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Is Television more Believable than Science: The NAS Report's Effect on the CSI Effect
Douglas G. Jackson,* NCSTL Research Assistant, J.D. candidate May 2012

For well over a century, the National Academy of Sciences ("NAS") has been supervising and monitoring the practice of the sciences.1 Recently, the NAS committee that oversees forensic science voiced its displeasure with the practice of forensic science in a report, called National Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009) ("NAS Report").2 This report critiques the lack of normalized standards in the forensic system.3 For example, there is no standard educational requirement to be a forensic scientist.4 Moreover, in most jurisdictions, accreditation of crime laboratories is not mandatory.5 Other problems identified by the report relate to disparity of funding among forensic laboratories, disparity of expertise among forensic scientists,6 different interpretations of evidence among experts,7 differences in the validity of forensic techniques,8 no standard measures of performance,9 and a potential for bias.10

Although the NAS Report purports that it does not attempt to change the standards of evidence allowed in courts,11 changing the standards of forensic science will undoubtedly change the standards of evidential admissibility.12 Additionally, this change in the standards of forensic science will create new arguments for defense attorneys.13 The defenses' arguments will attempt to undermine the prosecution's forensic evidence.14 Even before the NAS Report was written, defense attorneys attempted to raise Daubert challenges. While these challenges were not often upheld in criminal courts,15 the NAS Report opens the door for defense attorneys to challenge forensic evidence in all types of litigation. Such changes to current litigation beg the question, 'How will the NAS Report affect the CSI Effect?'

Several television shows, such as CSI16, glamorize forensic evidence.17 The CSI Effect18 occurs when people believe that the forensic techniques used in these shows are the same techniques that are used in real-life forensic science.19 They believe that DNA can be found on every piece of evidence,20 that fingerprints can be found in every case, and that forensic scientists can prove--with one hundred percent accuracy--that two sets of fingerprints are a match.22 Thus, these people believe forensic evidence is everywhere and that forensic science is never wrong. Unfortunately, forensic evidence is not ubiquitous, and forensic science is sometimes wrong.23

The false belief that forensic evidence is needed in every case, as well as the false belief that forensic science is one hundred percent accurate creates the problem that embodies the CSI Effect. These beliefs lead jurors to favor the defense unless the prosecution superfluously admits forensic evidence.24 Because such evidential admission is costly or otherwise unnecessary, prosecutors often try to mitigate the CSI Effect during jury selection by informing the jury about the limitations of forensic science.25

It seems that the NAS is also attempting to inform people about the limitations of forensic science by publishing the NAS Report. Additionally, the NAS is attempting to redress the problem by standardizing the field of forensic science. The NAS desires to make sure that all fields of forensic science are reliable so that innocent defendants are not wrongfully convicted and guilty defendants are more easily put behind bars.26

Whatever the reasons for the NAS Report, it will greatly metamorphose the litigation process.27 In the short run, judges will be more skeptical about admitting forensic evidence,28 the defense will be more likely to challenge the validity of a study,29 and admissibility of scientific evidence will change in ways that may be inconsistent with former judicial opinions.30 During litigation, admissibility of forensic evidence will be a guessing game at best.31

Such change in the courtroom setting will surely affect the information that jurors see and hear. There are two different but equally possible scenarios that might affect jurors in the short run. Both scenarios will affect jurors, but in different ways.

In the first scenario, forensic evidence will be excluded from trial.32 The jury will neither see nor hear the evidence. To the jurors, it will seem as if this evidence does not exist. The jurors will likely see this as a failure to properly investigate.33 They will determine that the prosecution did not prove its case-in-chief because it did not meet the heightened standard of superfluously producing forensic evidence; a standard that is imposed by the CIS Effect.34 Therefore, if the effect of the NAS Report is to make forensic evidence less admissible, then the prosecution will bear an even greater burden because the CSI Effect will become even more powerful.35

In the second scenario, however, the outcome may be somewhat more complicated. In this scenario, jurors will see and hear the forensic evidence, but defense counsel can undermine the validity of such evidence.36 Essentially. the prosecution admits the forensic evidence, probably through an expert witness; then, during cross-examination, the defense counsel points out that the NAS Report criticizes the type of forensic science used in interpreting the evidence.37 The defense might point out that the error rate of the employed technique is unknown, or that this particular field of forensic science is not subject to peer review. The defense counsel wants the jury to hear the forensic expert admit that her laboratory is not as good as the laboratory in CSI and that the techniques used in CSI are more fiction than fact.38 The goal of this tactic is to make the jurors understand that the forensic evaluation is invalid or merely a possibility rather than a certainty.

