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THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

A. Introduction

The American jury is not a United States invention, in fact it is rooted in a process that
began hundreds of years ago in England, and spread to other countries. Although, it is
fair to say that it reached its fullest prosperity, and in its traditional from and
responsibilities has endured the longest, in the United states.1

The system is engraved in the U.S constitution, and Juris are mentioned in Article Three
and the Fifth, the Sixth and the Seventh amendments. The method is based on a
mechanism of 12 citizens2, sitting in front of a judge, and hearing evidence from
lawyers about criminal behavior and the person allegedly responsible. At the end of the
procedure, those people are required to consolidate an opinion about what had occurred,
and give away a verdict.3

The judges instruct the jury about the relevant laws that should guide its deliberations.
Therefore, they read the instructions to the Jury, states the issues in the case, and define
any terms or words that may not be familiar to the jurors.4 Additionally, they discuss
about the standard of proof that jurors should apply to the case - “beyond a reasonable
doubt” in a criminal case, “preponderance of the evidence” in a civil case.5

At the beginning of the instructions, the judge states the next order: "Do not let bias.
Sympathy, prejudice, or public opinion influence your decision. Bias includes, but is
not limited to, bias for or against the witnesses, attorneys, defendant or alleged
victim…"6 Then he or she goes on and mention that "In deciding whether the people

1 RICHARD LAMPERT, THE AMERICAN JURY SYSTEM: A SYNTHETIC OVERVIEW, 90 CHI-KENT L.


REV.825 (2015), 827-828 [hereinafter THE AMERICAN JURY SYSTEM: A SYNTHETIC OVERVIEW.]
2 To be precise, there are three types of jury structure in the U.S: criminal grand juries,
criminal petit juries, and civil juries.
3 THE AMERICAN JURY SYSTEM: A SYNTHETIC OVERVIEW, supra note 1, at 826.
4 ELIZABETH INGRISELLI, MITIGATING JURORS' RACIAL BIASES: THE EFFECTS OF CONTENT AND
TIMING OF JURY INSTRUCTIONS, YALE LAW JOURNAL 124, NO. 5 (March 2015); 1690.
5 From that point on I'll assume that were dealing with the classic structure of jury in a
criminal case.
6 JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTIONS: CALCRIM. NEWARK, NJ:
LEXISNEXIS MATTHEW BENDER, 2006. PRINT, 27 [hereinafter CALIFORNIA CRIMINAL JURY
INSTRUCTIONS].
THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

have proved their case beyond a reasonable doubt, you must impartially compare and
consider all the evidence that was received throughout the entire trial, unless the
evidence proves the defendant guilty beyond reasonable doubt, he is entitled to an
acquittal and you must find him not guilty".7 This parts raise a question regarding the
subjects of "bias against the evidence" due to T.V crime shows, and the distortion of
reasonable doubt rate, which is also called in professional dialect CSI Effect.

B. CSI Effect: "Who Are You?"8

The term CSI Effect,9 in the context of criminal jury trials, was first reported in 2004,10
and is commonly used to define the impact that viewing fictional criminal investigation
shows like Crime scene investigation11 has upon jurors' real life decision making
processes.12

When CSI first started, its transmitted to the viewers a sense of innovation, new type
of crime drama, that shows characters using cutting-edge forensic tools in order to solve
cases.13 By the end of its second season, it was the second-highest-rated show on
television, and since then, it has consistently ranked among the top three television
programs watched across America.14 It was not long before CSI became the most
popular television show in the world. According to one 2006 weekly Nielsen rating, 30
million people watches CSI on one night, and 70 million watches at least three CSI
shows.15

