthypnosis testimony is found *112sufficiently reliable for admission, the parties remain free to make the jury aware of the dangers of hypnosis with expert testimony and to cross-examine the identifying witness as to the conditions of hypnosis and any independent basis for observation.
¶49ii
¶50The identity of the defendant was not suggested to any witness during or after hypnosis. The initial hypnotic sessions were conducted by local hypnotist, Robert Mazur, on the day of the abduction and two days later on February 14, 1979. At this time, the police were acting on seven hundred to nine hundred tips, with as many suspects. Since Mr. Mazur himself could have known nothing about the defendant’s identity, it is clear beyond question that he could not, even inadvertently, have suggested the identity of the defendant to the witnesses. The second hypnosis of the witnesses was conducted on February 23, 1979, still before defendant became the primary suspect. Commenting on the fact that witness Jack Hill could make no identification immediately before, during, or after his second hypnosis, Dr. Orne opined that the hypnotic sessions were carried out with some care, and that if the authorities knew who was believed to be responsible for the crime, it was not communicated to the hypnotized individual. While not all of the Orne safeguards were employed in the hypnotic sessions of February 12, 14 and 23, 1979, it is evident on the record that there was no suggestion of the defendant’s identity.
¶51As the majority notes, there were seven prosecution witnesses in this case who were hypnotized. (Jack Hill, James Vos, Jack Vos, Greg Start, David Orr, Jr., Timothy Wilcome, and Jim Bonnema). *113Ante, p 65. Proper analysis requires an examination of the circumstances surrounding testimony of each of these witnesses’ identification.
¶52Jim Bonnema testified only that he saw a clean, black, 1976 or 1977 Grand Prix automobile speeding through the vicinity of the abduction at 8:15 a.m. Bonnema saw a young black man driving the car but could not identify the defendant as the driver. There was additional evidence that the defendant was one of three black men in Kent County who owned a 1976 or 1977 black Grand Prix with a red interior. Nevertheless, Bonnema was unable to give either the color of the interior of the vehicle he saw, nor was he able to give the license number of the car.
¶53Similarly, James Vos was only able to identify the vehicle as a black Grand Prix. Vos was unsure of the year of the vehicle and gave no testimony as to the color of the interior. James Vos gave only a general description of the driver, a twenty- to thirty-year-old black male with a medium afro hair style and a dark leather jacket. He was unable to identify the defendant as the driver of the vehicle.
¶54Dr. Orne testified that hypnosis had no bearing on the testimony of these witnesses as to identification of the car involved in the abduction:
Q. [Assistant Prosecutor]: Now, again, you have no difficulty, given the sequence of the identification of the car in this case, that these witnesses who have identified a black Grand Prix actually saw — at least they think they actually saw a black Grand Prix?
A. [Dr. Orne]: I have no reason to doubt that particularly. I have no reason to agree with it. I take that. . .
Q. In other words, in your opinion the hypnosis had no effect on that identification of the car.
*114A. Given the facts the people identified it before in the same way as they identified it after. If it had been identified as a ’76 before, then became a ’77 afterwards, then I would worry about the hypnosis having an effect.
Q. But the mere fact we are talking, now, about the Grand Prix, itself, it was before, it was during, and it was after, and it is your opinion that hypnosis had no effect on that identification?
A. I’d say reasonably. This is for everyone except Mr. Hill.
¶55Therefore, the trial judge did not err in admitting the testimony of Jim Bonnema and James Vos.
¶56Turning next to the question whether Jack Hill’s testimony was shown to be reliable by clear and convincing evidence, we find ample support for the trial court’s Rule 104 determination. There was clear and convincing evidence that Hill’s identification was the product of independent recollection. Jack Hill witnessed the last stages of the abduction and identified Mr. Lee at the second lineup and at the trial. The abduction occurred at 8:00 a.m. in "good” light. There was very little snowfall at the time. Hill observed the defendant from about four feet away. He spoke briefly with the defendant and noticed a lack of accent or slang. While Hill failed to identify the defendant upon viewing two mugbooks and one corporeal lineup, at the first lineup, all of the participants put their hair in "cornrows.” There was nothing in the record to suggest that Hill was suffering from fatigue, nervous exhaustion, or alcohol or drug use, and Hill ultimately picked the defendant out of a corporeal lineup some six weeks after the abduction.
