‘THERE IS LIMITED PUBLISHED EVIDENCE ON HOW THE PORTRAYAL OF FORENSIC SCIENCE IN THE MEDIA AFFECTS JURIES’ PERCEPTIONS OF FORENSIC SCIENCE’. (FORENSIC SCIENCE AND THE CRIMINAL JUSTICE SYSTEM: A BLUEPRINT FOR CHANGE HLSTSC 2019, PARA 139) - DISCUSSION
May 2022
In today’s society, judging by the ever-growing production of matter on the subject, (TV, movies, news articles, etc.) we can assert that there is an increasing interest surrounding forensic science and its application within criminal justice.
This fascination is an extremely interesting topic that many have delved into, but what is less talked about is the impact of the media on individuals’ perceptions of forensic science, and its impact on criminal trials. We can see, from the limited existing evidence, two proposed theories regarding the media’s portrayal of forensic science and its impact on juries: the CSI effect and the Tech effect. Both argue that the media has an impact on juries’ perceptions of forensic science, and therefore criminal trials. However, the types of media concerned differ. The CSI effect focuses on TV shows and movies, and the Tech Effect concerns the development of science and technology as a whole.
This essay will highlight that the evidence currently published is, in two ways, limited - and that this constitutes a serious problem for the criminal trial system. It will first discuss the evidence being limited by the amount of publications, which results in an inability to have a clear insight into the impact of the media on juries and trials. Then, it will discuss evidence being limited by its depth, breadth and quality - due to the methods of research used, lack of in-depth analysis, and geographic relevance of the research. Lastly, it will assess the consequences this has on the trial system, through the inability to implement safeguards or solutions.
Amount
The first issue caused by the lack of published evidence is an unclear insight into the effect of media on juries’ perceptions of forensic science. If the CSI and Tech effect are, in fact, existent, this is significantly problematic as it raises the issue of their impact on criminal trials.
Firstly, jurors may expect a certain amount of forensic evidence to be produced and presented at trial. A Michigan study published statistics that 46% of jurors expected to see scientific evidence in every criminal case presented, and 22% expected to see DNA evidence in every criminal case.[1] This is not unreasonable - with these types of evidence available to us today, it seems that juries want to base their decisions on more ‘solid’ evidence before deciding on a verdict. However, this may adversely affect many trials as some do not have (or don’t have much) scientific evidence to present - but have other robust evidence produced by more traditional investigative police work, such as eyewitnesses. Unfortunately, it has been shown that forensic evidence can often “overpower” [2] other kinds of evidence.
Additionally, there is the concern that the media portrays forensic evidence as being infallible. In 'CSI And Its Effects: Media, Juries, And The Burden Of Proof,’ Cole and Dioso-Villa discuss the idea that the impact of the media may alter the burden of proof in trials. The legal burden of proof, beyond a reasonable doubt, does not mean absolute mathematical certainty. However, “science is often presumed to be a mathematical certainty.”[3] As stated by Sarah Whitehouse QC, juries often think “DNA will solve everything.”[4] Consequently, jurors may place a greater weight on forensic science than other evidence. This is worrying as sometimes, there may be a very small amount of forensic science in comparison to the other evidence, or the forensic evidence may be unreliable. Placing more trust in it may be unfair to the defendant and trial. As a result, many worry that jury members affected by the CSI or Tech effect may ‘contaminate’ other jury members. Lastly, increased knowledge and reliance on forensic science has resulted in some jury members “constantly asking questions in a trial”[5] about pieces of evidence and whether they have been tested. This can be disruptive and lead fellow jurors to doubt and under evaluate certain evidence.
