Splitting Hairs: Why the FBI Forensic Lab Review Matters
Forensic science should prevent wrongful convictions, not cause them. We want forensic evidence to give convictions certainty, but we learned a few weeks ago that the scope of bad science used in criminal cases could be wide.
The U.S. Department of Justice and FBI formally admitted that almost every examiner in the FBI’s microscopic hair unit gave misleading, exaggerated, or otherwise flawed testimony in criminal cases between 1972 and 1999. We need reviews and responses like the one undertaken by the FBI and Justice Department. It should be the first in a series of opportunities to implement sound science and best practices rather than letting bad science put (or keep) innocent people in prison.
The Innocence Project and the National Association of Criminal Defense Lawyers assisted the government with the largest post-conviction review of questioned forensic evidence. The numbers from the review of the first 268 cases are staggering:
- In 95 percent of cases, hair examiners overstated forensic results in ways that favored the prosecution.
- 26 of the 28 examiners reviewed gave flawed testimony
- 32 of those defendants received death sentences
- 14 of the death row inmates have either died in prison or been executed.
More than 2,000 cases remain to be evaluated as part of this massive reexamination. The cases span the country — both state and federal — and have one common thread: the FBI Lab reported a hair match before 2000. Using the year 2000 as a benchmark is not a coincidence: it’s the year in which DNA testing of hair evidence became routine and eventually supplanted microscopic hair comparison.
This is the largest post-conviction review of cases involving flawed forensics in history, and is the product of a series of 2012 investigative reports by the Washington Post. The 2012 story exposed a secret Department of Justice review of hundreds of cases believed to contain flawed forensics. That review focused on the work of just one particular examiner, and its results—kept silent for more than a decade—demonstrated that flawed hair and fiber evidence was used to garner convictions in numerous cases.
That the Justice Department initially reviewed only the work of one FBI analyst despite the questions surrounding the integrity of the hair unit as a whole is telling. A focus on one bad apple rather than a holistic repair of the infected tree is the easier, lower cost option. Moreover, it allows us to concentrate the blame to the misconduct or ineptitude of one and ignore the systemic failures of an entire discipline.
It should not come as a surprise that some of the defendants against whom this evidence was used were innocent. Hair evidence has long been the subject of scrutiny. For years, scholars, attorneys and scientists have questioned the validity of microscopic hair comparison. The discipline is plagued with weaknesses. One has to acknowledge that in many cases the hair evidence was only a small piece of the otherwise incriminating proof against the defendant. However in no way does that excuse the inclusion of tainted or exaggerated evidence, regardless of how guilty a person may be. Because the next guy might be innocent.
To illustrate the gravity of the results take the case of Santae Tribble. He was convicted of killing a taxi driver in 1978. During the investigation, a police dog uncovered a stocking mask one block away from the crime scene; the stocking contained a total of 13 hairs in total. The FBI’s hair analysis concluded that one of the 13 hairs belonged to Tribble. Tribble took the stand in his defense, testifying that he had no connection to the taxi driver’s death. Nevertheless, the jurors gave weight to the one “matching” hair and found Tribble guilty of murder. The judge sentenced him to 20 years-to-life in prison.
Both in prison and later, while on parole, Tribble maintained his innocence, and in January 2012, Tribble’s lawyer, succeeded in having the evidence retested. A private lab concluded through DNA testing that the hairs could not have belonged to Tribble. A more thorough analysis at the time of the crime—even absent DNA testing—would have revealed the same result: one hair had Caucasian characteristics and Tribble is African-American.
Tribble served 25 years, plus an additional three years for failing to meet the conditions of his parole for a crime he did not commit. And Tribble is, and I hesitate to use the word, lucky: his case had testable DNA, which helped exonerate him.
While the Justice Department has offered DNA testing in the error-laden cases, the reality is that few of these cases have testable biological evidence. Even if crime scene technicians collected biological evidence (saliva, blood, etc.), it often is lost or untraceable decades later. Moreover, the criminal justice system simply does not have a mechanism for redressing convictions based upon faulty forensic evidence and testimony. In fact, only California and Texas permit challenges to convictions when a forensic expert later disavows his or her opinion or scientific progress exposes the fallacies of the forensic evidence used in the trial.
I think the problems with hair microscopy are just the tip of the iceberg. Flawed forensic analysis is a legitimate problem. To believe such errors occur in isolation (confined to just one lab or just one forensic discipline such as hair analysis) belies the reality of forensic evidence. Not one area of forensic evidence — including DNA — is infallible or absolute. Yet we continue to allow the criminal justice system to be held hostage by bad science even when we know there are errors in the way forensic evidence is used and presented in courts.
For decades now, lawyers, academics, researchers and even forensic practitioners have warned us about the basic lack of actual scientific research to support many forensic science disciplines. This lack of research gives way to results that exceed the boundaries of the science: including inaccurate or nonexistent statistic and misstatements about the certainty of the conclusion when the forensic analysis simply does not allow for it. The ultimate consequence being the inexcusable imprisonment of innocent people.
To be sure, the Justice Department and the FBI deserve credit for admitting the errors and devoting efforts and resources to the ongoing review, but we need to do something about the existing errors and prevent new ones from occurring.
We can do better. There are national efforts to improve forensic science by developing comparable standards, research, and statistics. To achieve the finality we so desperately desire from the criminal justice system, we need forensic science reform, but it is no small task. It will take cooperation from scientists, lawyers, judges, legislators and policymakers.
Associate Professor of Law Jessie Gabel Cino’s articles on reforming forensic science include: “A New Approach to an Old Problem: Realizing Reliability in Forensic Science from the Ground Up” (2014); “Reigning in the Wild West: The Necessary Outcomes and Inevitable Pitfalls of Reforming Forensic Science” (2013); “Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency” (2011); “Forensiphilia: Is the Public Fascination with Forensic Science a Love Affair or a Fatal Attraction” (2010); and “’Good’ Science Gone Bad: How the Criminal Justice System Should Redress the Impact of Flawed Forensics” (2008).