¶57Most significantly, the majority simply fails to acknowledge that Judge Boucher based his ruling *115on the effect of the hypnosis on Jack Hill on the testimony by the defense expert Orne. Dr. Orne not only testified that there was no deliberate attempt to alter the memory of Mr. Hill through hypnosis, but also concluded that the hypnosis was not the source of Mr. Hill’s memory.
¶58It is clear from this testimony that, while Dr. Orne did not believe that Hill’s identification was actually based upon memory, Dr. Orne was convinced that the identification was not the product of hypnosis, but of some "third events.”
¶59Additionally, Dr. Orne acknowledged at trial that corroborating facts were significant to the *116determination of whether the testimony was based on actual memory, and he admitted that he had been unaware of the corroborative physical evidence of blond hairs, carpet fiber, barrette, or feathers prior to his testimony.
¶60*117Curiously, the majority asserts that Dr. Orne’s comment regarding corroborative evidence was outside the area of his expertise. In fact, Dr. Orne testified that reference to corroborative facts is a means by which experts determine that a post-hypnosis memory is a true memory. However, whether Dr. Orne concluded that Hill’s identification of the defendant was the result of "third events” or his "alternative hypothesis,” i.e., Hill’s actual memory, is irrelevant. The fact that identification was not the product of the hypnosis stands uncontroverted on this record. Thus, the issue of the reliability of Hill’s identification of the defendant was an issue properly submitted to, and resolved by, the factfinder. The trial court’s preliminary ruling admitting the testimony of Jack Hill was not erroneous.
¶61Although Jack Vos, the seventeen-year-old son of James Vos, had considerably less time in which to view the defendant than Jack Hill, as with Jack Hill, the testimony by the defense expert, Dr. Orne, is dispositive of admissibility. Dr. Orne’s testimony that Jack Hill’s identification of the defendant was not the product of hypnosis applied equally to Jack Vos. Moreover, Dr. Orne’s testimony as to the significance of the corroborating evidence also applies to Jack Vos. Whatever differences might exist in the initial observation by Jack Vos, there was no error in the admission of his testimony.
¶62Timothy Wilcome was employed as a mainte*118nance man at the Georgetown Apartments on the morning of February 12, 1979. He was cleaning snow at approximately 10:00 a.m. when a black male approached him on foot. The man asked Wilcome for a push, explaining that his car was stuck in the snow. Wilcome agreed to help him, and the two walked to his car. After an unsuccessful attempt to push the car out by hand, Wilcome suggested that they ask his coworker, David Orr, to pull the car out with his truck.
¶63While Orr hooked up the car, Wilcome spoke to the individual. Wilcome asked for a cigarette and was given a Kool cigarette. Wilcome then pushed the car while Orr pulled the car with the truck. Wilcome testified that the car was a black Monte Carlo in good condition. He did not notice any particular details about the car or any writing on it but identified it by the body size and shape. Linda Vanderveen’s knapsack was uncovered from a nearby dumpster later that day.
¶64Wilcome was interviewed by the investigating officers two days later on February 14, 1979. He was hypnotized by Mr. Mazur and later shown a mugbook containing the defendant’s photograph. Wilcome failed to identify the defendant from the photograph and in fact selected another photograph as "close.”
¶65About ten days later, Wilcome attended the first corporeal lineup in which all of the participants appeared with hair styled in cornrows. He was hypnotized prior to the lineup by Dr. Rossi of the Michigan State Police. Wilcome was unable to pick out the defendant "confidently,” but did select the *119defendant as closest to the man he had seen on February 12. At the March 15 lineup, when the participants appeared in afro-styled hair, Wilcome was again unable to "confidently” pick out the defendant. Again, however, he picked out the defendant as closest in resemblance to the man he had seen on February 12. Wilcome also identified the defendant at trial but was similarly unable to give a "confident” identification.
