FBI to review thousands of cases for faulty forensics

Oops.

Now the FBI is reviewing thousands of cases dating back to 1985 to determine if anyone was wrongly convicted as the result of hair and fiber evidence tested by the FBI. The cases being reviewed include cases filed in state courts where the evidence was tested by the FBI.

According to The Washington Post, the FBI was aware of problems in their forensic unit but chose not to divulge that information to the defendants or their attorneys. The review is being conducted with the Innocence Project and the National Association of Criminal Defense Lawyers.

“These recent developments remind us of the profound questions about the validity of many forensic techniques that have been used over the course of many decades and underscore the need for continuing attention at every level to ensuring the scientific validity and accuracy of the forensic science that is used every day in our criminal justice system.” -- Michael Bromwich 

If that name sounds familiar it's because Mr. Bromwich conducted the investigation into the morass known as the HPD Crime Lab a few years back.

The root of the problem is the way so-called crime labs operate. These "labs" are arms of state or local law enforcement agencies - so the people testing the evidence are employees of the same entity that arrested the suspect in the first place.

The set-up creates a glaring conflict of interest that most criminal judges are loathe to do anything about. The analysis is passed off as valid science even though the analyst is employed by law enforcement. The employees of the crime lab see themselves as part of the same team as the police. And this creates a massive problem.

Over in the civil courthouse, such an arrangement would raise more than a few eyebrows. The civil courts are accustomed to arguments regarding the validity of a particular test or conclusion. Courts routinely conduct hearings to determine whether or not a particular expert witness will be allowed to testify. Conclusions, assumptions and observations are scrutinized by both attorneys and judges.

But over in the criminal courthouse, where lives, not dollars, are at stake, judges will rarely prevent an analyst from testifying for the state - even though all of his training was provided through the police department and is based on what another officer taught him. Judges in the criminal courts think nothing of allowing an officer to testify as to the validity of the horizontal gaze nystagmus test despite the fact the officer has no knowledge of how the eye works or why alcohol supposedly causes nystagmus.

Analysts with little or no scientific training are allowed to testify as to the results of forensic tests when they can't even explain why a certain procedure is followed.

Control of crime labs must be taken out of the hands of law enforcement. The labs must be accessible to both the defense and the state. Judges need to take another look at Daubert and Frye and, in Texas, Kelly and Mata to remind themselves what their role as gatekeeper means. Defense attorneys need to learn more about the science behind the testing and need to learn to question the analysts' basic assumptions.