Petition For a Writ of Certiorari to The Texas Court of Criminal Appeals


In Rock v. Arkansas, 483 U.S. 44 (1987), this Court found that, although “hypnotically refreshed” testimony was “controversial,” the dangers associated with it could be reduced by “procedural safeguards” that this Court left to the states to adopt. Contemporary scientific understanding of human memory and of the inherently intrusive nature of hypnosis has established that there are no procedural safeguards that reduce the dangers associated with investigative hypnosis. Yet Charles Flores is on Texas’s death row for a conviction that hinges on an eyewitness identification obtained from an individual for the first time in the courtroom—after she had submitted to a hypnosis session conducted by a police officer in conjunction with other suggestive procedures.

The Question Presented is:

Is the Constitution’s guarantee of a fundamentally fair trial compromised when a conviction hinges on an in-court eyewitness identification obtained after an investigative hypnosis session conducted by law enforcement—especially in a death-penalty case that requires heightened reliability in factfinding?

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The Flores case shows how our criminal justice system mishandles eyewitness testimony

Convictions based on the pseudoscience of hypnosis allow for the miscarriage of justice

The Flores case is an example of using “junk” science for a murder conviction.

Since the inception of criminal investigations, the techniques and procedures used in these inquests have been plagued by pseudoscientific claims.

From spectral evidence allowed at the Salem witch trials and phrenologists interpreting bumps on the skulls of criminals, to modern-day polygraphs to detect lying and hypnosis to unlock repressed or forgotten memories, the justice system, and ultimately people’s lives, have too often been dictated by “junk” science. [Read more in Dallas News]

Hypnosis helped put this Texan on death row, his lawyers say. The Supreme Court could soon decide his fate

The Texas Association for Investigative Hypnosis sold these commemorative medallions to members at its 2019 annual conference in Huntsville. The association is one of the few, if not the only, remaining societies for police employing hypnosis in criminal investigations. (Smiley Pool/Staff Photographer)(Smiley N. Pool / Staff Photographer)

The witness remembered the Volkswagen Beetle, its psychedelic flames visible in the twilight, and the white man with long hair who parked the garish thing on her quiet street that January morning in 1998.

But, when Farmers Branch police showed her a lineup, she couldn’t pick out the passenger.

She wanted to remember what he looked like to help catch her neighbor’s killers, the men who slithered under the garage door, shot the 64-year-old grandmother dead and ransacked her home. So a local policeman did something he’d never done before and would never do again.

The officer hypnotized her. [Read more on The Dallas News]

False witness: why is the US still using hypnosis to convict criminals?

Published in “The Guardian” (UK) on Oct 20, 2019

For decades, US law enforcement has used ‘forensic hypnosis’ to help solve crimes – yet despite growing evidence that it is junk science, this method is still being used to send people to death row. By Ariel Ramchandani

In January 2016, Charles Flores, a Texas prisoner, was moved to death watch, where inmates awaiting execution spend their final months. Seventeen years earlier, Flores had been convicted of murdering a woman in a Dallas suburb in the course of a robbery, a crime he says he did not commit. All of his appeals had been denied and his lethal injection was scheduled for 2 June.

Flores’s new neighbour on death watch, who was due to die in two weeks, gave him the name of his attorney, Gregory Gardner. Gardner specialised in fighting capital punishment convictions and had helped this man take his case to the US supreme court. Flores wrote to Gardner, telling him about the troubling course his trial had taken. No physical evidence had been presented to tie him to the murder, his defence had failed him in multiple ways and, perhaps most troublingly, the only eye witness who claimed to have seen him at the scene of the crime had been hypnotised by police during questioning. [Read more on The Guardian]

Objections to District Court Judge’s Recommendations

Charles Don Flores Case - Objections to District Court Judge's Recommendations (10/15/2018)Applicant Charles Flores, by and through counsel, respectfully requests that this Honorable Court:

  • consider the objections presented here;
  • withdraw its Order dated October 3, 2018 (Order), which includes Findings of Fact and Conclusions of Law (FFCL) and contains a recommendation that habeas corpus relief be denied;
  • enter revised FFCL correcting the significant mistakes of fact and law enumerated below;
  • and recommend relief in the form of a new trial.

As Mr. Flores argued to the Court, since his trial in 1999, Texas has made notable strides to try to prevent and unwind wrongful convictions by adopting policies and enacting legislation to improve the reliability of criminal verdicts—including the passage in 2013 of Senate Bill 344, which amended the Code of Criminal Procedure to add article 11.073. 7 EHRR 7-8; see also Ex parte Robbins, 478 S.W.3d 678, 704 (Tex. Crim. App. 2014) (“in 2013, the Texas Legislature also chose accuracy over finality by enacting Article 11.073”). Unfortunately, the Legislature’s intent to make it easier to address wrongful convictions based on outdated science has been thwarted in this proceeding as the Court has abdicated the role of neutral arbiter, ignored the evidentiary record and instead adopted wholesale the State’s error-ridden Proposed FFCL.