7 CALIFORNIA CRIMINAL JURY INSTRUCTIONS, supra note 6, at 43.


8 Homage to the CSI theme song, "The Who – Who Are You?"
(https://www.youtube.com/watch?v=7WseRJMQf1U).
9 Beside the iconic CSI, taking place in Las Vegas metropolitan area, the CSI Effect has been
associated with drama and true crime television series that preceded CSI. We can find today
a wide spread of American crime shows such as Criminal Minds, The Mentalist, NCIS, and of
corse CSI spinoffs: CSI NY, CSI Miami and CSI Cyber.
10 RICHARD WILLING, CSI EFFECT' HAS JURIES WANTING MORE EVIDENCE?, USA TODAY (2004).
11 The show canceled after 15 seasons and ended in 2015, but as noted above in supra note 9, it
has many successors.
12 TAMARA F. LAWSON, BEFORE THE VERDICT AND BEYOND THE VERDICT: THE CSI INFECTION WITHIN
MODERN CRIMINAL JURY TRIALS, 41 LOY. U. CHI. L.J. 119 (2009), 121 ]hereinafter BEFORE THE
VERDICT AND BEYOND THE VERDICT]
13 JANINE ROBBEN, THE 'CSI' EFFECT, 66 OCT OR. ST. B. BULL 9, 9 (2005).
14 SIMON A. COLE; RACHEL DIOSO-VILLA, CSI AND ITS EFFECTS: MEDIA, JURIES, AND THE BURDEN OF
PROOF, 41 NEW ENG. L. REV. 435 (2007), 437[hereinafter: CSI AND ITS EFFECTS]; Six of the top
ten most popular television shows in the United States in 2005 were crime dramas, and CSI:
Crime Scene Investigation reached the number one ranking in November 2007, KATHERINE
RAMSLAND. THE CSI SYNDROME. TURNER BROADCASTING SYSTEM [hereinafter THE CSI
SYNDROME].
15 SHELTON DONALD E, THE ‘CSI EFFECT’: DOES IT REALLY EXIST? NIJ J (March 2008), 259.
THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

Several aspects of popular crime shows have been criticized as being unrealistic. For
instance, television crime labs usually get results within hours, and solve the case in a
matter of days. While in real investigations, DNA and fingerprints data is often
unobtainable, and when they are available, it can take several weeks or months to
process.16 Moreover, CSI forensic science was described by professional forensic
scientist as unrealistic, and the estimation is that 40% of the scientific techniques
depicted on CSI do not exist.17 Therefore Many attorneys, judges, and journalists have
claimed that watching television programs like CSI has caused jurors to wrongfully
acquit guilty defendants when no scientific evidence has been presented. This so-called
effect was promptly dubbed the CSI Effect, laying much of the blame on the popular
television series and its progeny.

The popularity of forensic crime television shows supposedly stimulant many


misconceptions about the nature of forensic science and investigation procedures
among jurors.18 It is safe to say that the effect on the verdict can happen in two main
ways, first the jurors expect more forensic evidence than is necessary, resulting a higher
rate of acquittal when such evidence is absent. second, jurors have greater confidence
in forensic and particularly DNA evidence than is excused.19 By 2009, more than 250
stories about the CSI Effect had appeared in newspapers and magazines.20 For example,
we can see in almost every CSI episode the meticulous scan of evidence, and the
Sisyphean processing of every detail at the crime scene. Those aspects, influenced on
the jurors in Maryland, which failed to convict a man accused of stabbing his girlfriend
to death because his half-eaten hamburger recovered from the scene was not tested for
evidence.21 Moreover, the viewers of CSI became aware to all kinds of police standards
and procedures, such as tasting gunshot residue on the suspect clothes and finger prints
at the scene. Another example is the Robert Blake trial, a case which the jury acquitted
Blake of murdering his wife. Blake had allegedly shot his wife, but no gunshot residue
was found on his body or clothes. Thus, the jury foreman remarked, "we couldn't put

