ICYMI: Shniderman on Ripped From the Headlines: Juror Perceptions in the Law & Order Era @adam_shniderman

ICYMI: Adam B. Shniderman, University of Michigan Law School, has published Ripped from the Headlines: Juror Perceptions in the Law & Order Era at 38 Law & Psychology Review 97 (2014). Here is the abstract.

Film and Media Studies scholars have long claimed that television is a primary source of information about the criminal justice system for most Americans. These scholars have also found that television can significantly impact viewer’s perceptions of the world. In the last decade, Jerry Bruckheimer’s CSI: Crime Scene Investigation has been the subject of significant scrutiny. Many have claimed that CSI’s highly dramatized, romanticized, and generally unrealistic portrayal of forensic science and the investigative process has significantly altered juror expectations and poses a challenge for lawyers trying criminal cases. The concept has been discussed in nearly 400 news articles and more than 100 academic journal articles. With all of this attention paid to CSI, the impact of Law & Order on jurors’ perceptions of the criminal justice system has been largely overlooked.
In this Article, I analyze the dominant narrative in the Law & Order franchise, demonstrating that the show is rooted in Packer’s Crime Control Model. This Article discusses the various techniques the Law & Order franchise employs to construct that narrative and shape our views, through the use of basic psychological principles, detailed character backstories, casting choices of various characters, and dialogue and specific plot events. This Article considers the potential impact of this narrative on peoples’/jurors’ perceptions of various aspects of criminal investigations and the justice system, including interrogation techniques, eyewitness identification and lineup procedures, and the presumption of innocence. Finally, this Article makes suggestions for future research.

Download the article from SSRN at the link. 

Forthcoming From Palgrave/Macmillan: Juries, Science, and Popular Culture In the Age of Terror: The Case of the Sydney Bomber

Forthcoming in December: Juries, Science and Popular Culture in the Age of Terror: The Case of the Sydney Bomber (David Tait and Jane Goodman-Delahunty, eds., Palgrave-Macmillan, 2016). David Tait is a professor at Western Sydney University, Australia. Jane Goodman-Delahunty is a professor at Charles Sturt University, Australia. Here from the publisher's website is a description of the book's contents.

Terrorism has become an everyday reality in most contemporary societies. In a context of heightened fear can juries be trusted to remain impartial when confronted by defendants charged with terrorism? Do they scrutinize prosecution cases carefully, or does emotion trump reason once the spectre of terrorism is invoked? This book examines these questions from a range of disciplinary perspectives. The authors look at the how jurors in terrorism trials are likely to respond to gruesome evidence, including beheading videos. The 'CSI effect' is examined as a possible response to forensic evidence, and jurors with different learning preferences are compared. Virtual interactive environments, built like computer games, may be created to provide animated reconstructions of the prosecution or defence case. This book reports on how to create such presentations, culminating in the analysis of a live simulated trial using interactive visual displays followed by jury deliberations. The team of international, transdisciplinary experts draw conclusions of global legal and political significance, and contribute to the growing scholarship on comparative counter-terrorism law. The book will be of great interest to scholars, students and practitioners of law, criminal justice, forensic science and psychology.

The CSI Syndrome

Forensics shows continue to be popular; a new one, CSI Cyber,  recently made its debut. Most  forensics experts will tell us that what happens on these shows bears little resemblance to reality, and yet lay audiences enjoy them enormously. What is the attraction?

Many forensics experts point out that viewers eagerly watch such shows and then expect that if they become jurors, lawyers will inevitably present them with forensic evidence as part, or all, of any case, particularly a criminal case, that they are then asked to judge. After all, these jurors reason, they've seen that pattern on tv. Lawyers and expert witnesses, on the other hand, say that they cannot present jurors with forensic evidence in every case. It doesn't exist for many cases. To the dismay of prosecutors, jurors may be less likely to convict if forensic evidence is minimal or lacking. The evidence that does exist is the usual mundane sort of evidence--eyewitness testimony, timelines, and documents. Boring stuff, really, but the bread and butter of many cases. Jurors, however, raised over the past 20 or 30 years on Forensic Files, CSI, NCIS, and similar shows, dating back to Quincy, ME, and even to early legal dramas (Perry Mason made good use of forensics to free his clients) expect forensic fireworks. They may prefer such evidence to eyewitness testimony, which can be initially exciting perhaps, but which becomes the target of terrier-like attacks from lawyers on opposing sides until the jury is completely bewildered, and must spend an inordinate amount of time weighing in the jury room. They may prefer forensic evidence which looks solid and uncompromising to circumstantial evidence that they will find difficult to evaluate. Forensic evidence certainly may seem a more likely peg to hang a verdict on than the uncertainty of much of what goes on in the courtroom, and in the legal system. The legal system itself, they know from experience and from popular culture, is a fickle animal.Why do jurors seem to be demanding?

