Viewing CSI and the threshold of guilt: managing truth and justice in reality and fiction.

• Author: Tyler, Tom R.
• Position: Crime Scene Investigation

REVIEW CONTENTS INTRODUCTION 1 THE PLAUSIBILITY OF THE CSI EFFECT A. Are People Influenced by the Mass Media? B. Can People Put Aside Their Preconceptions? II. OTHER POSSIBLE CSI EFFECTS A. Promoting the Need for Closure B. Overbelief in the Probative Value of Evidence C. Creating a One-Sided View of the Law III. DOES THE CSI EFFECT EXIST? A. Sympathy for the Defendant B. Differing Thresholds for Conviction C. Declining Trust and Confidence in Legal Authorities CONCLUSION INTRODUCTION

The television drama CSI: Crime Scene Investigation is by all conventional measures a successful production. It receives high ratings and has spun off a lucrative franchise of related dramas--CSI: Miami and CSI: New York? As their titles indicate, these shows are based on the process of gathering and analyzing forensic evidence. Most episodes, however, focus on forensic techniques that are more reminiscent of science fiction than true investigative practice.

To understand the CSI series, consider a typical plot, which relates the intertwined stories of three criminal investigations. As the episode Iced begins, investigators encounter (1) a college-aged couple found dead amid evidence of a romantic evening; (2) a middle-aged man found dead in a parking lot; and (3) a man found dead in the middle of a crop circle. Through careful examination and testing of evidence-or at least as much as can be shown in an hour-the CSI team establishes that (1) the couple was poisoned by a jealous female student (a science major) using carbon dioxide gas given off by hidden dry ice; (2) the middle-aged man died of natural causes (but his body was briefly stolen as part of a prank); and (3) the man from the crop circle was frightened to death after being misled into thinking that he was being pushed out of a helicopter one thousand feet in the air. (2)

Recently, the series has become the focus of increased media attention, with magazines and newspapers speculating that the series has produced a "CSI effect" among the general public? According to media reports, the millions of people who watch the series develop unrealistic expectations about the type of evidence typically available during trials, which, in turn, increases the likelihood that they will have a "reasonable doubt" about a defendant's guilt. Typical of mass media articles on this topic is The CSI Effect, a cover story in U.S. News and World Report from April 2005. (4) The cover foreshadows the article's thesis by promising to explain "[h]ow TV is driving jury verdicts all across America." According to the article, anecdotal evidence--based on comments by legal authorities--suggests that juries are becoming less willing to accept typical criminal trial evidence due to an instinct, derived from watching television dramas, that such evidence should be more conclusive. In reality, the kind of "smoking gun" evidence found on CSI is rarely available. Typically, the state attempts to bear its burden by piecing together many types of evidence, each having some probative value but also carrying a degree of uncertainty and, potentially, error. According to the popular press, this makes jurors less likely to convict.

For example, after the recent, well-publicized acquittal of Robert Blake, jurors complained about the lack of fingerprints, DNA, and gunshot residue--evidence not often available in criminal trials but frequently used on television, (5) Similarly, an article in USA Today linked the acquittal of Robert Durst, who was accused of murdering and dismembering a neighbor, to the CSI effect: "To legal analysts, his case seemed an example of how shows such as CSI are affecting action in courthouses across the USA by, among other things, raising jurors' expectations of what prosecutors should produce at trial." (6)

While the CSI effect has been widely noted in the popular press, there is little objective evidence demonstrating that the effect exists. As is often the case with legal issues, the pace of public discussion has outstripped the ability of scholars to research the issue. (7) Lacking any empirical data, discussions of the CSI effect have instead been based upon the personal impressions of lawyers and legal scholars. The argument that CSI has influenced jurors fits with many people's intuitions--including those of judges and prosecutors--about how jurors operate. In one study, interviews with over one hundred prosecutors suggested that the CSI effect may "'have made juries more demanding of the prosecutors and the police," (8) an argument also supported by the accounts of jury deliberations gathered by some investigators. (9) Further, many prosecutors are seeking training in the presentation of evidence because they believe that juries demand more compelling discussions of scientific techniques. According to one report, "[a] s more juries watch forensic-based crime programs like 'CSI' on TV, lawyers also find the need to better explain to juries the realities and limitations of forensic evidence." (10) In sum, "[j]urors schooled in crime investigations through watching TV dramas expect prosecutors to show them sophisticated forensic evidence ... making it tough for the government to prove cases." (11)

