Flawed Evidence: The Limits of Science in the Crime Lab

TEXT ON SCREEN: May 4, 1988

ARCHIVAL (ABC, 5-4-88): PETER JENNINGS: We have a story tonight about crime and unusually modern science.

NARRATION: In the late 1980s, DNA testing brought a new level of scientific certainty to America’s courtrooms, convicting the guilty…

ARCHIVAL (NBC, 5-9-94): REPORTER: DNA evidence has helped put hundreds of violent criminals behind bars.

NARRATION: … freeing the innocent…

ARCHIVAL (NBC, 7-14-97): NEWS REPORT: DNA testing proved they didn’t do it.

NARRATION:…and calling into question the forensic science that had sent many of them to prison in the first place.

ARCHIVAL (CBS, 6-23-01): NEWS REPORT: The only physical evidence linking him to the murder, has been discredited.

ARCHIVAL (CNN, 8-19-09): ANDERSON COOPER: It’s science, but it’s not as foolproof as you might think.

NARRATION: Before DNA, the criminal justice system had long relied on microscopic hair analysis – a forensic technique whose impact is only beginning to become clear.

MAX HOUCK (PHYSICAL SCIENTIST, FBI LAB, 1994-2001): We started asking ourselves, “What do we know?”

THE DNA REVOLUTION: HAIR ANALYSIS

NARRATION: In 1981, Kirk Odom saw how a few hairs could change a man’s life.

KIRK ODOM: I used to go jogging, like, every Sunday. This particular Sunday morning, as I was leaving out of the house, the Metropolitan police was knocking on the door.

NARRATION: The police had noticed Odom a few weeks earlier when they were scouring the neighborhood for a suspect who broke into a woman’s apartment and raped her at gunpoint.

PETER NEUFELD (CO-FOUNDER, THE INNOCENCE PROJECT): The policeman said, “oh he looks a little bit like a composite sketch I saw of the rapist.”

KIRK ODOM: I told them that I was at home in bed – and my moms can verify that – but, they didn’t believe me.

NARRATION: The victim soon picked Odom out of a lineup, though her identification was called into question.

PETER NEUFELD: She only had a fleeting opportunity to see the perpetrator.

NARRATION: But the police had another piece of evidence – a hair found on the victim’s nightgown.

KIRK ODOM: They didn’t give me any information. They just wanted hair from my groin area. They wanted hair from top of my head.

NARRATION: The police sent the hairs to the FBI’s renowned crime lab. There, some of the nation’s most experienced forensic scientists used high-powered microscopes to check more than a dozen characteristics – from pigment distribution to scale patterns– that told them whether a hair could have come from a suspect.

MAX HOUCK: We would look at hairs all the time, every day. If you look at something every day, routinely, you get very good at noticing small differences.

NARRATION: Max Houck would later join this elite unit of hair and fiber experts.

MAX HOUCK: Some of the people that I worked with were fantastic. They had such a keen eye, such good discrimination. They saw things that I just didn’t think you could see.

NARRATION: The examiners’ skills had been honed through decades of scientific crime fighting at the Bureau.

ARCHIVAL (“A DAY WITH THE FBI,” 1951): Comparisons show that a strand of hair from the assailant’s scalp is exactly the same as one suspect being held by police.

NARRATION: By the 1970s microscopic hair comparisons were an essential part of the FBI arsenal.

ARCHIVAL (“A DAY WITH THE FBI,” 1951): Even a single hair may supply evidence.

NARRATION: When Odom’s case came to trial in 1981, the FBI’s analysis was clear.

KIRK ODOM: It was explained to me that they matched the hairs, one hair with another.

PETER NEUFELD: The most important evidence came from the hair microscopist, who said, “I can’t say it’s unique but I can say the chances of it coming from anybody other than Kirk Odom are small.”

KIRK ODOM: I could put myself in one of the juror’s places, you know and say, “Well yeah, he musta did it.”

NARRATION: It took just a few hours for the jury to convict Odom; he was sentenced to more than 20 years in prison. Six years into Odom’s prison term, a revolutionary new technology burst onto the scene.

ARCHIVAL (ABC, 5-4-88): NEWS REPORT: Scientists say they can take one hair from a crime scene, isolate its DNA, and match it to a sample from a suspect.

ARCHIVAL (CBS, 2-5-88): NEWS REPORT: At the FBI, one of the world’s foremost forensic laboratories, they are running extensive tests, determining how the agency can take advantage of the new technology.

NARRATION: By the mid-90s, hair examined under a microscope at the FBI was often sent for a DNA test. Houck remembers one day, early on, when he got at DNA report on two hairs his unit had found to be microscopically indistinguishable. The results were jarring.

MAX HOUCK: The hairs didn’t come from the same individual. We started talking about, “Well, what did we see?” “Why did we think it did match?” “How good are we?” in a sense. There’s always a chance you might be wrong. We never really knew what that chance was.

NARRATION: Houck started tracking how often DNA showed that hairs that appeared microscopically indistinguishable actually came from different people, and in 2002, published his results.

