Crime solving television shows have inundated our society. We set our DVR’s so we don't miss the exhilaration of solving the next case. We eagerly await the end of each episode when the criminal is put behind bars because justice has been served. We want the satisfaction of having a case solved, and we have grown to expect a solved case within the confines of a 42-minute episode. We have experienced the excitement scientist feel when they put all the pieces together to solve a case. Yet shows like CSI and Bones do not accurately portray the way evidence is gathered and presented in the courtroom.
Many researchers have studied the CSI-Effect. For good or bad, CSI has unmistakably changed the courtroom environment. The scene has changed, but has the law adapted to its new environment? Should the law adapt or should lawyers adapt?
I believe that lawyers must adapt. Trial lawyers must recognize that their role is not simply to know the law and apply it to the facts in order to help their client, but their role is also to present the case to the jury in a relevant and understandable way. Trial lawyers are artist who must paint a picture for their audience. As the expectations of the audience change, the picture must also change. A museum patron who expects to see a Picasso painting is not disappointed when he sees a Picasso painting, but a museum patron who expects to see a Picasso painting and instead sees a high school art collection is disappointed. In the same way, jurors who expect to participate in a CSI-like trial but instead participate in an ordinary trial are disappointed. Because their expectations are set in one place and the result does not meet their expectations, they become disenchanted.
I do not believe lawyers are solely responsible to remedy the CSI-Effect, but lawyers play a major role in setting juror expectations. Therefore, lawyers can and should educate the jury on what to expect. Lawyers cannot do this alone because jurors know that lawyers are not unbiased parties. Jurors know that each lawyer is fighting for his or her client and is biased toward the client’s viewpoint. Thus, jurors take what lawyers say with a grain of salt. Due to this fact, I believe that judges and lawmakers are, in large part, responsible for remedying the CSI-Effect. Judges and lawmakers cannot allow the CSI-Effect to rewrite "the standard burden of proof in the criminal context from 'beyond a reasonable doubt' to 'beyond any doubt.'" In other words, judges and lawmakers need to convey to the jury that the verdict should not be "completely dependent on seemingly error-proof forensic, scientific, technological evidence. In the civil context, jurors’ expectations for CSI-like evidence may effectively raise the standard from 'beyond a preponderance of the evidence' to a standard more akin to that in the criminal context.” Judges and lawmakers must correct this.
This is a daunting problem. Solutions will come in many forms, but the solutions cannot come from trial lawyers alone. At some point, judges and lawmakers must require jurors to be educated. Jurors must be educated on what burden of proof is required instead of allowing them to think that every piece of evidence needs to be tested. Jurors must be reached in a manner they understand in order for the law to be effectively enforced.
Since jurors are influenced by the media, lawyers, judges, and lawmakers should reach jurors in a similar manner – through entertainment. Serial, a hit new podcast show, allows listeners to see that cases do not come neatly wrapped with a bow on top. The podcast gives listeners insights into “the high school scene, the shifting statements to police, the prejudices, the sketchy alibis, [and] the scant forensic evidence” in a real murder case. In an interview with Sarah Koenig, the host and executive producer of Serial, she was asked the following question:
You have said that you don’t feel the responsibility to give a satisfying ending. But aren’t we trained to want one after being told a story like this? No, I said it’s not my responsibility to make a perfect ending. I do want a solid ending that is based in my reporting. But I don’t feel a responsibility to make it the kind of entertainment that you would get on some TV drama. No way. That would be crazy. That’s not what I do. I’m a reporter.
Sarah Koenig has the right idea. The media needs more people like her. This type of entertainment will show jurors the other side of the story. It demonstrates that cases are not pretty and facts are not clear. As potential jurors hear this message, the will begin to understand that cases are messy and trial evidence is not exactly the same as CSI evidence.
To see more about how the media influences jurors look for a future blog that examines the question of whether How to Get Away With Murder will transform the legal system.