A Hairy Mess

By Carly Chocron

Wrongful convictions result from a variety of reasons ranging from faulty eyewitness identification, coerced confessions, prosecutorial misconduct, to ineffective assistance from counsel, among other things. Now, the Justice Department and the FBI have formally acknowledged that 26 of the 28 examiners in the FBI Laboratory’s microscopic hair comparison unit gave flawed testimony in almost all trials against criminal defendants for more than a 20 year period prior to 2000. In assisting the government with the largest post-conviction review of questioned forensic evidence, the National Association of Criminal Defense Lawyers and the Innocence Project found these examiners overstated forensic matches in ways favoring prosecutors in more than 95 percent of the 268 trials reviewed thus far. Thirty-two of the reviewed cases involved defendants sentenced to death, and of which 14 have been executed or died in prison.

These admissions confirm long suspected problems with subjective, pattern-based forensic techniques, which have contributed to a substantial number of wrongful convictions for murder, rape and other violent crimes since 1989. The Innocence Project co-founder Peter Neufeld characterizes the use of microscopic hair analysis to convict defendants as a complete disaster. The FBI has acknowledged that until 2012, hair examiners lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. FBI examiners systematically testified to the near-certainty of “matches” of crime-scene hairs to defendants, supporting their testimony by citing incomplete or misleading statistics drawn from their casework. There is no accepted research on how often hair from different people may appear the same. Since 2000, the FBI lab has used visual hair comparison or in combination with more accurate DNA testing to eliminate possible sources.

Brandon L. Garrett, University of Virginia law professor, has described this criminal justice “mass disaster” as unable to self-correct. This is because courts rely on outdated precedents admitting scientifically invalid testimony at trial, and make it complicated for those convicted to challenge old evidence under the legal doctrine of finality. Those who have been wrongfully conviction face another hurdle during the appellate process because most biological evidence is either lost or unavailable. California and Texas are the only states that allow appeals when experts recant or scientific advances undermine forensic evidence at trial. Currently, Texas, New York and North Carolina authorities are reviewing their hair examiner cases, and there are 15 other states with efforts underway.

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