Some research points out that legal professionals may also be affected by the media’s portrayal of forensic science, which can impact how they handle a trial. Research, such as the Maricopa County study, showed that 45% of 102 prosecutors felt that the jury focused “so much”[6] on scientific evidence that they “paid too little attention to unscientific evidence.”[7] Because of this, the concern is that some legal professionals have altered their approach to trial. Cole and Dioso-Villa call this the ‘prosecutor’s effect’ – where prosecutors have “adopted remedial measures to combat potential CSI effect.”[8] For example, lawyers will attempt to gather as much forensic evidence as possible, even if unnecessary, to give the jury what they believe they expect. More forensic tests may be run than needed, straining available resources and wasting valuable time. This is incredibly concerning as the criminal trial system rests on legal professionals, and their increased reliance on forensic evidence may strongly affect individual cases and their outcomes. It seems as though there is a cycle - the CSI effect results in legal professionals producing more forensic evidence to satisfy juries, and the increase in the presentation of this evidence results in juries expecting more of this evidence. Another point is that opposing parties may use the lack of forensic evidence to accuse each other of having a weak case, which is harmful as it may lead the jury to believe that a lack of forensic evidence equals a weak case.
The issue lies in the fact that due to the lack of published evidence, there is no “definitive answer”[9] regarding whether either of these effects exists, only a “theoretical discourse into the plausibility”[10] of their existence. There is not much empirical evidence available, and many disagree with the fact that either effect exists. Much of the alleged existing evidence in support of the CSI effect “stems from anecdotal evidence”[11] from judges and lawyers (this can be seen in the Maricopa County study, further discussed below.) A Michigan judge even accused the CSI effect of being “folklore,”[12] used by lawyers as an excuse for having lost their case. Some argue that evidence that may have seemed to support the CSI effect could simply be explained by novelty bias, and that nowadays juries are not as impacted by the media as we would think. Considering all of this, it is difficult to say whether juries are actually affected by their media consumption, or whether these are just theories with no impact on actual criminal trials. This is incredibly problematic for the criminal trial system and all those involved due to the severity of the potential impacts.
Quality and breadth
The existing published evidence is also largely limited by its quality and scope.
Firstly, the lack of evidence results in a lack of in-depth analysis into the difference between the effects of media on individuals and the impact on the criminal trial system. Simply showing that watching crime shows resulted in jurors mentioning terms such as 'ballistics' or demonstrating a certain expectation of evidence does not necessarily mean that this will impact the criminal trial system. In other words, jurors simply having more knowledge of forensic science, or the criminal trial system, doesn't necessarily mean that this impacts verdicts. For example, it was found that in a rape case, CSI viewers were "no more likely to indicate a CSI related reason for their not guilty verdict… than non-frequent CSI viewers.”[13] Another example is that it was found that viewers of forensic shows believed they had better knowledge than non-viewers about forensic evidence, such as matching hair samples, but that the verdicts they delivered were not related to their viewing of these shows.[14] It seems that though the alleged effects of the CSI or Tech effect may be present in initial deliberations, the effect is “not present in verdicts.”[15] Or, if anything, it may be impacted in a positive way – with jurors being more knowledgeable about evidence presented and what it means. This is extremely significant as trials may not be as affected as it is feared. If juries and their verdicts are not as impacted as some data seems to suggest, it may ease the minds of legal professionals.
The evidence is also limited by the methods used to obtain evidence. For example, the Maricopa study consisted of asking 102 prosecutors about their belief in the CSI effect – and did not focus on actually examining the impact of the media on jurors’ perceptions of forensic science. Therefore, the study does not actually demonstrate the existence of the CSI effect, but simply prosecutors’ belief in its existence. Furthermore, many of the studies conducted regarding this topic have been with volunteer mock-juries, which are often not an accurate reflection of a true jury. Those who volunteer usually share an interest in forensic science or trials, and those who are picked (for example, from certain university courses) also may have a certain level of knowledge of these topics. Furthermore, many of the studies have consisted of simply asking individuals questions about their possible bias - which may not give accurate results as people do not always realize their biases or expectations, and therefore give answers that do not reflect their true attitudes. In addition, when individuals know a trial is not real, there is less pressure on their decision. As their decision will not actually translate into a life-changing decision, they may not take their involvement as a juror as seriously as they need to.
