May 18, 2007

First CSI, Now Duke

For several years, prosecutors have had to contend with the so-called “CSI Effect” – jurors' unreasonable expectations for scientific evidence based on fictional TV shows such as CSI and Cold Case.

Now comes the “Duke Effect,” fallout from prosecutorial misconduct in the Duke University lacrosse rape case. Shortly after rape charges were dropped against three lacrosse players, ethics charges were levied against the prosecutor for allegedly withholding exonerating DNA evidence.

Now, defense attorneys nationwide are using the Duke case to paint prosecutors as overzealous advocates, according to an article by Tresa Baldas in today’s National Law Journal.

The article cites a Texas case in which a teacher was accused of pinning down a female student while other students beat her. In his closing argument, defense attorney Edmund "Skip" Davis warned jurors not to allow "that tragedy that nearly fell upon those kids at Duke." The jury took just three minutes to acquit the teacher of assault.

The Duke case worked so well for attorney Davis that he plans to use it again in an upcoming rape trial. Other attorneys nationwide say they are doing likewise, raising the Duke case during both voir dire and closing arguments.

Prosecutors worry that the Duke Effect may hamper their efforts to win convictions.

"[It is] definitely going to make it difficult for us, there's no question about it," Oregon prosecutor Joshua Marquis told the Journal.