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The ‘CSI Effect’: Does It Really Exist? by Honorable Donald E. Shelton

rime and courtroom proceedings however, was ultimately edited to a 1-hour have long been fodder for film and episode that suggested the crime remained C television scriptwriters. In recent a “mystery” . . . notwithstanding the ’s years, however, the media’s use of the guilty verdict. courtroom as a vehicle for drama has not only proliferated, it has changed focus. In The next level of distortion of the criminal apparent fascination with our criminal justice justice system is the extremely popular process, many of today’s courtroom dramas “reality-based” crime-fiction television are based on actual cases. Court TV offers drama. The Law & Order franchise, for live gavel-to-gavel coverage of trials over example, appears on television several the Internet for $5.95 a month. Now, that’s nights a week promoting plots “ripped “reality television”! from the headlines.” It and other television programs pluck an issue suggested by an Reality and fiction have begun to blur with actual case and weave a story around it. crime magazine television shows such as 48 Hours Mystery, American Justice, and The most popular courtroom dramas— even, on occasion, Dateline NBC. These whether actual, edited, or purely programs portray actual cases, but only fictional—focus on the use of new after extensively editing the content and science and technology in solving crimes. incorporating narration for dramatic effect. CSI: Investigation has been Presenting one 35-year-old , for called the most popular television show in example, 48 Hours Mystery filmed for the world. Not only is CSI so popular that it months to capture all pretrial hearings has spawned other versions that dominate as well as the 2-week trial; the program, the traditional television ratings, it has also

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But is this really the expectation of today’s Many attorneys, judges, and journalists have jurors? And if so, is it the fault of CSI claimed that watching television programs and its ilk? To date, the limited evidence that we like CSI has caused jurors to wrongfully have had on this issue has been largely anecdotal, based primarily on acquit guilty defendants when no scientific interviews with jurors after trials. Now, however, we have some findings based evidence is presented. on a formal study that two researchers and I recently performed. prompted similar forensic dramas, such as Cold Case, Bones, and Numb3rs. According Gregg Barak, Ph.D., and Young Kim, Ph.D., to one 2006 weekly Nielsen rating: criminology professors at Eastern Michigan University, and I surveyed 1,000 jurors ■ 30 million people watched CSI on prior to their participation in trial processes. one night. The prospective jurors were questioned ■ 70 million watched at least one of the regarding their expectations and demands three CSI shows. for scientific evidence and their television- watching habits, including CSI and similar ■ 40 million watched two other forensic programs. Our goal was to determine dramas, and Cold Case. if there was any empirical evidence behind the commonly held beliefs that Those ratings translated into this fact: juror expectations for forensic evidence— five of the top 10 television programs and their demand for it as a condition for that week were about scientific evidence conviction—are linked to watching law- in criminal cases. Together, they amassed related television shows. more than 100 million viewers.

How many of those viewers reported What Programs Do Jurors Watch? for jury duty the next day? In June, July, and August 2006, a written questionnaire was completed by 1,027 Claims and Commonly randomly summoned jurors in Ann Arbor, Held Beliefs Michigan. The potential jurors, who com- pleted the survey prior to any jury selection, Many attorneys, judges, and journalists were assured that their responses were have claimed that watching television anonymous and unrelated to their possible programs like CSI has caused jurors to selection as a juror. wrongfully acquit guilty defendants when no scientific evidence has been presented. First, we obtained demographic information The mass media quickly picked up on and asked the prospective jurors about these complaints. This so-called effect their television-viewing habits, including was promptly dubbed the “CSI effect,” the programs they watched, how often, laying much of the blame on the popular and how “real” they thought the programs television series and its progeny. were. Then, we tried to determine what these potential jurors expected to see in I once heard a juror complain that the terms of evidence from the prosecutor. prosecution had not done a thorough job because “they didn’t even dust the lawn The survey asked questions about seven for .” As one district attorney types of cases: put it, “Jurors now expect us to have a DNA test for just about every case. They 1. Every criminal case. expect us to have the most advanced 2. Murder or attempted murder. technology possible, and they expect 3. Physical assault of any kind. it to look like it does on television.”  N I J J o u r n al / Issue No. 259

