On Monday, the FBI and the Justice Department announced the first results of a large-scale project called the Microscopic Hair Comparison Analysis Review, and they weren’t good.
Here’s how the Washington Post broke the story:
“The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”
It’s unfortunate, but it’s true. Here’s a copy of the press release from the FBI’s website. It’s a story that’s traveled across the country and around the world.
The three-year-old project to review these cases was spurred by three high-profile exonerations, beginning in 2009, of men who were convicted at least in part by testimony from the FBI’s unit for microscopic hair analysis. That same year, the National Academy of Sciences released a landmark report on the state of forensic science in America, and it referred to the practice of using only microscopic hair comparison to connect a defendant to a crime, without DNA testing, as “highly unreliable.”
Since then, the government has partnered with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) to review the FBI’s cases and determine whether its examiners made erroneous statements that favored the prosecution—by, for example, implying a definitive match or otherwise overstating their findings. The project focuses on cases from before the year 2000, when the Bureau fully deployed mitochondrial DNA testing of hair samples.
So far, the FBI has searched more than 21,000 cases in which the unit was asked to perform microscopic hair analysis, and of those, it has identified nearly 3,000 cases in which examiners submitted a written report or testified at trial.
Of these 3,000 cases, the Bureau has reviewed about 500 so far, including 268 trials.
The results? Of the 268 trial transcripts reviewed so far, examiners made erroneous statements in 257 of them, or 96%. Every one but two of the unit’s 28 examiners made erroneous statements in their reports or testimony. Of the 35 cases that resulted in the death penalty, they made errors in 33 of them (94%). Nine of these defendants have been executed already, and five more have died of other causes while on death row.
According to Peter Neufeld, a co-founder of the Innocence Project, “These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution’s case.”
Adds Norman Reimer, executive director of the NACDL, “It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed.”
The FBI has agreed to provide free DNA testing in response to a court order or a request by the prosecution, and in federal cases, the Justice Department will not oppose new-trial petitions for procedural reasons like the statute of limitations.
The majority of the FBI unit’s testimony, however, was provided in state cases, and it’s unclear whether individual states will follow suit.
Nor does the project pertain at all to the many thousands of cases in which microscopic hair analysis was performed by state or local crime labs.
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