America falls for the 'CSI Effect'

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America falls for the 'CSI Effect'
By Josh Gildea

When I was young, my mother used to tell me not to believe everything I saw on TV. It turns out that some folks need to hear that advice again. The popularity of "CSI: Crime Scene Investigation" and its increasingly numerous progeny-doesn't CBS have any other ideas for new shows?-has spawned what some folks are calling the "CSI Effect."

That is, most people who might end up on a jury know, or think they know, a great deal about forensic science and the kind of evidence needed to solve crimes. Both prosecutors and defense attorneys complain that the expectations generated by the CSI Effect hurt their cases. But what it really demonstrates is that we make important decisions-literally life or death decisions-based on what we see on TV. Unfortunately, in reality forensic science is neither fast nor infallible.

The way most people learn about the criminal justice system is by observation. The problem is that the thing they're observing is television. Television programming isn't chosen for accuracy, it's chosen for drama. Of course, the science and the plots of "CSI" aren't completely realistic. Fiction doesn't need to be realistic, but people shouldn't rely on fiction for information about the real world.

That seems pretty obvious on the face of it. But criminal practitioners have increasingly been confronted by a populace that appears to think TV shows are realistic. Prosecutors say juries expect scientific evidence in every case, even though most cases don't call for it. Clever defense attorneys, they complain, can suggest to the jury that fingerprints or DNA evidence should have been introduced, as if the lack of these is enough by itself to create reasonable doubt. On the other hand, defense attorneys correctly point out that scientific tests are not always accurate. Samples degrade, tests are inconclusive and lab techs make mistakes. On TV, crime scene evidence is nearly always correct, and this assumption pervades the jury room. Unfortunately, it's not quite true.

All this has been widely noted. What hasn't been noted is how years of cop shows have already formed our background ideas about the criminal justice system. I've always been struck by the way TV cops think our various constitutional protections are foolish. In TV-land, that attitude seems reasonable. After all, the cops' intuitions are almost always right. Who needs a warrant to bust some creep when everyone you suspect is actually guilty? Hell, who needs trials if police are always right?

But in the real world, uncertainty is commonplace. As opponents of the death penalty are fond of pointing out, 118 prisoners have been released from death row since 1973 due to evidence of their innocence. It's hard to imagine a starker example of uncertainty in the criminal justice system than 118 people put in danger of death for nothing but a mistake.

This is dangerous territory. Apparently, people form their assumptions about the criminal justice system based on TV. Years of cop shows have convinced many people that much of the Bill of Rights only protects the guilty. Having worked as a prosecutor, I can say with some certainty that the Fourth Amendment warrant requirement is rarely a serious limitation on the important work of police. In theory it interposes a neutral, cautious judge between overzealous police and the public. In practice, on the other hand, the judge almost always grants the warrant.

Even when police search without warrants, their conduct is normally perfectly legitimate under one of the many exceptions to the general requirement.

Thus, two parts of the common perception are false: First, the Fourth Amendment doesn't limit police very much. Second, it's not uncommon for the people who are subjected to search or detention to be innocent.

What this suggests is that we ought to be a good deal more suspicious of prosecutorial infallibility than television shows suggest. There may be no Steven Avery on "Law & Order," but there is in real life. Steven Avery, a Wisconsin native, was wrongly convicted based on mistaken eyewitness testimony despite 16 alibi witnesses. He was eventually freed by DNA evidence. During the investigation, police didn't follow up on leads implicating the actual perpetrator because they thought they already had their man. This is yet another stark example of an innocent but devastating police error not reflected on television. Sure, sometimes TV detectives investigate the wrong man for part of the hour, but they don't wrongly imprison him for 18 years.

When presented with the question, "Should you get your information about how accurate forensic evidence is from TV?" head on, most people will agree that you ought not. Unfortunately, our capacity to learn from what we see can be insidious. It doesn't occur to most people that some of what they think they know comes from fiction rather than fact. People just learn from observation; they don't always remember where their ideas come from.

Lately that's been making waves because jurors incorrectly believe themselves to be experts on forensic evidence. But more importantly, it's long been making jurors incorrectly believe that officials in the criminal justice system don't make everyday mistakes. And that's made a reasonable doubt just that much harder to find.

Josh Gildea is a third-year law student. He can be reached at [e-mail]. His column runs every Wednesday in The Daily Cardinal.