AUSTIN — Statements that crime witnesses make while under hypnosis will soon be inadmissible in Texas courts.
On Sept. 1, a new law will go into effect banning information gleaned during a hypnosis session from being used against a criminal defendant. The controversial practice of investigative hypnosis, which was the subject of a 2020 Dallas Morning News investigation, involves a law enforcement officer placing a victim or witness under a trance in the hopes of eliciting new or clearer memories of a crime.
Memory experts argue there is no proof that investigative hypnosis results in better recall, saying it can actually elicit false memories from crime victims and witnesses. About half the states bar or heavily restrict “hypnotically-induced testimony” in criminal trials due to the potential for wrongful convictions.
The bipartisan legislation was spearheaded by Sen. Juan “Chuy” Hinojosa, D-McAllen, and Rep. Jeff Leach, R-Allen. Hinojosa said it was “well past time” for the bill to become law.
“Experts in forensic psychology have for years raised concerns that hypnosis does not work as a memory-recovery method and it does not increase the accuracy of eyewitness recall and recognition,” he told The News. “Hypnotically-induced testimony will no longer be used in identifying a defendant or determining their guilt.”
The News’ investigative series exposed how, as other states move away from the practice, officers in Texas continued to rely on hypnosis. The Texas Department of Public Safety used hypnosis to investigate crimes at least 1,700 times since the 1980s, The News reported, sending dozens of men and women to prison and some to death row.
Experts told The News the techniques used by officers in Texas were based on outdated science, and warned of four pitfalls to using hypnosis to investigate crimes:
•Subjects can be prone to suggestion.
•They may lose critical-thinking skills.
•They may “confabulate,” filling gaps in memory with events that never occurred.
•Their belief in fabricated recollections may harden over time, a phenomenon called “memory cementation.”
The Texas Rangers, likely the most prolific police hypnotists in the state, stopped using the technique the year after The News’ investigation published. Soon after, lawmakers unanimously passed a bill barring testimony based on hypnosis. But Gov. Greg Abbott vetoed it, saying it was written too broadly.
This year’s legislation, Senate Bill 338, was crafted to take Abbott’s concerns into account. The governor let the bill become law earlier this month without his signature. It applies only to hypnosis sessions performed by law enforcement officers and does not ban physical evidence or other witness testimony that independently corroborates information about a crime.
Several prisoners in Texas, including some awaiting execution, were convicted at least in part due to information from witnesses who were hypnotized. Charles Don Flores, convicted of being an accomplice to a 1998 murder in Farmers Branch, was identified during trial by a neighbor who’d seen two men enter the victim’s home the morning she was killed.
Police had hypnotized the witness months earlier to enhance her recall.
Flores, who says he is innocent, has unsuccessfully appealed his conviction based on the hypnosis. Another man, Richard Lynn Childs, pleaded guilty to the murder and agreed to serve a 35-year sentence. He has already been paroled.
Flores’ lawyer called the new law encouraging but pointed out it is not retroactive and therefore her client cannot immediately benefit from it.
“But we earnestly hope this development will prompt a sincere reconsideration of his conviction where ‘investigative hypnosis,’ along with other official misconduct, played a significant role in putting an innocent man on death row,” Gretchen Sween told The News.
Democratic Sens. Sarah Eckhardt of Austin, Morgan LaMantia of South Padre Island and Borris Miles of Houston were also co-authors to the bill.
