In late April we posted about a developing story involving revelations concerning how erroneous testimony and lab reports of FBI hair analysts up to the year 2000 prejudiced the criminal trials of at least dozens of criminal defendants nationwide. As more information becomes available, it appears that the actual extent of the damage done by these hair analysts may be even greater than originally thought.

The ongoing review of case decisions that may have been compromised by incorrect evidence based on now-discredited microscopic hair analysis strongly suggests that the early estimates — 3,000 or more cases in which faulty testimony or reports were used, only about 500 of which have been reviewed and an error rate of more than 95 percent — may be only a fraction of the total number.

What was not taken into account in the identification by the Federal government of the 3,000 cases above is that the 26 FBI hair analysis personnel who provided erroneous expert testimony are not the only people who may have committed the mistakes that could have unfairly tipped the scales of justice against the defendants. For several years until mitochondrial DNA testing mostly supplanted microscopic hair analysis as an evidentiary tool, FBI laboratories trained crime laboratory personnel from almost every state in the country in the use of hair analysis. There presently is no numerical estimate of how many of these state-level laboratory personnel then gave their own testimony and reports in state court criminal trials, with potentially similar prejudicial effect against the defendants in those cases.

Moreover, the current investigation being conducted by the U.S. Department of Justice along with the National Association of Criminal Defense Lawyers and the Innocence Project is largely leaving it to the discretion of individual states to decide whether to investigate and if necessary reopen and relitigate cases in which improperly trained state hair analysts gave evidence for the prosecution.

The seriousness of the errors committed by both federal and possibly state court prosecutions is exemplified by the number of death penalty cases that were subject to those errors. In just the 257 cases reviewed in which faulty hair analysis testimony is known to have been given, 35 of those resulted in death sentences (including here in Oklahoma). Of those 35, 14 possibly wrongfully-convicted defendants have already died in prison by execution or other causes.

Given the potential scope of the problem — especially now considering the state-level cases in which improperly-trained lab personnel may have provided incorrect testimony — and the lack of a comprehensive and systematic approach to identifying and investigating those cases, the true number of people wrongfully convicted may never be fully known.

Government expert witnesses, and in particular those who either work for or who have been trained by the FBI crime laboratory, are often given considerable deference in criminal trials. As this situation suggests, however, that deference may not always be warranted and defense attorneys should always be prepared to vigorously challenge the credentials and the training of such experts.

If you or a loved one has been charged with a crime, contact the Oklahoma Criminal Defense Lawyers at the Hunsucker Legal Group for you free consultation. Call 405-231-5600 or click here