In July 2013, the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project (IP) signed an historic agreement with the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) to review thousands of criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence.
Two major developments created the impetus for this groundbreaking review.
First, in a 2009 report on forensic science, the National Academy of Sciences specifically identified microscopic hair-comparison evidence as problematic. The second and more directly triggering event was the exoneration of three men between 2009 and 2012 who had served lengthy prison sentences, and whose convictions were tainted by microscopic hair comparison evidence that exceeded the limits of science.
DNA testing contradicted the conclusions of three different FBI hair examiners who had provided the flawed testimony in those cases.
The review focused on cases in which either the FBI laboratory reports or the testimony included statements that exceeded the limits of science. The review was tasked with examining all cases analyzed prior to Dec. 31, 1999, and extending back at least until the early 1980s or earlier where cases could be identified.
For the past two years, the FBI, along with representatives of the Innocence Project and NACDL, have been reviewing lab reports and trial transcripts for error. There are three types of error that can be identified, all of which essentially overstate the probative value of microscopic similarity and conveyed the impression that an evidentiary hair matched a known specimen.
We agreed that once a particular threshold was met in the review, interim data would be released to the public. That interim report was released on April 20.
Here's what we found: of the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 (96% of the cases). Defendants in at least 35 of these cases received the death penalty, and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed, and five died of other causes while on death row.
The report was based on an FBI review of about 500 of the nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis prior to Dec 31, 1999. Excluding several categories in which the microscopic analysis had no impact on the outcome of the case, there remain approximately 2,000 cases in which the review is ongoing or transcripts have not yet been located.
The joint statement announcing the interim results declared “that the FBI has concluded that the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements.” The statement went on to say that 26 of 28 FBI agent/analysts “provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements.”
It is important to point out that cases in which the offense occurred after 2000 were not examined because, since 1996, mitochondrial DNA testing augmented hair microscopy as the means of determining whether two hair specimens were determined to be a match. Hence, at least in terms of the FBI laboratory, the practice of relying solely upon hair microscopy ended.
No date has been set for completion of the final report.
Meanwhile, the April 20 statement contained an important commitment by the DOJ and the FBI to work with NACDL and the Innocence Project to:
- Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long;
- Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports, and review the hundreds of remaining cases that may contain invalid scientific statements; and
- Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI.
It is not enough that the problems we identified be prevented from happening again. While NACDL and the Innocence Project are working tirelessly toward that end, it is critical that all of those affected be notified and that each defendant has the representation he or she needs to evaluate the impact of the flawed evidence and pursue appropriate avenues of relief.
NACDL is committed to making sure that happens.
Norman L. Reimer is Executive Director of the National Association of Criminal Defense Lawyers. He welcomes your comments.