Last week, the Justice Department and the FBI formally acknowledged that 26 of 28 examiners in an elite FBI forensic unit gave flawed hair comparison testimony in trials for two decades, until DNA testing became available to more accurately test the hair in 2000. Flawed forensic testimony was admitted in 95% of the trials in the re-examined cases (342 cases reviewed so far, 1200 remain). The 342 reviewed cases include 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.
Witnesses presented testimony that hair associated with a crime “matched” the defendant with near certainty, citing misleading statstics. In one case, later testing revealed the “matching hair” to be a dog hair. FBI hair analysts “committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consiquence of unfairly bolstering the prosecution’s case,” said Peter Neufeld, Co-Director of the Innocence Project. Given that FBI examiners trained hundreds of state hair examiners in annual training courses, the errors surely extend to coutless state cases not yet included in this review.
As many, many people have written this week (here , here, here, here, here , here), this is a big deal. Spencer Hsu wrote in the Washinton Post, “The admissions mark a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries.”
Finally, a watershed moment! Or is it? How long has it been clear that the misuse of forensic science is causing miscarriages of justice by erroneously claiming to identify defendants by matching hair samples, fibers, or bite marks? By claiming an accident was arson? In the New York Times, Eric Lander, founding director of the Broad Institute of MIT and Harvard, makes clear that this is not a new concern: “A 2009 report by the National Research Council, an arm of the National Academies, found that apart from DNA testing, no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.” As Scott Greenfield writes, “we’ve rested our faith in crap, scientifically unproven and unjustifiable, because people dressed in expert suits took the witness stand, offered jargonized mumbo-jumbo in official sounding tones, and promised that they were right, because science.”
Based on historical review of forensic inaccuracy, widespread error, and numerous lab scandals, there are calls for reform. There is a new national commission tasked with bringing rigor to forensic science. As Eric Lander asserts, “It is now abundantly clear that an expert’s opinion is not a reliable basis for drawing connections between evidence samples and a particular person. No expert should be permitted to testify without showing three things: a public database of patterns from many representative samples; precise and objective criteria for declaring matches; and peer-reviewed published studies that validate the methods.”
You know what still happens when you walk into a trial court and ask for a full hearing on the admissibility and scope of fingerprint or ballistics evidence? Too often, the judge and prosecutor look at you like you’re bonkers, tilting at windmills. Or worse, engaging in shenanigans by creating unwarranted skepticism of accurate science rather than exposing true flaws in non-science that has been accepted with insufficient scrutiny. They give you rolled eyes, exasperated sighs. They have inexplicable confidence that errors only happen in other cases, in other courtrooms. Scott Greenfielf wrote, as this latest story was breaking, “Thing is, I can’t bear writing another post about junk science. We’ve known the answer for decades, but judges don’t give a damn.”
As public defenders, we have the responsibility of raising these issues in the trial courts and reminding prosecutors and judges that it is not acceptable to choose expediency over accuracy. The goal of increasing accuracy of evidence must be shared by all parties in the justice system. As Eric Lander writes, “Insistence on high-quality forensics should unite law enforcement, prosecutors and defense attorneys. It’s a matter of both justice and safety: No one wants innocent defendants in jail — or executed — while true perpetrators are still at large.”