However, as Mind Hacks pointed out, both the Economist story and the underlying FSI article rely mainly on anecdotal evidence. The scientific verdict is not yet in.
Indeed, when I last discussed the phenomenon here, two years ago, a study by Michigan Judge Donald Shelton was raising doubts. Judge Shelton found scant evidence to support claims by prosecutors that jurors' unrealistic demands for hard scientific evidence were causing unjustified acquittals. As the debate continues, I thought it time for an update.
I find it ironic that a phenomenon being blamed for injecting a biased expectation of science into the courtroom has not in itself been subjected to much scientific scrutiny. After all, anecdotes are not science; they can be used to prove almost anything.
As it turns out, some legal scholars are putting the CSI Effect to empirical scrutiny, and -- guess what -- a measurable effect in the predicted direction is hard to prove. In fact, if Crime Scene Investigation and other enormously popular forensic TV shows are having any effect, it may be in the opposite direction -- toward making juries more conviction-prone.
Mind Hacks provided links two excellent scholarly analyses, both available online and well worth reading. The first, by Simon Cole, a Criminology, Law and Society professor at UC Irvine, and doctoral student Rachel Dioso-Villa, was published last April in the Stanford Law Review. The second, by media law professor Kimberlianne Podlas of the University of North Carolina, was published in October in the Loyola of Los Angeles Entertainment Law Review.
Podlas initially devised a creative plan: She would ask prosecutors to give her details of cases in which they believed an acquittal was due to the CSI Effect; then she would have defense attorneys review the case files for alternate explanations. But, she found, 19 of the 20 cases provided to her by prosecutors had actually resulted in convictions, thereby disproving the effect.
Lacking any "real" CSI cases to analyze, she devised a mock jury case in which she manipulated the strength of the scientific evidence. She found no evidence of a difference in outcome between heavy and light viewers of the TV show Crimes Scene Investigation. As she wrote:
"What is labeled a CSI Effect may more accurately be described as a rationalization embraced by members of law enforcement who find themselves on the losing side of a prosecution. By attributing a loss to CSI's wrongful influence, a prosecutor can obtain an explanation yet maintain a belief that an acquittal was misguided. Although this cognitive rationalization is understandable, it should not be mistaken for empirical proof that the CSI Effect operates anywhere other than in the minds of those proposing it."In their excellent critical overview, Cole and Dioso-Villa go further, suggesting a propaganda parallel between the CSI Effect and the "litigation explosion" myth promulgated in the 1970s through a well-funded insurance industry campaign against civil plaintiff's attorneys. As in that instance, popular belief persisted even after social scientists thoroughly debunked the claimed explosion in litigation:
"Tort reformers' narratives captured a much greater share of media attention than did those of scholars…. Indeed, in the wake of media claims about the litigation explosion, socio-legal scholars documented that media coverage of civil law overwhelmingly emphasized plaintiff victories and high punitive damage awards. Thus, the supposed existence of a litigation explosion became educated common sense among jurors and even judges."Remember the McDonald's coffee spill and the microwaved poodle, urban legends still infamous today? These tales, Cole and Dioso-Villa argue, are akin to the "horror story" anecdotes of the CSI Effect, such as the supposed case in which a jury acquitted a rapist despite incriminating DNA evidence, just because soil found in the victim's cervix was not tested:
"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."
Cole and Dioso-Villa: Investigating the ‘CSI Effect’ Effect
As shown in the above table, Cole and Dioso-Villa's analysis of several hundred media reports since 2002 revealed not one, but six claimed effects of forensic television shows on popular culture, depending upon the constituency doing the talking. The most dominant of these, the "strong prosecutor's effect," maintains that watching crime dramas makes jurors more likely to acquit guilty defendants. But, the scholars argue, the available evidence suggests an opposite effect:
"Jurors who are consumers of the popular media might believe that prosecutors are typically disadvantaged in criminal trials; that high expectations for forensic evidence are 'unreasonable'; and that criminal convictions are becoming increasingly rare and difficult to achieve. Jurors who believe these things might be more sympathetic to prosecutors out of sympathy for the perceived underdog or in attempt to correct for the perceived excesses of antecedent juries. Claiming to be disadvantaged is a familiar trope in trial advocacy, especially in opening and closing arguments; prosecutors frequently point out that they bear the burden of proof, whereas defense attorneys often refer to their lack of resources or to the awesome power of the state."This is a similar conclusion to that of Podlas, who wrote:
"If there is a CSI Effect, narrative theory and common sense suggest that it will benefit law enforcement. CSI features the fantastical world of forensics and smart police work. …This story may cultivate the notion that forensic scientists and their methods are legitimate and reliable, thus bolstering the prosecution’s case…. Indeed, scientific evidence is very seductive to jurors, and they tend to overvalue its probity and overestimate its infallibility."Although the CSI Effect pertains to criminal court while the Litigation Explosion myth targeted the civil realm, they share a similar distrust of jurors, that is, of the ability of common citizens to be fair and find the truth. This lack of faith, from my experience as a court observer over several decades, is misplaced.
Hat tip: Mind Hacks