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Is too much TV bad for jurors?

The latest incarnation of television crime dramas, in which viewers are treated to a weekly tutorial on how technology and forensics can be used to catch even the cagiest criminals, is having an effect on real life jury deliberations across the nation.

“As a result of TV drama, juries have raised expectations with regard to the presentation of evidence in the courtroom,” said Barnett S. Lotstein, special assistant county attorney in Maricopa County, Ariz.

“For example, they think that in every case, there should be extensive scientific evidence, like sweat, blood or hair samples. And in a case where there isn’t any DNA, there’s an expectation that there should be, so you still have to put a DNA expert on the stand and explain why there isn’t any DNA.”

Lotstein isn’t alone in his belief that this so-called “CSI effect” has raised juror expectations, as viewers of shows such as “Law & Order,” “Forensic Files” and “CSI” come to believe that the type of technology they see being used each week is readily available to local police investigators.

“There has been a profound effect on the public in general and more specifically on the jury pool on what they expect to have happen in the courtroom,” said Joshua Marquis, district attorney in Astoria, Ore., and a member of the board of the National District Attorneys’ Association.

Marquis recalled a juror in the Robert Blake murder case who appeared on a talk show after the verdict. The woman said that she had seen several investigative TV shows, so she knew that the police work in the Blake case wasn’t adequate, Marquis said.

“In real life, investigations and crime scenes are messy,” he said. “When a well-spoken juror says something like that, it scares me.”

In Arizona, where the lawyers speak to the jurors after the trial, Lotstein said he has had multiple juries that haven’t convicted because they wanted more specific evidence.

While attorneys agree that evidence of the “CSI effect” is purely anecdotal, its existence makes a lot of sense, according to trial consultant Richard Gabriel, president of Decision Analysis in Los Angeles.

“Jurors are affected by popular culture,” he said. “To blithely say that they consider the evidence and the law separate from their life experience is just naive.”

Gabriel said that in the thousands of post-trial interviews he has performed, jurors often compare their experience to TV shows.

“It’s not that they completely rely on these shows, but when jurors become either confused by complicated evidence or evidence that is a really close call, … they turn to their reference point – personal experience or pop culture. Pop culture really does condition the thinking of jurors.”

The Distortions Of ‘TV Time’

Marquis said the one time he watched “CSI,” a criminalist used a probe to take a blue, shiny sample of liquid from a drain pipe. The actress then returned to her car with the sample, opening the door to reveal a gas chromatograph installed in her van. She used the machine to test the sample for the presence of drugs.

Within seconds, the criminalist had printed a graph with the test results.

A quick scene and based on reality, but far from the truth, Marquis explained.

In real life, the sample would have been “black sludge,” he laughed. “Not attractive and shiny!”

More important, a gas chromatograph costs upwards of $35,000, and nobody in their right mind would mount it in a van, he said. While some labs have gas chromatograph machines, “they don’t carry them around in cars, and it doesn’t take 10 seconds to a get result.”

And a lot of labs can’t afford that kind of equipment, he noted.

The show’s appeal derives from its basis in reality, but skewed for television and time constraints, viewers can be misled, Marquis explained.

“In fairness to ‘CSI,’ they aren’t talking about science fiction. The technology exists,” he said. “But “the vast majority of police and prosecutors don’t have this level of technology available to them.”

Marquis recalled speaking on a panel in which one of the “CSI” producers explained that the parameters of the show dictate its deviation from more realistic forensic work.

“She made the point that it’s a 40-minute show and viewers aren’t going to wait two months or eight episodes to find out DNA results,” he said.

But as a result of TV time, “people expect what they see on TV – preciseness, cleanliness and a dramatic result,” Marquis said.

Gabriel agreed that the certainty of the results on every episode can mislead jurors.

“It’s problematic for the prosecution that on TV, they always find an answer,” he said. “I think that’s the most challenging thing to address for a prosecutor – that sometimes they do an investigation and things are uncertain. There is ambiguity, a grey area and uncertainty as to the actual results.”