4. or other criminal sexual conduct. Juror Expectations for 5. Breaking and entering. Forensic Evidence 6. Any theft case. Did the survey respondents expect 7. Any crime involving a gun. the prosecution to present some kind of scientific evidence? Our survey With respect to each of these categories of indicated that: crimes, we then asked what types of evidence the prospective jurors expected to see: ■ 46 percent expected to see some kind of scientific evidence in every criminal case. ■ Eyewitness testimony from the alleged victim. ■ 22 percent expected to see DNA evidence in every criminal case. ■ Eyewitness testimony from at least one other witness. ■ 36 percent expected to see evidence in every criminal case. ■ . ■ 32 percent expected to see ballistic or ■ Scientific evidence of some kind. other firearms laboratory evidence in ■ DNA evidence. every criminal case. ■ Fingerprint evidence. The findings also suggested that the jurors’ expectations were not just blanket expec- ■ Ballistics or other firearms laboratory evidence. tations for scientific evidence. Rather, expectations for particular types of scien- Then, we got to the heart of the matter: tific evidence seemed to be rational based not only did we want to explore jury on the type of case. For example, a higher expectations regarding scientific evidence, percentage of respondents expected to see we also wanted to discover whether the DNA evidence in the more serious violent prospective jurors would demand to see offenses, such as murder or attempted scientific evidence before they would find murder (46 percent) and rape (73 percent), a defendant guilty. than in other types of crimes. Our findings also indicated that a higher percentage We asked the survey participants how wanted to see fingerprint evidence in break- likely they would be to find a defendant ing and entering cases (71 percent), any guilty or not guilty based on certain types theft case (59 percent), and in crimes of evidence presented by the prosecution involving a gun (66 percent). (See graphic and the defense. Using the same cases on p. 4, "Percentage of Jurors Who Expect and evidence described above, we gave Scientific Evidence From Prosecution.") potential jurors 13 scenarios and five choices for each: The Envelope, Please . . .

1. I would find the defendant guilty. It was not a surprise that Law & Order 2. I would probably find the defendant guilty. and CSI were the two most frequently watched law-related television programs 3. I am not sure what I would do. (45 percent and 42 percent, respectively, 4. I would probably find the defendant of the surveyed jurors). We found that not guilty. frequent CSI viewers also frequently watched other law-related programs, and 5. I would find the defendant not guilty. those who did not watch CSI tended not to watch such programs. We also found To help ensure that all of the survey respon- that CSI viewers, in general, were more dents were operating from the same legal likely to be female and politically moderate. guidelines, we gave them the burden of Respondents with less education tended to proof and reasonable doubt instructions watch CSI more frequently than those who that are given to all seated jurors in criminal had more education. cases in Michigan.

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Percentage of Jurors Who Expect Scientific Evidence From Prosecution 80

70

60

50 Scientific evidence of some kind

40 Fingerprint evidence

Ballistics evidence 30

DNA evidence 20

10

0 Every case Murder Assault Rape Breaking and Theft Crime involving entering a gun

As to how “real” a television program was never or almost never watch the program). perceived to be, our results indicated that But, it is possible that the CSI viewers may the more frequently jurors watched a given have been better informed jurors than the program, the more accurate they perceived non-CSI viewers. The CSI viewers had the program to be. higher expectations about scientific evidence that was more likely to be relevant What role, then, did watching CSI play in to a particular crime than did the non-CSI the respondents’ expectations and demands viewers. The CSI viewers also had lower for forensic evidence? expectations about evidence that was less likely to be relevant to a particular crime Forensic Evidence and than did the non-CSI viewers. Jury Verdicts Although our study revealed that the For all categories of evidence—both prospective jurors had high expectations scientific and nonscientific—CSI viewers for scientific evidence, the more important (those who watch CSI on occasion, often, question, I believe, is whether those or regularly) generally had higher expecta- expectations were more likely to result tions than non-CSI viewers (those who in an acquittal if they were not met. In