The error starts with the very framing of the new-science claim that Mr. Flores alleged (and proved). This case involves a wrongful conviction based on an unreliable eyewitness identification following a highly suggestive, police-conducted, hypnosis session. The Court’s FFCL ignore the fact that the hypnosis session at the heart of his new-science claim is significant only because the hypnotized witness later claimed to be able to identify Mr. Flores as one of two people seen outside of a crime scene. Using new developments in the fields of memory and hypnosis, Mr. Flores demonstrated why, thirteen months after-the-fact, this “eyewitness,” was able to assert with unwarranted confidence that, instead of the white male, with long, wavy hair this witness had described the day of the crime, Mr. Flores, an obese, Hispanic male with very short hair, was one of two men she had glimpsed getting out of a strange car in the pre-dawn hour while she looked through the mini-blinds from a window in the house next door. Mr. Flores also demonstrated, in light of contemporary scientific understanding, why the “science” the State used at trial to convince the fact-finder that the purported identification was reliable is wrong.
As Justice Newell recognized when Mr. Flores’s 11.073 new-science claim was remanded to this Court for consideration on the merits, the forensic hypnosis aspect of this case is inextricably linked to the issue of eyewitness identification more broadly: “As we have noted in Tillman v. State, eyewitness misidentification is the leading cause of wrongful convictions across the country. . . . I cannot imagine that the concerns regarding suggestive eyewitness identification evaporate when eyewitness testimony is enhanced through hypnotism.” Ex parte Flores, WR-64,654-02 (Tex. Crim. App. May 27, 2016 (Newell, J., concurring) (emphasis added).

While state habeas courts are given discretion over the methods for developing and receiving evidence to resolve contested factual claims, see, e.g., TEX. CODE CRIM. PROC. art. 11.071, § 9(a), the fact-finding procedures must be adequate for reaching “reasonably correct results.” Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 1975) (citing Townsend v. Sain, 372 U.S. 293, 316 (1963)).
The Court of Criminal Appeals (CCA), which will ultimately decide this matter following a de novo review, is not bound by the trial court’s FFCL. Ex parte Brandley, 781 S.W.2d 886, 887-88 (Tex. Crim. App. 1989). In deciding whether to defer to a trial court’s findings, the CCA will ask whether the findings are supported by the record, Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989). Here, they are not. Nor were the fact-finding procedures “adequate for reaching reasonably correct results” in light of the Court’s decision to ignore most of the evidentiary record. Davila, 530 S.W.2d at 545. Instead, the Court’s FFCL adopt the State’s advocacy positions as “facts” and rely heavily on suspect materials that were never admitted into evidence in this, or any proceeding—after limiting Mr. Flores’s ability to put on evidence relevant to rebut the State’s purported “corroborating evidence” of guilt.

The Court’s manifest errors of law and fact and indefensible omissions are best explained by its decision to adopt, in toto, the State’s Proposed FFCL. This Court should revise its FFCL to remedy several fundamental errors including:

  • The Court’s Mischaracterization of Mr. Flores’s New-Science Claim and the Misrepresentation of the Law Relevant to the “Science” of Forensic Hypnosis;
  • The Court’s Wholesale Distortion of the “Science” the State Relied on at Trial in 1999 and the Contemporary Scientific Critique of that Trial Testimony;
  • The Court’s Omission of the Evidence Amassed During This Proceeding Showing Significant Changes in the Relevant Science Since the Time of Mr. Flores Trial;
  • The Court’s Omission of Evidence Amassed during this Proceeding about the Context that Led to, and Followed from, the Hypnosis Session;
  • The Court’s Omission of Other Significant Evidence Adduced during this Proceeding Relevant to the Reliability of the State’s Witnesses in the 1999 Zani Hearing;
  • The Court’s Due Process Violation Evidenced by the Decision to Adopt the State’s Proposed FFCL Wholesale;
  • The Court’s Adoption of the State’s Advocacy Positions as “Facts” Instead of Serving as an Independent Arbiter of the Evidence;
  • The Court’s Misuse of the Legal Concept of Judicial Notice to Rely on Materials That Were Not Admitted into Evidence in this or Any Other Proceeding.

PDFDownload full document in PDF : “Objections to District Court Judge’s Recommendations”.

Amicus Curiae Brief filed by the Innocence Project

Amicus Curiae Brief filed by the Innocence ProjectThe Innocence Project brief 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.

DPDFownload the Amicus Curiae Brief in PDF filed by the Innocence Project in support of Charles Don Flores.

Download Brief of Amici Dr. Penrod & al in PDF

Download “Appendix – List of-Amici” in PDF