Alarming Flaws in Forensic Analysis Revealed

by Janie Parks

The Washington Post reported earlier this week about potential flaws in forensic analysis by the FBI. In the early 1990's the Justice Department began a review of cases where the defendants were convicted in part because of forensic analysis in FBI crime labs. The review focused on cases involving one FBI agent in particular whose methods had been questioned in recent cases. According to the Post, the FBI was aware of its potential flaws in forensic evidence protocol across the agency, but decided to narrow its investigation to just those cases involving one agent. Over a span of 9 years, the investigation revealed hundreds of cases where the forensic evidence was either analyzed in a sloppy manner or was analyzed in the wrong manner by the FBI. The Post formed a task force to conduct its own investigation after obtaining thousands of files pursuant to the Freedom of Information Act. According to its findings, the FBI-led investigation found over 250 convictions in which the scientific review had been completed. What is most troubling about the task force investigation is that it revealed fewer than half of the defendants in the over 250 questionable convictions had been notified that their cases had been reviewed. According to the FBI, they were only obligated to inform the prosecutors of each case. Only about half the prosecutors disclosed the review to the defendants.

The Investigation conducted by the FBI has led to some exonerations of defendants, many of whom were serving life sentences. In fact, many have already served over 20 years. A truly unfortunate case involved Benjamin Boyle, a Texas man on death row. Boyle was executed in 1997, more than a year after the FBI began its review of the forensic evidence in his case. According to the Prosecution's memo, Boyle would not have been eligible for the death penalty without the forensic evidence presented against him. That same forensic evidence may have been poorly handled and could have potentially exonerated him.

What is particularly disturbing about this is the amount of cases they haven't reviewed. How many convicts were convicted due to forensic analysis? How was that forensic evidence analyzed? Two cases in the D. C. Superior Court at the moment were not reviewed by the FBI. However, in both cases, both defendants are seeking exonerations based on invalid hair and fiber analysis.

In the case of Santae Tribble, Tribble was convicted of murdering a taxicab driver in July 1978. Tribble became a suspect and was eventually arrested and charged with the murder. During the trial, an FBI forensic analyst testified that they recovered a stocking a block away from the crime scene with 13 hairs on it. According to the analyst, the hairs were matched to Tribble. After hearing that evidence, and despite the fact that Tribble had a solid alibi, the jury convicted Tribble of murder. He was sentenced to life, and is now on parole. In January, Tribble's attorney was able to have that evidence re-examined. According to the reexamination, none of the 13 hairs on the stocking matched Tribble's hair or shared his genetic profile. However, according to the analyst at trial, the hairs from the stocking matched Tribble's hair "in all microscopic characteristics." Upon re-examination, one of the hairs was found to have characteristics specific to the Caucasian race. Tribble is African American. Further, one of the 13 hairs was found to be of inhuman origin: it belonged to a dog. Needless to say, tribble filed a motion for exoneration and it is currently pending.

Kirk Odom was convicted of rape of a young woman in 1981. The victim identified Odom in a lineup, but later admitted at trial that it was very dark outside. The State presented evidence at trial of a hair found on the victim's nightgown. According to the FBI analyst, the hair found on the nightgown was "microscopically like" Odom's hair. He was convicted and is now out on parole. Again, in January, further tests on the evidence revealed that the DNA sample taken from the hair did not match Odom's DNA. He filed a motion for exoneration on March 14.

It bears repeating that each of these cases were not part of the FBI investigation.

So where do we go from here? I'd imagine it won't be too long before an agency-wide investigation of the FBI forensic analysts is commenced. If that investigation occurs, it will have some potentially shocking and disappointing results. We'll keep you updated.

U.S. Supreme Court Decides Case on Potential Unreliable Eyewitness Testimony

• Perry v. New Hampshire

The U.S. Supreme Court recently decided the case of Perry v. New Hampshire. We originally wrote about the Perry case back in September. The defendant in the case was identified by a witness while also standing next to a police officer. When the witness was first asked for a description of the person suspected of committing a burglary, the witness said he was a "tall black man." When asked by an officer if she could provide a more detailed description, she pointed to the defendant standing with another officer and identified him as the suspect of the burglary. The question for the court was whether there must be police misconduct to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. In a more broad sense, the Court was asked to determine if the standards for introducing eyewitness identifications should be strengthened due to the inherent unreliability of them.

