IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO SUPPRESS HAIR RESULTS
(IS THIS NINETEENTH CENTURY
SCIENCE OR TWENTIETH CENTURY VOODOO?)

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution as well as Louisiana law to suppress the hair analysis results against him.
In support of his motion, Mr. CLIENT states as follows:
1. Nonsensical statistical evidence that purports to validate some entirely invalid hair analysis results should be excluded. See Bevill v. State, 556 So. 2d 699, 707 (Miss. 1990). Indeed, in the final analysis, there is no escape from the conclusion that the evidence itself should be excluded.
2. There are several hoops through which the prosecution must leap before scientific evidence may be introduced in Louisiana. For example, "Louisiana law requires that before a witness may qualify as an expert a foundation establishing his competency must be provided. . . ." State v. Brogdon, 457 So. 2d 616, 624 (La. 1984); See also State v. Evans, 593 So. 2d 900 (La. App. 4th Cir. 1992) (failure to disclose basis for officer's alleged expertise in narcotics). Likewise, the prosecution must prove the scientific acceptability of the evidence.
3. The relevance of evidence is generally proven by statistics. However, as a former British Prime Minister is reported as having said, "[t]here are three kinds of lies: lies, damned lies and statistics." Huff, How to Lie with Statistics (Gollancz, 6th Ed. 1954) (quoting Benjamin Disraeli (1804-81)). This is rather how this Court should view the hair analysis results in this case. Upon close analysis, the statistical disinformation that is generally used to validate hair analysis is entirely bogus. This Court must conclude that Mr. CLIENT "should not have . . . his guilt determined by the odds . . . ." People v. Collins, 68 Cal. 2d 319, 66 Cal. Rptr. 497, 438 P.2d 33, 33 (Cal. 1968).
4. Consider the first "glaring defect in the prosecution's technique, namely an inadequate proof of the statistical independence of the . . . factors." Collins, 438 P.2d at 39. If all the hairs of an individual are similar--a necessary predicate to most Technicians' testimony--then all the hairs left by a particular person would exhibit the same characteristics. Thus accepting the Technician's testimony as to the initial probability, if one of the other one-in-800 people who have the same hair as Mr. CLIENT did commit the crime, then this Mystery Mr. X would have left several hairs, all of which would be similar. Any additional hairs found at the scene do not therefore add exponential weight to a Technician's findings--the probability remains essentially one-in-800.
5. The second fault with the 'mathematics' offered is equally problematic: Assuming the veracity of the prosecution's figure of 1-in-800 (which is an assumption that cannot be made), how should this be stated? For example, would it be correct to say that there is "one chance in 800 that Mr. CLIENT is innocent"?
6. The answer must be no: "Having learned of the features of [the suspect] from the witnesses . . . the prosecution was hardly likely to charge someone not sharing those features. . . ." Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1367 (1971) (hereinafter Trial by Mathematics) (emphasis in original).
7. To the contrary, if perhaps 150 people in Peine de Mort Parish share the characteristics, they might therefore have committed the crime. As the court held in Collins, the prosecution's approach ignored this fact, and "could furnish the jury with absolutely no guidance on the crucial issue: Of the admittedly few [persons fitting the description], which one, if any, was guilty of committing this [crime]?" Collins, 438 P.2d at 40. Since these 150 people are the only residents of Peine de Mort Parish who might be suspects, the 'true' probability that Mr. CLIENT was the one could be stated as is 1-in-150. However, the validity of looking only to that Parish is highly dubious, since probably in the majority of capital cases the ultimate suspect tends to be from another Parish. Thus, one might reasonably expand the pool to the millions citizens of Louisiana, to the 260,000,000 Americans, and onwards to the five billion people in the world. The odds against Mr. CLIENT being the one now lengthen to approximately 1-in-6,000,000.
8. Mr. CLIENT does not pretend to this Court that his 'statistics' are wholly valid, for they are predicated on some of the same flawed assumptions that undergird the prosecution's. However, Mr. CLIENT's method of analysis is far more appropriate, and the result falls far short of the "reasonable doubt" standard under any definition.
9. Courts and commentators have "warned that '[m]athematics, a veritable sorcerer in our computerized society . . . must not [be allowed to] cast a spell over [the trier of fact].'" Trial by Mathematics, at 1334 (quoting Collins, 438 P. 2d at 33). The sorcerer must be exorcised.
10. This is no new issue. In Collins, for example, the prosecution sought to prove that a certain couple committed a robbery by estimating the likelihood of a black man with a beard and mustache being seen in a partly yellow automobile with a white girl whose blond hair was tied in a ponytail. Id. at 37. They used the bogus "product rule" to produce odds of 1-in-12 million against the accused being innocent. Id. at 37. However, the court rejected the assumptions underlying the statistic, and rejected the use of the "product rule" where the probabilities were so obviously interdependent. Id. at 36-37.
11. Collins was followed by the court in United States v. Massey, 594 F.2d 676 (8th Cir. 1979). In Massey, the court was concerned with precisely the issue in this case:
A. * * * The other thing, I could give you a study -- the Canadians have done a study where they have come up with . . . a chance of one in 4,500 these hairs could have come from another individual.

