In February 2026, a petition for writ of certiorari was filed with the United State Supreme Court on behalf of Charles Don Flores, an innocent man sentenced to death in Texas in 1999 on the basis of the in-court identification by a witness who had been subjected to a highly suggestive “investigative hypnosis” session conducted by police involved in the murder investigation.
Mr. Flores’s petition explains that the Texas Legislature has passed statutory provisions specifically designed to protect innocent people from wrongful execution. Those include a provision allowing prisoners to return to court with a subsequent application for writ of habeas corpus to present evidence of their innocence and a law establishing a lower standard of proof in cases involving changes in scientific understanding since the time of the trial. The petition also cites a law, inspired in part by Mr. Flores’s own case, that now bans the use of testimony affected by “investigative hypnosis” in criminal proceedings. Yet despite these legislative safeguards, the Texas Court of Criminal Appeals has repeatedly denied Mr. Flores even the opportunity to present the evidence of his innocence. The Court of Criminal Appeals has never granted relief to a death-sentenced prisoner under Article 11.073, the “changed science” writ, though it has done so in several factually similar cases that did not involve a death sentence.
Mr. Flores’s petition asks the United States Supreme Court to consider the following question presented:
“Where a state has created liberty interests that give death-sentenced prisoners with credible claims of innocence vehicles for proving their innocence in subsequent habeas proceedings, is the federal right to due process violated when the putatively innocent is arbitrarily denied permission to exercise the right to prove his innocence?”
March 2026: In newly filed amicus curiae briefs, a diverse group of supporters—including Penn & Teller, the American Psychological Association, crime survivor Jennifer Thompson, Texas Defender Service, and exoneree Christopher Scott —urges the United States Supreme Court to review the case of Charles Don Flores, an innocent man on Texas’s death row convicted based on an unreliable “identification” made by a witness only after she was “hypnotized” by law enforcement.
These “friend of the court” briefs explain, among other things, that “investigative hypnosis” is not a reliable memory-retrieval tool but instead instills false confidence in contaminated and imagined memories, and the use of this discredited technique is one of many reasons inaccurate eyewitness identifications are a leading cause of wrongful convictions.
Penn & Teller: Hypnosis Has No Place in a Criminal Case
Penn & Teller have spent decades manipulating audience perceptions to fascinate and entertain. Their techniques draw on cognitive science and insights into human behavior to get their audiences to suspend disbelief and see tricks as truth. But, they explain, such deceptions are dangerous when used off-stage. Penn & Teller offer the Court their brief “to explain how many of the cognitive manipulations they use to trick audiences’ perceptions of truth are on full display” in Mr. Flores’s case. (P&T Brief pp.6-7)
The Penn & Teller brief explains that human memory does not work like a video recorder that can, under hypnosis, be played back (p.7) Yet this fallacy was the basis for the hypnosis session that the police-hypnotist used in Mr. Flores’s case. His movie theater technique has been shown to be “one of the biggest lies about hypnosis,” creating an increased risk of false or distorted memories. (p.7)
“Some of the same cognitive techniques Penn & Teller use on stage to trick audience members’ memory and alter their perception explain how the investigative hypnosis session induced [the witness] to abandon all previous descriptions of the suspect and instead point to Mr. Flores.” (p.8)
Penn & Teller believe “there is something fundamentally amiss in the judicial 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.” (p.15)
Penn & Teller note that it is “not just ironic but illogical and unjust” that Mr. Flores’s case inspired Texas lawmakers to ban the fruits of investigative hypnosis in criminal cases, yet he has thus far been denied any ability to challenge its use in his case. (p.15) “Flim-flam should have no place in the criminal justice system,” they conclude. (p.15)
American Psychological Association: Initial Non-Identifications Are Highly Probative Of Innocence, While Subsequent Memory Tests Are Less Reliable
The American Psychological Association, the country’s leading organization of psychologists representing approximately 174,000 members and affiliates, submitted its brief to express concern about the risks inaccurate eyewitness identifications create for wrongful convictions. “This is true partly because memory does not (contrary to many people’s belief) record, preserve, and replay events with high fidelity, ‘as a videotape recorder would.’” (APA Brief p.3)
The APA explains that research into the fallibility of memory has produced several conclusions about when eyewitness identifications are more or less reliable. First, “initial tests of an eyewitness’s memory are the most reliable because they occur before the witness’s memory has become contaminated.’” (p.4) Relatedly, “it is unlikely a witness would fail to recognize a person at one time but later correctly identify that same person as someone the witness has previously seen.” (p.4) A witness’s failure to identify someone initially—as occurred in Mr. Flores’s case—is “particularly probative of innocence.” (p.4)
Second, the converse is also true; identifications made in subsequent procedures are less reliable, particularly when they differ from the initial one. (p.4) The witness’s memory may be tainted by seeing the subject in a prior procedure or in the news, for example, and then at trial, “lead[ing] to a sense of familiarity that a witness may incorrectly attribute to having seen the suspect at the crime.” (p.4) And third, an in-court identification is especially unreliable, because the witness can easily discern who the defendant is. (p.5)
Because all of these findings are implicated in Mr. Flores’s case, and because his conviction “rested to a significant extent on the in-court eyewitness identification of Jill Barganier” (p.5), the APA urges the Supreme Court to review his petition.