What jurors want, I would suggest, is what they think is the certainty of forensic science. Statistics sound solid and verifiable. They sound like something measurable, something that jurors can hold onto and weigh when considering a verdict. Because the rules of evidence and the opposing attorneys' ability to shape the legal narrative might very well disguise a forensic expert's ability to explain to the jury just what the actual forensic data means, the jury might well misunderstand what it should infer from that data. Thus, the forensic science testimony that a jury hears in the court can be its proxy for certainty, bolstered by the certainty of the outcomes jury members routinely see in television episodes. Jurors can run from the uncertainty of circumstantial evidence and eyewitness testimony  and the unpleasant feeling that something is going on behind the scenes that they know nothing about, and take refuge in forensic science. Science doesn't lie (although people do, and can manipulate science, but jurors may be unaware of that). Forensic science returns us to the early promise of science and technology generally, the better life that we thought we could count on before August 1945, when the world both ended and began again.

If, then, CSI "affects" jurors, it does so for some good reasons, and very understandably. Jurors are rational human beings, and they look for certainty. Science looks certain, even if those of us who understand a little bit more of it than the average person know that it isn't all that "certain." Because they take their duties seriously, jurors also want to do a good job. If accepting forensic science evidence offers them a way to come to the appropriate verdict with some semblance of certainty, as opposed to accepting eyewitness testimony, for example, which they know (having watched other shows on TV as well as read newspaper articles about exonerations  through DNA after convictions through eyewitness testimony)  could be mistaken, or timelines, which can be questionable, then jurors could understandably opt for the science. Fascination with forensic science or the CSI Complex is really not so odd, not so irrational. When it enters the real life courtroom, however, it enters through the jurors' tv prism, and as a result it has much more power than it should.

A "Reverse CSI Effect"?

Mark Godsey, University of Cincinnati College of Law, and Marie Alou have published She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' in volume 17 of Texas Wesleyan Law Review (2011). Here is the abstract.

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

Download the article from SSRN at the link.

Evaluating the CSI Effect

Jessica D. Gabel, Georgia State University College of Law, has published Forensiphilia: Is the Public Fascination with Forensic Science a Love Affair or a Fatal Attraction?

It is forthcoming in the New England Journal on Criminal and Civil Confinement. Here is the abstract.

In February of 2009, the National Academy of Sciences released its much anticipated diagnosis and prescription for what ails the forensic science community. The Report confirmed the low but steady noise that had been building in the criminal justice system for at least a decade: that, with the exception of DNA evidence, much of what is presented as forensic science is not really science at all. Instead, a large segment of the high-tech pageantry seen on television and now expected and employed in court would fail to clear even the lowest hurdles of stringent scientific inquiry. Nonetheless, forensic evidence is often used to demonstrate the certainty of a person’s guilt by authoritatively “matching” evidence from the crime scene or victim to the suspect. The Report sounded the alarm as to the needs of the forensic science community, raised critical concerns, and even suggested a remedy by calling for the creation of an independent agency to regulate the field of forensic science. Moreover, it came at a time of “forensiphilia” – where forensic science is itself a celebrity that captivates and enchants audiences. One year after the Report caused ripples throughout scientific and legal circles, it seems as though, in some ways, the shock has passed, numbness has set in, and progress is idle. This article will examine the evolution of forensic science on television and in the courtroom. It will evaluate whether DNA is the reliable anomaly among the forensic science disciplines. Finally, along a similar vein to the Report’s resolution to strengthen forensic science, this article will call for a strengthening in legal education aimed at fostering both an understanding of the advances in science and a skepticism towards methods that inherently lack a solid foundation in science.

Download the article from SSRN at the link.

The CSI Effect

Diane Auer Jones discusses her recent experience on a jury and notes that "CSI"-like tv shows have much more impact on jurors' reasoning than the judge's instructions. What's going on?

On this issue see also

Cole, Simon A., and Dioso-Villa, Rachel, CSI and its Effects: Media, Juries, and the Burden of Proof, 41 New England Law Review --(2007)

Mann, Michael D., The "CSI Effect": Better Jurors Through Television and Science?

Podlas, Kimberlianne, "The CSI Effect": Exposing the Media Myth
16 Fordham Intell. Prop. Media & Ent. L.J. 429 (Winter, 2006)

Schweitzer, N.J., and Michael J. Saks, The CSI Effect: Popular Fiction About Forensic Science Affects Public Expectations About Real Forensic Science, 47 Jurimetrics 357 (Spring 2007)

Shelton, Donald E., Young S. Kim, and Gregg Barak, A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the 'CSI Effect' Exist? 9 Vanderbilt J. Ent. & Tech. L. 330 (2006).

