The Court of Appeals in Jones v. U.S., decided on March 7, 2019 reversed a conviction for armed robbery and assault due to unreliability of the microscopic hair analysis evidence.

Factually, defendant was tried in 1996 and convicted of armed robbery and other offenses. The appeal is from the court’s denial of his motions to vacate his convictions pursuant to D.C. Code § 23-110 and for post-conviction DNA testing pursuant to the Innocence Protection Act (IPA).

Predominantly at trial the forensic evidence of microscopic hair samples testified to by an FBI agent clinched a conviction. Since 1996, and specifically in a report generated and adopted by the forensic scientists, the reliability of microscopic hair comparisons has been undermined, a development accelerated by numerous cases in which post-conviction DNA testing disproved the matches to which hair examiners had testified.

Here, the DOJ completed an internal review of the case and determined that by today’s standard the testimony by the FBI agent at the time would not be accurate or scientifically reliable.

Specifically, the DOJ report concluded that: “a report or testimony regarding microscopic hair comparison analysis containing erroneous statements was used in this case.”

Subsequently, the appellant argued that his due process rights were violated at his trial by the government’s presentation of this false evidence.  Appellant also argued under the Innocence Project Act (IPA) that a key piece of evidence, namely the hair sample, was destroyed by the government in violation of the Act and thus reversal and remand was also warranted under the Act.

Moreover, that defendant is entitled to a new trial based on what is commonly referred to as a Napue violation of his right to due process.   A Napue violation exists when the government presents or fails to correct testimony it knows to be, or should know to be, false or misleading.

The Napue claim hinges on whether there is any reasonable likelihood that the false testimony could have affected the verdict.  That is, reversal is necessary unless there is:

• No reasonable possibility that the falsehood affected the jury’s verdict or
• Unless the false testimony was harmless beyond a reasonable doubt.

The Court of Appeals concluded that the trial court had used an incorrect standard of proof.  That is, the court applied for the due process purposes that it must be “reasonably probable” (and not merely possible) that the challenged testimony caused the jury to find appellant guilty.

Reasonable probability of prejudice in order to obtain a post conviction requires significant evidence — enough that it undermines confidence in the trial’s outcome, mere possibility of prejudice is far lower standard.  Here the Court of Appeals held that applying the mere possibility standard requires a reversal as there were no other forensic or scientific evidence other than the hair sample present at trial and lack of conclusivity of such evidence undermines the reliability of the judicial process.

Refer to our Washington DC Criminal Lawyer page for more information on this topic.