Prosecutors say jurors expect more than the criminal justice system can reasonably deliver
By Judge Dennis M. Sweeney
BridgeTower Media Newswires
BALTIMORE — A few years ago, there were a slew of media reports about the so-called “CSI effect” on jurors in criminal cases. The concern was that TV entertainment shows like the highly popular CSI series had inculcated potential jurors with misleading and in some cases totally erroneous notions of how scientific evidence could easily and conclusively prove a defendant’s guilt or innocence.
In the TV shows, a crime lab technician — usually a very attractive and stylish young man or woman — finds a piece of evidence, subjects it to a cutting-edge scientific process and conclusively solves the case in less than an hour.
The first reports of the CSI effect seem to have originated with prosecutors who were finding that they were losing the kinds of cases they historically had won. They attributed this to jurors having a preconception that, like in the TV series, scientific tests of hair, blood, handwriting or bullets are the way, the only way, crimes are correctly solved. In the absence of such evidence, it was felt juries were inclined to acquit. Prosecutors and some judges felt that jurors were expecting more than the criminal justice system could reasonably deliver.
In Maryland, many state prosecutors also believe that the CSI effect is making their job of obtaining convictions more difficult. John McCarthy, state’s attorney for Montgomery County, says there is no question that jurors expect more from prosecutors today than they did even a few years ago. McCarthy says that while the resources are available to do sophisticated testing such as DNA analysis in murder and rape cases, there simply are not the resources at hand to do them in all cases.
Mary V. Murphy, deputy state’s attorney for Howard County, points out that even with DNA testing limited to the most serious crimes, there is at least a six-month backlog to get results from the state lab. There is also a need to try cases more quickly under circuit court case-time standards, which limits the possibility of getting postponements to do more testing even if the financial resources were present.
Both McCarthy and Murphy say that they are having to consider calling witnesses at trial to explain why testing was not done. For example, if a police officer did not seek to have an item dusted for fingerprints, they may have the officer testify as to why he did not do so and then call a fingerprint expert to testify that the surface of the item would likely not have produced any readable prints.
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Academics not so sure
While prosecutors believe fervently that the CSI effect is having a negative effect on conviction rates, those academics who study jury trials are less certain.
Professors Valerie P. Hans and Neil Vidmar note in their book on jury trials that, at the very time these forensic shows were reaching their greatest popularity, there was a steady increase in conviction rates by juries — not a decline.
Another professor, Tom Tyler, chair of the psychology department at New York University, has observed that, if anything, the shows increase jurors’ acceptance of forensic tests since they always work well on TV. Tyler also says that the TV shows’ neat closure of each case within the allotted 30 or 60 minutes may lead jurors to be more likely to convict, so that the same satisfying result can be achieved in their case.
Locally, Baltimore County defense counsel Joseph Murtha does believe that jurors are more aware of the tools that are available to the police and prosecutors than they may have been years ago, but he attributes this not only to the CSI shows but more broadly to knowledge gained from news stories and other reports in the popular press.
Murtha believes it is fair for the defense to raise questions about what was not done by the police and that the experienced prosecutor manages the greater expectations by explaining more clearly why the course taken by the police was reasonable and why certain tests were not necessary in the case before the jury. He perceives no systemic problem that requires any changes in the way courts handle jury cases.
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Jury selection issues
Jury selection questions might be one way to weed out the potential juror who is going to be unrealistic in what is expected of the prosecution, but this can be tricky. The fact that one is among the 70 million people in the country who watch these shows each week says little.
More troubling for prosecutors was a 2006 Michigan survey of 1,000 potential jurors taken before they began their service, which found that 46 percent expected to see some kind of scientific evidence in every criminal case and 22 percent expected to see DNA evidence in every criminal case.
Perhaps unsuitable jurors could be weeded out by asking if they would decline to convict in the case without forensic or scientific evidence, even if the state produces other credible evidence. For example, in Baltimore County prosecutors occasionally include this question in their voir dire requests:
“Television shows such as CSI are fiction. They are not true. Many of the scientific methods used in those kinds of television shows are exaggerated or do not even exist. If you are selected as a juror in this case, you will be required to base a decision solely on the evidence presented in Court. Would any potential juror be unable to ignore the “crime dramas” they have seen on television and/or in the movies?
