Lawmakers try again to bar hypnosis-induced evidence from Texas criminal trials

The Lady Justice statue at the Enrique Moreno County Courthouse in El Paso on Oct. 11, 2022. (Jorge Salgado For The Texas Tribune, Jorge Salgado For The Texas Tribune)

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For the second session in a row, the Texas Legislature has passed a bill that would ban hypnosis-induced statements from being introduced as evidence in criminal trials. Lawmakers are hopeful the governor won’t veto it again this year.

Despite scientific evidence that hypnosis can distort memories, Texas police and prosecutors have routinely relied on witnesses who identify suspects after being hypnotized by a police officer. The controversial policing practice was used close to 1,800 times in Texas over the course of 40 years, according to a 2020 Dallas Morning News investigation, and played a role in sending numerous people to death row, including a man who was executed last year.

By prohibiting the courtroom use of statements made during or after a police-led hypnosis session, Senate Bill 338 would largely ban the practice altogether. The Texas Rangers, who according to the News performed the lion’s share of the state’s police hypnosis sessions, stopped using the technique in 2021, citing “more advanced interview and interrogation techniques that yield better results.”

After receiving unanimous support in the Senate last month, the House initially passed the bill Monday and gave its final approval Tuesday on a 128-10 vote.

The bill now heads to Gov. Greg Abbott’s desk, where supporters believe it will clear the final hurdle.

Two years ago, Abbott vetoed nearly identical legislation, saying it was too broad. Under the final version of that bill, the governor said any statement given by a person who had ever been hypnotized by police would be inadmissible, no matter how long ago it was given and if it was even related to the same case.

“The House sponsor’s amendment would grant lifetime immunity, for everyone who undergoes this type of hypnosis, from having any subsequent statements used in a criminal trial,” Abbott said in his veto statement in 2021.

This year, bill authors said they addressed the governor’s concerns by tweaking the bill’s language to specify that post-hypnosis statements would only be inadmissible in court if the hypnosis was conducted for the case at hand. State Rep. Jeff Leach, the Plano Republican leading the bill in the House, assured his colleagues Tuesday that he has been working with the governor’s office.

“We’re not just thumbing our nose at the governor and sending back the same language,” state Rep. Joe Moody, an El Paso Democrat and chair of the House Criminal Jurisprudence Committee reiterated on the chamber floor. “This is directly and narrowly tailored to the exact message that we received two years ago.”

Abbott’s office did not respond to questions about his support for the bill Monday.

In legislative reports, the bill’s supporters said scientific studies have shown that hypnosis does not increase the accuracy of eyewitness recall or recognition, but it can lead witnesses to be more confident about their memories, even false ones. Concerns about the unreliability of such testimony intensify when police officers perform the hypnosis.

Still, police hypnosis sessions have been major factors in life-and-death cases, including that of Charles Flores.

Flores, 53, has been on death row for nearly a quarter century for the murder of Elizabeth “Betty” Black during a home burglary in a Dallas suburb. His lawyers have long argued for a new trial, saying the linchpin of the state’s original case was the hypnosis of Black’s neighbor, who testified as an eyewitness in Flores’ trial.

The neighbor, Jill Barganier, originally told police she saw two men arrive at Black’s house in a car shortly before the murder. She was able to identify the driver but not the passenger, who she originally described as a white man with long hair, according to Flores’ court filings. Flores, who police believed to be the passenger, is Hispanic and had buzzed hair at the time.

Barganier agreed to be hypnotized by a local police officer, and she again described the passenger as a white man with long hair, despite being asked questions about whether the man had short, shaved hair, according to Flores’ lawyers. Immediately after the session, she was shown Flores in a photo lineup of other Hispanic men with short hair, which a psychology professor and hypnosis expert hired by Flores said could have implanted a false memory. Barganier first identified Flores as the passenger on the witness stand.

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