This tactic of undermining the validity of evidence could be very effective if jurors choose to listen. However, it is possible that jurors will choose to ignore the techniques used by defense counsels. Sometimes, jurors seem to have their minds made up before all testimony has been heard. In one case, jurors felt that the prosecution should have used forensic science to prove that a particular piece of evidence belonged to the defendant, despite that the defendant previously admitted that this evidence did indeed belong to him.39 If jurors demand forensic proof regardless of defendants' own admissions, it is possible that jurors will not listen to the defense counsels' attempts to undermine the forensic process. The jurors might have their minds made up by the time that defense attorneys ask their first question of the forensic scientist.

If jurors have made their determination prior to cross-examination of the forensic scientist, the NAS Report will have no short run effect on the CSI Effect. However, if jurors do listen to defense counsels' cross-examinations of forensic scientists this will likely enhance the defense attorneys' cases. Indeed, some studies indicate that jurors favor expert witnesses who appear more knowledgeable.40 If a forensic scientist appears to have overstated her position regarding the certainty of forensic science, it may appear as though the scientist lacks knowledge. The jurors will likely disfavor this scientist, and in turn disfavor the prosecution's case. Thus, regardless of the scenario, the short run effect of NAS report will be to favor defendants and reshape the CSI Effect.

While, the NAS Report may reshape the CSI Effect in the short run, the NAS report was written with long-term goals, which may also change the CSI Effect in the long run. The long-term goals strive to better the practice of forensic science.41 The NAS does not wish for forensic science to be the be-all-end-all of a jury trial; it is important to protect the interests of the defendants. In the long run, the report will likely help protect the interests of defendants, but it will also transform the CSI Effect. In the future, jurors will still demand large amounts of forensic evidence, but they might also demand that forensic evidence be interpreted with higher levels of scientific credibility, similar to the credibility portrayed on television. Unfortunately, the scientific technologies may never be as fast or accurate as the technologies on crime scene investigation television shows. Therefore, jurors will always feel less than satisfied with the evidence presented; especially, post NAS Report

In sum, the NAS Report will have substantial effect on what happens inside of the courtroom. It will likely affect the admissibility of all types of evidence. However, even if courts retain current admissibility standards, the NAS Report will still affect what jurors see and hear. Therefore, the NAS Report will have changed litigation, and will assist innocent defendants against wrongful convictions by reshaping the CSI Effect in both the short run and the long run.

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Douglas G. Jackson is a law student at Stetson University College of Law. He is a member of Stetson's honors program. Additionally, he works as a research assistant for the National Clearinghouse for Science, Technology and the Law (NCSTL). When he is not working for NCSTL, he volunteers his time as a team leader for the Innocence Project at Stetson's research initiative. In this program, Jackson is responsible to delegate projects and teach research strategies to his assigned team.

1  Warren Moise, Beyond the Bar: Do J. Edgar Hoover's Forensic Scientists Have Clay Feet? Say It Aint so, Joe! 21 S.C. Law. 14, 14 (2010). President Lincoln established the NAS in 1863. Id.
2 Id.
3 Id.
4 See at 14-15.
5 National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward, 6 (Natl. Acads. Press 2009).
6 Id.
7 Id. at 7.
8 Id. at 8.
9 Id.
10 Id. at 9.
11 Paul C. Giannelli, The NRC Report and Its Implications for Criminal Litigation, 50 Jurimetrics 53, 54-55 (2009).
12 Id. at 55. The Supreme Court has already cited the report and stated that there are some serious deficiencies in forensic science. Id. However, some scholars believe that whether studies question the validity of science is irrelevant to admissibility because admissibility depends solely on applicable law. Herbert B. Dixon Jr., J., Forensic Science Under the Spotlight, 48 Judges J. 36, 38 (2009).
13 Giannelli, supra n. 11, at 55. The defense can make the prosecution's expert witness read segments of the NAS Report while on the stand under the 'Learned Treatise Exception.' Id. at 64.
14 Id.at 55. The defense can make the prosecution's expert witness read segments of the NAS report while on the stand. