WASHINGTON, July 24, 2013 – The FBI and Justice Department are reviewing thousands of old convictions dating back to the early 1980s in which forensic hair analysis may have been exaggerated. So far the review has identified at least 27 death penalty convictions where FBI forensic specialists may have erroneously connected defendants to crimes by using flawed scientific testimony.
The review is being conducted in collaboration with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL). At the moment, the 27 death row cases are among the first 120 convictions identified as potentially flawed in more than 21,700 FBI files currently under examination.
At the center of the review is the practice of some FBI scientists to declare hair samples found at crime scenes as “matching” defendants after microscopic hair analysis.
Since the 1970s the FBI has stated that hair association is not a reliable source of positive identification on its written laboratory reports. However, while testifying as expert witnesses, several FBI experts testified that hair analysis provided a clear, near-unequivocal match.
In truth, while microscopic hair analysis can exclude a hair sample, it cannot positively match an individual in the same way that fingerprints or DNA can. Unlike DNA, a 2009 report by the National Academy of Sciences found that there has been no reliable research to show the probability of hair from two different people appearing the same under microscopic analysis.
The review identifies the claim that a hair sample belongs to one person “to the exclusion of all others” as scientifically invalid testimony. Now, the task is to analyze cases in which this very testimony was offered to convict a defendant.
Currently in its preliminary stages, it is uncertain what impact the review will have on thousands of convictions. The FBI is still unsure of how many cases involved the mistaken testimony and whether the testimony influenced convictions. It is also unsure of how many valid convictions may be called into question.
The effects of the review may also go beyond cases handled by FBI analysts. While the review covered the work of 27 of the FBI’s examiners, officials have confirmed that around 500 individuals from state and local labs attended hair comparison classes given by FBI examiners between 1979 and 2009.
In April the American Society of Crime Laboratory Directors (ASCLD) issued a public notice recommending state labs evaluate improper statements and the impact they may have had on old cases. However, the ASCLD declined to require that all labs perform reviews.
In May, the execution of Willie Jerome Manning, convicted of double homicide in 1992, was stayed at the 11th hour by the Mississippi Supreme Court. Several state and local authorities have initiated their own review of old convictions associated with hair sample testimony.
“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented,” said Peter Neufeld, co-director of the Innocence Project. “It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles.”
Should the review conclude that FBI experts “exceeded the limits of science,” the Justice Department will notify defendants and prosecutors. In these cases, the Justice Department will waive statutes of limitations and other barriers to post-conviction appeals. If requested by a judge or prosecutor, the FBI will also test DNA evidence.
Death penalty cases will be looked at first, followed by cases in which defendants are incarcerated.
15,000 of the 21,700 flies have been reviewed to date. Of these, 2,100 cases have been identified as associated with FBI hair sample analysis. Police and prosecutors in 1,200 cases have been contacted for further inquiry, but 400 cases have been closed because prosecutors did not respond.
More information on the progress of the review is expected later this summer.
The FBI still stands behind the validity of hair analysis, emphasizing that the review is of analyst testimony and not the technique itself.
“There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” said FBI Special Agent Ann Todd, a spokeswoman for the bureau.
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