Wrongful Convictions.pdf - Robson Hall Faculty of Law
Wrongful Convictions.pdf - Robson Hall Faculty of Law Wrongful Convictions.pdf - Robson Hall Faculty of Law
12 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1agreement, then turn around and employ this technique. So it should have beenvalidated first. Unfortunately, as I look at it, the validation was ongoing while theinformation was being produced and evidence was given. At the end of the day,is this science? 35Commissioner LeSage thought not. He felt that supposed scientificevidence should not be presented in criminal trials as probative on theissue of identity unless the process itself, and the conclusions reached, hada strong empirical or theoretical foundation. 36 Hair microscopy fails thattest, as it is fundamentally experience-based, not scientifically anchored. 37Indeed, in 2009, the National Research Council of the National Academyof Sciences in the US reported that “[n]o scientifically accepted statisticsexist about the frequency with which particular characteristics of hair aredistributed in the population” and that any effort to link a specificdefendant to hair evidence on the basis of microscopy alone has “noscientific support”. 38 A study which double-checked FBI laboratory hairmicroscopy work through mitochondrial DNA analysis showed it to havean 11% error rate. 39 Other studies and proficiency tests of hair examinersdating back to the 1970s found error rates ranging from 28% to as high as68%. 40 In the end, DNA testing would reveal that in four separateManitoba murder cases, the hair microscopy examination had beenincorrect. 41That being the case, does hair microscopy evidence have any furtherrole in criminal trials, or has it been consigned it to the forensic scrapheap?Commissioner LeSage still saw one last legitimate, albeit narrow,post-investigation role:35Ibid at 173.36Ibid at 172.37The RCMP examiners’ handbook suggested that if examiners are asked to explain thebasis for their opinion, they should refer to “publications”, “attendance at workshopsand seminars”, “discussions with others in the field”, “understudy training”, the “100hair exercise” and other “proficiency tests”, and their years of casework experience:ibid at 168-169.38NRC, supra note 6 at 160-161.39Driskell Report, supra note 9 at 172.40Barry Scheck et al, Actual Innocence: When Justice Goes Wrong and How to Make it Right(New York: Signet Books, 2001) at ch 7.41Driskell Report, supra note 9 at 172. These cases were those of Driskell, Unger,Sanderson, and of Robert Starr. See R v Starr, 2000 SCC 40 at para 200, [2000] 2SCR 144.
Wrongful Convictions 13I agree with the views expressed by the panelists and in the Morin Inquiry Reportthat if hair microscopy evidence remains admissible, any conclusions should beexpressed in “exclusionary” rather than “inclusionary” terms (i.e., framed as astatement that the source of the known hairs cannot be excluded as the source ofthe questioned hairs). 42The US National Research Council of the National Academiesexpressed a similar view two years later:Because of the inherent limitations of hair comparisons and the availability ofhigher-quality and higher-accuracy analyses based on mtDNA, traditional hairexaminations may be presented less often as evidence in the future, althoughmicroscopic comparison of physical features will continue to be useful fordetermining which hairs are sufficiently similar to merit comparisons with DNAanalysis and for excluding suspects and assisting in criminal investigations. 43C. The Triggering EventTo sum up: during the 1970s and 1980s and into the 1990s, thepolicing community placed considerable emphasis on hair microscopy.Prosecution services likewise relied upon it in court, primarily to assist inestablishing the identity of the suspect in murder cases. Testimony incourt was often nuanced, but “dressed up in scientific language which thejury does not easily understand, and submitted through a witness ofimpressive antecedents,” 44 triers of fact inevitably gave the evidenceconsiderable weight. What was not well understood was that at the verytime the evidence was being tendered in court, there was considerabledispute within the forensic community on whether the evidence wasreliable, and how far a witness could go in suggesting that it was probativeof critical facts in issue.The sand started to shift markedly in the early 1990s, with the adventof, and increasing reliance on, DNA evidence. A trend developed in theUS to exclude admission of hair microscopy evidence on the basis that itwas simply unreliable. 45 In 1998, the Morin Commission of Inquiry42Driskell Report, supra note 9 at 172.43NRC, supra note 6 at 160.44Mohan, supra note 19.45Williamson v Reynolds, 904 F Supp 1529, 1558 (ED Okla 1995); Clive A Stafford Smith& Patrick D Goodman, “Forensic Hair Comparison Analysis: 19 th Century Science or20 th Century Snake Oil?” (1996) 27 Colum HRL Rev 227.
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12 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1agreement, then turn around and employ this technique. So it should have beenvalidated first. Unfortunately, as I look at it, the validation was ongoing while theinformation was being produced and evidence was given. At the end <strong>of</strong> the day,is this science? 35Commissioner LeSage thought not. He felt that supposed scientificevidence should not be presented in criminal trials as probative on theissue <strong>of</strong> identity unless the process itself, and the conclusions reached, hada strong empirical or theoretical foundation. 36 Hair microscopy fails thattest, as it is fundamentally experience-based, not scientifically anchored. 37Indeed, in 2009, the National Research Council <strong>of</strong> the National Academy<strong>of</strong> Sciences in the US reported that “[n]o scientifically accepted statisticsexist about the frequency with which particular characteristics <strong>of</strong> hair aredistributed in the population” and that any effort to link a specificdefendant to hair evidence on the basis <strong>of</strong> microscopy alone has “noscientific support”. 38 A study which double-checked FBI laboratory hairmicroscopy work through mitochondrial DNA analysis showed it to havean 11% error rate. 39 Other studies and pr<strong>of</strong>iciency tests <strong>of</strong> hair examinersdating back to the 1970s found error rates ranging from 28% to as high as68%. 40 In the end, DNA testing would reveal that in four separateManitoba murder cases, the hair microscopy examination had beenincorrect. 41That being the case, does hair microscopy evidence have any furtherrole in criminal trials, or has it been consigned it to the forensic scrapheap?Commissioner LeSage still saw one last legitimate, albeit narrow,post-investigation role:35Ibid at 173.36Ibid at 172.37The RCMP examiners’ handbook suggested that if examiners are asked to explain thebasis for their opinion, they should refer to “publications”, “attendance at workshopsand seminars”, “discussions with others in the field”, “understudy training”, the “100hair exercise” and other “pr<strong>of</strong>iciency tests”, and their years <strong>of</strong> casework experience:ibid at 168-169.38NRC, supra note 6 at 160-161.39Driskell Report, supra note 9 at 172.40Barry Scheck et al, Actual Innocence: When Justice Goes Wrong and How to Make it Right(New York: Signet Books, 2001) at ch 7.41Driskell Report, supra note 9 at 172. These cases were those <strong>of</strong> Driskell, Unger,Sanderson, and <strong>of</strong> Robert Starr. See R v Starr, 2000 SCC 40 at para 200, [2000] 2SCR 144.
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