Another limitation is that most of the published research has been conducted in the United States. This is essential to consider, as the impact of the media on juries’ perceptions of forensic science may differ from country to country. Perhaps, people in the UK watch fewer forensic science shows, watch certain shows with a different portrayal of forensic science, or have a different relationship with media. This may change the effect of media on their perceptions of forensic science, and English criminal trials may be impacted in a completely different way than American trials are. However, again, due to the limited published evidence relating to the UK specifically, we are unable to know yet.
Therefore, more research that can properly analyse juries’ perceptions of forensic scientific is needed, and has to be more accurate. Ideally, more research would be done in the UK specifically, finding a way to inquire into real jury deliberations (whilst making sure not to be in contempt of court under s.8(1) of the Contempt of Court Act 1981.) It may be easier to hold mock-trials and randomly select individuals across the country to ensure a varied subject pool, whilst not telling them the trial is a mock one. This process may be helpful in analysing juries’ perceptions of forensic science, and this effect on criminal trials, more accurately.
Conclusion
The overall impact of the limited published evidence - and therefore knowledge of the effect of the media on juries and the trial system - results in a difficulty in implementing safeguards or solutions. For example, if evidence showed that the portrayal of forensic science in the media skewed jurors’ perceptions of forensic science and its reliability, a suggestion by Dr Itiel Dror would be to present the jury with an educational video pertaining to DNA evidence, fingerprint evidence, and more. This educational video could present the “reality and the strengths of the forensic domain”[16] to the jury. The Ohio State Bar Association, due to its strong belief in the impact of media on juries and trials, introduced jury instructions, which address television programs and how this should not affect the jury’s judgment.[17] If found necessary, this could be a potential measure introduced in the UK.
If it was shown that some jurors were highly affected by consuming forensic science related media, a possible solution may be to assess jurors individually before the start of a trial. By doing this, those strongly affected could be removed from the jury selection pool. This could potentially reduce the likelihood of a trial being impacted by a juror’s unrealistic expectations of forensic evidence, or the chance of them possibly passing their biases onto other jurors. A scale could be used to assess and determine if a jury member is affected or not, and in what proportion.
All of these factors are important to consider when analysing the impact of the media’s portrayal of forensic science on juries, and how this may affect criminal trials. It is clear to see that the limited existing published evidence regarding the media’s portrayal of forensic science and its effect on juries creates an extensive problem for the criminal trial system. The bottom line is that there is not enough evidence, and evidence of good quality, to concretely determine whether the media affects juries and their perceptions of forensic science, and how this impacts a trial. This prevents solutions and safeguards from being put into place, which is a handicap for the trial system due to the potential detrimental effects of the media, seen through the CSI and Tech effects. This being considered, it is vital to conduct and produce more varied research, with the UK justice system in mind, in order to address any harmful impacts that may be caused by the media’s influence on juries and trials.