Jennifer Thompson: Her Misidentification Sent an Innocent Man to Prison
Jennifer Thompson knows first-hand how fallible memories can be and the harm a wrongful identification can cause. After being brutally raped in 1984, she worked with police to identify the perpetrator. By trial, she firmly believed that she had identified her attacker “with absolute certainty.” (Thompson Brief p.2) But years later, her high confidence in her memory proved to have been wrong. An innocent man named Ronald Cotton served eleven years in prison due to this wrongful identification, only to be exonerated when DNA evidence eventually exposed the mistake. Ms. Thompson and Mr. Cotton became friends and have shared their story to illustrate how “wrongful convictions harm everyone—the wrongfully convicted, the original victims, and the community left vulnerable when the real perpetrator escapes justice.” (p.2)
In her amicus brief, Ms. Thompson urges the Court to ensure that Mr. Flores is not executed based on an eyewitness identification tainted by the “unreliable junk science” of forensic hypnosis. (p.2) The hypnosis session represents the very type of suggestive interrogation that can produce wrongful convictions, as happened in Ms. Thompson’s own case.
In Ms. Thompson’s case, “suggestive lineups, repeated exposure to the same suspect, and post-identification validation by detectives—contaminated her memory and manufactured the confidence she expressed at trial.” (p.3) She urges the Court to ensure that Mr. Flores has a full and fair opportunity to have the evidence of his innocence considered, given the unreliability of the evidence against him and Texas’s creation of statutes designed specifically to allow reconsideration in such cases. (pp.3-4)
Texas Defender Service: A State Law Enacted to Unwind Wrongful Convictions Based on Flawed or Changed Scientific Understanding Is Not Being Applied as Intended
In their amicus brief, the Texas Defender Service (TDS) explains that Mr. Flores’s case presents exactly the type of situation the Texas legislature envisioned when it passed Article 11.073, the junk science writ, in 2011. However, the Texas courts consistently refuse to apply the law as intended, especially in death penalty cases.
In a recent report, An Unfulfilled Promise: Assessing the Efficacy of Article 11.073, TDS examined dozens of attempts to obtain relief between 2011 and 2023. It has updated the data through early February 2026. This analysis shows that “the Texas Court of Criminal Appeals (“TCCA”) has systematically frustrated Article 11.073’s purpose by invoking procedural barriers with minimal explanation, imposing extra-statutory barriers that deny relief to potentially innocent individuals, foreclosing meaningful review in capital cases where there is the risk of wrongful execution, and effectively restricting the statute’s reach to DNA-based claims despite the well-documented prevalence of non-DNA forensic error.” (TDS Brief pp.1-2)
These systemic problems are reflected in the unreasoned decisions of Texas’s highest criminal court: the TCCA. That court’s repeated, summary rejections of Mr. Flores’s efforts to invoke Article 11.073 are part of a larger, disturbing pattern. TDS urges the Supreme Court to intervene to correct the due process violation resulting from the TCCA’s refusal to apply state law as intended, to prevent wrongful executions. (p.2)
Dallas County Exoneree Christopher Scott: Charles Flores’s Case Fits the Wrongful Conviction Playbook
Christopher Scott was wrongfully convicted in Dallas County of a crime he did not commit. Explaining that his and other Dallas County exonerations “bear certain hallmarks: for example, unreliable or discredited forensic science, mistaken eyewitness identifications, and prosecutorial misconduct,” (Scott Brief p.2) he urges the Court to review Mr. Flores’s case.
Mr. Scott’s brief explains: “When viewed alongside the experience of the Dallas County exonerees whose stories are recounted here,” Mr. Flores’s prosecution “bears hallmarks that courts, legislatures, and scholars now recognize as leading contributors to miscarriages of justice.” (p.2) The brief presents the stories of several Dallas County exonerees to illustrate this point, showing how the same systemic failures that produced other Dallas County wrongful convictions from the same era are present in Mr. Flores’s case.
The Supreme Court is expected to consider whether to review Mr. Flores’s case during a conference in May.