Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 4
Paul C. Giannelli
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western Reserve University in Cleveland, Ohio. He is coauthor of Scientific Evidence (Lexis 3d ed. 1999). He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.
Splitting Hairs in the Shadow of the Gallows
Numerous courts have upheld the admissibility of hair comparison evidence. ( State v. Fukusaku, 946 P.2d 32 (Haw. 1997); McGrew v. State, 682 N.E.2d 1289 (Ind. 1997); Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999).)
Williamson v. Reynolds
After Daubert was decided, however, the district court in Williamson v. Reynolds, 904 F. Supp. 1529, 1558 (E.D. Okla. 1995), a federal habeas case, took a closer look at this type of evidence. There, an expert testified that hair samples were "microscopically consistent." The expert then went on to explain what this meant: "In other words, hairs are not an absolute identification, but they either came from this individual or there is—could be another individual somewhere in the world that would have the same characteristics to their hair." ( Id. at 1554 (emphasis added).)
The district court noted that the "expert did not explain which of the ‘approximately’ 25 characteristics were consistent, any standards for determining whether the samples were consistent, how many persons could be expected to share this same combination of characteristics, or how he arrived at his conclusions." ( Id.) Moreover, the district court professed that it had "been unsuccessful in its attempts to locate any indication that expert hair comparison testimony meets any of the requirements" of Daubert. ( Id. at 1558.) The court further observed: "Although the hair expert may have followed procedures accepted in the community of hair experts, the human hair comparison results in this case were, nonetheless, scientifically unreliable." ( Id.) Finally, as is often the case, the prosecutor exacerbated the problem by telling the jury in closing argument, "[T]here’s a match." ( Id. at 1557.) Even the state court misinterpreted the evidence, writing that the "hair evidence placed [petitioner] at the decedent’s apartment." ( Id.)
The district court decision was subsequently reversed because due process, not Daubert, provided the controlling standard for habeas review. ( Williamson v. Ward, 110 F.3d 1508, 1523 (10th Cir. 1997).) The defendant, however, was later exonerated by exculpatory DNA evidence, and, as Barry Scheck and his colleagues observe, "The hair evidence was patently unreliable." (Scheck, Neufeld & Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 146 (2000).)
What we know about hair comparisons is this: They are often misused. In one case, the expert testified that the crime scene hair sample "was unlikely to match anyone" other than the defendant, Edward Honaker. This conclusion was a gross overstatement. At best, the expert could have testified that the crime-scene hairs were "consistent with" the defendant’s exemplars, which means that they could have come from Honaker or thousands of other people. We have no idea how many other people have the same characteristics. Honaker spent 10 years in prison before being exonerated by DNA analysis. (Edward Conners et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, research report of the U.S. Dep’t of Justice, Office of Justice Programs, Nat’l Inst. of Justice, 57 (1996).)
Roger Coleman was executed in 1992 for a slaying in rural Virginia. The same expert who had testified against Honaker also testified against Coleman—and in the same manner. The United States Supreme Court ruled that a lawyer’s mistake in filing Coleman’s state collateral appeal (one day late) precluded federal habeas review. ( Coleman v. Thompson, 501 U.S. 722 (1991).) Serious questions about Coleman’s innocence have been raised, and the prosecution’s use of the hair evidence was, to say the least, suspect. ( See Taylor, Was An Innocent Man Executed?, American Law. (Dec. 1997) ("I’d put the odds that Coleman was innocent somewhere above fifty-fifty"; "The state’s hair evidence was shown (after the trial) to be far from probative and far from reliable."); Ronald Tabak, Death Penalty Be Not Proud: Examining the Legal Missteps in a Notorious Case, 84 ABA J. 80 (Jan. 1998) ("[D]efense counsel did not seriously challenge a highly dubious hair comparison that greatly influenced the jury. The lawyer who dealt with the evidence had never examined a hair expert before.").
While conducting research for his book on the Coleman case, John Tucker interviewed the trial judge: "Years later, in response to the author’s question about what evidence in the case he thought had the most powerful impact on the jury, Judge Persin said it was Elmer Gist’s testimony about the comparison of the pubic hairs. It was, Judge Persin observed, the first and only testimony that seemed to tie Roger Coleman to the murder." (John Tucker, May God Have Mercy: A True Story of Crime and Punishment 75 (1998).) As Tucker correctly notes: "A finding of consistency is highly subjective, and experts may and often do disagree about such a finding." ( Id. at 51.) Nevertheless, at trial the prosecutor "described, with great emphasis, the scientific evidence, and especially the comparison of the pubic hairs, asserting that ‘it would be extremely unlikely that anyone else would have hair that would be consistent with this hair.’" ( Id. at 63.) Unfortunately, the defense counsel failed to challenge this statement. Tucker describes the testimony as follows:
Nor did [the expert] compare the pubic hairs found on Wanda [the victim] with anyone other than Coleman and Wanda herself—not even her husband Brad. Nevertheless, when he asserted that he had made a comparison of those hairs with Roger’s pubic hair, and that the hairs were "consistent" with each other, meaning, he said, that it was "possible, but unlikely" that the hairs found on Wanda could have come from anyone other than Roger Coleman, the jurors exchanged glances and settled back in their seats.
( Id. at 76.)
There is an embarrassing lack of empirical validation for this "well-accepted" technique. In one study comparing the results of microscopic hair comparisons and mitochondrial DNA analysis at the FBI laboratory, the former were wrong 10 percent of the time—and this was when the conclusion was limited to an "association" ("consistent with" testimony). (M. M. Houck & B. Budowle, Correlation of Microscopic and Mitochondrial DNA Hair Comparisons, 47 J. Forensic Sci. 964, 966 (2002) ("Of the 80 hairs that were microscopically associated, nine comparisons were excluded by mtDNA analysis.").).
The Boston Globe, Washington Post, Richmond Times-Dispatch, The Virginian-Pilot, and Centurion Ministries—a charitable organization that investigates wrongful conviction claims—filed a claim asking that biological evidence in the Coleman case be analyzed with modern DNA techniques. The Virginia Supreme Court has refused to grant this request. ( Globe Newspaper Co. v. Commonwealth, 2002 WL 31442280 (Va. Nov. 1, 2002).)