On the shows, some piece of evidence points to a suspect, who typically confesses, Gabriel noted.

“That’s not the experience of most prosecutors and criminalists, and the notion of conclusiveness is very important for prosecutors to address,” he said. “Culturally, our TV and movie culture doesn’t favor ambiguity or uncertainty.”

Defense Advantage?

All three experts agreed that the “CSI effect” allows defense attorneys to play on the idea that prosecutors haven’t satisfied their burden of proof.

The emphasis on forensic evidence “has largely been a boon for the defense bar,” Marquis said. “The expectations of jurors are that if technology is available, then the prosecution should have used it.”

Defense attorneys are merely doing their job of sowing doubt in the minds of jurors by emphasizing the prosecutors’ lack of forensic evidence, he said.

Because jurors are expecting TV-like drama – and evidence that creates certainty – tests with inconclusive results or a lack of fingerprints weighs against the prosecution, Marquis said.

Jurors have a difficult task because “it’s hard [for jurors] to look a defendant in the eye and send that person to prison,” said Lotstein. “So if a defense attorney gives them a reason not to have to do that, it’s easy [for jurors] to say, ‘Oh, if only we had DNA.'”

But Stephen R. Glassroth, secretary of the National Association of Criminal Defense Lawyers, said it’s a matter of perspective.

“If it’s a strong forensics case, the ‘CSI’ effect may work to the disadvantage of the defense,” he pointed out, as jurors conditioned by TV may believe DNA is infallible.

While Glassroth, a criminal defense attorney in Montgomery, Ala., said he hasn’t heard any jurors explicitly reference TV as an influence in their deliberations, he can see it in their reactions during a trial.

“You can tell you’ve struck a responsive chord when you argue about the absence of fingerprints and see jurors subtly nodding,” he said.

Glassroth said the influence isn’t necessarily a bad thing.

“It’s probably a good thing to hold the prosecutorial apparatus to a high standard,” he said. “I don’t think it’s unreasonable for citizens to expect the prosecutors and investigators to be thorough in their work.”

Educating The Jury

Nancy Marder, a jury expert and professor at Chicago-Kent College of Law, said lawyers have a number of opportunities to combat the “CSI effect” in the courtroom.

“Part of the job of the judge and the lawyers is to make jurors aware of the expectations they may import from TV, and there are a number of chances for them to do so – voir dire, opening and closing arguments and even the jury instructions,” she said.

Because jurors are new to the courtroom, they take their cues from the lawyers and the judge about what their role entails, she explained. If the judge and lawyers explain that real life is different than TV trials and focus the jurors on the evidence presented, they should be fine.

“I tend to put a great deal of trust in juries,” Marder said.

Marquis agreed.

“I don’t want to give the impression that this is the beginning of the end,” he said. “This is merely another extension of popular culture raising interest in the judicial system, and that’s generally a good thing.”

Most jurors can make the distinction between reality and TV, he said.

Lotstein emphasized that lawyers should face the issue head-on.

“In voir dire, we go out of the way to disabuse potential jurors of their ‘CSI’ expectations,” he said.

In addition to asking if they watch legal shows, he poses a lot of questions crafted to find out whether jurors understand that TV shows do not necessarily reflect real life.

Marquis, who was preparing for a murder trial, said that from the beginning of the case, he planned to go to great lengths to educate the jury about the difference between TV and reality.

Like Lotstein, he starts during voir dire, asking the jurors what shows they watch and enjoy. During trial, Marquis always calls a member of the crime lab to the stand, if only to explain that tests were performed with inconclusive results.

“I ask them what tests they performed, and what the results were, because I know that if I don’t, the defense will paint the picture that [the prosecution] is trying to hide something,” he explained.

He also said that he asks questions of police officers or criminalists who take the stand so that they can explain the differences between their work and what their counterparts do on TV.

“The good part is that people understand the science out there, and appreciate that it can dispositively answer questions,” Marquis said. “But they also need to understand its limitations.”

Questions or comments can be directed to the writer at: correy.stephenson@lawyersweekly.com