Oregon State Bar Bulletin — OCTOBER 2005

The ‘CSI’ Effect
Popular culture and the justice system
By Janine Robben

How do you determine what drugs a dead person may have ingested? For television drama "CSI" investigators Gil Grissom and Catherine Willows, the problem is simple: You analyze the blood in the maggots that are digesting the body.

Americans unquestionably find such "science" entertaining: Since "CSI: Crime Scene Investigation" was launched six seasons ago, it has spawned more imitators than a decomposing body spawns – well, you know.

But CSI and its progeny have done more than entertain television viewers: They have raised the public’s interest in – and expectations about – what forensic scientists can do.

"Jurors expect the kind of conclusive evidence they see on ‘CSI,’" says Laura Dominic, a senior trial consultant for Tsongas Litigation Consulting, Inc. in Portland. "And when they don’t have it, it could be a defense verdict."

The problem, according to the director of the Oregon State Police’s Portland metro-area forensics laboratory, is that shows like "CSI" "have created a lot of expectations that we cannot meet.

"Miracles do occur," says lab director Beth Carpenter, "but on TV, not in the laboratory."

A ‘HOWDUNNIT’
Fifty years ago, it was the courtroom and "Perry Mason." In the 1970s and early ’80s, it was the medical examiner’s office and "Quincy."

Now it’s forensic scientists and "CSI" et al.

"‘CSI’ is an innovative, new type of crime drama, because the characters use cutting-edge forensic tools to examine the evidence to solve the case," the Web’s TV.com said about the show – set in Las Vegas – which premiered in Fall 2000. "Rather than a ‘whodunnit’ cop show (investigating witnesses/suspects), ‘CSI’ explores the ‘howdunnit’."

In 2002, what TV.com called "…that gritty approach to crime known as forensic science" expanded to Florida in "CSI: Miami." In 2004, a second spin-off, "CSI: New York," was added. By this year, "CSI: Miami" star Emily Procter was gleefully describing herself as being "…in the middle of a pop culture moment;" "CSI" and its progeny were attracting millions of viewers; and prosecutors and plaintiffs’ attorneys were talking nervously about a "CSI effect."

"There’s always been some legal dramas around, looking back to ‘LA Law,’ which begat ‘Ally McBeal’ and ‘The Practice,’" Lynette Rice, who covers television for Entertainment Weekly, told the Bulletin.

But, she says, "CBS really kicked it up" when it developed what she calls "procedural dramas" like "CSI."

"There’s probably enough accuracy to them: They would say they try really hard to be as accurate as possible," says Rice. "They don’t talk down to you; they make you feel like you’re walking along with Sherlock Holmes. They can be addictive: William Petersen (who plays lead investigator Gil Grissom on "CSI") is not bad to look at."

Clatsop County District Attorney Josh Marquis, who has given numerous speeches around the country on the broader issue of the relationship between popular culture and the justice system, sees the shows’ appeal more philosophically.

"People are interested in good and evil and right and wrong," says Marquis. "They’d like to think that it can be ascertained, that there really are such things as objective truths."

REALITY VS. TELEVISION
While Entertainment Weekly’s Rice is right when she says that the people behind shows like "CSI" vouch for their accuracy ("Don’t ignore the actual knowledge of the science, because that is real," "CSI" creator Anthony Zuiker told CBS News in February), Oregon State Police’s Carpenter calls some of that science "very far-fetched.

"We just laugh ourselves silly," says Carpenter, who acknowledges that her 15-year-old son watches "CSI" "religiously."

Her colleague Mike Heintzman, who is in charge of the lab’s latent fingerprint and questioned-document processing, says that his wife won’t let him watch "CSI."

"I scream at the TV," he says. "Real forensic science is exciting to us. It’s not good television."

For example:

Lights: "The first thing they should do is turn the damn lights on," says Heintzman of "CSI’s" Grissom and Willows, who – inexplicably – do most of their work in the dark, using narrow-beam flashlights and lots of blue-light analysis.

Adds Carpenter, "We actually do use a blue light, like an ultraviolet light, that allows semen and fibers to fluoresce. But it’s not used for everything, by any means." (Carpenter admits that OSP did recently purchase a piece of "CSI"-influenced laboratory analysis equipment outfitted with a big blue switch that does nothing but turn the machine on and off.)

Camera, action: While Grissom and Willows personally appear at crime scenes and interview witnesses, Carpenter says that in real life, crime scenes usually are processed by local law enforcement officers, who send them potential evidence for analysis.

"Often times, opening up this evidence, we’re totally naïve of what went on in the case," says Carpenter. "We have to take on faith that there’s not evidence sitting in the (police’s) property room that we could do more with."

And, she says, "We rarely see victims scream and holler."

Realism: Don’t get Heintzman started on the episode in which "CSI" forensic scientists analyzed the rings in a tree branch to determine what grade and kind of gas was used to burn a body beneath the tree three years earlier.

Timeliness: Even when the shows’ science is real – "DNA actually is pretty flashy, pretty remarkable science," says Carpenter – the immediacy with which Petersen et. al. can get DNA and other test results is not.

"It takes a couple of hours just to log in a case, without any analysis," says Carpenter, adding that DNA evidence takes an "absolute minimum of one week to process."

Accuracy: "It’s all very casual in the way it’s (evidence) being handled," says Carpenter of television’s forensic science. "It doesn’t represent how careful laboratory analysis needs to be."

Caseload: On ‘CSI,’ says Heintzman, criminalists work one case from beginning to end. "We all have 15-20 cases," he says.

JUROR EXPECTATIONS
What effect do the discrepancies between television and reality have on jurors in actual cases?

"Jurors now have this unrealistic expectation about types of evidence," says jury consultant Dominic, who spoke on the media’s influence on juror decision-making at the American Society of Trial Consultants’ June conference. "When they don’t have that evidence, they start making conclusions that could be detrimental to one or both sides."

For proof, Dominic cites a property nuisance case, with which she is personally familiar, in which three mock juries all returned defense verdicts because the plaintiff could not provide concrete evidence that toxic waste had contaminated the property’s soil.

"What they wanted was just not possible," she says. "There was no jury instruction that said the plaintiff had to prove it, but they wanted to see positive tests."

Dominic says she also has personal knowledge of actual jurors in a rape-related civil case returning a defense verdict because they wanted DNA evidence, even though there was, says Dominic, "clear evidence from the ER" that the victim had been raped.

Nor is the perceived problem limited to civil cases: In March, CBS News linked the "CSI Effect" with former "Baretta" star Robert Blake, who was acquitted of the gunshot murder of his wife, Bonnie Bakley, after a four-month-long trial.

Although the prosecutor, Shellie Samuels, presented more than 70 witnesses, neither blood evidence nor conclusive gunshot residue evidence linked Blake to the crime.

"They couldn’t put the gun in his hand," jury foreman Thomas Nicholson said in explaining the verdict. "There was no blood spatter. They had nothing."

Added juror Lori Moore, "If she (Samuels) would have had all that information, that would have meant that he was guilty."

It was Samuels’ first loss in 50 murder prosecutions.

While Samuels’ boss, Los Angeles County District Attorney Steve Cooley, was quoted in Law Technology News as calling the jury "incredibly stupid," Marquis – who subsequently appeared on a radio program with juror Moore – blames the verdict on the "CSI Effect."

"Here was a woman who was not stupid," says Marquis of Moore. "She understood the difference between television and real life, yet she was commenting on how messy and unkempt the crime scene looked."

"People say no one takes this ("CSI Effect") seriously," continues Marquis. "Oh yes, they do."

Carpenter says that the television shows also have affected the work of her office.

"We’re getting a lot of requests to do analyses that we, the prosecuting attorney and the (investigating) officer know are of no value," says Carpenter. "But if the prosecuting attorney says he really needs it done, we’re going to do it."

Meanwhile, trial attorneys and jury consultants are taking other steps to counteract the "CSI Effect."

For example, Dominic and Washington County District Attorney Robert Hermann recommend questioning jurors about their television viewing habits.

"From our point of view, the topic certainly needs to be discussed during voir dire," says Hermann, who is president of the Oregon District Attorneys Association.

Adds Dominic, "If they (potential jurors) watch ‘CSI’ and think it represents reality, they’re more high risk, especially for the prosecution."

But, says Dominic, prosecutors aren’t the only potential victims of juror misconceptions.

"From the defense viewpoint, jurors might not understand that certain kinds of forensic evidence might not be infallible," she says, "that there might be human error."

In some cases, says Hermann, it may be appropriate to also use an expert to explain the absence of forensic evidence. "I have done that with prints and autopsy information in the old days, when we dealt with the ‘Quincy’ effect," he says.

The result of such strategies, says Marquis, is that prosecutors increasingly "are practicing a form of defensive lawyering, explaining why we didn’t do DNA testing.

"I’ve done that in every homicide case I’ve tried in the last five years," he says, noting that judges allow such testimony under the less-satisfactory evidence instruction. "But obviously, in a run-of-the-mill case, you can’t call someone over to explain."

INCREASED INTEREST
Surprisingly, Carpenter – whose lab’s workload has been negatively affected by shows like "CSI" – says that they also have had an upside: An increased interest in forensic science.

"When I started 26 years ago, forensic science was totally unknown," she says. "I walked in off the street and got a job."

Now, she says, OSP’s Forensic Services Division is flooded with job applicants. "They say, ‘Oh, it’s so exciting!’ laughs Carpenter.

Such increased interest has also led to increased funding.

In 2001, actor William Petersen (lead investigator Gil Grissom on "CSI") lobbied Congress for more crime-lab funding, noting that "The ‘CSI’ lab processes evidence and solves crimes in a mere 44 minutes. We all know that this is not the reality of the approximately 450 crime labs and coroners’ labs across our country."

Says Carpenter, "What’s interesting for us, who’ve been in the business a long time, is the huge recognition, and a lot more federal funding distributed to state and local labs. We’ve seen quite a bit of money come our way, which is totally unheard of since the late ’60s, early ’70s. Our capabilities in DNA are almost entirely contributed by federal funding."

Whether the public’s interest in forensic science – and its good and bad effects on the legal system – will continue is hard to say.

"This year could be a turning point," Entertainment Weekly’s Rice told the Bulletin. "However, ‘Law & Order’ and ‘CSI’ are not going away. Their reruns are being sold in syndication. You can see ‘CSI’ every day. And ‘Law & Order’ just sold its format, which means that French viewers will see French actors (playing the same format) on French TV.

"Personally, I’m not a fan of "procedural dramas,’" says Rice, who says she is hooked on reality shows. "But if the first two scenes (of a procedural drama) are compelling – which they often are – I’ll stay tuned."

ABOUT THE AUTHOR
Janine Robben is a frequent contributor to the Bulletin. She has been an Oregon State Bar member since 1980.

© 2005 Janine Robben


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