On the other hand, veteran Harford County State’s Attorney Joseph I. Cassilly doubts that there is a way to ask such questions without actually creating more problems for the prosecution by highlighting the issue of lack of forensic or scientific evidence in the case at hand. He prefers not to ask such pointed questions in jury selection to try to “cure” the CSI effect.
Patrick Kent, chief of the forensics division at the Office of the Public Defender, finds such proposed voir dire questions to be “ludicrous” since the so-called CSI effect has never been demonstrated to actually exist. He sees such questions as not-so-subtle attempts by the prosecution to dissuade potential jurors from critically questioning the sufficiency of the evidence presented or the police methods used in the investigation.
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Instructions
Jury instructions are another way to deal with the perceived issue of jurors being misled into thinking that if the police failed to undertake all possible investigative techniques that proof beyond a reasonable doubt is therefore lacking. The case of Evans v. State, 174 Md. App. 549 (2007), cert denied 400 Md. 648 (2007), shows how trial courts are beginning to consider this approach.
In Evans, an undercover police officer purchased heroin on a busy corner on East North Avenue. Several men were involved in the sale: one who set up the transaction, another who gave the drugs to the police officer and a third who received payment. Immediately after the purchase, the officer alerted an “arrest team” with the description of the men involved. Evans was then arrested and identified by the undercover officer as the man who actually gave him the drugs.
At trial, defense counsel vigorously cross-examined the officers about their failure to employ any means of recording the transaction by video or audio equipment even though such equipment was potentially available to the team had they made a request. Counsel also noted the lack of any fingerprint evidence. He stressed to the jury the lack of state’s evidence to demonstrate a “cross check of reliability.”
In light of the evidence and arguments presented during the trial, the judge in the case, Baltimore City Circuit Judge Stuart R. Berger, gave the following instruction prior to closing arguments:
“During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven, based on the evidence, the defendants’ guilt beyond a reasonable doubt.”
On appeal, the defendant argued that this instruction altered the burden of proof in the state’s favor relieving it of its obligation.
The Court of Special Appeals rejected the contention, finding that when defense counsel argue that the state failed to present investigative or scientific evidence that could have been conducted or produced, such an instruction is appropriate as long as it is closely coupled with the proper instruction on reasonable doubt.
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Opening and closing
Harford County State’s Attorney Cassilly says he attempts in opening statements or final arguments to explain to the jury that what they see in court is “real life” and that they should not put the state to an unrealistic standard. He argues to the jury that comparing what goes on in court to what happens on TV programs is like comparing what happens in NASA space travel to what is seen on Star Trek. One is real life. The other is fantasy.
Prosecutors do have to be careful in tackling the issue in final argument. In one of the few appellate cases where the so-called CSI effect has been discussed, Boatswain v. State, 872 A. 2d 959 (Table), 2005 WL 1000565 (Del. Supr. 2005), the court found it error for the prosecutor to have responded to defense arguments that no fingerprints were taken on a bank robbery note or on the money recovered by saying the following:
“In today’s day and age, unfortunately, the police and the State isn’t [sic] put to the same test that they wrote 200 years ago in the Constitution [in] which they said the proof must be beyond a reasonable doubt. Unfortunately, the test, of course, of criminal defendants now is, can they meet the expectation that they hope folks like you want. Can they meet CSI? If they don’t have fingerprints, he can’t be guilty. On TV, they would have found fingerprints. But this isn’t TV, this is real life.”
The court found that the trial judge erred in not taking corrective action stating that the prosecutor “confused matters by his muddled and inartful comments” and could have led the jury to think he was denigrating the reasonable doubt standard.
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More shows ahead
While the legal issues presented by the so called CSI effect continue to percolate in the courts, there is little prospect that potential jurors will not continue to be exposed to the shows. Not only do all three of the CSI shows return this fall for yet another season but several more forensic shows are making their debut in the fall line-up — including one about a biophysicist who is “on call” to law enforcement to solve “scientific crimes.”
