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Fiber Evidence" an article in Trial Magazine of August, 1983
By Mark J. Kadish, E. Marcus Davis, and Rosalyn Suna Kadish
In June 1983 TRIAL began a seven-part series: The Law in the Future. The Hon. Orville Richardson began the series with an overview of the law as it may be circa 2000. Prof. Thomas F. Lambert followed him, proffering in the July and August issues an extensive look at tort law. This month Mark Kadish, E. Marcus Davis, and Rosalyn Suna Kadish pool the evidence they have gathered about the future of criminal justice.
Still to come: Larry Gordon and Allan Onove guide a tour through the law office of the future; Prof. James Jeans examines the changes to come in legal education; and finally, Stanley Preiser, Monty Preiser, and Sherry Goodman predict how developing technology will affect courtroom tactics and techniques.
Of all the areas of change that will impact significantly on the future practice of criminal law, two of the most significant involve the gathering and use of evidence. Fiber evidence is not new, but advancing technology is enhancing its role in criminal prosecutions, and on a different plane, alterations to Fourth Amendment search and seizure law during the next two decades will bear watching. Other aspects of criminal justice that will dramatically affect the future practice of law include standing to complain, electronic surveillance, and computer crimes.
Fiber Evidence: Its Future Use In Criminal Litigation
The celebrated Atlanta "Child Murder Cases" (State of Georgia v. Wayne Williams) have sparked the interest of the legal community in the prosecutors’ secret weapon-fiber evidence. While many lawyers and laypersons have hailed fiber evidence as a remarkable new tool to aid in prosecuting difficult cases, fiber evidence is not really a new discovery. What is new about fiber evidence is the enhanced ability of the forensic chemist to utilize such evidence as a result of certain technological advances.
Experienced prosecutors have long considered scientific proof the "backbone of every circumstantial evidence case." Criminal lawyers can expect greater use of fiber evidence in the future not only because of its well-publicized successful use in Georgia v. Williams, but also because of the liberalization of the law of evidence in the area of expert testimony. Many jurisdictions have adopted procedures permitting the trial judge to determine "whether the procedure or technique in question has reached a scientific stage of verifiable certainty" or, in the words of Professor Irving Younger, "whether the procedure rests upon the laws of nature." The trial court will make the determination based upon the available evidence, rather than by simply calculating the consensus in the scientific community.
Federal Rule 402 provides: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by act of Congress, by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority."
Liberalized evidentiary standards, coupled with modern techniques of fiber analysis, will guarantee a dramatic increase in the future use of fiber evidence.
Because of technological advances, criminal defense lawyers will confront more and more scientific evidence in the future. They must be prepared to understand such evidence. Securing the services of experts to examine evidence, to advise counsel, and to rebut the prosecution’s case is probably the single most important factor in defending a case in which novel scientific evidence is used. Studies show that scientists are fallible—fiber and scientific evidence can be successfully attacked. Although the courts will readily admit scientific evidence, the evidence can be shown to have little or no probative weight. Thus, an understanding of the principles of fiber evidence will be indispensable to the criminal lawyer of the future. With study and the assistance of an expert, a lawyer will be able to understand and effectively present or attack fiber evidence.
To the uninformed, a fiber is a simple object to contemplate; it has certain color, texture, and dimensions. The textile engineer or forensic scientist, however, can glean a wealth of information from a single fiber. Much of this information can be utilized in a criminal case.
The information to be obtained from a fiber can be broken down, from the more obvious characteristics that can be observed by the naked eye (macroscopic examination) to those that can be ascertained only by using sophisticated scientific tools, such as comparison microscopes, polarization techniques, monochromators, microspectrophotometers, and spectral data processors.
Macroscopic examination can reveal the type of fiber and the number of different classes of fiber present in the material and may exclude certain fibers as components of the material. Such an exam may also reveal whether the material is comprised of more than one type of fiber.
Fibers can be further examined microscopically. Microscopic examination will reveal characteristics such as surface scales, cross-markings, swelling, twists, or relatively smooth surfaces. Cross sectional examination reveals the contour of the fiber and pigment distribution.
Fibers are composed of either “natural" animal or vegetable material, and can be further broken down as shown in Table I.
Other information can be gleaned from the way in which fibers are spun, dyed, or woven. Different spinning procedures produce at least 15 types of yarn. Diverse weaving techniques produce at least 42 variations.
Several finishing techniques are used on fabrics and fibers, imparting different finishes and chemicals to the fibers. The numerous techniques by which fabrics, both natural and synthetic, are made can leave a fiber with such an infinite number of characteristics that its signature, vis-à-vis the signature of another fiber, can be narrowed down to a virtual certainty.
