Article: Appeals of Texas Murder Convictions Challenge Hypnotizing Witnesses

Hypnotizing Witnesses – Two Texas Death Row inmates seek to block their executions because their convictions relied in part on the testimony of a witness who had been hypnotized, which they attack as too unreliable to be accepted in court.

Along with Richard Childs, an alleged accomplice, Charles Don Flores was accused of murdering a woman in Farmers Branch, a Dallas suburb, over 20 years ago. The prosecution contended that on an early morning in January 1998, Flores and Childs broke into the home where they thought an elderly couple was hiding a large sum of cash. The husband was away, but the 64-year-old wife was fatally shot, along with the family’s guard dog Doberman.

Flores denies having anything to do with the woman’s killing, and no physical evidence tied him to the murder or the murder scene. A next-door neighbor, Jill Barganier, told police she had witnessed two men get out of a car parked in the Clarks’ driveway and enter the house. She initially described both as white, slim and long-haired.

That describes Childs, but Flores is a large, heavy-set Hispanic, reflected in his nickname “Big Charlie.” Presented with photo line-ups including Flores’ photo, Barganier twice failed to identify him as one of the men she saw.

About a week after the murder, she volunteered to be hypnotized by a local police officer, in an effort to capture more of whatever memory she retained of the men she saw at her neighbor’s house. The officer who presided over the videotaped session had received some training, but it was his first and only time hypnotizing and then questioning a witness.

Immediately after the session, a police artist working with Barganier produced a composite drawing depicting a slim, long-haired white man, but the officer assured Bargainer her recall would improve with time. At Flores’s trial more than a year later, Barganier testified she recalled seeing Flores at her neighbor’s home on the morning of the murder.

The Controversy of Hypnotizing Witnesses

Use of hypnotism in police investigations, though increasingly controversial, is allowed in Texas. It’s one of 17 states that do so, either free of conditions or only when a court decides to allow it after examining specific factors bearing on its reliability. New York is in the majority of states that ban hypnotizing witnesses; a few states lack clear law on it.

But the Innocence Project, backing Flores’s appeal, calls hypnotizing witnesses or forensic hypnosis “deeply unreliable” and points out DNA evidence has exonerated at least six persons convicted of crimes where the prosecution presented witnesses who had been hypnotized. Psychological studies showing hypnosis can evoke false memories or be influenced by a questioner’s approach have weakened support for the practice.

Texas’ highest court for criminal law has stayed Flores’s execution date and will hear his appeal under a state “junk science” law – adopted as the first in the nation – allowing convictions to be overturned if based on evidence deemed scientifically unsound.

Flores’ lawyer is also handling a similar appeal in another Texas murder case involving hypnosis, as Laotian immigrant Kosoul Chanthakoummane challenges his 2007 conviction for fatally stabbing a real estate agent in a model home. That case involves both hypnosis-augmented testimony and analysis of other evidence (bite marks and DNA) being challenged on scientific grounds.

About the Author

hypnotizing witnessesScott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. You can contact Scott anytime. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.