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Cases Involving Microscopic Hair Analysis Under Review

August, 7 2013 - In an unprecedented agreement between the Department of Justice and the FBI and the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, more than 2000 criminal convictions based on microscopic hair analysis will be reviewed.  This historic review has already found 27 death penalty cases in which FBI forensic experts may have provided exaggerated scientific testimony regarding hair analysis.  Forensic DNA has proven that the "matches" declared between a suspect's hair and hairs found in a crime scene investigation were significantly overstated and, in many cases, flat-out wrong.  DOJ has agreed not to raise procedural objections, such as statute of limitations or appellate and procedural default, in response to petitions of defendants wrongfully convicted based upon exaggerated reports of matches in hair comparisons.  The 2009 National Academy of Sciences Report on forensic science found microscopic hair analysis "highly unreliable."  The report was also highly critical of bitemark analysis, toolmark and firearm analysis, fingerprint analysis, and other disciplines that rely solely upon the subjective eye of the analyst.

"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.  It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  "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.  We need leadership in Washington to ensure scientific rigor and greater oversight over forensics to prevent these miscarriages of justice."  

It's unfortunate this "junk" science was allowed into trials as evidence in the first place.  Defense lawyers have been raising these complaints since the 70's.  However, with the 2009 NAS report, the weight of science has brought the FBI to this change in position.  Credit must be given to the leaders in the Department of Justice and FBI for challenging their previous testimony and for actually pursuing justice in these cases.  However, it must be noted that this would not have happened but for the insistence, persistence, and hard work of criminal defense lawyers, NACDL, and the Innocence Project.

"This review is an example of our judicial system at its best -- prosecutors and defense lawyers working together to see that justice is done," said David Koropp, an attorney working pro bono for the Innocence Project.  "Determining whether erroneous forensic evidence may have been used in criminal cases is vital to maintaining the integrity of our criminal justice system.   The FBI is to be commended for the leadership position it has taken to help ensure that only scientifically valid evidence is used to identify and convict criminal defendants."

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