16 CSI: UNREALISTIC, COLLEGE MEDIA NETWORK (July 2008)


17 SIMON A COLE, RACHEL DIOSO-VILLA, LAW AND THE LAB, THE WALL STREET JOURNAL (2005).
18 THE CSI SYNDROME, supra note 14.
19 ANANYA MANDAL, DNA EVIDENCE OFTEN OVERWHELMS JURORS TO CONVICT WRONGLY, MEDICAL
NEWS (28 March 2010).
20 SIMON A COLE, RACHEL DIOSO-VILLA, INVESTIGATING THE 'CSI EFFECT' EFFECT: MEDIA AND
LITIGATION CRISIS IN CRIMINAL LAW, STANFORD LAW REVIEW. 61 (6) (2009): 1339, 1358.
21 CLARENCE WALKER, CSI (T.V. CRIME DRAMAS) AFFECTS THE AMERICAN CRIMINAL JUSTICE SYSTEM,
AMERICANMAFIA.COM, (June 2005) [hereinafter: CSI AFFECTS THE AMERICAN CRIMINAL JUSTICE
SYSTEM].
THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

the gun in his hand".22 In another case in Virginia, jurors acquitted a man on drug-
possession charges because a box holding 60 rocks of crack cocaine that police saw the
defendant tossed from the vehicle was not tested for fingerprints.23

Therefore, we can see that jurors have come to demand more forensic evidence in
criminal trials, thereby raising the effective standard of proof for prosecutors. Hence,
this effect justifying the vision of the CSI Effect as a social problem. It concerns a real
effect that has significant consequences on real criminal prosecutions and the delivery
of justice.24

C. Empirical Studies

The CSI Effect drawn a lot of attention, and engaged many Law and criminology
researchers. At first, studies showed that the effect is no more than an urban myth. A
2006 research came to the conclusion that frequent viewers of CSI are no more
influenced by CSI factors25 than are non-frequent viewers.26 A more updated study
from 2010 claimed that the CSI Effect has no significant influence in criminal trials,
despite the various actors in the criminal justice system operating as if this effect needs
to be overcome.27 However, recent researches suggests that these TV shows do have a
misleading influence on public perceptions and expectations, and juror behavior.28
Those contrary conclusions regarding the existing of such an effect, made the CSI
Effect an adversarial issue

While varying aspects of the CSI Effect and its influence are widely debated,29 there
are two contrasting viewpoints about this effect, which are a reoccurring theme in

22 JULIE KELLER, D.A. BLAKE, JURY, INCREDIBLY STUPID, EONLINE.COM (Mar. 24, 2005).
23 CSI AFFECTS THE AMERICAN CRIMINAL JUSTICE SYSTEM, supra note 21.
24 CSI AND ITS EFFECTS, supra note 14, at 448.
25 Habitual CSI forensic content such as prints, blood, fiber and hair, DNA etc.
26 KIMBERLIANNE PODLAS, THE CSI EFFECT: EXPOSING THE MEDIA MYTH FORDHAM INTELLECTUAL
PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL. FORDHAM UNIVERSITY SCHOOL OF
LAW. 16 (2006) 429, 453-465.
27 JENNY WISE, PROVIDING THE CSI TREATMENT: CRIMINAL JUSTICE PRACTITIONERS AND THE CSI
EFFECT, CURRENT ISSUES IN CRIMINAL JUSTICE, 21(3) (2010) 383, 383-399 [hereinafter
PROVIDING THE CSI TREATMENT].
28 JANNE A. HOLMGREN, JUDITH FORDHAM, THE CSI EFFECT AND THE CANADIAN AND THE AUSTRALIAN
JURY JOURNAL OF FORENSIC SCIENCES. 56 (S1) (2011), S63–S71.
29 An interesting conclusion that came up in recent studies was the fact that the majority of
people don't have any knowledge about CSI Effect, despite a large percentage of them
reporting significant viewing habits of crime and forensic based television shows; REBECCA
THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

studies - including whether it influences a pro-prosecution bias or a pro-defense bias.30


A pro-prosecution bias has been described as a jurors’ increased likelihood to see
forensic evidence as infallible and blindly accept the evidence as reliable and accurate.31
In contrast, a pro-defense bias has been described as a jurors’ unrealistic need for
forensic evidence to convict.