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other words, do jurors demand to see scientific evidence before they will find Although CSI viewers had higher expectations a defendant guilty? for scientific evidence than non-CSI viewers, Interestingly, in most of the scenarios presented, potential jurors’ increased these expectations had little, if any, bearing expectations of scientific evidence did not translate into a demand for this type on the respondents’ propensity to convict. of evidence as a prerequisite for finding someone guilty. Based on our findings, This is an important finding and seemingly jurors were more likely to find a defen- dant guilty than not guilty even without very good news for our Nation’s criminal scientific evidence if the victim or other witnesses testified, except in the case justice system. of rape.1 On the other hand, if the pro- secutor relied on circumstantial evidence, the prospective jurors said they would finding and seemingly very good news for demand some kind of scientific evidence our Nation’s criminal justice system: that is, before they would return a guilty verdict. differences in expectations about evidence did not translate into important differences It’s Not CSI! in the willingness to convict.

There was scant evidence in our survey That said, we believe it is crucial for judges results that CSI viewers were either and lawyers to understand juror expecta- more or less likely to acquit defendants tions for forensic evidence. Even though our without scientific evidence. Only 4 of study did not reveal a so-called “CSI effect” 13 scenarios showed somewhat significant at play in courtrooms, my fellow researchers differences between viewers and non- and I believe that a broader “tech effect” viewers on this issue, and they were incon- exists that influences juror expectations sistent. Here are some of our findings: and demands. ■ In the “every crime” scenario, CSI During the past 30 years, scientific advances viewers were more likely to convict and discoveries have led to a technology without scientific evidence if eyewitness revolution. The development and miniatur- testimony was available. ization of computers and the application of computer technology to almost every human ■ In rape cases, CSI viewers were less endeavor have been primary forces in new likely to convict if DNA evidence was scientific discoveries. At the same time, not presented. new technology has created a revolution ■ In both the breaking-and-entering and theft in information availability and transmission. scenarios, CSI viewers were more likely The Internet is an obvious example, and, in to convict if there was victim or other many ways, it has been the catalyst for this testimony, but no fingerprint evidence. ongoing revolution.

Science and information feed off each other; Hypothesis and Discussion advancements in science are fostered by the on What It Means ability of scientists to exchange and transfer information. At the same time, scientific Although CSI viewers had higher expecta- developments almost immediately become tions for scientific evidence than non-CSI available not only to scientists but also to the viewers, these expectations had little, if any, entire world. It is hardly unexpected that the bearing on the respondents’ propensity to media grab scientific discoveries and quickly convict. This, we believe, is an important make them part of our popular culture.