More On the "CSI Effect"

Here's more on the "CSI Effect." Tamara Francita Lawson, St. Thomas University School of Law, has published Before the Verdict and Beyond the Verdict: The 'CSI Infection' within Modern Criminal Jury Trials. Here is the abstract.

In criminal law, the term CSI Effect commonly refers to the perceived impact that the CSI television show has on juror expectation and unexpected jury verdicts. This article coins a new phrase, CSI Infection, by focusing on the significant legal impact that the fear of CSI Infected Jurors has made upon the criminal justice system. The CSI Infection is the ubiquitous It factor that scholars cannot conclusively prove nor effectively explain away. Yet, practitioners overwhelmingly confirm Its impact in criminal jury trials; Its existence, Its true or perceived impact on acquittals and convictions, and how to define It permeates criminal trials. For example, litigators base their motions on It, and build their trial strategies around It, and the legal arguments of trial lawyers on both sides of the case have transformed. Specifically voir dire questions, jury instructions, as well as opening statements and closing arguments have been modified and correspondingly challenged on appeal - all because of the CSI Effect.

Moreover, the phenomenon has forced trial courts to address the evidentiary, procedural, and constitutional issues raised by prosecutors and defense attorneys who fear the perceived dangers that CSI Infected Jurors have upon the ultimate fairness of the jury trial process. Because of the CSI Effect, judges now issue rulings directed at Its operation in cases and give special jury instructions regarding Its role in jurors' decision making. Undoubtedly, the CSI Infection is creating a juridical migraine for trial courts around previously ordinary trial issues and there is no panacea to eradicate It. Notwithstanding Its presence, mandatory due process requirements remain. This article explores the cases, the experiences of litigators, the commentary of jurors, and, most significantly, the trial and appellate court rulings on important constitutional and procedural issues. Scrutinizing these legal issues before the verdict and beyond the verdict attempts to ensure that justice and fairness prevail over any improper prejudice or bias that may have infiltrated the American criminal justice system.

Download the paper from SSRN here.

The CSI Effect

Donald E. Shelton, Eastern Michigan University, has published "The 'CSI Effect': Does it Really Exist?" in volume 259 of the National Institute of Justice Journal (2008). Here is the abstract.

Many attorneys, judges, and journalists have claimed that watching television programs like CSI has caused jurors to wrongfully acquit guilty defendants when no scientific evidence has been presented. This so-called effect was promptly dubbed the "CSI effect," laying much of the blame on the popular television series and its progeny. This study of 1027 jurors found that 46 percent expected to see some kind of scientific evidence in every criminal case; 22 percent expected to see DNA evidence in every criminal case; 36 percent expected to see fingerprint evidence in every criminal case; and 32 percent expected to see ballistic or other firearms laboratory evidence in every criminal case. The findings also suggested that expectations for particular types of scientific evidence seemed to be rational based on the type of case.

For all categories of evidence CSI viewers generally had higher expectations than non-CSI viewers but the CSI viewers had higher expectations about scientific evidence that was more likely to be relevant. Interestingly, potential jurors' increased expectations of scientific evidence did not translate into a demand for this type of evidence as a prerequisite for finding someone guilty. Jurors were more likely to find a defendant guilty than not guilty even without scientific evidence if the victim or other witnesses testified, except in the case of rape. On the other hand, if the prosecutor relied on circumstantial evidence, the prospective jurors said they would demand some kind of scientific evidence before they would return a guilty verdict.

There was scant evidence in our survey results that CSI viewers were either more or less likely to acquit defendants without scientific evidence. Only 4 of 13 scenarios showed significant differences between viewers and non-viewers on this issue, and they were inconsistent. In the "every crime" scenario, CSI viewers were more likely to convict without scientific evidence if eyewitness testimony was available. In rape cases, CSI viewers were less likely to convict if DNA evidence was not presented.

In both the breaking-and-entering and theft scenarios, CSI viewers were more likely to convict if there was victim or other testimony, but no fingerprint evidence. Although CSI viewers had higher expectations for scientific evidence than non-CSI viewers, these expectations had little, if any, bearing on the respondents' propensity to convict.

Download the article from SSRN here.

Other scholars and commentators have written about the "CSI Effect." Here are some citations.

Stefan Lovgren, CSI Effect Is Mixed Blessing
Kit D. Roane, The CSI Effect
Jeffrey Toobin, The CSI Effect