¶66The evidence of record establishes that Timothy Wilcome had an excellent opportunity to observe the defendant for some time, including speaking with him. The lighting was good, there was proximity, and there was nothing startling in the encounter. Wilcome failed to identify the defendant at the first photographic viewing, but he did pick out the defendant in the "cornrow” lineup about ten days later.
¶67David Orr also worked in maintenance at the Georgetown Apartments on February 12, 1979. However, Orr had no direct conversation or contact with the defendant and never identified the defendant as the driver of the car. Orr did identify the car as a black Monte Carlo. It appears that Orr’s testimony was offered for two purposes: first, to provide a general corroboration of Wilcome’s testimony, and, second, to establish that the driver of the car, identified by Wilcome as the defendant, threw something into the dumpster in which Linda Vanderveen’s knapsack was found. Orr also testified that the defendant left the scene "in a hurry” after he was towed out of the snowbank.
¶68Here again Dr. Orne’s testimony must be examined. Dr. Orne gave no specific opinion either at the pretrial hearing or at trial regarding the effect of the hypnosis on the testimony of Timothy Wilcome. However, the circumstances and quality of Wilcome’s initial observation supported the trial *120court’s determination that Wilcome’s testimony was based on factors unrelated to the hypnosis.
¶69Finally, turning to the testimony of witness Greg Start, Dr. Orne expressed particular concern as to the possibility of hypnotic suggestion in Start’s identification. He believed that Start was particularly vulnerable to suggestibility and was concerned about the use of a posthypnotic suggestion by Dr. Rossi to the effect that Start would be able to identify the person he saw on the day of the incident.
¶70Start did not see the car again, but he did see Jack and Jim Vos. They pulled over moments later and asked Start if he had seen a black Grand Prix. Start replied that he had not, but remembered a few minutes later that he had seen a black Grand Prix.
¶71In March or April of 1979, Start saw an article in the Grand Rapids Press about the defendant’s arrest. A picture of the defendant ran Avith the article.
¶72Start was finally contacted by the investigating officers on May 2, 1979. The record is unclear as to whether he was shoAvn mugbooks Avith the defendant’s picture. However, it is clear that Start had seen a picture of a person identified as the suspect prior to being hypnotized by Dr. Rossi on June 19, 1979, and vieAving a lineup on June 20, 1979. Start picked out the defendant in the lineup and later identified the defendant at trial.
¶73Unlike the other Avitnesses whose hypnosis was conducted before defendant became the primary suspect, Start was hypnotized subsequent to defendant’s March 29 arrest. The danger of suggestibility as to Start was heightened by the fact that prior to hypnosis, Start had seen defendant’s picture in the newspaper and had been given a posthypnotic suggestion. In short, unlike the other witnesses, there is a basis in this record to find both that Start was subject to suggestion as to the identity of the suspect, and that the prosecution *122has failed to show by clear and convincing evidence the reliability of his testimony.
¶74Two final observations regarding the hypnotized witnesses are in order. Except as to Greg Start, Dr. Orne found no indication of cuing or suggestion in the hypnotic sessions.
¶76For the reasons explained, we would hold that the Frye test should not be applied to exclude the testimony of a witness simply because he has been hypnotized. The dangers of hypnosis do, however, require application of a Hurd-type test in which the reliability of the testimony must be established by clear and convincing evidence. The test to be employed is flexible; the primary considerations in the reliability determination are whether the appropriate safeguards were employed at the hypnotic session, and whether the testimony offered has a basis independent of hypnosis. So analyzed, we conclude that error occurred in this case only in regard to the admission of Gregg Start’s testimony, but that error does not compel reversal.
¶77The Code of Criminal Procedure provides:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096.]
