by Emma Buck, Associate Staff
Like millions of Americans, I appreciate a good crime show where you can cheer on the good guys and count down the episodes until Bones and Booth or Castle and Beckett or DiNozzo and David get together. However, this harmless entertainment may be creating jury biases that are very hard to account for and eliminate. With the rise of television shows such as CSI, NCIS, Bones, and Law and Order, many legal professionals speculate that jurors with no criminal justice or forensic science experience are approaching trials with an innate bias formed from viewing these programs. While some say that these shows assist the jury in following criminal proceedings, prosecutors and defense attorneys alike argue that jurors are unable to objectively view the strengths and weaknesses of the evidence presented at trial because they have formed unrealistic expectations of what is normal in a criminal trial. This phenomenon is referred to as the “CSI Effect.”
In the recent and highly publicized Zimmerman trial, the prosecution faced problems related to the CSI Effect. In his closing statement, prosecuting attorney John Guy stated, “There are no Rachel Jeantels on CSI.” Rachel Jeantel was Trayvon Martin’s friend who was on the phone with him moments before he died. She has been ridiculed across the nation for her informal and hostile testimony during the trial. However, witnesses are individuals and the majority of them are not going to be as polished and articulate as those seen on shows such as CSI. Guy’s comment highlights the prosecution’s concern that, despite the probative value of her testimony, jurors may not respect the evidence provided by Jeantel simply because it is not what they expect to see from a star witness.
Prosecutors struggle with the CSI Effect when there is a limited amount or complete lack of physical evidence. In television dramas, the brilliant forensic scientist (whose office is somehow just an elevator ride away from both the interrogation room and the coroner’s office—looking at you, NCIS) is always able to recover a fiber or a hair or a bead of sweat that conclusively ties the suspect to the crime. These expectations are simply not realistic. Many cases are decided based on non-scientific data, such as witness testimonies, or when the physical evidence is a piece of the puzzle rather than the conclusive answer. These juries also know of the tests that can be used and are hesitant to convict without knowing that Abby has run everything through the mass spec, even if these tests are unnecessary. To combat this, some prosecutors have even taken to having experts provide negative evidence, testifying that these tests are unnecessary and that the evidence was thoroughly processed.
While this issue is primarily felt on the side of the prosecution, defense attorneys also claim that the CSI Effect has made their jobs more difficult. When there is physical evidence, jurors are unlikely to question its validity. Essentially, the extreme sophistication and likeability of television’s forensic heroes and heroines has left jurors with the impression that once evidence has been gathered, it is flawless. Defense attorneys must carefully point out potential flaws in the evidence in hopes that the jurors are willing to ignore their preconceived notions about the criminal justice system operating smoothly and with complete accuracy.
Litigators across the nation have taken action to minimize the impact of the CSI Effect on juries. This has primarily come in the form of adapting voir dire questions to determine whether the CSI Effect will influence a juror, crafting jury instructions that minimize jury miscomprehension, and utilizing expert witnesses for both positive and negative evidence. Some states have specifically approved voir dire questions related to the CSI Effect. While we would all like to believe that jurors are able to separate what they see on television from the realities of the courtroom, lawyers must be prepared to handle these unrealistic expectations. So next time that you curl up to watch Temperance “Bones” Brennan discover the murder location based on dust residue in the victim’s bones from the murder weapon, remember that criminal law is not “as seen on TV.”