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Dayton Daily News, Published July 23 2012

Fictional shows such as ‘CSI’ make it harder for prosecutions, some say

DAYTON, Ohio — With research showing nearly two-third of jurors expect scientific evidence in every criminal case, judges and attorneys are worried that fictional television shows might be raising the bar for prosecutions, even changing what constitutes reasonable doubt.

Prosecutor Andy Wilson of Clark County, Ohio, remembers the time a juror asked him why police didn’t dust a sex-crime victim’s body for fingerprints.

“We’re lucky to get fingerprints off a gun in a lot of cases,” Wilson said.

Prosecutors and judges call it the “CSI effect.”

Across the country, judges and prosecutors worry about the effect, the idea that modern jurors expect more scientific evidence than is necessary — or even possible, leading attorneys to change how they approach both jury selection and evidence presentation.

Questions about “CSI” and other fictional shows are now standard in jury selection. Research shows that 58 percent of jurors expect to see scientific evidence in every criminal case, 42 percent expect to see DNA evidence in every criminal case and 57 percent expect fingerprint evidence in every criminal case.

“I don’t dispute those numbers,” said Wilson. “It’s a real, actual phenomenon that trial prosecutors have to deal with. It’s frustrating, the gap between fantasy, what people believe is possible and what’s actually possible.”

But Judge Donald E. Shelton of Washtenaw County Trial Court in Ann Arbor, Mich., said that there is an effect — but it goes beyond what people watch on television. Shelton, who also teaches at the criminology department at Eastern Michigan University, helped do that pioneering research. The researchers found that jurors do have higher expectations, but there is no difference between those who watch fictional crime shows and those who do not.

“So there is an effect, but it’s not a CSI effect,” Shelton said.

In June, Shelton spoke at the Ohio Common Pleas Judges Association 2012 Summer Conference. More than 100 judges attended his presentation.

Warren County, Ohio, Common Pleas Judge James L. Flannery said Shelton gave an “excellent presentation” with “very good empirical studies.”

The researchers started in Shelton’s home county, interviewing jurors in 2006. But because 76 percent of those jurors had a college degree, the researchers decided to poll 1,200 jurors in Wayne County, home of Detroit, to get a different sample, Shelton said.

There had been no prior studies of the CSI effect, and Shelton said he was curious after hearing about it in his courtroom.

“The anecdotes abounded,” Shelton said. “It became folklore.”

Often those anecdotes came from prosecutors “all of whom had lost, who were looking to explain how they lost the case,” Shelton said.

But Shelton said television is not the deciding factor. Instead, there are two. The first is news accounts of exonerations, often people who have spent decades in prison, even death row, for crimes they did not commit. The second is what he called the “Tech Effect.” People are more technologically proficient than ever before, he said, and the more they use technology in their personal and work lives, the higher their expectation that scientific evidence should play an important part in a criminal case.

But Ronald Dye, director of the Ohio Bureau of Criminal Investigation’s crime laboratory, said he still believes the crime shows have an effect on juror expectations.

“These shows leave people thinking that forensic evidence is always going to be present in a crime,” Dye said.” People watch TV and they believe what they see.”

There are also unrealistic expectations on the amount of time it takes to process evidence, he said.

“Every forensic lab across the country has a backlog,” Dye said. “In the forensic shows, every crime gets immediate attention.”

Wilson said that, in the past, people who wanted to research DNA or other types of forensic evidence would have to go to a library and check out a book — an unlikely prospect most times. But in the Internet age, people can do their own research very quickly, without knowing if they are getting accurate or complete information, he said.

Flannery also said that, during his 40 years of practicing criminal law, 26 of them as a trial judge, he has seen the effect. When he started out, a criminal case might have two witnesses: a police officer and a victim. Now there are more experts than ever.

“This is not a huge problem, but it affects the close case,” Flannery said. “Our system is not based on perfection. It’s based on proof beyond a reasonable doubt.”

Ohio public defender Tim Young is not impressed with those arguments about the effect, CSI or other.

“Yes, I’ve heard of it,” Young said. “No, I don’t believe in it. I think it’s sour grapes.”

He said purveyors of the theories are underestimating jurors, who are generally smart enough to understand the difference between truth and fiction. He also said that standards and expectations are always evolving, noting that a century ago, there were scientific theories that used the lengths of bones or the number of bumps on a person’s skull to identify them, and those theories are now known as bunk.

“People have come to expect more and they should,” Young said. “No longer is it enough to have a police officer get up there and say, ‘In my opinion, he did it.’”

Montgomery County, Ohio, Common Pleas Judge Barbara P. Gorman, who attended Shelton’s presentation, said that she has seen prosecutors alter their approaches, particularly by trying to weed out easily influenced people during jury selection.

Prosecutors are also more likely today to include evidence about scientific evidence that does nothing to advance their case, but addresses jurors concerns, she said. For example, technicians called to testify that they dusted for fingerprints but were unable to find any.

Gorman said she isn’t worried about Shelton’s statistics, because the jurors don’t have the expertise to make those predictions.

“In a vacuum, they may say, yeah, it should be in every case,” Gorman said.

These concerns must also lead judges to be more vigilant about not allowing “junk science” into the courtroom, Shelton said.

Ultimately, Shelton said, it doesn’t matter how prosecutors or judges feel about the “effect.” Jurors represent the larger culture, what might have been reasonable doubt 20 years ago might not be today, and that the system will have to adjust to that larger culture, he said.

“The jury trial is the ultimate democracy,” Shelton said. “It really is the jury that’s going to bring the legal system along because they represent the culture.”