Thursday, November 12, 2015


In an astonishing admission of corruption the FBI and the Justice Department acknowledged that for over twenty years almost all of its examiners in its elite microscopic hair comparison unit gave false evidence in criminal prosecutions. Almost all of the faulty evidence helped federal and state prosecutors win convictions.

Peter Paul Rubens - Samson and Delilah - Google Art Project.jpg
FBI agent Delilah takes hair sample from Sampson
Forensic evidence has always been based on subjective nonscientific conclusions that have the veneer of science making them difficult for defense lawyers to successfully attack. How much injustice did the prosecutors buy with false microscopic hair comparison evidence? The Washington Post tells us how many lives were ruined with false forensic evidence:

In 268 jury trials in which hair comparison evidence was used against defendants, the FBI gave false evidence in 257 of those cases. Of those 257 trials with false evidence 32 were death-penalty cases.
University of Virginia law professor Brandon L. Garrett said the results reveal a “mass disaster” inside the criminal justice system, one that it has been unable to self-correct because courts rely on outdated precedents admitting scientifically invalid testimony at trial and, under the legal doctrine of finality, make it difficult for convicts to challenge old evidence. 

How could this happen for over twenty years? First, there were no formal written standards until 2012 that adequately defined acceptable and unacceptable hair comparison analysis in court. Second, there were no competent studies that accurately established that hair from different people could never still match nor is it that supposition even now scientifically provable. Third, more accurate DNA testing of similar but different hair samples found that FBI comparisons were flawed. Fourth, any subjective evidence is not really scientific evidence, it's guessing. This is not only true for hair samples but true for other types of forensic evidence such as fingerprint evidence.

Finally, this continued for far too long because it became embedded in criminal law despite lack of absolute scientific standards. In many cases the evidence of hair samples was subject to antiquated legal precedent which allowed prosecutors to argue that comparison results were in fact scientific proof of guilt. This is especially troubling since in essence it means federal and state judges allowed massive injustice in the guise of justice by forcing jurors to accept the FBI analysis as scientifically based fact.

What can we do? Clearly there should never be "finality" for criminal law injustice. It's not enough for FBI agents, prosecutors, judges and defense lawyers to simply apologize to those convicted with false testimony. Whatever effort and cost necessary to right this wrong must be made. The remedy requires opening up these convictions with new trials, because the goal of criminal law should be fairness not finality.

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