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Article Excerpt
INTRODUCTION
I. TYPOLOGY OF CSI EFFECTS II. EVIDENCE OF THE CSI EFFECT A. Anecdotes B. Surveys of Legal Actors C. Juror Surveys D. Psychological Experiments E. Acquittal Rate Data III. MEDIA COVERAGE OF THE CSI EFFECT IV. A SELF-FULFILLING OR SELF-DENYING PROPHECY? CONCLUSION INDEX OF FIGURES AND TABLES Table 1. Annual Rank of CSI Franchise Programs Among U.S. Television Programs Table 2. Media Mentions of CSI Effect Table 3. The Many Effects of CSI: Typology of CSI Effects Found in Media Accounts Table 4. Percentage of Respondents Responding "Very Great Prestige" to Questions About the Prestige of Selected Professions Table 5. Acquittal Rates for Nine Jurisdictions in All Years Available, Starting 1986 Table 6. Linear Regression Summary of the Relationship Between Acquittal Ra Before and After the Airing of CSI in 2001, 2002, and 2003 (n = 132) Table 7. Aggregate Number of Trials and Acquittals from 1997-2006 Table 8. Comparisons Between Aggregate Acquittal Rates Before and After the Airing of CSI in 2001, 2002, and 2003 Table 9. Frequency of Various Versions of CSI Effect and Frequency of Mention Doubt
INTRODUCTION
Since 2002, popular media has been disseminating serious concerns that the integrity of the criminal trial is being compromised by the effects of television drama. This concern has been dubbed the "CSI effect" after the popular franchise Crime Scene Investigation (CSI). Specifically, it was widely alleged that CSI, one of the most watched programs on television, was affecting jury deliberations and outcomes. It was claimed that jurors confused the idealized portrayal of the capabilities of forensic science on television with the actual capabilities of forensic science in the contemporary criminal justice system. Accordingly, jurors held inflated expectations concerning the occurrence and probative value of forensic evidence. When forensic evidence failed to reach these expectations, it was suggested, juries acquitted. In short, it was argued that, in cases lacking forensic evidence in which juries would have convicted before the advent of the CSI franchise, juries were now acquitting.
The jury is central to American law. The right to a jury trial is "no mere procedural formality, but a fundamental reservation of power in our constitutional structure." (1) Although the jury has been much maligned, the law continues to treat the jury as almost sacred, and many legal scholars and social scientists continue to defend the jury system. (2)
Among the longstanding criticisms of juries has been the claim that juries are subject to media bias. Psychologists have argued that juries can be influenced by pretrial publicity in specific cases, lending support for the need for changes of venue in high profile cases. (3) But, they have also argued that there are more general forms of pretrial publicity, in which media influence may shape jurors' general views about law and crime in ways that affect jury deliberations and verdicts. (4)
The CSI effect is supposedly just such a general pretrial publicity effect. It is alleged that media influence causes potential jurors to have distorted views of the capacity--in the broadest sense of that term--of forensic science to generate evidence in criminal prosecutions. These distorted views, it is alleged, actually affect jury verdicts: cases in which jurors would have convicted absent the media influence of CSI and similar television programming now result in acquittals or hung juries. As we have argued elsewhere, such charges, if true, would constitute a serious challenge to law's continued faith in the jury and thus raise serious questions about the integrity of the criminal justice system itself. (5)
CSI: Crime Scene Investigation is a primetime American television crime drama. It first appeared on the CBS television network on October 6, 2000. (6) CSI is in some sense a standard television crime drama; its innovation is that the protagonists are forensic scientists rather than police detectives, and the plot is driven by the accumulation of forensic evidence rather than the revelation of psychological motive. (7) CSI defied conventional wisdom by daring to try to make science "sexy." This turned out to be a stunningly successful innovation, and CSI surprised the network by becoming, for a time, the most popular television series in the world. (8) Although there is no data on the penetration of CSI or on public awareness of the CSI effect, Nielsen data shows that there is enormous public exposure to the CSI franchise (Table 1). In addition, the program generates even more exposure through reruns. (9) CSI soon became not merely a television series, but a television franchise, and the original program, set in Las Vegas, was "spun off" into CSI: Miami in 2002 and CSI: New York in 2004. (10) There are several shows on television that center on forensic science that we consider to be imitators of CSI, including Without a Trace, Numb3rs, Criminal Minds, N.C.I.S.: Naval Criminal Investigative Service, The Closer, Crossing Jordan, Bones, and The Evidence. (11) In addition to these dramas, numerous forensic-themed documentaries and "reality" television programs could be found on American television, both before and after the advent of CSI, including Anatomy of a Crime, Autopsy, Dr. G. Medical Examiner, Medical Detectives, and The New Detectives. When media discuss the CSI effect, they appear to be describing the cumulative effect of all of this television programming, although the CSI franchise, because of its omnipresence, remains the supposed primary mover of the CSI effect.
