Penn & Teller told the U.S. Supreme Court it should look closely at Texas death-row inmate Charles Flores’ conviction, arguing his case relied on “investigative hypnosis” to reshape a key witness’s memory. The court has twice declined to hear prior appeals, an
A few days from now, the U.S. Supreme Court could decide whether Texas can carry out a death sentence tied to a single witness’s memory — and Penn & Teller want the justices to look harder at how that memory was formed.
In a filing submitted to the court, the magician duo argued that what they called “flim-flam” was used by law enforcement in the prosecution of Charles Flores, a Texas man facing a death sentence for murder.
The case centers on Flores’ conviction for shooting a suburban Dallas woman in 1998 during an attempted robbery of her home.
Flores’ supporters are now pressing the court over a technique prosecutors say can’t be revisited endlessly: investigative hypnosis. His lawyers described the trial as “irreparably tainted by junk science and official misconduct.”
They say a key witness’s account was vulnerable to manipulation after a hypnosis session that, according to their argument, steered how she would later remember what she saw.
At issue is not just Flores’ guilt, but the reliability of the identification that helped send him to death row.
A witness struggled at first — then changed
Before Flores was convicted, a neighbor of the murdered woman initially told investigators she saw two White men with long hair enter the victim’s home. She did not select Flores — a Hispanic man with short, shaved hair — from a photo lineup.
She also produced a composite computer drawing that, according to the description in the filing, did not resemble him.
Flores’ attorneys argue the witness was then primed to shift her memory during a hypnosis session. They pointed to the questions she was asked, including whether the hair of the man she had described earlier was “short, shaved and neatly cut.”
“Does he have it neatly cut or is it trimmed,” the witness was asked of the man she had said had long, dirty hair.
Near the end of the session, the officer told the witness she would “be able to recall more of these events as time goes on.”
Thirteen months later, when Flores’ photograph had appeared in news stories, the witness testified at trial that she was “100%” sure she saw Flores go into the house.
Penn & Teller say that is exactly the kind of gap-laden memory that can be reconfigured
In their own brief supporting Flores, Penn & Teller said they have “an obligation to expose flim-flam when they see it,” drawing parallels between stagecraft and investigative hypnosis.
Their filing used an example familiar to theatergoers: after pretending to shuffle a deck of stacked cards. a magician may ask the audience to cut the deck. Then the performer might suggest. “We all shuffled the cards. you cut them. ” a subtle change in wording that can lead participants to “remember” that everyone shuffled the cards.
Penn & Teller acknowledged. through their lawyer’s writing. that they are “experts in magic. not law.” But they argued there is “something fundamentally amiss in the justice system” if “flim-flam like investigative hypnosis” is used by law enforcement to reconfigure a witness’s memory in a capital prosecution.
The brief also says the justice system’s problem isn’t just the technique itself — it’s the way it can exploit how human recollection works.
Flores got one last chance before the scheduled execution — and it went nowhere
The case moved quickly after Flores raised new concerns in 2016. Two weeks before he was scheduled to be executed in 2016, he was given a chance to raise new challenges about the witness’s identification.
After an evidentiary hearing, Flores was denied a new trial.
The Supreme Court has twice declined to hear appeals from Flores — once in 2021 and again in 2022.
Now, the justices are again weighing a new bid.
Prosecutors say this appeal doesn’t deserve a fresh look
Texas prosecutors argue Flores’ latest filing “essentially repackaged and reasserted the same claims.”
Flores’ attorneys counter that he is raising new information, including a “new consensus in the scientific study of eyewitness memory.”
They point out that Texas passed a law in 2013 intended to help people show that since-discredited science contributed to wrongful convictions.
Even so, Texas’ highest criminal court has ruled against every death sentence prisoner who has invoked that law.
Flores’ attorneys told the Supreme Court that “There is a Texas-sized due process problem burdening death-sentenced individuals like Flores with credible claims of innocence.”
For now. the central conflict remains sharp: prosecutors say Flores is asking the Supreme Court to revisit issues he already challenged. while his supporters argue that the technique used on the witness — and the way it shaped her certainty later — goes to the heart of whether the conviction can stand.
The justices could decide as early as June 15 whether they will hear the appeal.
Penn & Teller Supreme Court Charles Flores death penalty investigative hypnosis eyewitness memory Texas law 2013 Dallas murder case junk science capital prosecution