The FBI announced last week it would reexamine thousands of once-closed cases in which a person was convicted — and in some cases put to death — based on hair samples. Known as microscopic hair comparison analysis, this type of testing was often used to link a criminal defendant to a crime, but its reliability has now been called into question.
The FBI said that in more than 2,000 cases from 1985 to 2000, analysts may have exaggerated the significance of hair analyses or reported them inaccurately. All defendants affected by the inaccurate analyses will be notified and offered free DNA testing if errors in are found in the FBI’s lab work or testimony.
According to a report from The Washington Post, more than 120 convictions have been flagged as suspicious in the FBI’s review thus far. Of those cases, 27 defendants received the death penalty as their punishment.
In addition to reviewing individual cases, the FBI is also using the review process to improve lab training, testimony, audit systems and research.
“There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” Special Agent Ann Todd, a spokeswoman for the FBI, said. “The purpose of the review is to determine if FBI Laboratory examiner testimony and reports properly reflect the bounds of the underlying science.”
The review includes every case between 1985 and 2000 in which the FBI found a positive association between hair taken from defendants and hair found at a crime scene.
Those who pushed for the review included the national nonprofit Innocence Project, the National Association for Criminal Defense Lawyers and its partners, which included pro bono attorneys.
Since DNA testing can cost several thousand dollars, hair analysis is often used to link a defendant to a crime scene. However, the practice was deemed “highly unreliable” in 2009 by a National Academy of Sciences report that concluded hair sample analyses cannot be linked to one person, but only categories of people.
Despite the poor reliability, Todd says microscopic hair analysis is “a valid forensic technique and one that is still conducted at the lab” along with DNA testing.
Peter Neufeld, co-director of the Innocence Project, applauded the FBI’s admission that there may be an issue with the validity of some of the findings in the cases.
“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,” he said in a press release.
The review “signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” Neufeld said. “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation.”
“It is possible to conduct hair microscopy and find similarities among various samples. But it appears that in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else,” he added. “The government is now acknowledging that this was wrong and that the science does not support such conclusions,”
Until all of the cases can be analyzed and verified for accuracy, officials from the Justice Department have waived the deadlines and procedural hurdles for those inmates who are currently on death row.
Steven D. Benjamin, a Virginia attorney and the president of the National Association for Criminal Defense Lawyers, said the Justice Department’s decision to delay the execution of those defendants whose innocence is once again up for debate is a critical step in “giving wrongly convicted people a fair chance at a fair review.”
“We hope that the actions taken by the FBI and DOJ will serve as a model for state law enforcement and crime laboratories throughout the country to respect ethical obligations to reverse wrongful convictions when learning about improper evidence,” said Norman Reimer, executive director of the association.
Though groups like the Innocence Project don’t often find themselves endorsing the FBI’s efforts, the organization’s leaders have all publicly applauded the FBI for the review. They say it is an important first step in “bringing together the law enforcement and defense communities in pursuit of the shared objective of ensuring that only the guilty are convicted and that only scientifically valid forensic science is used in our criminal justice system.”