The “CSI Effect” Is Really The “Tech Effect”: Coping With The New Forensic Reality
By: Hon. Donald E. Shelton
Film and television have long found fodder in courtroom dramas. However, in recent years the media’s use of the courtroom as a vehicle has not only proliferated, it has changed its focus. Now many media representations of the courtroom are based on actual cases and an apparent fascination with our criminal justice process. Court TV now makes live “gavel to gavel” Internet coverage of ordinary trials available on a subscription basis.
But then the media also clouds the line between real trials and pure fiction. The blurring of reality begins with the so-called crime magazine television shows, such as 48 Hours Mystery, American Justice, and even Dateline NBC on occasion. These shows portray actual cases but only after editing and narrating for dramatic effect.
A next level of reality distortion about the criminal justice system includes the extremely popular crime fiction television programs. Law and Order is everywhere on television now and promotes its plots as “ripped from the headlines,” as it replicates some issue in an actual case that was widely disseminated in the rest of the media.
However, the most popular courtroom portrayals, whether actual or edited or purely fictional, have been about the use of new science and technology to solve crimes. CSI has been called the most popular television show in the world. It is so popular that it has spawned other versions of itself that dominate the traditional television ratings. Its success has also produced similar forensic dramas, like Cold Case, Bones, Numb3rs, and many others.
Many prosecutors, judges and journalists have claimed that watching television programs like CSI have caused jurors to wrongfully acquit guilty defendants when no scientific evidence is presented. As one prosecutor complained, "jurors . . . expect us to have the most advanced technology possible, and they expect it to look like it does on television." These complaints are based primarily on anecdotes without any empirical support.
Working with Professors Gregg Barak and Young Kim of Eastern Michigan University, we undertook the first empirical study to determine whether this so-called “CSI Effect” exists. The complete results of the study were recently published in the Vanderbilt Journal of Entertainment and Technology Law and are available online at http://law.vanderbilt.edu/publications/journal-entertainment-technology-law/archive/index.aspx .
We set out to answer three basic questions: do jurors expect prosecutors to present scientific evidence?; do jurors demand scientific evidence as a condition for a guilty verdict?; are juror expectations and demands for scientific evidence related to watching law related television shows?
We surveyed 1,027 persons called for jury duty in Washtenaw Circuit Court between June and August of 2006. The anonymous survey was administered prior to jury selection or any preliminary instruction and jurors were assured that it was unrelated to their potential selection as a juror. First we asked about their television watching habits in six categories of crime related shows and whether they believed those shows accurately portrayed the criminal justice system. Next we asked them what types of evidence, both scientific and non-scientific, they expected the prosecutor to present in several different case scenarios.
We wanted to find out not only if jurors expected scientific evidence but also whether they would demand to see scientific evidence before they would find a defendant guilty. To do so, we asked them for their probable verdict in case scenarios with various types of evidence. So that they would be in a similar legal position, we gave them the standard presumption of innocence and reasonable doubt instructions. We also obtained demographic data about the jurors for analysis purposes.
Our findings about television watching habits were not surprising:
• Law and Order (44.6%) and CSI (41.8%) are the two most frequently watched crime related TV programs.
• Frequent CSI watchers also watch other law-related programs frequently.
• The more frequently jurors watch a given program, the more accurately they perceive the program to be.
• Demographically, CSI watchers are more likely to be female, political moderates with less education.
Do these modern jurors really expect the prosecution to present more scientific evidence? Our survey indicates that they do. Indeed, 46.3% of jurors expect to see some kind of scientific evidence in every criminal case. But these jurors’ expectations were not just blanket expectations for scientific evidence but rather the expectations for particular kinds of scientific evidence seem to be rational.
What does CSI have to do with these expectations? In fact, they may be more discriminating jurors. CSI watchers as a group have higher expectations about scientific evidence that is more likely to be relevant to a particular crime than non-CSI watchers, and they have lower expectations about evidence that is less likely to be relevant to a particular crime than do non-CSI watchers.
So jurors do have high expectations for scientific evidence. The more important question is whether those expectations will result in an acquittal if they are not met. Do jurors demand to see scientific evidence before they will find a defendant guilty? The results may surprise you. Where the jury hears the testimony of the victim or other witnesses but gets no scientific evidence more would find the defendant guilty than not guilty in every kind of case, except a rape case. On the other hand, if the prosecutor is relying on circumstantial evidence, jurors will demand some kind of scientific evidence before they will return a guilty verdict.
So is this all because of CSI? All that television watching must be the cause of these demands for scientific evidence, right? In fact, our survey did not find that watching CSI had a significant impact on whether jurors were likely to acquit a defendant without scientific evidence:
• Significant statistical differences between CSI and non-CSI watchers exist in only four out of thirteen scenarios and in three of those the difference is only marginal.