A 2011 research surveyed a pool to dismissed jurors in order to find out if there was a
relationship between the viewing of crime and forensic based television shows and the
decision to convict, based on mock cases, which had varying levels of forensic
evidence. More specifically, this study focused on determining if there was evidence
supporting a pro-defense or pro-prosecution bias. The individuals were surveyed
regarding their television viewing habits, both in general and in regards to crime and
forensic based television shows. Later on, the participants provided written trial case
scenarios, and asked to made a decision regarding to the evidence. The results of this
study showed that Heavy viewers of television were found less likely to convict cases
with low levels of forensic evidence compared to those who watched less television.
The results also showed participants, who were heavy or daily viewers of crime-based
television shows were less confident of their decision if they choose to convict when
there was little or no forensic evidence compared to those who watched less of these
types of shows. These results support a pro-defense bias, in which viewers were hesitant
to convict without forensic evidence.32

An opposite result was performed in another study, a 2009 research conducted a survey
to evaluate if the CSI Effect has a notable influence on jurors' trial decisions. A
questionnaire designed to evaluate the likelihood of prosecution was based solely on
eyewitness testimony and circumstantial evidence, which were provided to the
participating jury The questionnaire also determined the viewing habits of the
participants in regards to CSI shows and other crime related television. The results
show that heavy viewers of crime shows did hold circumstantial evidence at a lower

M. HAYES-SMITH, LORA M. LEVETT, COMMUNITY MEMBERS' PERCEPTIONS OF THE CSI


EFFECT, AMERICAN JOURNAL OF CRIMINAL JUSTICE, 38(2) (2012) 216, 216-235
30 REBECCA M. HAYES-SMITH, LORA M. LEVETT, JURY'S STILL OUT: HOW TELEVISION AND CRIME
SHOW VIEWING INFLUENCES JURORS' EVALUATIONS OF EVIDENCE APPLIED PSYCHOLOGY IN
CRIMINAL JUSTICE, 7(1) (2012) 29, 29-46 [hereinafter JURY'S STILL OUT]
31 PROVIDING THE CSI TREATMENT, supra note 27.
32 JURY'S STILL OUT, supra note 30.
THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

probative value. The authors of the study theorized this might be because CSI shows
can educate prospective jurors and other viewers of the problems associated with
circumstantial evidence, forcing them to consider it more carefully rather than
suggesting this as a bias or unjust influence.33

D. Prosecution and Defense Reaction to the CSI Effect

Due to the unrealistic expectations of jurors, some lawyers had begun changing and
adapting their trial preparations in attempt to deal with the CSI Effect.34 Whether or not
biases exist, attorneys and other actors in the criminal justice system are making
decisions and adepts, is a real influence that should be discussed.

The first mean is conducted at the primary stage of the trial, selecting and instructing
the jury, also known as Voir Dire questioning. The idea behind this action is that the
CSI Effect must be addressed with potential jurors immediately, before any one of them
is selected.35 Voir questioning is a trial procedures meant to initially identify, and then
eliminate, biased jurors from the penal, therefore litigants can ask question36 regards
television viewing habits in attempt to disqualified any "CSI fanatics".37

Another solution is instructing jurors before any evidence. As mentioned, At the


beginning of a case, and prior to the admission of any evidence, jurors receive standard
jury instructions. Human nature makes following some of these instructions difficult,
which is one reason that jurors are commonly reinstructed on these points multiple
times during the case. Still, some jurors fail to comply fully with these directives, and,
depending on the severity of the violation of the court’s instruction, it could cause a
mistrial. An amended standard jury instruction could be given at this stage of the trial
to address potential CSI Effect issues. The additional language would remind jurors