¶78The prosecution built an impressive direct and circumstantial case involving over fifty witnesses and six days of trial. The prosecution established that only three cars matching the defendant’s car were owned by black males in Kent County. A barrette, matching a second one worn by the victim was found in the back seat of the defendant’s car. Feathers, such as those in the victim’s gloves, and long blond hairs were also found in the back *124seat of the defendant’s car. Carpet fibers matching those of the defendant’s car and Negroid type hairs were found on the victim’s clothing, and a cellmate of the defendant’s testified that the defendant had admitted that he accidentally killed the victim while attempting to sexually molest her. The defendant’s alibi was effectively rebutted by testimony that placed him at the Secretary of State’s office several hours after the abduction, rather than at the time of the abduction as the defendant testified.
¶79The erroneous admission of Greg Start’s testimony did not result in a miscarriage of justice. The defendant’s conviction should be affirmed.
¶80 The Frye test is concerned with the admission of expert testimony deduced from the results of a scientific technique. The issue in these cases is not the admissibility of the testimony of a hypnotist regarding observations or statements made during hypnosis but, rather, the admissibility of testimony by lay witnesses in their normal state.
¶81 I would not alter the well-established rule that statements made under hypnosis are inadmissible, McCormick, Evidence (3d ed), § 206, p 632.
¶82 The Hurdcourt’s use of Frye on a case-by-case basis seems somewhat anomalous since the Frye inquiry concerns the "general acceptance” of a scientific principle or method. Frye, p 47.
¶83 Factors which might be relevant in making this determination would be analogous to those set forth in People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977). These factors are:
1. Prior relationship with or knowledge of the defendant.
2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.
3. Length of time between the offense and the disputed identification. See [People v] Anderson, 389 Mich [155, 214; 205 NW2d 461 (1973)], for analysis of the curve of forgetting.
4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.
5. Any previous proper identification or failure to identify the defendant.
6. Any identification prior to lineup or showup of another person as defendant.
7. Still another consideration, not mentioned in [United States v] Wade [388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)], but essential to a determination of judging the reliability of the witness’s perceptions is the nature of the alleged *111offense and the physical and psychological state of the victim. "In critical situations perception will become distorted and any strong emotion (as opposed to mildly emotional experiences) will affect not only what and how much we perceive, but also will affect our memory of what occurred.” 389 Mich 211. (Emphasis in original.)
Factors such as "fatigue, nervous exhaustion, alcohol and drugs,” 389 Mich 213 (emphasis in original), and age and intelligence of the witness are obviously relevant. Levine and Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby [v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972)], 121 U Pa L Rev 1079, 1102-1103 (1973).
8. Any idiosyncratic or special features of defendant.
¶84Additional factors would be the existence and amount of corroboration.
¶85 Dr. Orne gave the following testimony at the pretrial motion to suppress:
It is very unlikely, in my view, that the identification which took place was based upon an actual memory of the original events — a personal memory of the original events of either Mr. Hill or Mr. Vos. The reason for that is that if the memory trace was there, the recall was possible, then it should have been elicited either originally before hypnosis or by hypnosis with Mr. Mazur, or by hypnosis with Dr. Rossi. You will recall that the unreliability of hypnosis stems from the fact that you cannot distinguish between actual recall of what you saw and the importation of additional materials, additional details which are confabulated. Nobody questions the fact that hypnosis will facilitate getting recall of what there is in the memory system. So since you didn’t get it at those points, the likelihood of what you are getting much later being an actual memory is extremely small.
[.Defense Counsel]: Why is that?
[Dr. Ome]: Because if it were a memory, it should have come forth earlier and in our view, it is very unlikely that if you have got two people who have repeatedly failed to identify someone and failed to identify him under two hypnotic sessions, failed to bring forth the memory trace, if you will, so that there is recall, then a month and a half later about the same time they both suddenly are able to identify someone, that this new basis for identification comes from their individual memories, their original memories, it is more likely to come from third events which the two of them somehow shared, and for that reason it strikes me as extremely unlikely that we are talking about a memory. I don’t know whether what they identified is right or wrong. I have no way of judging that. I can only say it didn’t appear to come from memory. [Emphasis added.]