THE COURT: If you have one hair there, and then you could compare it with 4,500 others, and you might find one?

A. You might find one that would show the same [characteristics]. That would be assuming that you took hairs from 4,500 other people of the same race.

Of course, if you had more hairs than that, you would have [a] multiplication at that point.

Id. at 679 (emphasis supplied). These pseudo-statistics produced a probability of at least 99.44 percent that the accused was guilty. Id. at 680.
12. In reversing for a new trial, the court made some very important comments on the abuse of such bogus 'statistics':
As stated in State v. Carlson, 267 N.W.2d 170 (Minn. 1978), when reviewing similar opinion evidence:

Our concern over this evidence is . . . with its potentially exaggerated effect upon the trier of fact. Testimony expressing opinions or conclusions in terms of statistical probabilities can make the uncertain seem all but proven, and suggest, by quantification, satisfaction of the requirement that guilt be established "beyond a reasonable doubt." Diligent cross- examination may in some cases minimize statistical manipulation and confine the scope of probability testimony. We are not convinced, however, that such rebuttal would dispel the psychological impact of the suggestion of mathematical precision, and we share the concern for "the substantial unfairness to a defendant which may result from ill conceived techniques with which the trier of fact is not technically equipped to cope." 267 N.W. 2d at 176 (citations and footnote omitted)

Massey, 594 F.2d at 681 (citing Miller v. State, 240 Ark. 340, 399 S.W.2d 268 (Ark. 1966); State v. Sneed, 76 N.M. 349, 414 P.2d 858 (N.M. 1966)).
13. Other cases have condemned the use of statistics to quantify reasonable doubt, when used in conjunction with hair evidence, State v. Boyd, 331 N.W.2d 480 (Minn. 1983), blood testing, People v. Harbold, 124 Ill. App. 3d 363, 79 Ill. Dec. 830, 464 N.E.2d 734, 749 (Ill. App. 1 Dist. 1984), and other bogus formulae. See, e.g., People v. Risley, 214 N.Y. 75, 108 N.E. 200 (N.Y. 1915); Dorsey v. State, 276 Md. 638, 350 A.2d 665, 669 (Md. 1976); Campbell v. Board of Education, 310 F. Supp. 94, 105 (E.D.N.Y. 1970).
14. The rationale for rejecting these pseudo-statistics extends beyond their potential for confusing jurors, and the fact that even competent defense lawyers find themselves completely at sea. To attempt to quantify jury decision-making is impossible--a Swedish court has found that a 1-in-144 likelihood of innocence is a "reasonable doubt" while 1-in-20,736 is not, but Professor Tribe correctly asserts that "no such translation of the 'reasonable doubt' concept into mathematical terms should be attempted. . . ." Trial by Mathematics at 1340 n. 36; cf. Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 482 N.E.2d 1198 (Mass. App. Ct. 1985) (error to attempt to instruct the jury on reasonable doubt in terms of percentages).
15. Untrammeled by pseudo-objectivity, the "reasonable doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.'" In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). "It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." Id.
16. In contrast, even postulating the accuracy of the statistics--which as we have seen is unwise--the prosecution is suddenly inverting our entire approach to criminal law by proposing this bogus 'objective' approach to the adjudication of facts:
Tolerating a system in which perhaps one innocent man in a hundred is erroneously convicted despite each jury's attempt to make as few mistakes as possible is in this respect vastly different from instructing a jury to aim at a 1% rate (or even a .1% rate) of mistaken convictions.

