By Dr. Ken Broda Bahm:
The news media pounced on it, but the scholars said it didn’t exist. The “CSI Effect,” or the tendency for high technology crime dramas to fuel a juror expectation for sophisticated investigations and definite answers, entered the popular and media imagination as a powerful effect that could stymie prosecution (by creating unrealistic evidentiary burdens) or hamper the defense (by conveying the illusion of certainty). However, even as anecdotes abound, the research has failed to produce any study showing a clear CSI Effect among jurors. That lack of research has led many to simply note that the effect is a figment of media imagination.
However, new research suggests that this may be a case of researchers simply asking the wrong question. Instead of asking whether the behavior of watching specific crime dramas causes a measurable shift in attitudes, what about accounting for the full spectrum of jurors’ exposure to information about science by measuring the attitudes themselves? According to a study released this past summer in the journal Psychology, Crime & Law (Smith & Bull, 2011), there is an identifiable set of attitudes about science that predicts reactions to evidence in case simulations, and ultimately predicts verdicts. Whether these attitudes emerge in response to watching crime shows is more interesting to media critics, but less important to practicing litigators.
What litigators need to know – including civil litigators who often rely on science to establish or critique elements like causation – is how attitudes about science will mediate juror reaction to your case. This post takes a look at the research and suggests a new approach for addressing science-related bias.
The Research
Since the idea emerged and gained notoriety in trials like Robert Blake’s, and more recently Casey Anthony’s, the focus among academics and more informed litigators has been on the proof, or absence of proof, for a CSI Effect. A number of studies (e.g., Kim, Barak & Shelton, 2009; Podlas, 2006; Schweitzer & Saks, 2007) seemed to show a lack of any clear evidence for that effect.
The more recent study (Smith & Bull, 2011), however, took a different approach. Instead of focusing on the presumed media-based causation of the effect, the two University of Leicester researchers focused on the attitudes themselves. They found that when the forensic evidence is strong and unambiguous, most jurors tend to accept it, irrespective of underlying attitudes. But in cases relying on weak or ambiguous scientific evidence, differences emerge. Developing and validating a ten-item scale (the “Forensic Evidence Evaluation Bias” or, more awkwardly, “FEEB”), they found that the responses of potential jurors predict the perceived strength of such evidence as well as the verdicts.
While there is more work to be done in showing that these attitudes work as predictors in a variety of contexts, this early research seems to show that there is an identifiable and measurable set of potential jurors who will take a different approach to scientific evidence, and it will affect their verdicts. Whether that effect stems from television behavior, or the broader milieu of experiences and attitudes about science and certainty, it does appear to play a role in the courtroom.
The Recommendations:
1. Apply a Measured Take on the CSI Effect
Based on the research, it makes sense to avoid both absolutes. The view that “a CSI Effect ties jurors’ hands” is questioned by many studies, including this one, showing that the attitudes only play a role in the case of weak or ambiguous evidence. By the same token, the view that “there’s no such thing as a CSI Effect” appears to only be true at the trivial level of denying a phenomena linked to a particular show. Jurors’ “CSI-like” expectations about science do appear to play an important role in jurors’ evaluation of your case.
2. Ask About Attitudes More than Behavior
It has become almost standard in cases involving science and technology to ask, “Do you watch CSI or similar programs?” in voir dire. Yet one conclusion of the research is that this question has little, if any, probative value. Instead, litigators should be asking about the actual attitudes that determine how the potential juror views science. Those questions can either be formed from the context of your case, or developed with reference to tools like the new “Forensic Evidence Evaluation Bias” scale.
3. Teach the Legal Relevance of the Science
Of course, litigators know that the science needs to be explained, and jurors are willing to work to understand even the most complex concepts and technologies if it helps them do their job. But there is one critical point where jurors will especially need understanding: the legal relevance of the science and how it intersects with the standard. One recent example can be found in the verdict in the Casey Anthony case. As the juror names were released yesterday, there is still a widespread popular belief that the jury simply ignored the great weight of evidence showing Casey Anthony’s role in the death of her child. Closer attention to the comments of the few jurors who have stepped up, however, reveal more of a nuanced reaction. Juror Jennifer Ford, like some of the others who have spoken up, put a central emphasis on ambiguity about the cause of death: “If there was a dead child in that trunk, does that prove how she died? No idea, still no idea.” Ford told ABC News, “If you’re going to charge someone with murder, don’t you have to know how they killed someone?” Well, not exactly. As Marcia Clark points out, “the prosecution doesn’t have to prove cause of death.” Of course, cause of death was never established for many of Jeffrey Dahmer’s victims (because they were dissolved in acid, or, well, eaten), but the surrounding evidence still established criminal agency and homicide. If the answer to Ford’s question was “yes,” then it would always be a foolproof plan to destroy the body or, in this case, hide it for long enough for nature to do its work. But because the Anthony trial focused for so long, and with such detail on manner of death, jurors were led to believe that it was an essential element for their verdict, and in hindsight, the prosecution did not do enough to convince them of the proper role and relevance of this science.
Ultimately, the important questions for your case are:
- “What science will jurors be expected to evaluate?”
- “What is the right relevance and weight they should give that science?”
- “What attitudes will they bring to bear in that evaluation?”
In answering those questions, the CSI effect is neither an imaginary scapegoat, nor an all-powerful bogey man, but a real and measurable set of attitudes.
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Smith, Lisa L. & Bull, Ray (2011). Identifying and measuring juror pre-trial bias for forensic evidence: development and validation of the Forensic Evidence Evaluation Bias Scale. Psychology, Crime & Law (June ) : 10.1080/1068316X.2011.561800
Photo Credit: paigggeyy, Flickr Creative Commons