¶86Q. Would you consider it corroboration, Doctor, again, of the identification of both the car and the person — that the little girl in this case, when she left home that morning, had two barrettes in her hair, and that when she was found, there was only one barrette left on her body, and a barrette of the same kind was found in Mr. Lee’s car?
¶87A. What is a barrette?
¶88Q. A barrette is to tie your hair back, to hold your hair back, a clip, or whatever you want to call it.
¶89A. Okay, yeah.
¶90Q. Would you consider that corroboration?
¶91A. I would consider that, certainly, a kind of corroboration, right.
¶92Q. Did Mr. Murphy provide you that information?
¶93A. No.
¶94Q. Did he provide you the information about the number of cars in town?
¶95A. No, he did not.
¶96Q. Would you consider the fact there were 16 blond hairs found in the back seat of Mr. Lee’s car, which are identical in all respects that could be tested for, to the victim’s hair? Would you consider that corroboration, again, of the identification of the car and the identification of Jack Hill and Jack Vos?
¶97A. I think you are really asking me to kind of get outside of what my area of which I am competent in. I would say yes, that is very convincing from one point of view. But in a sense, the real question is where did the identification come from?
¶98Q. Again, if the carpet fibers in Mr. Lee’s car were identical to fibers found on the girl’s clothes, that is, again, another type of corroboration we are talking about?
¶99A. Again, assuming that the carpet fibers are rare or specific to that car, certainly.
¶100Q. And the same thing, if feathers found on the girl’s clothes were like the feathers found in Mr. Lee’s car, would you consider that corroboration?
¶101A. I consider that kind of evidence certainly germane.
¶102Q- Mr. Murphy [defense counsel] didn’t provide you with that information?
¶103A. No.
¶104Q. Now, again, if the testimony shows that after this first line-up at which nobody identified Mr. Lee, from that point *117until they did identify him at the second line-up, none of those witnesses, that is, Jack Hill and Jack Vos, saw any more pictures of the Defendant, nor saw the Defendant, nor were told or given any information about Mr. Lee by any police officers, nor did they talk to one another. Do you have any idea or opinion as to why they identified him?
¶105A. As I have indicated before, I don’t know. There is an alternative hypothesis. It could be that that is the person that they actually saw. [Emphasis added.]
¶106 My review of the mugbook indicates that number 217, the picture selected by Wilcome, clearly does resemble the defendant. David Orr also selected number 217 out of this mugbook.
¶107 Although not all of the Orne controls were used during hypnosis, the circumstances in the hypnotic sessions were the same as those of Jack Hill and Jack Vos, and Orne testified that those sessions were not the source of either witness’ testimony.
¶108 In contrast, it may be fairly inferred from the trial testimony of Dr. Orne that the other witnesses were not given this suggestion.
¶109 In the interest of time, defense counsel did not provide Dr. Orne with tapes of the hypnosis of David Orr and Timothy Wilcome at the motion hearing. However, counsel instructed Dr. Orne to assume the procedures for these sessions were the same as for the others. Dr. Orne also was not provided with tapes of Jim Bonnema’s hypnosis, again presumably in the interest of economy. I note that no question was raised at the motion hearing or at trial about the availability of the tapes.
¶110 In ruling on the defendant’s motion to suppress pretrial and in-court identifications, the trial judge stated:
[Wjhat is amazing here is not any set of circumstances which would force witnesses into identification of this Defendant, but the fact that witnesses purport to make an identification after exposure not to the Defendant repeatedly but to an utterly bewildering array of young, black males whose characteristics in many instances differ in only very subtle respects. It seems to me that an equally convincing argument can be made for the assembly of showdowns here, that the reliability of identification has been enhanced, as that it has been made unreliable. Not only were the photographic and line-up sessions not tainted, but they were carried out, in the view of this Court, with scrupulous care given to fairness by personnel of both the Grand Rapids Police Department and the Kent County Sheriff’s Department.