OKLAHOMA CITY – It’s called the CSI
Effect, a name for jurors’ unrealistic expectations of the types of
forensic evidence that attorneys, mainly prosecutors, should be able to
produce to prove their case.
It’s supposedly fostered by the multiple versions of CSI and Law and Order television shows, with Cold Case and Without a Trace thrown in for good measure.
Some Oklahoma defense attorneys say it’s a real phenomenon, one that has upped the evidentiary ante in criminal cases.
Oklahoma
County District Attorney David Prater said potential jurors may have a
certain level of expectation when they first walk into a courtroom due
to such programs.
It’s up to prosecutors to educate them that
much of what they see on TV is not realistic or its utilization is
limited, he added.
“There are not fingerprints in every case,
no matter what the suspect may have touched,” Prater said. “DNA is not
left at every scene; if it is, many times it’s degraded to a point
where it cannot be identified.”
Prater said that much of the technology featured on CSI is real, but finite.
“The extent to which it can realistically be used in most criminal cases, is limited,” he added.
In
some cases jurors must be told there is no fingerprint or DNA evidence
and prosecutors will rely on eyewitnesses or other evidence, Prater
said.
Has Prater seen any lingering effect on jury verdicts?
“Occasionally
there are individual jurors that still expect it, even though we’ve
told them this science won’t be presented in this particular case,” he
said. “If we’re not able to satisfy their curiosity, they’re not going
to say we established our burden beyond a reasonable doubt.”
Prater believes that CSI and similar programs have been a kind of double-edged sword.
“I
think they’ve raised the level of sophistication of your average
citizen as to the criminal justice process and potential evidence that
they could see in any given case,” he said. “We do have to overcome the
limitation of that science as it relates to the way that science is
portrayed on TV. That is the negative side of it.”
A positive side effect Prater sees is the number of students going into forensic fields as a result of CSI and its competition.
He
said a new forensics program at the University of Central Oklahoma will
lead to better-trained police officers, technicians and the like.
“Going into the area of forensic science is more of an area that’s viewed as being really cool,” Prater said.
Veteran
Oklahoma City criminal attorney Irven Box, a former prosecutor, said he
noticed a change in what juries see as valid evidence after the 1995
O.J. Simpson trial, one of the first major cases that millions of
viewers watched each minute of, on a daily basis.
“From that point, I started noticing a difference in jurors’ viewing police and police work, and then of course CSI comes along, and it also added to the effect,” Box said.
Before
the Simpson trial, he said, a police officer or forensics expert could
get on the stand and say they knew the moon was made of green cheese,
and jurors believed it.
That changed with the Simpson trial and shows like CSI, he said.
“I
saw jurors questioning the ability of the police,” Box said. “I think
they now expect the police to be able to do those things that we see CSI do in a matter of minutes in a one-hour episode.”
Box
said he tried a case a year after the Simpson case, during which jurors
asked why the police had not done certain things that they had seen in
that celebrity trial, particularly certain types of forensics evidence
and DNA. He said the person was acquitted.
Box thinks that overall, the changes in jurors’ perceptions have been more of a positive for the defense side.
“It’s
made it more difficult for prosecutors to get a case based on
circumstantial evidence and without forensics and the tools that
science has now,” he said.
“I think it’s probably made the
police and prosecutors better, because they know now that the general
public knows that certain things can be done, or at least they perceive
they can be done, through forensics.”
As Box pointed out,
defense attorneys will challenge the fact that certain tests were not
done in cases where a person’s liberty is at stake.
Oklahoma
City has also experienced what Box called the “Gilchrist effect,” a
reference to questionable forensic work and testimony from former
police chemist Joyce Gilchrist, who was fired after criticism and
investigation of her methods put the results of many cases in doubt.
“The
Joyce Gilchrist effect put things backward,” he said. “Prior to that
time, I believe that if a forensic scientist from the police department
got on the stand, they believed everything.”
Early on, Box
said, defense attorneys had few if any forensic experts on their side
to challenge, for example, the hair-sample comparisons made by
prosecution experts like Gilchrist – comparisons Box said were near
junk science.
Defense attorneys now have those experts, he said.
Box
said the national work of the Innocence Project, which has resulted in
the exoneration of many wrongfully convicted individuals, including two
Ada men whose stories are outlined in John Grisham’s The Innocent Man, has also had an effect.
More than 200 individuals have been exonerated by the project’s work, chiefly through DNA evidence.
< div>“I
think that jurors now question, and demand more,” Box said. “I think
that if it’s not there, then I think the prosecutor is going to be
deficient.”
Jurors’ expectations can sometimes be unrealistic, Box believes.
For
example, in his own 30-some years in the criminal justice system, Box
said he has not had many cases made or lost due to fingerprint evidence.
“Most people think you get fingerprints from everything,” he said. “Well, you don’t. They’re just not there.”
Likewise, he said, DNA seldom is the decisive factor in a case, unless it deals with crimes such as rape or homicide.
Criminal defense attorney Billy Bock, Oklahoma City, has a different take on the CSI issue.
“I
have not had it affect any of my cases where jurors have expected more
than they’ve gotten, or less, and had questions about that,” Bock said.
He said that 10 or 12 years ago attorneys would ask potential jurors whether they preferred Law and Order, which was considered a more conservative, prosecution-oriented program, or The Practice, which focused on a criminal defense firm and was considered more liberal in tone.
“I don’t do that, necessarily, anymore,” he said. “I don’t know whether it really helped or didn’t help.”
Bock said it has been his experience that jurors take their job seriously.
“Every
trial I’ve ever had, when jurors have come back, I’ve seen evidence of
some of them crying or really, really upset,” he said. “I don’t mean
upset like they’ve been arguing, but upset because it plays such a toll
on a person to sit in judgment over another person’s life.”
Educating jurors about their side of the case is the job of the prosecuting and defense lawyers, Bock said.
Bock
mentioned a recent case tried by a friend in which foot prints were
found in the snow near some cocaine. He said a man was found nearby in
the street and arrested on a drug charge due to that circumstantial
evidence.
If that case was part of a CSI episode, he
said, evidence would be presented not only of the footprints, but the
exact shoe size, type, style, and the year they were made or bought.
In the real case, Bock said, no pictures were even taken of the footprints, and the man was not convicted.
“I think jurors want to get information,” he said. “But it’s up to the lawyers to be advocates of what’s out there.”
Jurors
in real-life cases may hear from several experts on both sides, Bock
said, but no one has the capability to present cases as they are
outlined on television.
At the same time, Bock describes himself as a CSI fan.
“I look at my wife and I’m like, ‘That would make my job so hard, or so easy,’” he said. “It could disprove people, also.”
Bock said it’s fine with him for jurors to have high expectations of attorneys.
“Potentially,
there’s a problem with the unrealistic expectations of the way that
evidence is out there,” he said. “Maybe I, as a defense lawyer, would
be able to say, ‘You didn’t do this, you didn’t do that,’ and I
wouldn’t hesitate to say, ‘Why didn’t you fingerprint this?’ But then
it’s up to the prosecutor to say, ‘Is there any way to have
fingerprinted that tape?’ And if there was, then maybe they should have
done that. But if there wasn’t, then the jurors just need to weigh that
accordingly.”
Bock said he can see from a prosecutor’s standpoint where they may not like CSI and similar shows, “because they think the public has made the bar higher for them to prove cases beyond a reasonable doubt.”
However,
if cases are investigated and processed fully and correctly from the
foundational police work onward, he said, that improves things for both
sides.
“It benefits the whole system when good police work is done,” Bock said.