• In “every criminal case” CSI watchers are actually more likely than non-CSI watchers to find a defendant guilty without any scientific evidence if eyewitness testimony is presented.
• CSI watchers are actually more likely than non-CSI watchers to find the defendant guilty in “breaking and entering” and “theft” cases without any fingerprint evidence.
• CSI watchers are actually less likely than non-CSI watchers to find a defendant not guilty if there is testimony from a victim even without DNA evidence.
We concluded that, generally, juror expectations that they will be presented with scientific evidence are high and that jurors’ demand for scientific evidence as a condition of guilt is high in all rape cases, and in all other types of cases that rely on circumstantial evidence but there apparently is no “CSI Effect” that results in acquittals.
Well if it is not watching CSI, what caused the increased expectations and demands? Blaming CSI or similar television shows for this effect is just too simplistic. We suggest that a broader “tech effect” of changes in our culture may more likely account for these increased expectations and demands of jurors.
This is an amazing technological age. The last thirty years have brought about such scientific discoveries and developments that some justifiably have called it a technology revolution. At the same time, new technology has been used to create another revolution in information availability and transmission. These developments in science and information are not only contemporaneous; they feed off of each other. The information technology system uses its media to grab scientific discoveries and quickly make them part of our popular culture. Ordinary people know, or at least think they know, more about science and technology from what they have learned in the media than they ever learned in school. Every week, this new scientific and information age comes marching through the courtroom door in the psyche of almost every juror that claims a seat in the box.
Perhaps jurors are right in expecting much more from the prosecution today than they have in the past. Our legal system demands proof beyond a reasonable doubt before the government is allowed to punish alleged criminals. Where there is an available scientific test that would produce evidence of guilt or innocence, and the prosecution chooses not to perform that test and present its results to the jury, it may not be unreasonable for the jury to have a doubt about the strength of the government’s case. Jurors appear to have decided that today it is “reasonable” to expect more from the prosecution in the way of scientific evidence than they have expected in the past.
How should the prosecution respond to these findings? The obvious answer is to get the evidence the jury wants. That will take a major commitment to increase law enforcement resources by equipping investigating agencies with the modern forensic science equipment that jurors know is available and providing significant increases in forensic science personnel that will enable the results of forensic testing to be available in a timely manner. Public crime laboratories must be brought up to modern standards and the police must have enough laboratories and personnel to meet the demands of our criminal justice system.
How are we meeting this challenge? Not very well. In Michigan, it was even proposed last year that two of the state crime laboratories be closed as a budget cutting measure. The last federal study was based on 2002 reports and indicated that at that time state labs ended the year with over 500,000 backlogged requests for forensic services — a more than 70% increase in the backlog of requests compared to the beginning of the year. They found that about 1,900 additional FTEs would have been needed to achieve a 30-day turnaround for all 2002 requests for forensic services. Based on starting salaries for analysts or examiners in these labs, the estimated cost of the additional FTEs exceeded $70.2 million at that time.
A second suggestion for law enforcement is less expensive but more difficult. Prosecutors need to find better ways to address these expectations and demands of jurors, especially when those expectations are not rational or relevant to a particular case. When scientific evidence is not relevant, prosecutors need to find better ways of explaining the lack of relevance to jurors. This may necessitate the use of anticipatory, negative evidence, such as having an investigator or an expert explain why certain types of evidence are not possible or reasonable under the circumstances.
One thing is sure. Playing the “Luddite” no longer works. The Luddites were a sect that opposed almost all of the innovations of the industrial revolution –they started by opposing the use of looms in the weaving industry rather than the traditional weaving by hand. Lawyers love to use the same tactic. Lawyers think it is endearing, or even cute, to tell the jury “I don’t know anything about all these computers and DNA stuff. Shucks I can’t even program the remote on my TV to watch football.” Well, all the jurors do know about those things and they don’t think it is cute anymore. They think, rightly, that the government is not getting very good representation.
Everyone in the criminal justice system needs to adapt to this new jury. Most importantly attorneys must understand, and address, the fact that jurors come into the courtroom filled with a great deal of knowledge about the criminal justice system and the availability of scientific evidence. And they are usually right.
The criminal justice system must find ways to adapt to, rather than fight against, this “tech effect.” It may take a paradigm shift and it may cost a lot of money. But unless that happens, juries may well conclude that there is “reasonable doubt” that the criminal justice system is doing its job. If the government does not respond, it is placing the safety and security of our citizens in peril.
Editor’s Note: Judge Donald E. Shelton has been on the bench as a trial judge since 1990 and is the presiding judge of the Civil/Criminal Division of the 22nd Circuit Court in Ann Arbor, Michigan. Born in Jackson, Michigan, Judge Shelton is a 1969 graduate of the University of Michigan Law School. After 5 years in the Judge Advocate Generals Corp of the U.S. Army, he was in private practice as a litigation attorney for 15 years before his appointment to the bench.
