Page 117 of Fifty-Fifty

‘Until the current administration shut down the investigation, the FBI were reviewing three thousand convictions in which their hair-fiber analysts testified.

In almost two thousand of the cases they managed to review before they were shut down, they found flaws in the hair-fiber analysis and testimony in ninety percent of those cases. Would you agree that hair-fiber analysis as a whole is fundamentally flawed?’

‘No. Like I said, I have never had one my cases successfully appealed.’

‘It was the FBI’s hair-fiber analysts that provided your initial training, isn’t that correct?’

Shandler shuffled around in his seat, leaned forward and said, ‘Yes, my initial training. And I say again, I stand behind every single test and analysis I have provided. Not one has been challenged successfully.’

‘Just so we’re clear, you’re saying you stand by every hair analysis opinion you’ve ever given?’

This time he turned to the jury, said, ‘Yes. I stand by every single one.’

‘You are aware of the concept of confirmation bias?’

‘I am familiar with the concept. I am never biased in my approach.’

‘Just so the jury understands, confirmation bias occurs when an expert is given a low number of samples to compare – say two to three. You are looking

for similarities in those samples, aren’t you?’

‘And differences.’

‘There’s no hair-fiber database, is there?’

‘No.’

‘So when you’re asked if a hair fiber matches a suspect, you’re only comparing two samples, you’re not looking at hair samples from the general population.’

‘Correct. But if they don’t match, I say so. When they do match characteristics, then I am happy to confirm this.’

I took a moment. Let Shandler get a little more comfortable. I wanted him to think he was making a comeback.

‘In hair-fiber analysis, it’s possible that two hairs, from the same person’s scalp, won’t share the same morphological characteristics, isn’t it?’

‘It’s possible. It’s not likely.’

‘But it is possible. In that scenario, by looking at the hairs through a microscope you might think they came from two different people? So you can’t

with certainty match two hairs that belong to the same person?’

‘Like I said, that’s rare but possible.’

I turned to the judge, ‘Your Honor, I’d like to admit the defense hair analysis report in those envelopes. If one could be handed to the witness, please?’

Dreyer was quick to object. He spat out his case to the judge while his assistant opened the envelope I’d given them.

‘Your Honor, if the defense has obtained its own expert witness report, then we should have been on notice so that our expert witness had some time to consider it. This is an ambush.’

‘Mr. Flynn. I take this objection very seriously. Who is your hair-fiber expert?’

‘His name is Professor Barry Shandler,’ I said.

The court fell silent apart from the tearing of envelopes. I interrupted to state my case before Dreyer could recover.

‘I’m not ambushing this witness, because the report in the envelope was prepared and written by this witness. He can’t be ambushed with his own report.

The findings in this report do not relate to his analysis for the prosecution – this is a separate matter that goes to credibility.’