Trial by Mathematics, at 1374 n. 143.
17. Jurors should not be confused by the deceptive certitude of the pseudo-statistician. Next, the jury will be told that ninety-five percent of those insisting on a trial are actually guilty. See, e.g., Dorsey v. State, 276 Md. 638, 350 A.2d 665, 668 (1976) (condemning the following question: "Q. And [officer] of the cases you have investigated, can you give us any idea of the percentage in which convictions resulted from your arrest?"). This Court must put a stop to this statistical gibberish and enter an order excluding it from Mr. CLIENT's trial.
18. However, the elimination of bogus statistics does not end the question. So-called scientific evidence cannot be introduced at all into a criminal trial without some showing of legal relevance and reliability. The evidence must also comply with the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the successor to the well-known Frye test, from Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. App. 1923), and modified and adopted by the Louisiana Supreme Court in State v. Foret, 628 So. 2d 1116 (La. 1993). Under Foret, the Frye test is now a branch of the Daubert test. The Second Circuit has explained the Frye test, and its rationale, which, since Daubert and Foret, is alive and well in Louisiana:
The admissibility of expert testimony calls for the application of somewhat overlapping requirements. The evidence must be relevant. . . . Expert testimony must be based upon a reliable area of expertise, as has come to be associated with the rule associated with Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir. 1923), which requires that novel scientific evidence be sufficiently established to have gained general acceptance in the field to which it belongs * * * [B]oth of these requirements [are applied] to the use of expert testimony by requiring that specialized knowledge "assist the trier of fact to understand the evidence or to determine a fact in issue." Finally, otherwise admissible expert testimony may be excluded if its probative value is substantially outweighed by the dangers that it might confuse the issues, be unfairly prejudicial, cause undue delay or waste judicial resource.

United States v. McBride, 786 F.2d 45, 49 (2d Cir. 1986) (citations omitted). Under Frye, a scientific technique should be used to sustain a criminal conviction only where it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. at 1014.
19. Several factors must be taken into account in this analysis. First, the admissibility of the scientific evidence is an important issue for the trial court as a threshold issue, prior to submission to the jury. This is absolutely critical, since the jury must not be blinded by science:
A courtroom is not a research laboratory. The fate of a Defendant in a criminal proceeding should not hang on his ability to successfully rebut scientific evidence which bears an 'aura of special reliability and trustworthiness' although, in reality, the witness is testifying on the basis of an unproved hypothesis. . . .

United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977). This is particularly important in the use of evidence such as hair analysis, since efforts to use statistics can easily confuse jurors, and lead to unreliable decisions.
20. Second, it is clear that the prosecution--if the state is the proponent of the suspect evidence--must bear the burden of proving reliability. See, e.g., United States v. Hendershot, 614 F.2d 648, 650 (9th Cir. 1980); State v. Guidry, 625 So. 2d 153 (La. 1993).
21. Third, we are dealing with an issue where impartiality is absolutely critical. To rely on the Emperor's opinion that he is in fact wearing clothes is not acceptable. It is for this reason that the courts have generally discounted the opinions of those whose livelihoods depend on the day-in, day-out implementation of a procedure in assessing its scientific validity. Expert witnesses, testifying to the underlying validity of the test, must be "disinterested and impartial experts in the particular field." People v. Young, 291 N.E.2d at 274 (quoting, People v. Young, 418 Mich 11, 340 N.W.2d 805 (Mich. 1983)). The witnesses cannot be solely those "connected with a government agency of some kind, i.e. law enforcement officers. . . ." People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240, 1248 (Cal. 1976). Neither can the state's witnesses only be comprised of the type of person who "has virtually built his career on the [purported] reliability of the technique." Id. at 1249 It would be very difficult, for example, for a witness who has helped put hundreds of people behind bars to be asked to objectively admit to the failings in the field.
22. Fourth, before evidence of a scientific method may be introduced, "'something more than the bare opinion of one man, however qualified, is required.'" People v. Kelly, 17 Cal. 3d 24, 549 P.2d 1240, 1248 (Cal. 1976) (quoting, State v. Cary, 49 N.J. 343, 230 A.2d 384, 389 (N.J. 1967)). The evidence may not ultimately be admitted unless there is general agreement between the impartial experts in the field.
23. Applying these considerations to this case, it will be very clear at an evidentiary hearing that the prosecution cannot prove that hair analysis is admissible. It truly is a nineteenth century science, that should not be admitted into a twentieth century courtroom, especially not where a man's life is at stake.
WHEREFORE, for the reasons set forth above, and for such other reasons as will appear at an evidentiary hearing on this matter, Mr. CLIENT moves that this Court hold an evidentiary hearing on this matter, and then enter an order excluding the hair evidence from his trial.
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