USA - Charles Flores (TX)

USA - Texas. Supreme Court Refuses to Consider Fairness of Hypnotizing Witness

June 15, 2026:

June 15, 2026 - Texas. U.S. Supreme Court Refuses to Consider Fairness of Hypnotizing Key Prosecution Witness in Texas Death Penalty Case

On June 15, 2026, the United States Supreme Court declined to consider the appeal of Texas death-sentenced prisoner Charles Flores, whose death sentence was obtained through the use of a hypnotized prosecution witness. Mr. Flores has spent more than 25 years on death row for a murder he maintains he did not commit. His conviction relied on the testimony of a neighbor who identified him — for the first time, at trial — only after being hypnotized by police. Mr. Flores argued in his petition that his conviction should be overturned under Texas’ junk science statute, Article 11.073, which allows prisoners to challenge convictions that rely on outdated and/or disproven science. In October 2025, the CCA declined to review his junk science claims on procedural grounds without consideration of the merits. Following the U.S. Supreme Court’s denial, counsel for Mr. Flores, Gretchen Sween, said that his “conviction rests on the kind of testimony that is now barred from use in Texas courtrooms. We will continue to pursue every available means to prove Mr. Flores’s innocence. All he wants is a fair trial untainted by patently unreliable testimony and official misconduct.”

In March 2026, a diverse group of voices filed amicus curiae briefs in support of Mr. Flores, including magicians Penn & Teller, the American Psychological Association, crime survivor Jennifer Thompson, the Texas Defender Service, and exoneree Christopher Scott, all of whom offered different perspectives as to why Mr. Flores’ case presents grave constitutional concerns. The coalition is united in the argument that ​“investigative hypnosis” does not unlock hidden memories, but rather distorts them, leaving an inflated sense of certainty about memories that may be partially or entirely fabricated. Notably, Penn & Teller, the world-famous duo who have spent five decades performing illusions, debunking pseudoscience, and studying the cognitive science behind perception, filed their brief expressly “to explain how many of the cognitive manipulations they use to trick audiences’ perception of truth are on full display” in the hypnosis session that produced the only identification ever made against Mr. Flores.

Penn & Teller’s argument centered on how memory actually works, and how law enforcement exploited it in the case of Mr. Flores. As their amicus brief explains, “all of your memories are copies of copies of copies,” and those blurred copies, they argue, create openings for suggestion that they exploit nightly on stage. The officer who performed the hypnosis in Mr. Flores’ case explicitly told the witness that her mind would work like a documentary camera, a premise Penn & Teller identified as “one of the biggest lies about hypnosis.” Penn & Teller concluded in their brief that “there is something fundamentally amiss in the justice system if flim-flam like investigative hypnosis can be used by law enforcement to reconfigure the gap-laden memory of a key witness in a capital prosecution,” and that it is “not just ironic but illogical and unjust” that Mr. Flores’ case inspired a Texas law banning investigative hypnosis in criminal proceedings, yet he remains on death row denied a meaningful opportunity to challenge its use in his own case.

Mr. Flores was convicted and sentenced to death in 1999 for the 1998 robbery and murder of Elizabeth “Betty” Black in her Texas home. He was convicted based on the testimony of Jill Barganier, one of Mrs. Black’s neighbors, who only identified Mr. Flores after being hypnotized by police — 13 months after the crime occurred. No DNA or physical evidence ties Mr. Flores to the crime. The jury did not know that immediately following the crime, Ms. Barganier described seeing two individuals leaving a distinct VW Bug and going into Mrs. Black’s garage, neither of whom she described as looking like Mr. Flores, and she failed to identify him in a photo line-up at the time. The first time she identified Mr. Flores was during trial, after she had gone through the investigative hypnosis and been exposed to Mr. Flores’ photo on multiple occasions.

At the time of the crime, Ms. Barganier identified Richard Childs out of a six-photo array. She was unable to identify the second individual, even after being shown an image of Mr. Flores. Under investigative hypnosis by a police officer with no hypnosis training or experience, she repeated her identification of the second man, characterizing both individuals as white men with similar builds and long hair. Mr. Flores did not match her description — he is Hispanic and wore his hair shaved short — contradicting the identifying factors brought to law enforcement’s attention. Following the hypnosis session, Ms. Barganier again failed to identify Mr. Flores in a photo line-up of only Hispanic males, none of whom matched the descriptions she had provided of the second individual. The same photo or Mr. Flores from the line-up was repeatedly used in media coverage and described as law enforcement’s suspect in the case. During trial, Ms. Barganier identified Mr. Flores as the second individual, claiming to be “100% sure” that he was one of the men she saw that day. Ms. Barganier’s in-court identification is the only piece of evidence that places Mr. Flores at the crime scene.

In 2016, Mr. Flores came within five days of execution before his date was stayed by the CCA to allow him to litigate a claim that prosecutors unconstitutionally obtained his conviction through the use of unreliable “hypnotically refreshed” testimony. According to an affidavit Mr. Flores submitted to the court from Professor of Psychology Steven Lynn, research has linked “hypnotic refreshment” with the creation of false memories. “Clearly the techniques that we use to refresh the witness’ memory would be eschewed today by anyone at all familiar with extant research on hypnosis and memory,” Prof. Lynn wrote. Despite this evidence, the state court rejected Mr. Flores’ appeal in 2018, and in 2020, the CCA upheld the ruling. In 2023, lawmakers passed legislation ultimately banning the use of hypnosis-based testimony in criminal proceedings, as concerns grew over the use of the practice. The law, however, does not apply retroactively and did not provide relief for Mr. Flores, despite lawmakers’ acknowledgement of the unreliability of the technique as evidence.

https://deathpenaltyinfo.org/u-s-supreme-court-refuses-to-consider-fairness-of-hypnotizing-key-prosecution-witness-in-texas-death-penalty-case