CSI EFFECT -- DOES IT REALLY EXIST?

By:  Joshua K. Marquis, District Attorney, Clatsop County, OR

        and Velva M. Walter, Director of Media Relations, NDAA

  WHAT IS THE CSI EFFECT?  

Shows like CSI and its spin-offs, Law & order and its spin-offs, NCIS, Cold Case, Bones and other forensic crime programs depict actors using the most advanced forensic equipment and techniques available to solve crimes.  These types of shows are ranked among the top 20 in America.  While these shows can be educational concerning forensic science, they are – first and foremost –entertaining fiction.  Unfortunately, some viewers think the science, equipment and techniques used on these shows are infallible and readily available to all law enforcement.  Because of this, there is evidence that the outcome of some trials (conviction/acquittal) has been based upon a juror and/or juror’s unrealistic expectation of being presented with an abundance of forensic evidence that will prove the guilt or innocence of a defendant – far beyond a reasonable doubt   In fact, it seems as if a new standard is beingcreated where jurors will soon expect evidence that will prove BEYOND ALL DOUBT, the guilt or innocence of a defendant. 

IS THE “CSI EFFECT” HAVING AN IMPACT ON OUR CRIMINAL JUSTICE SYSTEM?

Is there really a CSI effect?  Yes.  Prosecutors are increasingly encountering the “CSI Effect” among jurors even when they have strong cases, with eyewitnesses and confessions by defendants. If they don’t have forensic evidence there have been jurors who will not convict a defendant even if no such evidence was available, and the defendant was caught “red-handed.”  When these defendants are found “not guilty” because of the “CSI Effect” and a juror/jurors blind faith and belief in the truth of popular forensic crime shows -- they are released back into society to continue in their life of crime.  Many of the cases in which juries demand “CSI Level” evidence are often less serious cases, and therefore they rarely make the news.

How Much Forensic Evidence is enough?  There are even cases where prosecutors present the results of DNA evidence which positively proves that the defendant committed the crime, beyond a reasonable doubt.  But, a juror may have seen a forensic crime show where there was more evidence than DNA. For example, in the show there may have been carpet fibers from a criminal’s home – or other materials from a crime scene were found on the victim.  The juror(s) may insist that more evidence should have been tested, even if virtually none existed.  These types of juror expectations have resulted in finding defendants not guilty – even with irrefutable DNA test results.  Ironically, some of these tests are really only valuable to give opinions about whether fibers or hair are consistent with a particular theory.  But, based on what juror(s) see on TV, they expect an expert to give an opinion with certainty, when that is not possible with that kind of evidence.

Do TV forensic crime shows include technology that is questionable or not readily available?  Yes.   Some jurors expect certain scientific technology to be available because they’ve seen it used on a TV forensic crime show.  In many instances, this is used to create a “WOW—I didn’t know that” factor.  Because these shows are “entertainment” they may include highly advanced or experimental scientific technology to make the show more interesting.  Some of the technology shown on TV may exist somewhere, but often only in research labs or in a few very advanced and sophisticated laboratories.  The technology may well exist, but not in many jurisdictions.

How does an “Actual Crime Lab” compare to those depicted in forensic crime shows?  Some jurors may believe that all state forensic laboratories are as well equipped with the most advanced technology as they see in CSI Las Vegas, Miami and New York – and other forensic crime shows.  This could not be further from the truth.  Some of this advanced equipment is cost-prohibitive in many cities and states.  While most state forensic labs make every effort to keep up-to-date on technological advancements and improved equipment, they don’t have the resources to match what audiences see being used on the CSI and other forensic crime shows.

For example, how long does it realistically take to get results of forensic tests like DNA, etc.?  Unlike the shows on TV, results of DNA and other forensic tests can not be available within the blink of an eye, an hour, a day, or even weeks.  This just does not happen!  First, DNA and many other test results take much longer in real life, and second, many state crime labs have such a backlog that it can take several months, or longer, to receive results from evidence sent to be tested.  It’s certainly understandable that a TV writer needs an ending to the show in 45 minutes, and few viewers would watch eight episodes just to find out a DNA result.  But, in reality that is, in many instances, just about how long it would take to get those results.

Have Forensic Crime Shows Caused an Increase in the Number and Type(s) of Evidence Being Tested?  Yes.  The fact is thatb ecause of these forensic crime shows there now exists a much higher bar for police and prosecutors to reach in proving the guilt of defendants.   Expensive tests are run on evidence such as fingerprints, DNA, etc. -- even when the defendant was “caught in the act” of committing the crime for which he/she is being tried by police and eye-witnesses.

Are defense attorneys using the CSI effect to their advantage?  Yes.  They do so by letting the jury know when prosecutors have little or no forensic evidence available to convict their client.  They are telling the jury, that without hard forensic evidence – there can be no proof that their defendant is guilty.  Defense attorneys claim the “CSI Effect” is a good thing because it places a higher standard for investigators.  Yet, jurors should never forget that the defense attorney’s job is to sow doubt whether it really exists or not.

