Another Argument Against the Death Penalty: Bogus Hair Science

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

Spencer, Hsu, Washington Post, April 18, 2015

Among those 268 trials, there are 32 defendants sentenced to death. Of those 32, 14 have been executed or have died while in prison. We are killing people based on fake science, overstated science and bogus evidence.

In Washington, D.C. alone, five of seven defendants whose trial included flawed FBI testimony based on discredit forensic hair analysis have been exonerated on DNA evidence. All five of those defendants served 20 to 30 years in prison for a rape or murder they did not commit. It’s not just that forensic hair analysis is scientifically dubious; FBI “experts” testifying in criminal cases have greatly overstated the reliability of crime-scene hair comparisons.

And that’s just the tip of the iceberg. The FBI testifies in cases across the country, of course. And the FBI has “trained” some 500 to 1,000 state forensic examiners, and there is real concern that tens of thousands of cases in those state court proceedings are similarly tainted by bogus science and evidence. There is no data yet on the rate of use of improper evidence in those state court cases. If the rates of misstatement and overstatement of hair evidence in state court cases is the same as federal cases so far – a staggering 95% of cases – then there are tens of thousands of cases based on bad evidence.

Even the federal case analysis is incomplete. The review has extended to 268 trials. When complete, the hair-testimony review will encompass about 2,500 cases in which examiners declared hair matches, drawn from the over 21,000 federal and state requests to the FBI’s hair-comparison unit between 1972 and 1999. The agency said it is close to completing reviews of 350 trial testimonies and 900 lab reports, with about 1,200 cases still in the queue.

WC isn’t suggesting that bad science is hair analysis alone requires reversal or a new trial in every case; in some cases, there will be strong corroborative evidence. But the shocking misconduct by the expert witnesses, and the failure of the trial courts to control the misconduct, means that every case should be reviewed. And that death cases involving hair evidence cannot have executions until that review has been completed.