Tuesday, December 2, 2014

Dealing with Juries Full of “Experts”

The CSI Effect. If you practice law, no doubt you’ve had firsthand experience with this phenomenon, as ubiquitous as it is. For the rest of you, you may not even be aware that there is a problem in the first place. Even if you haven’t watched the show or its many spinoffs, you probably know what it’s about: people solving crimes with the power of forensic science. There are a dozen or so shows on TV right now with this central theme. Millions of people watch CSI, with 8.59 million last week alone. At one point, it was the most watched show in the world and with CSI: Cyber premiering mid-season, it’s clear that these shows are popular and not going anywhere.

This popularity has produced some interesting results. On the one hand, it’s created a boom in students wanting to practice forensic science, but they have some pretty unrealistic expectations. The public at large have some very glaring misconceptions about the criminal justice system. Trial lawyers are going to need to adjust their tactics as the shows, and their misconceptions, grow more prevalent.

Let’s take a look at the main issues with The CSI Effect as it pertains to lawyers and detail some ways of counteracting them.

Myth: The Science on the Shows is Accurate

This particular myth is perpetuated by the show’s creator himself. "All of the science is accurate and we have real CSI's on staff that help us write the scripts and make sure everything is executed perfectly," the show’s creator Anthony E. Zuiker said in an interview. Research has concluded however, that it all amounts to nothing more than "high-tech magic."

Take for instance the aforementioned fingerprinting. On TV they dust every surface for prints and run them in a matter of minutes. The truth is the FBI has a database of more than 65 million prints; it can take six months to a year to complete. It’s more than just misrepresenting the time that certain procedures take; there are those that claim that as much as 40% of the “science” on the show just doesn’t exist.

For some defense attorneys this is a dream come true, as it raises the bar for the burden of proof that prosecutors have to present at trial. People want irrefutable forensic evidence to convict. 70 witness testimonies weren’t enough for a jury to convict Robert Blake. The jury wanted gunshot residue, or blood spatter to put the gun in Blake’s hand. Law professionals have claimed that in most cases physical evidence just isn’t available.

Possible Solution:

Counteracting The CSI Effect requires management of it by taking control of the expectations of the juries. There are several tactics defense lawyers, and prosecuting attorneys have employed to do this.

  • Screening for CSI Effect Issues: Having a consultant review the case for any issues that may fall under the CSI Effect and prepare for them. Juries want answers for perceived holes in the case.
  • Using a Mock Jury: Testing the case and theories to see where issues may arise.
  • Voir Dire:  Simply asking jurors whether they watch CSI in questionnaires allowing to screen out or prepare for jurors that have such expectations

Educating the jury about what is reasonable to expect from the evidence of each case, the evidence and or lack thereof is the only way to counteract unrealistic expectations. Opening statements are a perfect time to attempt to correct any possible misconceptions that may arise that have been anticipated in the case.  Closing arguments can be a good time to reiterate the exact scope of the evidence, and what is and isn’t possible.

Myth: Police Have the Latest Technology

This myth is closely related to the previous myth. On the shows, there’s almost nothing the police could want for, technologically speaking. They have the latest in all the crimefighting gadgetry. If a criminal so much as coughs in the general direction of a crime scene, the tech can detect it.
According to the University of Cincinnati, as a result of the economic downturn, 55% of police agencies have had to cut back or eliminate plans for new technology. This leaves many agencies just behind the curve with oftentimes obsolete technology.
The unreasonable expectations of things like fingerprint and DNA analysis are tied in with misunderstanding the technology available to the police. The magic science standard in the minds of the populous has cultivated an idea that lack of forensic evidence equates to the prosecution not having a case.

Possible Solution:

To solve this, prosecuting attorneys in various states have begun using "negative evidence witnesses" to convince jurors that it is not uncommon for crime scene investigators to come up completely empty-handed in the real world with regard to evidence such as DNA and fingerprints. As always, it is good to let the jury know about the capability of the science and evidence gathering--like the little known fact that it can take weeks of processing a scene before investigators find things relevant to the case as there is so much white noise to filter out.  

The realities of the criminal justice system don’t really make for good TV, so it’s understandable that the shows don’t feature them. However, it’s imperative that people looking to going into the profession as well as the general public understand exactly how things work in the system. Spreading the knowledge can only be a good thing.

Mordecai Hunter
Guest Contributor, Criminal Law Practitioner Blog

Mordecai Hunter is a freelance writer and an avid fan of police dramas.  He has traveled the globe and speaks 4 languages.  In his spare time, he plays and repairs guitars and loves videogames.

1 comment:

  1. I personally love to watch CSI. I would consider myself an amateur expert when it comes to law things. I know these terms sound contradictory, but I just have a really good feel for things. I go by my feelings a lot.