Next time you need to make small talk with a prosecutor, try this question. "So this 'CSI Effect' I hear about. Is it real?"
You won't have to talk again for quite awhile. She'll tell you pained stories of juries who acquitted defendants -- even after hearing experienced police officers swear that they personally saw the crime -- because television has taught the jurors to expect forensic evidence like fingerprints and DNA. Prosecutors say that back in the day, an eyewitness police officer was the golden ticket. Now, "CSI effect" is a recognized term, and a fact of life for prosecutors.
A fact of life, at least anecdotally. In a Yale Law Journal article last year, NYU professor Tom Tyler noted "there is little objective evidence demonstrating that the effect exists." (Instead, his article is a comprehensive review of the literature bearing on whether juries are capable of expecting more just because of what they see on television.)
It's real -- but it's not just CSI, it's the culture
Now there's some data. The scholars at the Empirical Legal Studies Blog noted over the weekend a new study by Professors Young Kim and Gregg Barak, and Hon. Donald Shelton, a sitting judge and adjunct professor, all of Eastern Michigan University. Their article, published in the Vanderbilt Journal of Entertainment Law, is "the first empirical study designed to investigate whether 'the CSI effect' exists." They used a survey, asking 1027 state-court jurors to describe "their television viewing habits, their expectations that the prosecutor would produce scientific evidence, and whether they would demand scientific evidence as a condition of a guilty verdict."
Their conclusion: jurors do expect extraordinary levels of scientific proof, but their expectations can't be tied to any particular television show, or even television habits generally. Rather, the authors conclude, "these juror expectations of and demands for scientific evidence are the result of broader changes in popular culture related to advancements in both technology and information distribution."
Trusting fingerprints, distrusting police
It makes sense. The CSI show itself ("and its progeny," as we lawyers say) is a small current in the stream of changes that make jurors harder to convince. Years before CSI's 2000 debut, for example, the 1995 O.J. Simpson trial taught millions of Americans not only the reach of DNA technology, but also that experienced police officers could lie -- at least about their racist comments, and thus could be seriously suspected of planting evidence as well. In the Yale Law Journal article, NYU's Prof. Tyler devotes a section to how jurors' "declining trust and confidence in legal authorities" makes them more likely to acquit.
Then there is technology generally. If jurors can watch CSI on their iPods in the jury room, it makes sense that they'd expect to see some showy technology in the courtroom as well. Without question, a lawyer whose voir dire checklist stops with "Do you watch CSI?" has only begun to explore this area.
Can the CSI Effect help Lewis Libby?
While the Empirical Legal Studies folks consider the Michigan survey data, Lewis Libby's lawyer Ted Wells may be testing whether it works for white-collar perjury defendants as well as for accused murderers.
The Libby jury drove observers crazy last week sending notes that ended up revealing nothing about their direction. Then on Friday afternoon, they drove everybody crazy with a note that went straight to the heart:
We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.
It could have meant a dozen things (star liveblogger Marcy Wheeler has a good set of wonderings here), but one of them is that the CSI Effect is happening in the jury room. Jeralyn Merritt of TalkLeft highlights this from Ted Wells' closing argument:
There is no expert testimony that he could not have forgotten. I mean, nobody took the stand and said, based on an empirical evidence, there is some study that says it's impossible for him to have forgotten in October what he was told in July. The record is barren on that point. There is no type of physiological evidence or scientific evidence. It's just barren.
If this were CSI, he's saying, you'd have heard from a scientist. The jury's note might mean that some of them agree.
If that's where it's going, it won't be the first time the effect has appeared in a white-collar criminal case. After Richard Scrushy was acquitted of securities fraud, the jurors apparently explained that they should have been shown fingerprints on the actual documents.
(Image by Chad Miller at http://www.flickr.com/photos/chadmiller/98014022/; license details there)