From The Count of Monte Cristo to The Fugitive, a recurring theme in the entertainment-based view of how the criminal justice system works is that of a wrongfully-accused or wrongly-convicted person who must somehow prove his innocence. We may want to believe that in today’s era of advanced forensic science the possibility of police and prosecutors getting it wrong and sending the wrong person to jail is remote, but if recent revelations about how the Federal Bureau of Investigation botched hair sample analysis for up to three decades is any indication, there is still cause to worry.
Before DNA testing became the presumably highly accurate identification tool it is today, prosecutors had to rely on other ways to prove that a criminal defendant had been at the crime scene. In addition to fingerprint evidence, another way to link the accused to the victim that was prevalent since the 1970s was microscopic hair analysis. And the widely-acknowledged source of expertise — and expert testimony — in this area was the FBI. Now, however, even that agency and the U.S. Department of Justice that it is a part of, have been forced to concede that not only has hair analysis been overestimated in its accuracy, but that in up to 2,500 state and federal criminal cases FBI hair evidence examiners who gave expert testimony may have send the wrong people to prison — and in some cases, to death.
It seems that nearly all of the 28 FBI “experts” in this area provided expert witness testimony that was misleading at best. What is more, these same experts also trained hundreds of people in state-level law enforcement agencies to use the same frequently inaccurate methods and testimony that they used. The flaws in their testimony included claims that hair sample matches to defendants were accurate to a high degree of certainty, based on supposedly conclusive research and statistics that it turns out were not nearly as reliable as the experts made them out to be.
The review of the thousands of cases in which hair evidence and related expert testimony could have contributed to false convictions is still ongoing; about half of the 2,500 suspect cases have been examined, and so far they have turned up an alarming number of instances where false or misleading hair analysis testimony could have tainted the results of trials. Specifically, in 257 of 268 trials where hair evidence was used (including more than 30 carrying the death penalty), the expert testimony was faulty. Two of these cases involved defendants in Oklahoma state-level prosecutions: one of the two people convicted has already been executed, and the other is still on death row.
Sources close to the ongoing review, including The Innocence Project, have generally commended the FBI and the Justice Department for admitting to their mistakes in this area and for their efforts to follow up where possible to see if actual justice can still be had (for a number of reasons hundreds of cases across the country may not be reviewable). And since 2012, when written standards finally became available to define ways to scientifically and accurately explain the significance of hair evidence, the possibility of expert testimony on the topic being wrong may have significantly decreased.
But for many individuals convicted at least in part because of flawed hair evidence testimony, the damage — in the form of years of wrongful incarceration and wrongfully-destroyed personal reputations — has already been done.
The use of “scientific” forensic-based evidence by the prosecution against you in a criminal trial may seem daunting at first, but we must always remember that behind that evidence are people who can make honest mistakes or even intentionally distort the truth. Your best defense against such a possibility is a defense attorney who is keenly aware of how it can happen, and who knows how to properly challenge both evidence and testimony through objections and otherwise to preserve your ability to ultimately prevail at trial or on appeal.
The Hunsucker Legal Group stands ready to protect you or your loved one if accused of a crime. Contact us at 405-231-5600 for a free consultation.