In and 8 to 1 decision authored by Justice Ruth Bader Ginsburg, the court held that some sort of police misconduct is required for a judge to throw out and eyewitness identification. Specifically, the eyewitness testimony will not be thrown out unless it can be shown that the police have manipulated circumstances to produce a certain outcome. Justice Ginsburg cited to the purpose behind this rule as the reasoning for neglecting to strengthen the standards for admitting an eyewitness identification. The purpose behind it, she stated, is to deter police misconduct. Specifically, she said "when there is no misconduct, there is nothing to deter." By declining to hold otherwise, the Court left the job to the jury to determine the reliability of an eyewitness identification. By allowing the identification to be admitted, the jury will still have the opportunity to hear any rebuttal by the defense. The Court felt this was enough to surpass the inherent unreliable nature of an eyewitness identification.

Justice Sonya Sotomayor was the only dissenting Justice. She disagreed with the purpose of the rule of requiring police misconduct. According to her the purpose of the rule is to ensure a fair trial, not to deter police misconduct. Anything that weakens the opportunity for the defendant to have a fair trial should not be admitted. She stated in her dissent,

"Whether the police have created the suggestive circumstances intentionally or inadvertently... it is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury."

This decision is quite controversial given the multitude of scientific studies that have proven that eyewitness identification is unreliable. It is no secret many convictions have been based off of eyewitness identification. Many of those convicted based on eyewitness identifications were later exonerated when technology progressed into the the use of DNA testing. It may be surprising to some that the Court has ignored the evidence of the this blatant unreliability, especially when there is a chance that many convictions are tainted with unreliable identifications. It will be interesting to see when the Court will be presented with this issue next. It is almost certain to rise again.

Submitting Evidence from Social Networks

How to authenticate evidence from social networking websites is a relatively new issue for the courts. The following link is to an academic paper that gives an overview to the issue and describes four of the most common approaches taken by courts across the country. One approach looked at and criticised is Tennessee's approach. Click here for article.

Ira P. Robbins (American University - Washington College of Law) has posted Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence (Minnesota Journal of Law, Science & Technology, Vol. 13, No. 1, 2011) on SSRN.

The Tennessee Court of Appeals used a different approach to authenticating social-networking postings and messages. It found that a message was properly authenticated when the recipient testified under oath that the posting accurately reflected the communications she had with the defendant.109 In Dockery v. Dockery, a woman had a “‘no contact’ order of protection” issued against her ex-husband after multiple instances of alleged domestic violence.110 The ex-husband later attempted to contact her by sending MySpace messages to her friend.111 In the lower court proceeding, the recipient of the MySpace messages testified that she printed the conversations “directly from her computer” and that the printouts accurately reflected their conversation while “identif[ying] which party to the conversation was making a particular statement.”112 The court found her testimony alone sufficient to authenticate the messages as authored by the defendant; that finding was upheld on appeal.113 By relying solely on the recipient’s testimony, the court failed to address the obvious reliability concerns with the MySpace messages. The court did not address the possibilities that the documents could have been altered, that the proponent could have been lying, or that someone other than the defendant could have authored the messages. The court’s failure to make these basic inquiries undermined the fairness of the ultimate outcome of the case because potentially unreliable, inculpatory evidence was admitted against the defendant.

Justices Weigh Judges’ Duties to Assess Reliability of Eyewitness Testimony

• Justices Weigh Judges’ Duties to Assess Reliability of Eyewitness Testimony

In oral arguments yesterday in Perry v. New Hampshire, the Supreme Court seemed unpersuaded that the Court should view problems with eyewitness testimony any differently than other types of evidence.  Below is Adam Liptak's article with a link to the oral arguments.

By ADAM LIPTAK— Though studies and lower court decisions have found that eyewitness testimony can be both unusually problematic and unusually persuasive, the Supreme Court on Wednesday did not seem inclined to rule that the Constitution requires judges to view such evidence with special skepticism. Ordinary trial procedures, several justices suggested, should be adequate to address the potential unreliability of eyewitness identifications.