How can, and are, prosecutors responding to the “CSI Effect”?  If evidence exists, but there is a question as to the need to have it tested, within reason, prosecutors are doing so anyway.  When in doubt about what evidence needs to be tested, it is important to anticipate the “CSI Effect” on potential juror questions.  Then, by using their best judgment, and recognizing the fact that many forensic labs have backlogs of evidence and are pushed to their limits – make their decision concerning the evidence they want to have tested.A study conducted by the Maricopa County Attorney in Arizona found that, “More than 61% of Arizona prosecutors who ask jurors if they watch forensic crime TV shows feel jurors ‘seem to believe the shows are mostly true’.”  One prosecutor said, “I have been asking to have evidence submitted for fingerprints and DNA on a regular basis, sometimes even with admissions of guilt, just to show the jury we are all doing our jobs.” 

Prosecutors are using Voir Dire (the jury selection process) to weed-out “True Believers” in the infallibility of TV forensic crime shows.  During voir dire, or the jury selection process, prosecutors are asking jurors if they watch CSI and other forensic crime shows.  They are also asking if a juror believes what they see on these shows is mostly entertainment – or largely based on fact. Prosecutors can then better determine who to strike, or eliminate, from becoming a member of the jury based on the probable high expectation by such candidates for a large amount of forensic evidence.

Prosecutors are educatingthe Jury concerning when forensic testing is – and is not – needed.  Prosecutors are making every effort to explain to jurors why certain types of evidence was not available or – if available – was not tested.  They work with the police, detectives and outside experts to help educate the jury about evidence that is, or is not, available in cases, and explain the importance of such evidence.  Prosecutors are also clarifying why eyewitnesses and being caught while committing a crime would negate the need for forensic testing.

Prosecutors are u sing opening & closing statements to let jurors know what to expect concerning forensic evidence during a trial.  I n opening and closing remarks, prosecutors are increasingly explaining to the jury why they do – or don’t – have forensic evidence.  They are telling the jury what this means, in terms of deciding the guilt or innocence of the defendant.

More judges should instruct jurors to base verdicts ONLY on testimony and evidence (if any ) presented at the trial – NOT on what they’ve seen on forensic crime Shows.  Prosecutors are working with judges to impress upon them the importance of countering the “CSI Effect.”  They are stressing the importance of adding language to a judge’s jury instructions that warns jurors not to base any of their decisions on what they’ve seen on TV forensic crime shows   but, only on the evidence and testimony they heard during the trial.  The recent Maricopa County Attorney’s report found that, “88% of prosecutors felt that judges rarely address the issue of overcoming the CSI Effect.”  One prosecutor indicated that, “Most judges think it’s silly I even address these questions in voir dire.” Most people who serve on juries take this responsibility very seriously.  They don’t want to convict the wrong person, but they feel an equal responsibility to hold defendants they find to be guilty accountable for their actions.  If prosecutors talk rationally about the “CSI effect” and why forensic evidence is not needed for a conviction in a specific trial, most jurors will respond in a reasoned and responsible manner.

ARE THERE ANY POSITIVE ASPECTS TO “CSI” AND OTHER FORENSIC CRIME SHOWS?

Absolutely.  Among the positive results of forensic crime shows – more people are interested in forensics as a career. Before these shows became popular, there was a shortage of qualified candidates to become forensic technicians, scientists and pathologists.  And, while the numerous TV forensic crime shows may somewhat glamorize these positions, many more students entering college are interested in pursuing careers in these heretofore understaffed professions.  In fact, it should be noted that people who serve in these positions ought to be the best and the brightest.  They have an enormous responsibility within our criminal justice system.

Viewers of these shows do learn about techniques and equipment that are revolutionizing the accuracy with which we can determine who did – or did not – commit a crime. When you have jurors use of terms like “mitochondrial DNA” – you have jurors who may take as “gospel” what they see on TV forensic crime shows.  However, it’s important that you remind jurors to remember that these shows are primarily “entertainment.”  Again, we must take the time to help jurors understand the type of evidence they will be considering during a trial.

Are forensic crime shows making police, prosecutors and other law enforcement officials work harder?  In certain cases, yes.  The “CSI Effect” may be making police, criminal experts, prosecutors and others do more forensic testing – even when such testing might be unnecessary.  Is this a bad thing?  From an economical standpoint perhaps, however, there may be instances where additional testing of evidence makes it far easier for the prosecutor to convince the jurors to convict a guilty defendant. But, more testing costs more money.  And when there is NO evidence, but a significant amount of hard facts, and/or trustworthy eyewitnesses who can identify the person who committed a crime, common sense – not TV fantasy and fiction – should prevail.  If forensic crime shows like CSI had existed before the trial of O.J. Simpson, a more forensically educated jury may have seen no way out but to find him -- and other defendants of that era -- guilty.

SOCIETY WILL BECOME MUCH MORE SAFE AS TECHNOLOGICAL ADVANCEMENTS CONTINUE TO BE MADE AND THERE BECOMES LITTLE, IF ANY, DOUBT ABOUT WHO COMMITTED A CRIME.  PROSECUTORS ARE STRONG PROPONENTS OF ANY SOUND TECHNOLOGY THAT HELPS TAKES THE GUESSWORK OUT OF THE GUILT OR INNOCENCE OF A DEFENDANT.  A WELL-EDUCATED PUBLIC IS A FRIEND – NOT A FOE – OF JUSTICE WITHIN OUR CRIMINAL JUSTICE SYSTEM.  AND, IT’S UP TO PROSECUTORS TO HELP EDUCATE THE PUBLIC TO DIFFERENTIATE BETWEEN FACT AND FICTION.