We have heard it repeatedly: “A criminal defendant is innocent until proven guilty beyond a reasonable doubt.” There is no doubt this is a high standard; indeed, the highest standard our judicial system has to offer, and rightfully so. As Justice William Blackstone judiciously declared, “it is better for ten guilty men to go free than for one innocent man to be condemned to the gallows.” Of course not everyone shares this sentiment, just compare that of former Communist leader of Cambodia, Pol Pot, “Better to kill an innocent by mistake than spare an enemy by mistake . . . No gain in keeping, no loss in weeding out.” Wherever you may fall along the spectrum, there is one premise upon which we can all agree: the degree of doubt required for acquittal must be based upon reason.
Seems simple enough, right? Wrong! Prosecutors and judges nationwide are complaining that juror expectations are increasingly unreasonable, and their demand for conclusive scientific evidence is nothing short of fantastical. Furthermore, when jurors’ expectations are out of touch with reality, nothing less than the integrity of our entire criminal justice system is at stake. So whom do they blame for this perversion of the jury box? Television, specifically CSI: Crime Scene Investigation, and the phenomenon that has come to be known in the legal community as the “CSI Effect.”
The CSI Effect is not a new concept; in fact, it has been a hot topic amongst commentators for a solid decade. It is commonly defined as the phenomenon of popular television shows raising jury members’ real-world expectations of forensic evidence, investigation techniques, and DNA testing. The argument goes, these ubiquitous and popular shows have injected unreasonable doubt into the jury system resulting in wrongful acquittals across the nation.
At this point it is important to note the vast majority of cases are settled before they ever make it to trial; therefore, it is typically only the close-calls that ever come before a jury. Furthermore, in order to sustain a conviction the jury verdict must be unanimous. Thus, it only takes one rogue juror, believing he possesses superior scientific expertise, to derail an otherwise slam-dunk case. To be sure, a juror is commanded to base his decision only upon the evidence presented before him, and not upon expertise he does not truly possess. While this seems like an obvious point, we would be foolish to believe this is always the case.
Perhaps the most notorious case citing the CSI Effect comes to us from Peoria, Illinois. In 2004, the trial began for a man accused of raping a teenage girl in a local park. The victim positively identified her attacker, items of the accused were found at the crime scene, and the investigators had matched saliva on the victim’s breast to the defendant. To be clear, the issue was not consent; however, the verdict came back, not guilty.
We were neither in the courtroom nor at the crime scene, so we cannot know exactly what happened, but considering the substantive elements of a rape charge it is difficult to imagine what more the jury could have wanted. Fortunately for us, based on the commentary of one juror after the trial, we know exactly what they wanted: more forensic evidence—specifically, they wanted the victim’s cervix tested for dirt to match the dirt at the crime scene. If you are wondering what that would have proven, then you are in the same boat as the prosecutor on the case, Jodi Hoos, who stated, “They said they knew from CSI that police could test for that sort of thing . . . . We had his DNA . . . It’s ridiculous.”
Examples abound, one of my personal favorites came from the Honorable Donald E. Shelton who once heard a juror remark that the prosecution had not done a careful enough job because “they didn’t even dust the lawn for fingerprints.” Really? While such comments are certainly discouraging to the reasonable listener, they do not alone prove that television is to blame or that the CSI Effect even exists. So does it? Does the CSI Effect exist?
Surprisingly, Judge Shelton, answers with a resounding “no.” His well-researched conclusion is based on an empirical study conducted by himself and two of his colleagues in 2006, which can be found here. So, how can Judge Shelton, and many others, so confidently say “no” when lawyers around the country emphatically say “yes”?
The distinction is a technical one, and the problem lies in dubbing the phenomenon the “CSI Effect.” Essentially, what his study showed was a dramatic increase in juror expectations of and demands for scientific evidence, regardless of whether the particular juror watches CSI. Thus, there was no statistically significant correlation between the two. Whatever the case may be, there is one thing everyone can agree on: jurors are demanding scientific evidence at unprecedented levels, and they expect prosecutors to take advantage of modern science and technology to meet their burden of proving guilt beyond a reasonable doubt.
As Campbell alumnus and assistant district attorney, Steven Saad, astutely noted, “Whether the CSI Effect (as defined by Judge Shelton) was found to exist empirically or not, it absolutely plays a prominent role in how lawyers must approach their trials today.” Indeed, research unequivocally indicates that the CSI Effect is being actively combated in courtrooms across the country, reshaping jury instructions, trial strategies, and most importantly, voir dire. ADA Saad went on to add, “Without a doubt, you have to confront the CSI Effect on voir dire. You have to ask jurors if they watch CSI, or similar shows, and if so, you have to make sure they understand that is not how the real world works.”
Undoubtedly, what is reasonable evidence to expect from the prosecution today is much different today than what it was twenty years ago. The reality, however, is that crime labs simply do not have the funding to be equipped with the latest cutting edge technology, nor the staff to keep pace with the ever-growing demand. Therefore, what is reasonable inherently includes a realization of what is practically feasible, and the “Hollywood standard” portrayed today certainly is not it.
Every time a juror enters the box they bring with them their own experiences and preconceptions about how the court process works. The problem arises when these assumptions are skewed by the fantasy world presented by various media outlets. The creator of CSI, Anthony Zuiker, said it best when he stated, “Our job really is to make great television, first and foremost. And so, we have to, quote (sic), ‘sex it up.’” Admittedly, this does make great television; however, jurors are often disappointed to realize that trials are anything but sexy. And, the last thing an attorney wants is a disappointed jury.
The bottom line is, misconceptions about the court process and what is truly reasonable differ greatly from juror to juror, with many often conflating fact and fiction. Thus, prosecutors and defense attorneys alike must be keenly aware of the ever-present thirteenth juror lurking in the psyche of every potential member filling the box.