Texas Death Row Prisoner Seeks New Trial, Citing Conviction Based on Flawed Hypnosis Evidence

Charles Flores (pic­tured) was con­vict­ed and sen­tenced to death in 1999 for the 1998 rob­bery and mur­der of Elizabeth ​“Betty” Black in her Texas home. Mr. Flores was con­vict­ed because of the tes­ti­mo­ny of Jill Barganier, the victim’s neigh­bor, who only iden­ti­fied Mr. Flores after being hyp­no­tized by police. No DNA or phys­i­cal evi­dence con­nects Mr. Flores to the crime. Attorneys for Mr. Flores argue that he should be grant­ed a new tri­al because of changes in the under­stand­ing of wit­ness tes­ti­mo­ny and changes in law regard­ing the use of hyp­no­tized tes­ti­mo­ny since 1999. According to mem­o­ry experts, inves­tiga­tive hyp­no­sis lacks proven effec­tive­ness for improv­ing an individual’s recall abil­i­ty and may cre­ate false mem­o­ries in crime vic­tims and witnesses. 

At the time of the crime, Ms. Barganier told the police she rec­og­nized one of the two men as Richard Childs, who Ms. Black knew. However, she was unable to iden­ti­fy the sec­ond indi­vid­ual, even after being shown images of Mr. Flores. After the ini­tial inter­view, Ms. Barganier was again ques­tioned and this time police used hyp­no­sis in an attempt to help her recall more details. Under hyp­no­sis, she repeat­ed her ini­tial descrip­tion of the sec­ond indi­vid­ual as white, slim and long-haired, even when asked by police if the per­son had a clean-shaven head.

Mr. Flores did not match this descrip­tion. Mr. Flores is Hispanic, short, stocky, shaved his head, and wore glass­es — con­tra­dic­to­ry to each of the iden­ti­fy­ing fac­tors brought to law enforcement’s atten­tion. But at the tri­al 13 months lat­er, after admit­ting to see­ing Mr. Flores’ image on the news, Ms. Barganier tes­ti­fied that Mr. Flores was indeed the sec­ond indi­vid­ual she saw at Ms. Black’s home on the day of the crime.

In 2020, a Dallas Morning News inves­ti­ga­tion exam­ined the use of inves­tiga­tive hyp­no­sis in Texas. State Senator Juan ​“Chuy” Hinojosa explained to The News that ​“experts in foren­sic psy­chol­o­gy have for years raised con­cerns that hyp­no­sis does not work as a mem­o­ry-recov­ery method and it does not increase the accu­ra­cy of eye­wit­ness recall and recog­ni­tion.” By 2020, crim­i­nal tri­als in approx­i­mate­ly half of the U.S. pro­hib­it­ed or strong­ly lim­it­ed ​“hyp­not­i­cal­ly-induced tes­ti­mo­ny” because of con­cerns with wrong­ful con­vic­tions. The News report­ed that since the 1980s, the Texas Department of Public Safety used inves­tiga­tive hyp­no­sis in crim­i­nal inves­ti­ga­tions at least 1,700 times, lead­ing to prison sen­tences for dozens and death sen­tences for oth­ers. Experts iden­ti­fied for The News four con­cerns with the use of hyp­no­sis by Texas law enforce­ment in crim­i­nal inves­ti­ga­tions: sug­gestibil­i­ty affects sub­jects, crit­i­cal-think­ing abil­i­ties may dimin­ish, ​“con­fab­u­la­tion” occurs when sub­jects fill mem­o­ry gaps with fic­tion­al events, fab­ri­cat­ed mem­o­ries can solid­i­fy through ​“mem­o­ry cemen­ta­tion” over time. In response to The News’ report­ing, the Texas Rangers ceased using hyp­no­sis in inves­ti­ga­tions and law­mak­ers passed leg­is­la­tion in 2023 that ulti­mate­ly bans the use of hyp­no­sis-based tes­ti­mo­ny in criminal proceedings.

University of California San Diego Psychology Professor John Wixted, whose research on eye­wit­ness tes­ti­mo­ny is ref­er­enced in this case, told KERA News in April 2024 that Ms. Barganier’s ini­tial fail­ure to iden­ti­fy Mr. Flores is indica­tive of his inno­cence. ​“We’re not just impeach­ing the wit­ness’ tes­ti­mo­ny,” he said. ​“We’re talk­ing about new, sub­stan­tive evi­dence of inno­cence that was nev­er con­sid­ered by any­body, and now he’s out of appeals and head­ing for execution.” 

Mr. Flores has exhaust­ed his appeals and Texas Attorney General Ken Paxton is seek­ing a war­rant for his exe­cu­tion. According to coun­sel for Mr. Flores’, the new fil­ings also stress that the Texas Attorney General’s Office is ​“improp­er­ly seek­ing an exe­cu­tion date even though that office has no legal author­i­ty to do so.” According to Ms. Sween, seek­ing an exe­cu­tion date for a pris­on­er in Texas is the respon­si­bil­i­ty of the local dis­trict attor­ney, who has not asked for one in this case. 

Richard Childs, whom Ms. Barganier also iden­ti­fied at the ini­tial tri­al, struck a deal with pros­e­cu­tors, con­fessed to killing Ms. Black and was sen­tenced to 35 years in prison. He was released after serv­ing about 17 years of his sentence.