The term CSI effect appears to have entered the popular lexicon late in 2002 in an article in Time magazine. (13) That article described "a growing public expectation that police labs can do everything TV labs can." (14) Even in this early article, the notion of jury taint was present: "This [expectation, forensic scientists] worry, may poison jury pools...." (15) The term appeared a couple of times the following year and more in 2004. In 2005, media coverage of the CSI effect exploded. A LexisNexis search found fifty-six newspaper and magazine articles mentioning the CSI effect in that year and seventy-eight articles in 2006, the peak year (Table 2). This coverage included a cover story in U.S. News & World Report, (16) as well as coverage in leading science magazines like National Geographic and Scientific American. (17) Also in 2006, the first full-length book devoted to the CSI effect appeared. (18) Media discourse conceptualizes the CSI effect as what Professor Manning has called a "media loop," (19) a series of back-and-forth interactions between media and what is called, without irony, "reality." (20) The argument is this: Rapid developments and improvements in the power of forensic science inspired media coverage and even fictional television dramas. These media portrayals cause changes in jury behavior in real criminal trials. These changes themselves become the subject of media coverage: media stories about the impact of CSI and similar programs on juror behavior. We refer to this last category of media stories as CSI effect discourse.
Media coverage shows remarkably little equivocation about the existence of the CSI effect. Media reports declare that "[t]here is no debating" the reality of the CSI effect, (21) and that "[t]he story lines are fiction. Their effect is real." (22) It is said that "TV is driving, jury verdicts all across America," (23) that "TV's False Reality Fools Jurors," (24) and that "CSI Has 'Major Effect' On Real Life Juries." (25) An online journal claims that "In many cases across the nation real-life jurors who are fans of CSI has [sic] either caused hung juries or acquitted obviously guilty criminals, claiming the investigators failed to test evidence the way CSI does on television." (26) A jury consultant says that "[t]he CSI effect is real, and it's profound." (27) The accusations leveled at CSI border on charges of jury tampering: one forensic scientist says that CSI is "polluting jury pools." (28) The impact of CSI is portrayed as irresistible: a prosecutor adds, "Jurors are so influenced by television ... that it makes it nearly impossible for us...." (29)
Not only is the media treating the CSI effect as a serious problem, but justice system actors are as well. The FBI has produced a video about it. (30) The Maricopa County Attorney (the presiding prosecutor over much of the major metropolitan area surrounding the city of Phoenix, Arizona) has declared that CSI has a "real-life impact on justice" and has called on CBS to insert a disclaimer on the program stating that it is fiction. (31) In addition to concerns about the integrity of the jury system, some prosecutors have claimed that the CSI effect has altered another pillar of the criminal trial--the standard of proof. They have claimed that jurors are now holding them to a higher standard of proof than the traditional "beyond a reasonable doubt" standard. In closing arguments, prosecutors have called this higher standard the "TV expectation." (32) Several legal scholars have noted that, while the notion that forensically-oriented television programs might influence jurors is theoretically plausible, there is, as yet, no convincing evidence of such an effect. (33) Legal scholars have further noted that, from a theoretical point of view, any media influence on juries would be equally likely to have an effect opposite to that most commonly discussed by the media--that is, forensically-oriented television programming might just as easily make juries more conviction prone as more acquittal prone. (34) Legal scholars have also noted that even if media influences jurors, that by no means necessarily translates into changed verdicts. (35) They have also noted that no increase in reported jury acquittals has been detected. (36) We will report new data on acquittal rates in Part II.