Bibliography:
Online:
'The 'CSI Effect': Does It Really Exist?' (National Institute of Justice, 2022)
'The CSI Effect: The Myths And Truths' (Vaughan C. Jones, Attorney at Law, 2014)
Kristina Ericksen, '7 Ways The CSI Effect Is Altering Our Courtrooms (For Better And For Worse) | Rasmussen University' (Rasmussen.edu, 2017)
Mui S, 'Bar Guidelines For Ohio Jurors: Forget What You Saw On 'Judge Judy' And 'CSI' (ABA Journal, 2022)
Journals:
Cole S, and Dioso-Villa R, 'CSI And Its Effects: Media, Juries, And The Burden Of Proof' (2007) 41 New England Law Review
Hawkins I, and Scherrb K, 'Engaging The CSI Effect: The Influences Of Experience-Taking, Type Of Evidence, And Viewing Frequency On Juror Decision-Making' (2017) 49 Journal of Criminal Justice
Hughes T, and Magers M, 'The Perceived Impact Of Crime Scene Investigation Shows On The Administration Of Justice' (2007) 14 Journal of Criminal Justice and Popular Culture
Schweitzer N, and Saks M, 'THE CSI EFFECT: POPULAR FICTION ABOUT FORENSIC SCIENCE AFFECTS THE PUBLIC's EXPECTATIONS ABOUT REAL FORENSIC SCIENCE' (2007) 47 Jurimetrics
Thomas A, 'The CSI Effect: Fact Or Fiction' (2006) 115 The Yale Law Journal Pocket Part
Reports:
Science and Technology Select Committee, ‘Forensic Science and the Criminal Justice System: A Blueprint for Change,’ 3rd Report of Session 2017–19
Select Committee On Science And Technology, ‘Oral Evidence - Forensic Science,’ 4 Dec 2018' (Data.parliament.uk, 2022)
Encyclopoedias:
Podlas K, 'The “CSI Effect”', Oxford Encyclopedia of Criminology (Oxford University Press 2017)
Dissertations:
Kopacki C, 'EXAMINING THE CSI EFFECT AND THE INFLUENCE OF FORENSIC CRIME TELEVISION ON FUTURE JURORS' (PhD, Virginia Commonwealth University 2013)
[1] 'The 'CSI Effect': Does It Really Exist?' (National Institute of Justice, 2022)
[2] Ian Hawkins and Kyle Scherr, 'Engaging The CSI Effect: The Influences Of Experience-Taking, Type Of Evidence, And Viewing Frequency On Juror Decision-Making' (2017) 49 Journal of Criminal Justice.
[3] Simon A. Cole and Rachel Dioso-Villa, 'CSI And Its Effects: Media, Juries, And The Burden Of Proof' (2007) 41 New England Law Review.
[4] House of Lords, Select Committee on Science and Technology: 'Corrected Oral Evidence: Forensic Science,' 2018
[5] Science and Technology Select Committee, ‘Forensic Science and the Criminal Justice System: A Blueprint for Change,’ 3rd Report of Session 2017–19
[6] Andrew P. Thomas, 'The CSI Effect: Fact Or Fiction' (2006) 115 The Yale Law Journal Pocket Part.
[7] N.6
[8] Christopher Kopacki, 'EXAMINING THE CSI EFFECT AND THE INFLUENCE OF FORENSIC CRIME TELEVISION ON FUTURE JURORS' (PhD, Virginia Commonwealth University 2013).
[9] Ibid.
[10] Ibid.
[11] Thomas Hughes and M. Magers, 'The Perceived Impact Of Crime Scene Investigation Shows On The Administration Of Justice' (2007) 14 Journal of Criminal Justice and Popular Culture.
[12] 'The CSI Effect: The Myths And Truths' (Vaughan C. Jones, Attorney at Law, 2014)
[13] Kimberlianne Podlas, 'The “CSI Effect”', Oxford Encyclopedia of Criminology (Oxford University Press 2017)
[14] N.J. Schweitzer and Michael J. Saks, 'THE CSI EFFECT: POPULAR FICTION ABOUT FORENSIC SCIENCE AFFECTS THE PUBLIC's EXPECTATIONS ABOUT REAL FORENSIC SCIENCE' (2007) 47 Jurimetrics.
[15] Thomas Hughes and M. Magers, 'The Perceived Impact Of Crime Scene Investigation Shows On The Administration Of Justice' (2007) 14 Journal of Criminal Justice and Popular Culture.
[16] Science and Technology Select Committee, ‘Forensic Science and the Criminal Justice System: A Blueprint for Change,’ 3rd Report of Session 2017–19
[17] Sarah Mui, 'Bar Guidelines For Ohio Jurors: Forget What You Saw On 'Judge Judy' And 'CSI' (ABA Journal, 2022)