MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
MLJ Volume 36-1.pdf - Robson Hall Faculty of Law MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
10 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 “consistent with” the known hairs attributed to the deceased “within (a) normal range of variation”. 26 When asked what he meant by “consistent with”, he provided this explanation: [W]hen I say that a hair is consistent, as I have in this case, that means that the hairs have all of the features that the known samples have, within normal biological variation, and there’s nothing, nothing you would—that you can’t account for. So that if there was some feature, for example abnormal colour or something like that, that would cause that hair to be eliminated. So, it falls exactly within the range of the variation of the known sample with no unaccounted for differences whatsoever. And the point about this type of analysis is that it’s not a positive identification, all right, because the only way you could do that is to look at all the hairs from all the person’s head that exist, and that’s an impossibility. But I can tell you, based on my experience, that the chances of just accidentally picking up a hair and having it match to a known sample are very small. So if the hair is consistent, that means it either came from the same person as that known sample or from somebody else who has hair exactly like that. 27 Mr. Christianson’s evidence at the Driskell trial was in most respects typical of how hair microscopy evidence was presented in Canadian courts during the early 1990s. 28 There were, however, several problems with it. First, his conclusions had not been “peer reviewed” by a second hair examiner, despite that fact that several examiners were available in the same office. 29 Second, like most other forensic labs at the time, the RCMP FLS did not conduct microscopic hair comparisons “blind”—i.e., the examiner knew something about the police theory of the case, and 26 Ibid at 147-148. 27 Ibid at 150 [emphasis added]. 28 This was the conclusion reached by Douglas M Lucas MSc, DSc (Hon), the former head of the Centre of Forensic Sciences of Ontario, who had been retained by the resulting Commission of Inquiry into the Driskell case to provide advice on Mr. Christianson’s lab work and trial testimony: Driskell Report, ibid at 165. The Lucas report is attached to the Inquiry report: ibid in Appendix G at 19. It may well be that Mr. Christianson’s manner of testifying was reflective of the practice in the US as well. In 1985, the FBI convened a symposium bringing the community of hair comparison analysts together. The purpose of the symposium was to develop and agree upon standards. They agreed to avoid use of the term “match”; that the strongest statement that would be made was that a hair was “consistent with” or “could have” come from the accused; and not to give evidence about probabilities: Brandon L. Garrett, Convicting the Innocent (Cambridge: Harvard University Press, 2011) at 99. To the same effect, see NRC, supra note 6 at 159-160. 29 Driskell Report, supra note 9 at 148.
Wrongful Convictions 11 therefore knew if the police were expecting to find a hair “match”. 30 Third, Mr. Christianson’s evidence was carefully nuanced, but it is doubtful that the jury properly understood the limited probative value of the microscopic observations he had made. 31 And, as it turned out, Mr. Christianson was wrong. Very wrong. Subsequent DNA examination established that there was “extremely strong support for the proposition that the hairs in question did not originate from the [deceased];” more seriously, the three questioned hairs were shown to have originated from three different persons, none of whom were Mr. Harder. 32 The scientific sands shifted several times in the case of James Driskell. During his testimony at the trial, Mr. Christianson fairly pointed out that the examination did not lead to a positive identification. However, he nuanced that observation by saying that the chance of a coincidental match was very small. Indeed, “he presented his results as highly probative on the issue of identity”. 33 The sands continue to shift, even now. Like Commissioner Kaufman in the Morin Inquiry, Commissioner LeSage in the resulting Driskell Report emphasized that, even at the time of the Driskell prosecution, it was widely recognized in the forensic community that microscopic hair comparisons were (and are) highly subjective, and that different examiners sometimes disagree. 34 Most seriously, the debate as to the role and usefulness of hair microscopy was raging at the time that it was being used in investigations and court proceedings, and the reality is that the “science” itself had never and still has not been properly validated. Dr. Joel Mayer, an expert called at the Driskell Inquiry, pointed out that the forensic community itself had contributed to the problem by putting the cart before the horse: In fact, when hair microscopy and hair examination was being used by many forensic science laboratories, the debate as to the usefulness and the significance of the findings was still raging on. And that’s the wrong way to go about it. That debate should have taken place first, and once there was consensus and 30 Ibid at 162-163. 31 Ibid at 166. 32 Ibid at 155. 33 Ibid at 161 and 163. 34 Ibid at 161.
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Wrongful Convictions 11<br />
therefore knew if the police were expecting to find a hair “match”. 30<br />
Third, Mr. Christianson’s evidence was carefully nuanced, but it is<br />
doubtful that the jury properly understood the limited probative value <strong>of</strong><br />
the microscopic observations he had made. 31<br />
And, as it turned out, Mr. Christianson was wrong. Very wrong.<br />
Subsequent DNA examination established that there was “extremely<br />
strong support for the proposition that the hairs in question did not<br />
originate from the [deceased];” more seriously, the three questioned hairs<br />
were shown to have originated from three different persons, none <strong>of</strong><br />
whom were Mr. Harder. 32<br />
The scientific sands shifted several times in the case <strong>of</strong> James Driskell.<br />
During his testimony at the trial, Mr. Christianson fairly pointed out that<br />
the examination did not lead to a positive identification. However, he<br />
nuanced that observation by saying that the chance <strong>of</strong> a coincidental<br />
match was very small. Indeed, “he presented his results as highly probative<br />
on the issue <strong>of</strong> identity”. 33<br />
The sands continue to shift, even now. Like Commissioner Kaufman<br />
in the Morin Inquiry, Commissioner LeSage in the resulting Driskell<br />
Report emphasized that, even at the time <strong>of</strong> the Driskell prosecution, it<br />
was widely recognized in the forensic community that microscopic hair<br />
comparisons were (and are) highly subjective, and that different examiners<br />
sometimes disagree. 34 Most seriously, the debate as to the role and<br />
usefulness <strong>of</strong> hair microscopy was raging at the time that it was being used<br />
in investigations and court proceedings, and the reality is that the<br />
“science” itself had never and still has not been properly validated. Dr. Joel<br />
Mayer, an expert called at the Driskell Inquiry, pointed out that the<br />
forensic community itself had contributed to the problem by putting the<br />
cart before the horse:<br />
In fact, when hair microscopy and hair examination was being used by many<br />
forensic science laboratories, the debate as to the usefulness and the significance<br />
<strong>of</strong> the findings was still raging on. And that’s the wrong way to go about it. That<br />
debate should have taken place first, and once there was consensus and<br />
30<br />
Ibid at 162-163.<br />
31<br />
Ibid at 166.<br />
32<br />
Ibid at 155.<br />
33<br />
Ibid at 161 and 163.<br />
34<br />
Ibid at 161.
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