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Many laypeople know—or think they Another response would be to equip know—more about science and technol- officers of the court (i.e., judges, prosecu- ogy from what they have learned through tors, and defense lawyers) with more the media than from what they learned in effective ways to address juror expectations. school. It is those people who sit on . When scientific evidence is not relevant, Every week, the ever-evolving scientific and must find more convincing information age comes marching through ways to explain the lack of relevance to the courtroom door in the psyche of almost jurors. Most importantly, prosecutors, every juror who takes a seat in the box. defense lawyers, and judges should understand, anticipate, and address the The Jury Is Always ‘Right’ fact that jurors enter the courtroom with a lot of information about the criminal Our legal system demands proof beyond justice system and the availability of a reasonable doubt before the government scientific evidence. is allowed to punish an alleged criminal. When a scientific test is available that would The bottom line is this: Our criminal justice produce evidence of guilt or innocence— system must find ways to adapt to the but the prosecution chooses not to perform increased expectations of those whom we that test and present its results to the jury— ask to cast votes of “guilty” or “not guilty.” it may be reasonable for a jury to doubt the NCJ 221501 strength of the government’s case. This reality may seem unreasonable to some, but that is not the issue. Rather, it is how the For More Information criminal justice system will respond to ■ The complete results of this study are juror expectations. reported in Shelton, D.E., Y.S. Kim, and G. Barak, “A Study of Juror Expectations and One response to this change in expectations Demands Concerning Scientific Evidence: would be to get the evidence that jurors Does the ‘CSI Effect’ Exist?,” Vanderbilt seek. This would take a major commitment Journal of Entertainment and Technology to increasing law enforcement resources Law 9 (2) (2006): 331–368, available at and would require equipping police and other www.law.vanderbilt.edu/journals/jetl/ investigating agencies with the most up-to- articles/vol9no2/Shelton.pdf. date equipment. In addition, significant improvements would need to be made in the capacity of our Nation’s crime Notes laboratories to reduce evidence backlogs and keep pace with increased demands for 1. Only 14 percent of respondents said that they forensic analyses.2 would find a defendant guilty in a rape case if the victim’s testimony was presented without any scientific evidence; 26 percent answered that they would find the defendant not guilty without scientific evidence. 2. Editor’s Note: For information on the National About the Author Institute of Justice’s work on increasing the Donald Shelton has been a felony trial judge in Ann Arbor, Michigan, capacity of crime labs to process forensic evidence and reduce backlogs, see www. for 17 years. He is on the faculty at Eastern Michigan University (EMU) ojp.usdoj.gov/nij/topics/forensics and and conducted the research that is discussed in this article with two www.dna.gov. other EMU criminology professors, Young S. Kim and Gregg Barak. Shelton presented the results of the study discussed in this article at the 2007 NIJ Conference. He has written extensively on the impact of technology on the law and the right to a trial by jury.

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Resources for Practitioners Forensic Science Tools

How can science be made more under- trial video) discusses the legal requirements standable to people who are involved in for handling digital evidence and guidelines j the criminal justice process? The National for a successful prosecution, including a Institute of Justice (NIJ) is producing tools case study using this kind of evidence in to help ensure that science—from DNA to a child pornography prosecution. fingerprints, and eyewitness evidence to ■ Online Training (www.dna.gov). digital evidence—is clearly presented and reliable. Here is just a sample of the tools • What Every Law Enforcement Officer that NIJ offers. Should Know About DNA Evidence— Issues surrounding DNA evidence ■ Investigative Uses of Technology: and its collection for first responders. Devices, Tools, and Techniques. Designed primarily for detectives and forensic exam- • Principles of Forensic DNA for Officers iners, this Special Report contains a chapter of the Court—An interactive program on on using data from cell phones, computers, handling forensic DNA cases. caller ID, credit card instruments, pagers, • DNA: A Prosecutor’s Practice Notebook— voice recorders, GPS devices, and more. It A wide spectrum of topics relating to the also features notes on search and seizure, science of DNA and its legal application in privacy, and other constitutional issues. the courtroom. ■ Investigations Involving the Internet • Forensic DNA Analysts Training Courses— and Computer Networks. This Special Practical skills for laboratory scientists in Report is a resource for all practitioners— multimedia, self-paced modules, including investigators, first responders, detectives, lab exercises. prosecutors—who want to learn more about technology-related crimes and ■ Addressing Shortfalls in Forensic

investigative tools and techniques. Science Education. Many crime labs www.ojp.usdoj.gov/ni find that new graduates from forensic ■ Digital Evidence in the Courtroom: science education programs are not A Guide for Law Enforcement and properly trained. This In Short describes Prosecutors. Criminals use computers to the benefits of an accredited forensic steal information, commit fraud, and stalk science education program. victims online. This Special Report (with accompanying training materials and mock