by | last updated on January 19, 2016

In April of 2015, the Washington Post reported “The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

Blue DNA helix background

Blue DNA helix background

This chilling admission means that 26 of the 28 examiners in the FBI’s microscopic hair comparison unit, overstated forensic matches to benefit prosecutors in over 95 percent of the 268 trials reviewed. Both the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project are assisting the government in what is considered to be the largest post-conviction review of disputed forensic evidence.

Peter Neufeld, co-founder of the Innocence Project, commended the FBI and department for the collaboration but said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”

These findings corroborate long-suspected suspicions that pattern-based forensic techniques, including hair and bite-mark comparisons, were subjective. Incorrect pattern-based testimonies have contributed to wrongful convictions in over one-quarter of 329 DNA-exoneration cases since 1989. Some of the convictions in question included 32 defendants sentenced to death and 14 people in this group either died in prison or have been executed.

The questions everyone is asking are:

  • How will state authorities and courts respond to our nation’s largest forensic scandal?
  • How did courts allow this to happen?
  • Why wasn’t it stopped much sooner?

Going forward, Senator Richard Blumenthal of Connecticut, requested that the FBI and Justice Department notify defendants in 2,500 cases that involved an FBI hair match and to redouble efforts to retrieve information on each case.

Blumenthal said, “These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law.”

In 2012, Federal authorities began an investigation after a series of articles in the Washington Post suggested that potentially innocent people may have gone to jail based on forensic hair matches since the 1970s. Many of these convictions based on forensic hair matches were for violent crimes, including murder and rape with long prison sentences and the death penalty. FBI expert testimony claimed that they could match defendants’ hairs at the crime scene with almost near certainty.  However, reports say there is no research to back up these claims. There is no research to confirm how often hair from different people may appear the same. In 90 percent of the cases reviewed so far, forensic examiners made statements beyond the bounds of proper science.

In Washington D.C., defenders and prosecutors have re-investigated all FBI hair convictions and exonerated three of seven defendants based on DNA testing; the courts have exonerated two more. All five wrongly-convicted men served between 20 to 30 years in prison.

Although the review centers on the first few hundred cases involving FBI examiners, any state prosecutions that used any of the 500 to 1,000 local or state FBI-trained examiners is most likely flawed. What will happen going forward? Right now, it’s up to each state to determine how they want to proceed. Some may opt to automatically conduct reviews and others may not. The jury is still out.