How do we explain this apparent contradiction between media coverage and practice on the ground in U.S. criminal courts? There has been some excellent scholarly work debunking the CSI effect. (37) There has also been some excellent work interpreting the program CSI itself. (38) But there is little work that purports to explain the phenomenon of the CSI effect. In this article, we suggest that we may be able to gain additional insight into the CSI effect by drawing on legal literature emanating from an earlier episode of interaction between media and law. After all, the CSI effect is not the first time that American media has been accused of having perpetuated beliefs about the legal system that are not supported by empirical data. Since the 1970s, American media has reported on a phenomenon it termed the "litigation explosion" (39) or "litigation crisis." Legal scholars described this phenomenon as "hyperlexis," (40) "litigation panic," (41) and "litigation anxiety," (42) among other things. Media reports claimed that litigation was increasing dramatically, that American litigation rates were much higher than those of comparable nations, that punitive damage awards were increasing rapidly, and that the legal system was out of control. In short, the litigation explosion was portrayed as an acute social problem, a "crisis." However, these claims have been widely debunked by socio-legal scholars, who have generally agreed that there has been no dramatic increase in American litigiousness or punitive damages, and that American litigation rates are not wildly out of line with those of comparable nations. (43)
In part, the notion of a litigation crisis was perpetuated by the insurance industry itself through a deliberate and well-funded advertising campaign. (44) However the paid message also penetrated the purportedly objective and therefore more credible mainstream media. Socio-legal scholars have argued that the dissemination of the notion of the litigation explosion was successful not merely because the message was disseminated but also because it resonated with American values such as individualism, responsibility, and self-reliance. (45)
In this Article, we will articulate the noticeable parallels--parallels that have not hitherto been noted in the legal or social scientific literature--between the litigation explosion and the CSI effect. We use the more general term "litigation crisis" to encompass both the litigation explosion and the CSI effect. (46) Echoing the litigation explosion, CSI effect discourse is widely disseminating through the American public the belief that television drama is disadvantaging criminal prosecutions. And yet, the available evidence does not support this claim. Indeed, the available evidence suggests that the opposite may just as easily be the case: forensic-themed police procedural dramas may actually advantage the prosecution in criminal cases. Thus, jurors may come to trial with the counterfactual preconception that the prosecution is disadvantaged, and some of these jurors may unconsciously compensate for that perceived disadvantage.
This Article will be modeled on this analogy with the litigation explosion literature. In the next Part, we will lay out a typology of effects that are all discussed in the media under the rubric of the CSI effect. In Part II, we will discuss the existing evidence in support of the most prominent of these effects, the claim that CSI is changing jury decision making. We show that there is scant empirical evidence to warrant concluding that such changes in jury decision making are occurring. We also introduce acquittal rate data that show only equivocal evidence of an increase in acquittals following the debut of CSI and its spinoffs and imitators. In Part III, we report results of a content analysis that shows that, like it was for the litigation explosion, media coverage is inconsistent with the lack of empirical evidence discussed in Part I. In Part IV and our Conclusion, we attempt to explain the CSI effect as a cultural phenomenon. In Part IV, we suggest that the CSI effect may be a "self-denying prophecy" on behalf of prosecutors; in our Conclusion, we suggest that the CSI effect embodies anxiety about science's threat to the law's role in society as a truth-generating institution.
I. TYPOLOGY OF CSI EFFECTS
As we have discussed elsewhere, the media and its sources use the term CSI effect loosely to denote a remarkable variety of different purported effects. (47) In our earlier work, we proposed a typology of six different specific causal claims that we discerned in the media coverage of the CSI effect, each named for the type of social actor who tended to articulate the supposed effect. Table 3 summarizes each effect. The perhaps canonical effect, which we dubbed the "strong prosecutor's effect," is the claim that television programming is altering juror behavior. Specifically, it is frequently claimed that CSI has increased juror expectations for forensic evidence in criminal trials. Because of CSI, jurors supposedly expect to see forensic evidence more often and expect it to be more probative. This, in turn, could lead to acquittals in cases where forensic evidence is absent or insufficiently probative. In other words, it is suggested that jurors are acquitting in cases lacking forensic evidence in which they would have convicted but for the creation of CSI and similar television programs.
Many prosecutors also make a weaker claim, which we called the "weak prosecutor's effect." This claim posits that CSI has altered prosecutor, not juror, behavior. Claimed changes in prosecutorial behavior include questioning potential jurors about their television viewing habits in voir dire, presenting negative evidence testimony, discussing CSI in summations, and requesting legally unnecessary forensic tests. (48)
Some defense attorneys advance an opposite effect, which we called the "defendant's effect." The claim is that CSI and similar television programming, through their positive and heroic portrayals of state-employed forensic scientists, enhance the perceived credibility of the government's forensic witnesses, thus advantaging the prosecution.
The producers of CSI, in rebutting charges that their product is contaminating the criminal justice system, appropriated the term CSI effect and reinterpreted it as an educational effect on the general public. What we called the "producer's effect" holds that CSI teaches science to the American viewing public.
The "educator's effect," in contrast, claims that CSI is attracting young people into careers in forensic science, much as law programs, such as L.A. Law, have been...
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