The "CSI Effect" Should Influence Jurors

Media outlets around the country are running two threads that are contradictory, but I doubt many papers have realized it yet. The first is the problem with the forensic labs, flakey experts, and shoddy investigations. The papers have been great about convicting the innocent. The papers, however, are also buying into the prosecutorial saw about the “CSI Effect.”

The argument goes something like this. Because jurors watch TV, they see all these tests which could have been run, but which are not. They are holding it against the State and wrongfully acquitting. This
weekend’s NPR question whether there is any statistical proof behind this assertion. So far, the proof is rather thin. In a recent Fordham Law Review, the author question whether the “problem” was bad as prosecutors claim. I was particularly troubled by the quotes from one prosecutor that CSI made the jury demand “slam dunk” evidence before convicting a defendant and this was a problem. Apparently in that prosecutor’s mind, proof beyond a “reasonable doubt” was something less than a “slam dunk.”

I agree that there is no central computer that functions like it does on TV. On TV shows, police agencies pull up credit card records, cell phone records, and other records on the fly. In the real world, the police have to contact the respective providers, obtain investigative subpoenas or search warrants, and it takes time. This is a time compression tool which allows tv police to solve a complex crime in an hour (less time for commercials).

I disagree, however, with the fact that jurors should convict a defendant despite the fact that the police didn’t do as thorough an investigation as they could because they didn’t deem the case important. We are locking someone up as a result of that investigation and evidence around the country is proving that first impressions aren’t necessarily right. How would people feel if their doctor took such an approach with cancer treatment?

Prosecutor’s are weaving this approach into jury selection, jury arguments, and the defense bar is sitting back and largely tolerating the same. Reduced to its essence this is a plea to further dilute the reasonable doubt standard.

When I started practicing law, jurors were instructed that a reasonable doubt was evidence (or the absence of evidence) which would pause a person in making the most important of life decisions. A common example was “knowing the flaws that you know” about this hypothetical house you are looking at, “would it cause you to walk away from the transaction.” Now, most judges tell a jury that a doubt must be based on reason and that a fanciful or hypothetical doubt is not enough. Prosecutors are arguing that the jury must be able to identify the doubt.

Now, the butcher is being allowed to put his second thumb on the scale with this so-called “CSI effect.”

Sixth Circuit Finds Racial Disparity in Grand Rapids' Jury Selection System