Criminal legal dramas have been popular on TV since the invention of television. In recent years the most popular sub-genre of crime shows focuses more on forensic crime scene investigation and scientist than on courtrooms or lawyers. The popularity of these shows is undeniable. In 2011-2013, NCIS was voted America's favorite television show. CSI and its spinoffs have aired 19 years' worth of episodes and the original CSI was named the most watched show in the world in 2006-2011.
THE SHOWS: A quick primer on these shows for those of us that don't watch. CSI follows crime scene investigators in Las Vegas. Bones is a show about a FBI agent that works with a forensic anthropologist to solve federal murder cases. The NCIS shows focus on military drama but also follow the investigative techniques of fictional teams of the Naval Criminal Investigative Service.
THE MYTH: Shortly after the first season of CSI, prosecutors began to argue that as a direct result of these shows, jurors held unrealistic expectations of forensic evidence and investigation techniques. They blamed trial loses on the so called "CSI effect." At annual training seminars, experts instructed district attorneys to be wary of the ways that the exaggerated portrayal of forensic science on television influences public perception. At one such gathering, the vice president of the National District Attorney Association said, "Jurors now expect us to have a DNA test for just about every case. They expect us to have the most advanced technology possible, and they expect it to look like it does on television." In a California training session, a speaker ominously claimed that, "some of the technology jurors may have come to expect may not exist" and "would not be inadmissible" if it did. USA Today, National Geographic Magazine, and CNN have printed stories claiming to show example of this effect.
In virtually every jury trial I've tried in the recent years, the prosecutor has warned jurors that the government cannot possibly live up to the expectations the jurors presumably have based on TV shows.
THE FICTION: Everyone agrees that forensic investigation on television is unrealistic. For example, on CSI the same people investigate crime scenes, conduct raids, find suspects, and arrest, interrogate suspects, and solve cases. In real life these duties are performed by separate people. Also the television forensic analysts seem to find physical evidence in every investigation. In real investigations, forensic DNA and fingerprint data is often unobtainable. Additionally, in real life recovered evidence usually takes months to process. On TV this happens in hours.
The real life anthropologist and author of the books that Bones is based on leads on that forensic anthropologists don't get as involved in the cases as the character on the TV show. She further says that the TV characters' rate of conclusory investigations is exaggerated. Finally she confirms that most crime labs can't afford the equipment or tests viewers see on TV.
The most important misinformation is the implication that all trials are based on scientific evidence. The overwhelming majority of cases tried in the criminal justice system have little forensic evidence. Most criminal cases hinge on witness testimony. Many cases rely on circumstantial (or indirect) evidence implicating the accused.
So, should we assume that: (1) if everybody is watching these forensic crime scene shows and (2) the information on the shows is inaccurate, then juries must be making bad decisions on a daily basis throughout the legal system?
THE FACTS: The CSI effect is fiction. The data simply doesn't support the prosecutors' fears. A 2007 Arizona State University study found that crime TV shows "don't alter verdicts." A 2009 Vanderbilt University study found "there was no such thing as a 'CSI Effect." No study has conclusively shown even a slight increase in frequency of acquittals in circumstantial cases related to CSI or other crime scene shows. A judge in Michigan recently called the CSI effect "folklore." He said the excuse of juror expectation "came from prosecutors...who were looking to explain how they lost the case."
In 2008, the National Institute for Justice sponsored the first exhaustive empirical study of juror expectations and demands concerning scientific evidence. The authors (a sitting felony trial judge and two professors of Criminology at Eastern Michigan University) found that although some lawyers believed there was a direct effect of watching CSI or other crime-related television programs, the study revealed that these shows "did not have a causative impact on juror demands for scientific evidence as a condition of a guilty verdict in most criminal case scenarios."
The stories supporting the CSI effect are merely collections of anecdotes and opinions. The CSI effect is a boogeyman. It is a creation borne of fear rather than fact. This non phenomenon is a buzz word that prosecutors or court observers use to explain a verdict that did not go as expected.
WHAT IS GOING ON: Jurors are absolutely within their rights to hold the government to high standards. Our legal system does not allow the government to punish an alleged criminal without proof beyond a reasonable doubt. When a scientific test is available that would produce evidence of guilt or innocence but the prosecution chooses not to perform that test and present its results to the jury it is reasonable for that jury to doubt the strength of the government's case.
Jurors walking into a courtroom in 2014 are very different than those in 2004. Technology touches our lives more than at any point in human history. If my bank can use electronic information to determine my spending habits, it is reasonable to expect that the state with all its resources can utilize scientific evidence that will play an important part in a criminal case. A savvy attorney recognizes and uses the undeniable fact that modern jurors possess information about the criminal justice system and the availability of scientific evidence. This is a good thing. Rather than bemoan this reality, a sophisticated lawyer should:
(1) Obtain the evidence that jurors seek or
(2) Highlight its absence.
Ultimately, the premise of the CSI effect is insulting. Juries are made up of ordinary adult citizens. You and me. The CSI effect argument presumes that we are too stupid to differentiate fictional television from real life. Proponents of this effect reveal a subconscious distrust of the juror's role in the judicial system. I do not Impure the integrity of a successful track record in jury trials by crediting those victories to the television viewing habits of the jurors. When a jury issues a verdict it is the voice of the people not a script from a TV show.