The “CSI Effect” – Bogus or Bona fide?

If your DVR playlist is full with recordings of Criminal Minds, Crime Scene Investigation (“CSI”), NCIS, and Law & Order, then you join the millions of other Americans who are fascinated with criminal forensic science entertainment. Its appeal is undeniable; where else can you see the charming hero solve the intricate crime with the use of mesmerizing science, capture the villain, and fall in love all within the hour?

"Talking about science in the courtroom used to be like talking about geometry — a real jury turnoff. Now that there's this almost obsession with the (TV) shows, you can talk to jurors about (scientific evidence) and just see from the looks on their faces that they find it fascinating,” 

                               - Jury consultant Robert Hirschhorn said in a 2004 USA Today story.

But has American viewer’s increased interest in forensic science morphed from mere fascination into authentic expectations impacting the criminal justice system? Prosecutors firmly say “yes” while legal scholars are hesitant to agree. [1]

What is the “CSI Effect?”

            The “CSI Effect” is the belief that jurors are less likely to convict criminal defendants if forensic evidence linking the defendant to the crime is lacking. The theory is two-fold:(1) jurors expect more forensic evidence at trial; and (2) they expect sophisticated forensic evidence. [2]The fiction of television shows like CSI gives jurors the impression that forensic evidence is always available. Further, these jurors do not consider limitations on forensic science such as time and money constraints.

Does the “CSI Effect” Exists?

            Although prosecutors are quick to blame the “CSI Effect” for lost jury trials, legal scholars resolutely assert the opposite conclusion. Notably, scholars proclaim that the “CSI Effect” and its effect on juries lacks empirical research support and points to the studies conducted by Donald Shelton, Young Kim, and Gregg Barak in 2006. The results of their studies include 2 important conclusions:

·         Some evidence does exist that supports the idea that CSI viewers do expect more forensic as evidence produced at trial

·         However, these juror expectations do NOT affect the propensity to convict if such forensic evidence is lacking

Instead, Shelton, Kim, and Barak suggest that the perceived “CSI Effect” is really just a “tech effect.” During their studies, they did see a correlation between the technology sophistication in the juror’s everyday life and the juror’s forensic evidence expectation. Essentially, the conclusion rests on the belief that forensic science should keep up or out outpace consumer technology. Link to study.

Courtroom Responses to the “CSI Effect”

            Despite the empirical study findings, the “CSI Effect” has prompted some courts to give prosecutors procedural safeguards to confront the theory through voir dire questioning and by requesting a jury instruction. Some courts allow prosecutors to question potential jurors during voir dire in an attempt to unearth any bias that a potential juror may have due to watching shows such as CSI. As one legal scholar colorfully articulated

                     

“[T]he CSI Infection must be addressed with potential jurors immediately, before any jurors are selected[.]” [3]

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Courts that allow such questioning assert that it is an important step in ensuring a fair and impartial jury which forms an indispensable component of a criminal defendant’s constitutional right to a fair trial.

            Another procedural safeguard includes a request for a jury instruction. Most often, prosecutors request a “no duty instruction” to address CSI Effect concerns. [4] This instruction reminds the jury that law enforcement is under no duty to collect certain types of evidence.

            However, these safeguards are not without their limits. Voir dire questions and jury instructions can go too far and result in reversal of a criminal convictions.Voir dire questions must refrain from asking a juror about his propensity to convict in the absence of forensic evidence.[5] And jury instructions must remain neutral and abstain from shifting the government’s burden of proof. [6]

Conclusion

            American television shows are notorious for blurring the lines between fantasy and fact, so it is no surprise that forensic science has fallen victim to such fanciful characterizations. However, the ability of these characterizations to infiltrate the American justice system is a significant and constitutional concern. As the debate about the “CSI Effect” existence and impact carries on between practitioners and scholars, it is essential that the legal community stay vigilant and keep our eyes on the “CSI Effect” so that any negative impact it may have on our criminal justice system can be addressed. Fair jury trials depend on it.

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[1]  Andrew P. Thomas,CSI Effect and Its Real-Life Impact on Justice: A Study by the Maricopa County Attorney's Office, 10 PROSECUTOR (Sept./Oct. 2005).

[2] Michael Johnson, The CSI Effect: TV Crime Dramas' Impact on Justice, 15 Cardozo Pub. L. Pol'y & Ethics J. 385, 387 (2017).

[3] Tamara F. Lawson, Before the Verdict and Beyond the Verdict: The CSI Infection Within Modern Criminal Jury Trials, 41 Loy. U. Chi. L.J. 119, 144 (2009).

[4] Johnson, supra note 2, at 407.

[5] Johnson, supra note 2, at 401-04.

[6] Johnson, supra note 2, at 410.