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Originally presented at the 2015 Impression, Pattern and Trace Evidence Symposium.
On July 18, 2013, the United States Department of Justice (DOJ) announced it would review certain cases involving hair microscopy analysis, testimony, and reports provided by FBI examiners before December 31, 1999. On April 20, 2015, national media reported the FBI case review found 26 of 28 hair examiners overstated the extent to which an association may be made between a questioned hair and a known hair sample in “ways that favored prosecutors.” Media reports further indicate that the overstatements were concerns in at least 90% of the cases.
In the wake of the DOJ announcement in July 2013, many stakeholders questioned what could be done to review microscopic hair examinations performed by state and local laboratories beyond the jurisdiction of the FBI. For several decades, the FBI assisted state and local laboratories in training hair examiners by providing a one-week course on microscopic hair analysis to supplement their agency-based training. Many questioned whether the testimony practices of concern to the FBI were passed on to state and local examiners through these training programs.
On April 21, 2013, the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) released a memorandum to all of its accredited crime laboratories encouraging (but not requiring) its laboratories to review microscopic hair comparison reports and associated testimony made by their examiners. ASCLD/LAB noted the forensic science community’s ethical obligation to “take appropriate action if there is potential for, or there has been, a miscarriage of justice due to circumstances that have come to light, incompetent practice or malpractice.”
The Texas Association of Crime Laboratory Directors responded by publicly acknowledging their shared “ethical and professional duty, as scientists, to take appropriate action if there has been a miscarriage of justice.” Panel members will share how the laboratories, with financial and administrative assistance from the Texas Forensic Science Commission, identified hundreds of cases for review pursuant to a sub-sampling approach. Participants will discuss the technology challenges and stumbling blocks associated with the case identification and retrieval process.
Attendees will also learn how the review team’s approach to case analysis is similar to and different from the FBI’s approach, focusing on the team’s shift away from “error categories” and toward a holistic discussion of common testimony pitfalls. Participants will also address the difficulty of considering the context of an examiner’s testimony and the role of attorneys in communicating—or in some cases misconstruing—scientific concepts before the trier of fact. The team will share the tremendous benefits of bringingstakeholders together over an extended period to tackle tough issues in an environment of trust and respect, and ensuring robust training resources are available going forward. For attendees interested in conducting a similar review in their home states, discussion will include strategies for moving stakeholders from theoretical agreement to the practical implementation of a case review, including the importance of collaboration and compromise among participants.
Finally, the presentation will address the importance of proactive notification strategies for affected prosecutors and defendants, as well as access to mtDNA testing for affected cases.