In response to the FBI’s admission of errors, NCIP to review California cases.
By Todd Fries
In April 2015, the US Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) stunned the criminal justice community by acknowledging that in the two-decade period before 2000, nearly every examiner in the FBI’s microscopic hair comparison unit gave flawed testimony in criminal cases.
Source: Equal Justice Initiative
Microscopic hair comparison analysis, or hair microscopy as it is commonly called, became a major source of controversy following a trio of DNA exonerations in Washington DC from 2009-2012. All three defendants were convicted based on FBI hair microscopy evidence that DNA testing later proved wrong. It turned out that hair microscopy, a so-called forensic science the FBI had used in approximately 21,000 cases, is not really science at all.
In cases involving hair microscopy, hair evidence recovered from a crime scene is examined through a microscope. If the hair in evidence shares enough similar characteristics with a known hair sample (i.e. hair from the suspect or defendant), the hairs are deemed a “match.”
Scientists have criticized this discipline and noted its unreliability based on the unknown pool of subjects that have the same hair characteristics. Nonetheless, FBI experts repeatedly testified improperly, applying probabilities to include someone as the source of a hair, and possibly contributing to hundreds of wrongful convictions for violent crimes dating back at least to the 1970s. Even more shocking, some jurisdictions continue to use hair microscopy where mitochondrial DNA testing, a more reliable test for hair comparisons, is deemed too expensive, time consuming, or is otherwise unavailable.
In an effort to determine the extent to which expert testimony may have tainted convictions, the FBI launched an unprecedented internal review of hair microscopy cases.
They initially identified for review roughly 2,500 cases in which their lab improperly reported a hair match. The National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project (IP) are helping the government review these cases and reported that the FBI overstated hair matches in more than 95 percent of the cases reviewed so far.
These cases are just the tip of the iceberg. While a crucial first step, the NACDL/IP review does not include cases where state and local crime labs – whose examiners may have been trained by the FBI – conducted hair comparisons. Over the years, the FBI trained hundreds of state hair examiners in annual two-week training courses.
The DOJ and FBI have encouraged states to conduct independent hair microscopy case reviews, and FBI Director James Comey sent an unprecedented letter to the Governor of each state asking them to encourage state prosecutors to comply with requests for trial transcripts in hair microscopy cases.
NCIP has made it a priority to conduct a review of hair microscopy cases in California and has already identified approximately 1,000 cases for initial screening and review. NCIP will derive hair microscopy cases from three major sources: 1) cases referred by NACDL which they discover in the course of their FBI review, 2) cases discovered through searching appellate records on Westlaw, and 3) cases that currently exist in NCIP’s case files and backlog.
NCIP is also seeking cooperation from California state, county and local crime labs to acquire the names of experts who attended FBI hair trainings and the cases in which they testified.
There is no doubt that innocent people were convicted based on the faulty “science” of hair microscopy. The work to find them is urgent, and the need is great. If you would like to support NCIP’s efforts in its California hair microscopy review, donate here.
To learn more about hair microscopy, see: http://www.slate.com/articles/news_and_politics/jurisprudence/2015/04/fbi_s_flawed_forensics_expert_testimony_hair_analysis_bite_marks_fingerprints.html
To read the press release about NACDL’s and IP’s review of FBI hair microscopy cases, visit:
https://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review
To read FBI Director James Comey’s letter to state Governors, visit:
https://www.fbi.gov/about-us/lab/scientific-analysis/comey-letter-to-governors
To read about recent hair microscopy exonerations, visit:
