The CSI Effect is a real condition that’s influencing jurors across the globe. In its most basic form, people who watch cop shows like CSI, Criminal Minds, NCIS, and Bones, to name a few, tend to either discount expert testimony at trial or put too much weight on weak forensic evidence.
Let’s look at a couple of examples.
In the Robert Blake—aka Barretta—trial, there was little forensic evidence linking him to his wife’s murder. But the circumstantial evidence was overwhelming. On the night of May 4, 2001, Bonny Lee Bakley was shot twice—once in the head; once in the shoulder—while she sat in the passenger seat of Blake’s car.
After getting behind the wheel, keys in the ignition, Blake suddenly remembers he left his .38 in the booth at Vitello’s restaurant, where the couple had just eaten their last meal together. At the time they were involved in a custody dispute, and they went out to iron out the details…allegedly. Rather than driving the block-and-a-half to the restaurant, Blake decided to walk. During the time it took him to retrieve his gun—how someone leaves their gun in a restaurant is mind-boggling all on its own—and return to the car his wife was shot and killed.
The murder weapon was not a .38. It was a Walther P-38 pistol, which was found the next morning in a dumpster near the crime scene. Investigators found gunshot residue (GSR) on Blake’s hands, but the defense claimed it could’ve been transferred from Blake handling his .38. And that’s the thing about GSR; it very well could have. However, the jury disregarded the overwhelming circumstantial evidence, like Blake trying to hire not one but two hitmen in the weeks before the murder. Or witnesses who testified that Blake did not go to his wife’s side to comfort her as she bled out, that his behavior seemed disingenuous, and his tearless crying appeared forced. Police found a note in Blake’s handwriting that looked like a murder plot to kill his wife and bury her in the desert. Additionally, no wait staff or patrons could verify Blake’s alibi that he’d re-entered the restaurant that night.
Because of the CSI Effect, the jury also disregarded expert testimony and instead created their own timeline of events, resulting in a finding of not guilty.
The UK had a similar case where the jury relied on weak forensic evidence to convict Barry George rather than looking at the case as a whole. On April 26, 1999, British television presenter Jill Dando was shot and killed outside her home. Barry George made the perfect suspect because of his past history of obsessing over celebrities. However, police could find no evidence that he obsessed over Dando. At the time George was busy fawning over Freddy Mercury from Queen.
Sure, George was a bit eccentric, a hoarder, with a basement flat 500 yards from Dando’s home. Investigators found one dot of GSR in his jacket pocket, equaled to one-half of a thousand of an inch. George did own a gun that fired blanks, but he was not considered a gun enthusiast by any means. Such tiny GSR could easily be transferred in any number of ways. The jacket had been removed from its protective bag and placed on a work surface in a photographic studio that housed ammunition. Items found at the crime scene, such as the bullet and cartridge, as well as Miss Dando’s front door (which is where the bullet hit after passing through her head) were also photographed in the studio. Contamination could easily have occurred.
The search team, who recovered the jacket, did not wear forensic clothing while searching George’s flat. One of the officers present at the scene, and who handled the jacket, had also handled ammunition while wearing the same clothing. That fact alone would give me pause. But when combined with other evidence—for instance, contrary to procedure, the vehicle where police found the jacket wasn’t sampled; what if GSR was present and that’s how it transferred to the jacket?—I’d have a hard time convicting this man.
Because the jury suffered from the CSI Effect, they put so much weight on that one piece of weak forensic evidence (the GSR), they convicted Barry George on July 2, 2001. A later appeal proved his innocence.
How can we lessen the damage of the CSI Effect?
Attorneys are now instructing jurors about the dangers of cop shows. Danger in this sense means these shows are made for entertainment and do not depict actual forensic procedures. For instance, Crime Scene Investigators do not go to the crime scene, collect evidence, interrogate suspects, and then make arrests. Yes, they do collect evidence, but that evidence is then sent to the crime lab for processing. DNA, for example, can take weeks or months to come back, sometimes years if the crime lab is backlogged, which is often the case. And even then, the majority of the time it doesn’t point to a specific person. Not everyone’s DNA is in the system.
Unlike CSI, investigators don’t input the data and out pops a perfect match in fifteen minutes. And forensic anthropologists, like Temperance Brennan, do not question suspects and assist the FBI on murder cases. For the most part, they don’t leave the lab.
DNA evidence mainly works by including or excluding suspects to a certain degree—for example, Sue’s blood matches the DNA at the crime scene to a certainty of 99.991%. In cold cases, the sample is often too degraded to determine anything of value. DNA is considered “circumstantial evidence” because it’s infallible. In my example, there still exists .099% of a chance that the DNA belongs to someone else. If we include my blood relatives, we increase the chance that it’s not mine. What if I had an identical twin? What if the real killer was in that .099%? It happens. Truth is always stranger than fiction. Which is why, as jurors, we need to look at the entire case and not only base our verdict on one piece of evidence.
Does it help to have a DNA match? Sure. But unlike these cop shows, forensic evidence only exists is 5% of criminal cases. And the suspect’s DNA or fingerprints must be in the database to have any value at all.
Fingerprints and DNA are classified as “identification evidence,” and I believe this is where most of the confusion lies. Because DNA has a label that implies identification, jurors trust DNA and fingerprint evidence as proof of guilt. There are several reasons why forensic evidence could be at a crime scene, and it’s the investigator’s job to find out how or why it relates to the crime. It’s our job, as jurors, to listen to the entire case. For example, let’s say I worked at a factory that built filing cabinets. Later, someone murders a woman in her home by smashing her head against that file cabinet. When the police dust for prints they find mine on the corner. Am I guilty of murder? No. But in a juror’s eyes I am. How else would my fingerprints get on the murder weapon?
By relying solely on weak forensic evidence innocent people are going to prison. Conversely, when there’s a lack of DNA or fingerprints, guilty people walk free. Why? Because the jury believes it should be there. In their mind, the police didn’t do their job if no forensic evidence exists.
I’ve got news for you. They did.
To disregard evidence because it doesn’t fit with what we see on TV is ludicrous. But jurors across the globe believe they know more about forensics from watching these cop shows than the experts do.
See the problem?
And it’s only getting worse. With every new show that skews the facts—and believe me, they all do—the entertainment business is brainwashing jurors. Same holds true for crime fiction. As authors, we have a responsibility to show actual investigative procedures and not make it up as we go along. If we’re not knowledgeable in forensics, say, and don’t want to learn about the field, then we should exclude those elements from our stories. Or write cozies with amateur sleuths so it doesn’t come across as factual. When we choose to write police procedurals or hardboiled crime we owe it to the public to get it right. Otherwise we’re only adding to the problem.
You might say, “But Sue, I hate doing research. What’s the big deal? It’s fiction.”
The big deal is some readers believe our lies. The big deal is talented writers can make anything sound plausible. The big deal is our fiction is spilling over into the real world. Guilty men are walking free. Innocent men are going to prison. These are huge consequences, life and death consequences. Don’t you think we have a responsibility to at least try not to add to the problem? But when we make up facts that’s exactly what we’re doing.
Or we can always just follow Grisham’s example and add an author note to the end of our books:
“Some overly observant readers may stumble upon a fact or two that might appear to be in error. They may consider writing me letters to point out my shortcomings. They should conserve paper. There are mistakes in this book, as always, and as long as I loathe research, while at the same time remaining perfectly content to dress up the facts, I’m afraid the mistakes will continue.” ~ John Grisham, The Confession