The Williams case is exemplary of how fiber evidence will be relied upon in the future and how best to utilize or confront it.
According to Larry K. Peterson, the forensic chemist for the Georgia Bureau of Investigation (GBI) Crime Laboratory, and Gordon H. Miller, the Fulton County (Georgia) Assistant District Attorney who handled the scientific aspects of the case, the case was prosecuted successfully largely as a result of fiber evidence. Peterson based his initial premise on the fact that every person's environment contains a set of fibers that are statistically unique. Williams was convicted because fibers found on the bodies of several victims matched fibers that were present in his environment: a green carpet and bedspread in his home; the carpet in his Chevrolet station wagon; and several other fibers.
The story of how the fibers were used is fascinating and demonstrates the impact that this forensic technique will have in future criminal litigation. Particularly because there were no eyewitnesses, no apparent motives, and no concrete "leads," authorities searched the skin, hair, and clothing of each new victim discovered for fibers. Scotch tape, tweezers, vacuums, and other methods produced the fibers. Some of these fibers were even found in the hair of victims who had been floating in the Chattahoochee River for several weeks.
An unusual green fiber, trilobal in shape, and determined to be a carpet fiber, was found on several victims. The carpet fiber in question was extremely rare, making the initial identification difficult, but the unusual fiber worked to the advantage of the prosecution because few households would own a carpet containing such a rare fiber. Had the fiber recovered been a common one, such as white cotton, the evidence would have been virtually useless. Federal Bureau of Investigation (FBI) and GBI agents scoured textile manufacturing concerns to determine who had made the fiber. The fiber was similar to a patented DuPont design, but was finally traced to the Wellman Corporation and to a West Point Pepperell mill in Dalton, Georgia, that had manufactured a limited quantity of green carpet using the unusually shaped fiber. West Point Pepperell had maintained sales records, and it was determined that one out of every 8000 homes in the Atlanta area had one room of green carpet containing the Wellman fiber.
Fibers from a Chevrolet station wagon carpet were found on several corpses. Peterson determined which vehicle identification numbers corresponded to the type of carpet fiber found and determined that one in every 3800 automobiles in the Atlanta area contained the carpet. The Williams station wagon was on the list. Other fibers matching Williams' bedspread (a flammable acetate fiber, not used in bedspreads for ten years) were found on several bodies. Because the fibers were found all over some of the victims‘bodies, it was determined that: they died in Williams' parents’ house; they were wrapped in the bedspread; and they were transported supine in the Chevrolet station wagon. Peterson and Miller theorized that the fibers recovered matched the last environment of the victims.
The statistics developed by Peterson and his associates at the GBI crime lab were devastating to the defense. The jury must have concluded that if one in 3800 people owned a car containing the incriminating carpet and only one in 8000 owned the green room carpet, and if Williams owned a ten-year-old bedspread with the correct fibers, he had to be the killer. To some jurors, the statistics alone proved him guilty beyond a reasonable doubt. (The practitioner confronted with such statistics should hire a statistician as an expert witness and study the available articles dealing with the problem of overcoming the misuses of statistical data.)
Using sophisticated scientific instruments and techniques, Peterson compared and matched fibers from the Williams house with fibers recovered from the children’s bodies. Mr. Peterson expected such a match because of the "exchange" principle. This type of evidence can be used in rape and other cases because of the same principle. When people touch other objects containing fiber, the fibers are exchanged in much the same way as paint is exchanged in a collision between cars of different colors. One car leaves its paint on the other.
Fiber evidence can, of course, be used in many types of cases. Microscopic comparison between fibers on the suspect and those obtained from the scene of the crime or victim may be compared. Such evidence is especially useful in crimes of close contact, such as rape, but may also be used in a variety of other offenses. Unfortunately, as a scientific tool, the probative value of this evidence for the defendant is limited. The fact that no matching fibers are found does not demonstrate innocence. As so well stated by Wayne Williams' defense lawyer, Alvin M. Binder, “Fiber evidence is a one-way ticket to hell for the criminal defendant." Nevertheless, creative defense lawyers can seek ways to use fiber evidence as a defensive tool.
The emerging trend in federal and state judicial systems toward the liberalization of the standards for admitting scientific evidence is well documented. In the future, the practitioner can anticipate more frequent use of fiber evidence in criminal trials.
If the courts are going to admit such scientific evidence more liberally, criminal defense advocates must educate themselves in these technical fields in order to critically evaluate and negate the weight of the technical proof.
Continue Reading >> "Slow Strangulation" of the Exclusionary Rule
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