This account is not universally accepted, and some have argued passionately that the CSI effect is imaginary. As one commentary has suggested:

 To argue that "C.S.I." and similar shows are actually raising the number of acquittals is a staggering claim, and the remarkable

thing is that, speaking forensically, there is not a shred of evidence to back it up. There is a robust field of research on jury

decision-making but no study finding any "C.S.I. effect." (12)

In other words, there is no direct research evidence that watching CSI has changed juror standards of reasonable doubt. (13) And even "[p]rosecutors are split as to whether there is a CSI Effect." (14)

The lack of research on the CSI effect does not mean that its basic premise--that media depictions of law shape jurors' judgments in real cases--is new. (15) For example, reacting to earlier television series such as The People's Court, researchers argued in 1989 that the media distorted juror reactions to real trials, with Judge Joseph A. Wapner's quick legal fixes purportedly leaving real jurors frustrated by the realities of lengthy trials and their nuanced decisions. (16) These early studies, however, focused on the influence of media presentations of trial procedures rather than the investigatory process.

This Review assesses the CSI effect from a psychological perspective by reviewing a series of studies of juror behavior. The aim is not to settle the debate by presenting empirical evidence showing that the CSI effect does or does not occur. Rather the goal is to show that the media's quick conclusion that there is a CSI effect may be wrong. In so doing, this Review hypothesizes other effects that CSI may have on jurors and evaluates alternate explanations for the perceived increase in jury acquittals that has been attributed to the CSI effect.

Part I argues that the existence of an effect linking CSI to juror judgments is initially plausible and consistent with the findings of empirical research in legal psychology. Part II disputes the conventional wisdom that exposure to CSI raises jurors' standards for conviction. This Part suggests that it is equally plausible that the CSI effect will be found to lower standards by creating a mystification of scientific evidence, leading jurors to ignore or minimize the limits in the data they see. Part III then identifies other plausible explanations for increases in jury acquittals-if such increases have in fact occurred.

1. THE PLAUSIBILITY OF THE CSI EFFECT

   Although there is not yet direct evidence on the CSI effect, research exists on several related questions. By looking at these existing literatures, we can begin to determine whether the CSI effect is at least plausible. Section A suggests that juror judgments are influenced both by general exposure to similar cases in the media and by pretrial publicity about the particular case at issue. Section B suggests that people have difficulty putting aside these influences even when asked to do so. This is especially important given that studies of jury deliberations indicate that jurors often discuss legally irrelevant information. Taken together, these findings indicate that future empirical research may find that some kind of CSI effect exists.

   1. Are People Influenced by the Mass Media?

      If people's reactions to crime and criminals are generally shaped by the mass media, then it seems reasonable to assume that public reactions to criminal cases are shaped by shows like CSI. The psychological literature in this area considers whether media exposure is generally important, as well as whether pretrial publicity about a specific case or type of case shapes juror judgments. Although this Review focuses on juror judgments specifically, most media studies consider the influence of the mass media on broader issues, such as fear of crime (17) and perception of the seriousness of the crime problem. (18) For this reason, the following discussion focuses on one small subset of studies--those on pretrial publicity--within the larger literature on the effects of the mass media on the legal system.

      Studies on the influence of pretrial publicity have focused on juror judgments about particular defendants. In such studies, the simulated pretrial publicity involves either giving jurors (19) information about the particular case before them or exposing jurors to biasing information about a particular type of crime, in the form of mass media reporting on that type of crime, before they hear a specific case. In each of these scenarios, the basic proposition being tested is whether prior biases will shape jurors' decisions.

      One review of the literature in this area considered forty-four tests of whether pretrial publicity shapes verdicts...