Innocent on Texas Death Row


Charles Flores was convicted based on the testimony of a witness who had seen two men get out of a strange car in the pre-dawn hour in the driveway next door. This witness, Jill Barganier, initially described both men as “white males with long hair” who looked similar. She then underwent a hypnosis session at the police station to help her “relax” and remember more. After the hypnosis session, she was immediately asked to do a composite sketch, the result of which did not resemble Charles Flores. She was then shown various images of Hispanic males that did not match her description of the person she had reputedly seen. She was only able to make the identification in court a year later when she saw Mr. Flores sitting at the defense table during his trial. The police hypnotist had assured her that she would “remember more later,” which gave her what science now describes as false and even “inflated” confidence in her ability to recall an event that had, most likely, never been encoded in her memory in the first place.

At trial, an expert for the State who frequently worked to train police hypnotists, testified that sufficient procedural safeguards were employed during Ms. Barganier’s hypnosis session, and thus the “four-pronged dangers of hypnosis” hypersuggestibility, loss of critical judgment, confabulation, and memory cementing—were not a concern. At that time, many experts in memory and hypnosis believed that sufficient safeguards existed that, if utilized, could ensure that a witness’s post-hypnotic testimony was reliable. (Read more details about the case)

In 2016, an execution date was set for Charles. Then, relying on a new state law, he filed a “junk science” writ, challenging the hypnosis-tainted identification procedure in his case. The Court of Criminal Appeals, Texas’s highest criminal court, issued a stay of his execution and sent the case back to the trial court level in Dallas for an evidentiary hearing.  At the evidentiary hearing he would have the opportunity to prove whether the testimony of the State’s expert about the reliability of the hypnotized witness’s identification conflicts with current scientific understanding of hypnosis and eyewitness memory.

At the evidentiary hearing, Mr. Flores presented testimony from an expert on hypnosis and an expert on memory and eyewitness identification, who demonstrated that the expert testimony presented at trial does not comport with contemporary scientific understanding of the relationship between hypnosis and the nature of memory itself. The experts testified that the contemporary scientific consensus is that memory is not stored like a video recording that can be paused, rewound, and otherwise manipulated without being distorted; instead, scientists now agree that memory is inherently reconstructive. Additionally, contemporary scientist now agree that hypnosis enhances the risks of suggestibility and decreases the likelihood of accurate recall in the hypnotized witness. The experts at Charles’s hearing also explained that, unlike the time of trial, today there is a virtual consensus that hypnosis only enhances the risks of false memory creation, unwarranted confidence in memories, and errors in eyewitness identification.

At the post-conviction hearing, Ms. Barganier admitted that, with respect to certain details in her memory of what she witnessed, she was not “real clear if that was [her] imagination or not, but . . . that’s how [she] remembered it.” Despite this and similar admissions, she maintained that she was confident about her in-court identification after all these years. The police hypnotist, by contrast, admitted that he had only performed one hypnosis in his entire career—on Ms. Barganier—and he was no longer confident in the assumptions that had led him to believe, back in 1998-1999, that hypnosis could be used to retrieve an accurate memory.

Current Status/Procedural Posture:

Approximately ten months after the hearing concluded, the trial court signed an order that adopted the State’s proposed findings of fact and conclusions of law verbatim. The ruling included a series of contradictory conclusions: that the State’s expert at trial had not said anything wrong and the hypnosis session had been handled properly; that post-hypnotic identification is reliable and consistent with the modern science of eyewitness identification; that the hypnosis session had not had any effect on the witness because the police were just trying to help Ms. Barganier “relax;” that the science surrounding hypnosis has not changed because it has always been “controversial;” and that, in any case, there was sufficient proof of Mr. Flores’s guilt without the post-hypnotic identification. The case is now before the Court of Criminal Appeals, and that Court will decide whether Mr. Flores is entitled to a new trial.

The national Innocence Project recently filed an amicus brief in Charles’s case.  In their brief, the Innocence Project asked the Court of Criminal Appeals to reject the findings below and grant relief based on the evidence developed during the evidentiary hearing as follows:

  1. Barganier’s ability to form a strong memory of what she saw outside her house was necessarily limited by critical factors such as lighting, distance, and exposure duration.
  2. Law enforcement officers investigating this case used a number of highly suggestive identification practices that are now known to contaminate eyewitness memory: a hypnosis session, multiple identification proceedings conducted by those who already knew the identity of the suspect, and an array that was biased in its construction.
  3. By the time she testified at trial, Barganier had been exposed to much contaminating information that discernibly influenced and changed her account of what she had seen.
  4. Despite having failed to identify Charles in an out-of-court identification proceeding shortly after the incident, Barganier finally made the identification in a highly suggestive in-court identification procedure many months after the crime.

The Innocence Project brief also agrees that the scientific understanding of memory and the ability of hypnosis to distort memory and inflated confidence in false memories has developed considerably since the time of Charles’s trial.