33 KIM, YOUNG S. AND BARAK, GREGG AND SHELTON, DONALD E., EXAMINING THE 'CSI-EFFECT' IN
THE CASES OF CIRCUMSTANTIAL EVIDENCE AND EYEWITNESS TESTIMONY: MULTIVARIATE AND PATH
ANALYSES JOURNAL OF CRIMINAL JUSTICE, Vol. 37, No. 5, pp. 452-460 (2009).
34 MICHAEL J WATKINS, FORENSICS IN THE MEDIA: HAVE ATTORNEYS REACTED TO THE GROWING
POPULARITY OF FORENSIC CRIME DRAMAS?" (August 2004).
35 BEFORE THE VERDICT AND BEYOND THE VERDICT, supra note 12, at 142.
36 Questions can be asked either by the litigants or by the judge. typically, in federal court,
judges ask the majority of the questions, while in state court judges generally allow litigants
to ask most questing; ANNE M. PAYNE, CHRISTINE COHONE, JURY SELECTION & VOIR DIRE IN
CRIMINAL CASES, 76 AM. JUR. TRIALS 127, (2009).
37 An example of the effective use of Voir Dire to address potential CSI Infection of jurors can
be found in judge Marcia Cooke approach as seen in UNITED STATES V. HARRINGTON, 204 F.
App’x 784, 788 (11th Cir. 2006).
THE AMERICAN JURY SYSTEM: HISTORY OF; BENEFITS OF; APPLICATION OF 203829486

that knowledge gained from fictional sources, such as television shows, cannot be used
in their assessment of the case. In the age of the CSI Infection, an additional order
could be added to the standard instruction already entitled “What is not Evidence.” This
would highlight that information learned outside the courtroom from fictional
television, movies, and books about criminal investigations cannot be considered in the
jurors’ decision-making process.38

In addition, another option is instructing jurors after all the evidence. Arguably, it is
insufficient to only give cautionary instructions at the beginning of trial, during the
juror selection process, or during the daily case adjournments. The final instructions
given at the close of the evidence are crucial to a fair and effective deliberation because
it is the last time jurors can be reminded to avoid analyzing the facts of the case through
the lens of fiction. At the end of the case, immediately prior to deliberations, jurors
must be accurately focused on their task and guided to use only admissible evidence
and information during deliberations. This type of special jury instruction can further
train jurors against using improper sources of information for the purpose of fact-
finding and decision-making.39 On the other hand, such a reminder may mislead jurors
into thinking a lower amount of proof is required for conviction.40

Moreover, Things have reached the point that lawyers are hiring expert witnesses to
explain why there isn’t any physical evidence to be introduced in a case, or to explain
to the jury that DNA41 testing is unnecessary because the source of a blood sample is
already known.42

E. Conclusion

On October 6th 2000, CSI emerged into our lives and quickly became a worldwide
sensation. Simultaneously, the alleged existence of a CSI Effect has become a
significant adversarial issue within criminal jury trials. Although there is no way to
prove the existence of such an effect, by employing procedural safeguards and
addressing the CSI Effect in Voir dire, throughout the course of trial, and before

38 BEFORE THE VERDICT AND BEYOND THE VERDICT, supra note 12, at 154.
39 Id, at 155-161.
40 EVANS V. STATE, 922 A.2d 620 (Md. Ct. Spec. App. 2007).
41 One type of forensic evidence highly focused on these shows is DNA.
42 ELISA BERGSLIEN, TEACHING TO AVOID THE "CSI EFFECT", JOURNAL OF CHEMICAL
EDUCATION. 83 (5): 690–691 (May 2006).
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deliberations, jurors are better able to separate reality from fiction and make decisions
best tailored to serving the interests of justice. Jurors must understand that in the real-
crime-lab-world one can't process a scene in a blink of an eye, not every DNA evidence
lead to a suspect, not all suspects leave behind a trial of obtainable forensic evidence,
and surprisingly not every shrink of a hair leads to a suspect profile hiding in the system
database. Therefore, litigants and judges must adopt these precautionary measures to
lessen the impact of forensic science programming, whatever that impact may be. Yet,
this measures should be applied genteelly and proportionally in order to prevent a more
harm than good results.