MAX HOUCK: About 11 percent of the time, mitochondrial DNA said, “No. That hair actually came from someone else.” It kinda shook us up.

NARRATION: But it wasn’t the only warning about the subjective nature of hair analysis, which was also being done in state and city crime labs across the country. One FBI hair and fiber expert – Michael Malone – had already come under fire.

ARCHIVAL (CSPAN, 9-29-97): NEWS REPORT: Malone positively identified the victim’s hair on a blanket – a blanket that was never at the crime scene.

NARRATION: And scrutiny of other cases would follow

ARCHIVAL (ABC, 5-15-99): NEWS REPORT: Now, 12 years later, the new DNA tests proved their innocence.

PETER NEUFELD: If they stopped to think about it, they would’ve known that what they were doing was scientifically invalid. But no one did it. Just let it go.

NARRATION: Since the early 90s, Peter Neufeld and the Innocence Project had been using DNA analysis to re-test crime scene evidence in old cases – and free wrongly convicted prisoners. And by 2012, the numbers were startling – according to the Innocence Project, nearly a quarter of the more than 300 people exonerated by DNA, had been convicted, in part, by hair analysis.

So how did an accepted forensic technique lead to so many problems?

MAX HOUCK: It’s not like DNA, where they can say 1 in 1.8 billion. There aren’t any statistics – that’s the essential dilemma that a hair examiner is in. I can’t put a number to it. There was absolutely a disconnect between what I could say as a scientist and what prosecutors – or defense attorneys – wanted me to say.

NARRATION: While FBI lab reports typically stated that hair analysis wasn’t a means of positive identification, on the witness stand some examiners made it sound like it was – by implying a near certain match, or by using unsubstantiated statistics.

ARCHIVAL (CNN, 5-11-07): NEWS REPORT: The manager of the Montana state crime lab, testified there was a one in 10,000 chance that hairs found at the scene did not come from Bromgard.

NARRATION: In Kirk Odom’s case, the prosecutor explained that the FBI analyst had examined thousands of hairs during his long career and only rarely found hairs he couldn’t tell apart.

PETER NEUFELD: If you have no numbers, how can you use words like “remote,” or “extremely rare”? And that’s what they were doing with great frequency.

MAX HOUCK: Saying things like, “I’ve worked a lot of cases,” or, “I’ve looked at thousands of hairs.” Some of those phrases are the ones we were told to use. And no one ever said, “Don’t say that.” “That’s not good science.”

PETER NEUFELD: Lay lawyers and lay judges and lay jurors simply didn’t understand it and accepted it as – as God.

NARRATION: Many jurors were primed to accept testimony about forensics like hair analysis, having seen it used in crime fiction from Sherlock Holmes…

ARCHIVAL: SHERLOCK HOLMES: Traces of it on a few strands of hair.

NARRATION: …to modern TV dramas.

ARCHIVAL: DEXTER: Evenly distributed pigment granules, same dye job – in other words, both Ellen Wolf.

NARRATION: By 2012, hair evidence was making headlines for another reason – three high profile exonerations featured in a Washington Post investigation of flawed hair testimony. And all three men had been convicted in part by hair analysis done by the FBI. One of the men was Kirk Odom, who had already served his entire sentence by the time he received the news.

PETER NEUFELD: Three different crimes, three different men, all exonerated. Three different FBI examiners. In fact, in one of the three cases, it was actually the chair of the FBI Hair Unit –that’s when the FBI began to really worry.

ARCHIVAL (NBC, 7-14-12): PETE WILLIAMS: The FBI says it is now going through thousands of other cases from the days before DNA testing to see whether witnesses or prosecutors exaggerated the significance of the FBI`s hair analysis.

PETER NEUFELD: Dozens of these people are currently on death row. One execution was shut down hours before they were gonna execute the man in Mississippi.

NARRATION: Neufeld and the Innocence Project are working with the FBI in this landmark review of more than 2500 cases.

PETER NEUFELD: I fully expect that in 90 to 95 percent of those cases, the FBI will conclude that their own agents provided scientifically invalid, erroneous testimony.

NARRATION: Even if that’s the case, it doesn’t mean the convictions will be overturned; other evidence may still uphold the original verdicts. The FBI, which wouldn’t comment on Neufeld’s prediction, says prosecutors and defense attorneys will review the evidence and help determine if any other suspects were wrongfully convicted – like Kirk Odom, who spent 22 years in prison

KIRK ODOM: I didn’t get a chance to raise my daughter. She barely knows me. And that really hurts.

NARRATION: DNA testing of the crime scene evidence not only exonerated Odom, it also led to another suspect, who escaped prosecution because the statute of limitations had expired. That man committed another sex offense just two weeks after Odom was sentenced.

PETER NEUFELD: In each and every case where we’ve identified the real perpetrator, with one exception – okay – he or she committed other serious, violent crimes during those intervening years. So, you wanna get it right, make it more scientific to make the system more reliable. And ultimately more just. It’s that simple.

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