Jurors swept up in 'CSI Effect'; TV makes them expect too much, inflates their expectations, prosecutors say

Karen Farkas, Cleveland Plain Dealer Reporter

Police in Seneca County often dust plastic bags of drugs seized during arrests for fingerprints.

They don't expect to find any, since prints rarely show on plastic, said Prosecutor Ken Egbert Jr.

But they do it for jurors.

Egbert said jurors, fed a steady television diet of "CSI" and "Law & Order," believe police always should search for fingerprints, and they expect to see results of all the tests, even if they yield nothing.

"They all watch TV, and when they come in a courtroom, their expectations aren't reasonable," Egbert said.

Prosecutors and defense attorneys are facing the "CSI Effect"-high expectations from jurors because of media glamorization of the criminal-justice system.

Jurors believe forensic evidence can be found at every crime scene and is always admissible in court, said C

lifford Strider, an assistant district attorney in Louisiana who spoke Thursday in Columbus to prosecutors from around the state.

They also believe that expert witnesses may not be credible and that crimes can be solved in less than an hour.

"Jurors have the inability to tell real life from entertainment," Strider said.

Movies and television shows like "CSI," which began in 2000, take liberties with what is scientifically accepted and expand it, Strider said.

"On 'CSI,' someone was found stabbed and they poured plaster in the knife wound to get an image to match to the knife," he said. "You can't do that. Skin is elastic and changes as soon as a knife is removed."

But men and women, often walking into a courtroom for the first time when they are called to jury duty, don't know that.

"Jurors say the reality of the courtroom is disappointing and the evidence is not as appealing as expected," Strider said.

Police and court shows have entertained since the advent of radio and "Mr. District Attorney - the champion of people and defender of truth," Strider said.

But the three television networks available in those early days have ballooned to more than 100, with dozens of crime and court shows, 24-hour news coverage, trials of the century and re-enactments of major cases. Strider said people believe all police departments have helicopters, multiple criminal investigators and evidence that can be analyzed in hours.

When they get on a jury, they wonder why the evidence is not there.

"I think it is good for jurors to be demanding and expect proof beyond a reasonable doubt, but I think there are cases where the jury is out of control and gets angry," said Mark Godsey, a University of Cincinnati associate professor of law who directs the Ohio Innocence Project, which seeks to overturn wrongful convictions.

Godsey, a former federal prosecutor, said jurors should not expect DNA testing in a $100 theft.

"Hello - we are not actually 'CSI,' and the government and taxpayers are not putting those resources into every case," he said.

He recalled a case that a friend prosecuted in the late 1990s, involving a man arrested for transporting a large amount of heroin and marijuana. Because a marijuana conviction had a lighter penalty than that for heroin, the man's lawyer conceded during the trial that he transported marijuana but had no idea heroin was in the shipment.

A jury acquitted the man on all counts.

"When asked later, they said they knew from watching television that cameras should have recorded the stop and seizure, and there was no videotape," Godsey said.

While his studies have shown that eyewitness identification, jailhouse snitches and confessions can be faulty and should be questioned by jurors, jurors should also be skeptical of forensic evidence, said Paul Giannelli, a Case Western Reserve University law professor who is an expert on criminal evidence.

DNA is the gold standard and can rarely be challenged because it is highly regulated, he said. But other forensic sciences, such as fingerprinting, firearms identification and bite mark comparisons, need more-stringent standards because experts use subjective judgments when testifying.

e cited the FBI's wrongful arrest of an Oregon lawyer after the agency misidentified fingerprints taken from evidence in the March 11, 2004, Madrid train bombing. The fingerprints were taken from a plastic bag that contained detonator caps. An FBI report later said finding some similarities in the print comparison "coupled with the inherent pressure of working an extremely high-profile case was thought to have influenced the initial examiner's judgment and subsequent examination."

"I am pro-forensic science, but we ought to be able to do it better than we are doing it," he said. Crime labs should be accredited and investigators should be certified.

Prosecutors and defense attorneys obviously differ over the use of forensic evidence.

"Jurors will say, 'Why wasn't this tested or this done?' and they are buying into what the defense is pointing out is not done," said Mary Ann Kovach, chief counsel of the criminal division of the Summit County prosecutor's office. "If you do not do a test, somehow you have missed valuable evidence. When we know it is someone's blood because they were the only person bleeding, they [jurors] want it tested. It has been a problem for years but is even more acute because of 'CSI.' "

Kovach said jurors who acquit have told prosecutors they really thought the defendant was guilty but that the evidence was lacking.

"We hear that all the time and it is the most depressing thing in the world because it is almost like they feel sorry for us because we kind of let them down, or the police let them down," she said.

She recalled a robbery at a Holland Oil station in which the victim identified the defendant in court. But he was acquitted because jurors said he could not be clearly seen on a blurry video of the incident.

Defense attorneys say they always remind jurors prosecutors have the burden of proving the defendant guilty and they have to reach a verdict based solely on the evidence and testimony presented in court.

"Jurors cannot only demand that the state have some sort of physical proof, but then again, any little bit of proof by the prosecution may be viewed as proof beyond a reasonable doubt," said Mark DeVan, a Cleveland attorney who is past president of the Ohio Association of Criminal Defense Lawyers.

DeVan and Kovach said the only way to combat unreasonable jury expectations is to ask thorough questions during jury selection.

DeVan said he has rejected people even if they say they can set aside opinions about television programs that show police do no wrong.

"You get the gut feeling they place great credence in such shows," he said.

Iloilo Jones, executive director of the American Jury Institute/the Fully Informed Jury Association, said prosecutors complain more than defense attorneys about the "CSI Effect," but jurors should be skeptical of all evidence.

Jurors should vote their conscience and stick with it, she said.

"Jurors can go astray," she said. "We are human and make mistakes. That's why there is the appeals process. But the biggest mistake is to send someone to prison who doesn't belong there."

Copyright 2006 Plain Dealer Publishing Co.

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