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The CSI Effect

We tell jurors that they can't do "independent" research:  look up stuff on the Internet, go the scene of the crime, read newspaper accounts about what happened.  Well, if you've got jurors who recognize this guy's picture, or have the Who's "Won't Get Fooled Again" as the ringtone on their cellphones, they might need some special instructions, too.

The Ohio State Bar Association certainly thinks so; back in May they came up with a proposed jury instruction intended to curb the influence of legal and forensic TV shows.  Ominously entitled "Warning on Outside Influence," it cautions that "misleading outside influences" include "popular TV shows" like Law and Order or Boston Legal, as well as "shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations."  Noting that these shows "are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and are works of fiction that present unrealistic situations for dramatic effect," jurors are told to " put aside anything you think you know about the legal system that you saw on TV."

This is supposed to counter what's been termed the "CSI Effect":   supposedly, such shows have indoctrinated jurors to believe that every prosecution, no matter how sundry, must result in a host of forensic scientists marching to the stand, and if that doesn't happen, the defendant should be acquitted.  

What's been termed "the CSI Effect" is hardly the first time that entertainment has influenced jurors.  The "Perry Mason Syndrome" was the name given to jurors' reluctance to acquit unless the defense attorney got the state's key witness to confess in cross-examination.  (The show had another effect:  lawyers weren't allowed to approach witnesses at that time, but to get both Mason and the witness in the same frame, directors had Mason walk over and lean on the witness rail.  Actual jurors began to expect attorneys to do the same thing, and thought they'd done something wrong when they didn't.)  And "Oprahization" was the name given by Attorney General Dan Lungren to the tendence of jurors to fail to hold the defendant responsible for his crime because of his own victimization, such as childhood abuse.

There's an abundance of anecdotal evidence to support the existence of the effect, and the prosecutor of Maricopa County, which includes Phoenix, certainly thinks it's real:  in an article he wrote for the Yale Law Journal, he claimed that a survey he did showed 38% of his prosecutors believed they'd lost at least one case because of a lack of forensic evidence, even when they thought the other evidence was sufficient to convict, and that

in about 40% of these prosecutors' cases, jurors have asked questions about evidence like 'mitochondrial DNA,' 'latent prints,' 'trace evidence,' or 'ballistics'--even when these terms were not used at trial.

Reliance on anecdotal evidence, especially that supplied by adversarial participants in a trial, is problematic; blaming a loss on a factor over which you have no control is a standard rationalization process in virtually any contest.  And the unreliability of recollection in general was borne out by one study, where the author quizzed assistant district attorneys at a seminar about whether they'd suffered a "CSI effect" -- a jury "wrongfully acquitting" where there was proof beyond a reasonable doubt, but lack of forensic evidence -- and asking them to identify the case.  He'd intended to then go back and research the individual cases for an alternate explanation.  A problem:  19 of the 20 cases identified by prosecutors had resulted in a conviction.  The author then conducted a series of mock trials to determine whether there was any measurable difference in acquittal rates, or reliability on forensic evidence, in CSI watchers v. non-watchers.  Like this study and this one, the author couldn't detect any.  To be sure, some studies, like this one, suggest that there may be an overall trend among jurors, not limited to just CSI watchers, toward expecting a greater degree of forensic evidence.  But studies haven't shown a greater unwillingness to convict unless that forensic evidence is provided; indeed, if there was such a tendency, it would have shown up in increased acquittal rates over the past several years, and that hasn't happened.

In fact, it may be that the effect cancels itself out:  for each juror who demands more scientific evidence in return for his guilty verdict, there's another who believes that scientific evidence is infallible.  After all, when's the last time you heard Horatio admit, "Jeez, we screwed the pooch on this one, huh, guys"?  Tell a jury that the defendant's fingerprints were found in a burglarized apartment, it's Game Over.  As Brandon Mayfield can tell you, that's not the case:  he spent two weeks in jail because FBI fingerprint "experts" mistakenly identified his prints as being on a plastic bag containing detonator caps found at the scene of the 2004 Madrid bombings.  The central tenet of fingerprint identification -- that no two people have the same fingerprints -- has never been validated, nor has the practice of declaring a match if there are eight to sixteen points of similarity (out of 35 to 50 possible) between two sets.  In fact, as one commentator put it, the verifiability of fingerprint identification rests on the circular logic that "it is verifiable because [fingerprint technicians] use it."  Similar questions have been raised about the accuracy of ballistics, hair analysis, and hand-writing identification.  In fact, a large reason for the Supreme Court's decision last year in Melendez-Diaz v. Massachusetts, holding that scientific evidence was testimonial under Crawford, and therefore required confrontation of the person who actually performed the tests, was an amicus brief by the National Innocence Project detailing the inaccuracies of supposedly "reliable" forensic evidence. 

Still, if the OSBA thinks it's necessary to tell impressionable Ohio jurors not to believe everything they see on TV, I don't have a problem with it.  As long as they're also told not to expect miracles when I cross-examine the state's key witness.

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