Wrongful Convictions.pdf - Robson Hall Faculty of Law

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.