THE BLOG

An "Elite" Forensic Unit Falls From Grace

05/28/2015 03:53 pm ET | Updated May 28, 2016

What does an FBI forensic unit have to do to lose its "elite" status?

Of all of the recent revelations regarding problems in the FBI's "microscopic hair comparison" unit, one of the more striking is that that unit was apparently considered an "elite" one. That characterization is sprinkled liberally throughout the media accounts documenting the unfolding scandal. The Washington Post, for example, explained: "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."

We wouldn't normally use the word "elite" to describe a unit in which nearly every member fails at his primary task virtually every time he performs it. It's clear that these analysts were far from "elite"--their deeply flawed work should never have made it into a courtroom. And yet this dismal group somehow managed to impress judges and jurors alike in the course of contributing to thousands of criminal convictions, including many that led to death sentences. How could this have happened?

The answer, I suspect, lies at least partly in the excessive deference accorded to government forensic analysts. Like police officers and prosecutors, these analysts typically walk into courtrooms with powerful auras of respectability. They are part of the fight against the bad guys, and many judges and jurors reflexively assume that they are trustworthy and capable and that their methods are reliable. As a result, their purported conclusions are often given at most token scrutiny, and decisions--including, literally, life-and-death decisions--are routinely based on what they say.

Sometimes this reliance is justified. Sometimes it isn't. Some longtime prosecution experts, responsible for decades' worth of convictions, have been revealed as outright frauds. Others are entirely unqualified to talk about their supposed fields of "expertise." In one of my own cases, for example, the government wanted to call a purported expert to explain how the presence of algae downstream from my client's business operations proved that my client was polluting the water. When we challenged his qualifications, he admitted that he'd never read a single publication relating to this topic; his alleged expertise was based in part on "you know, kind of first-hand experience of, you know, visiting places like an aquarium where you see algae and stuff growing."

And in some cases, an entire forensic field turns out to be incapable of supporting the conclusions that prosecutors seek to draw from it. This appears to be the case with "microscopic hair comparison," but that is hardly the first field to lose its wings after a lengthy tenure. In recent years several other disciplines (including bite mark analysis, bullet lead comparison, and the analysis of supposed arson indicators) have been subjected to similar criticism. And it is a virtual certainty that there are more to come. Just as the hair analysts and others testified confidently and compellingly for decades before the defects in their disciplines were exposed, it's safe to assume that defendants throughout the country will be continue to be convicted based on forensic evidence that we will someday learn is unreliable.

Is there a solution? I confess that I'm not terribly optimistic. The presumption of competence and integrity that attaches to government forensic analysts is deeply ingrained, and it's difficult to envision a regime in which judges and jurors regularly give them the skeptical treatment that our system, properly understood, demands.

Still, perhaps there is a ray of hope. Police officers, like government forensic analysts, have historically been given a high degree of trust, and those who have challenged their testimony have typically been greeted with skepticism. But with the spate of recent high-profile events in which officers' accounts have been shown to be demonstrably at odds with other reliable evidence, citizens may be starting to reconsider the wisdom of reflexively deferring to the police. Could the same trend develop with forensic analysts?

We all have a role to play in scrutinizing the forensic evidence used in the criminal justice system. The prosecutors who decide whether to offer such evidence; the defense attorneys who point out its weaknesses; the judges who determine whether to allow jurors to hear it; the jurors who evaluate its legitimacy and weight; and the citizens who oversee the workings of our system--all of us need to treat these analysts with healthy skepticism when they urge us to rely on their conclusions.

Even--especially--when we're told they're "elite."