The CSI Effect

• Author: Vikas Khanna, Scott Resnik
• Pages: 16-20

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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The CSI Effect

VIKAS KHANNA AND SCOTT RESNIK

The authors are with Katten Muchin Rosenman LLP, New York City.

In 2002, CBS launched a crime drama that featured a team of

investigators who used the latest advances in forensic science to

solve a se emingly never-ending series of homicides and complex

crimes. The show, CSI: Crime Scene Investigation, blossomed into a

mega-hit, running for 15 seasons, spawning three spin-offs, a book

series, video games, and even museum exhibitions. The show’s en-

during popularity, however, has been credited, rightly or wrongly,

with casting a dubious influence over real-life criminal trials. The

phenomenon, known as the “CSI effect,” is the idea that television

shows like CSI have created in the minds of jurors the expectation

that the only credible evidence is highly technical, science-based,

forensic evidence. Thus, the CSI effect causes some jurors to expect,

if not demand, DNA tests, fingerprint analysis, computer forensics,

and other specialized “scientific” evidence. When such evidence is

presented, these jurors are almost certain to believe it. When it is

absent, however, more traditional nonscientific evidence, such as

witness testimony and documents, may be disregarded.

It is difficult to measure the influence that the CSI effect actu-

ally has on verdicts. Nevertheless, the CSI effect has been an

enduring concern for defense attorneys and prosecutors alike.

Because of the prevalence of high-tech forensic tests in fiction-

alized depictions of the criminal justice system, and society’s

increasing comfort with, and reliance on, technology in general,

in our experience, the CSI effect is something a trial practitioner

should be cognizant of in all phases of trial. But, like all juror

expectations, the CSI effect can be managed effectively with

sufficient preparation and focus. In this article, we explore how

the CSI effect can influence all phases of the trial, and we share

specific steps criminal law practitioners can use to either miti-

gate or exploit this pop culture phenomenon.

Jury Selection

Whether or not attorneys want jurors who are heavily influenced

by crime-show depictions of scientific evidence obviously de-

pends on the type of case they have or are defending against.

Attorneys who intend to admit significant pieces of forensic

evidence would likely want to impanel such tech-expectant ju-

rors, while attorneys relying heavily on witness testimony may

not. Similarly, attorneys defending cases involving a significant

amount of testimonial evidence may also want jurors who have

a high expectation of technical evidence.

Regardless, attorneys need to focus on learning as much as

possible about potential jurors’ expectations. Thus, it is im-

portant to make jury selection a priority. When preparing for

trial, it is easy to spend the inevitably limited time one has on

preparing jury addresses, exhibits, and witness examinations,

without developing a plan for jury selection. Jury selection,

however, is the only opportunity to learn about the individuals

who will ultimately render the verdict and to strike potential

jurors who may not be able to fairly evaluate the evidence. Thus,

well before trial, it is important for attorneys to learn the details

Illustration by F ian Arroyo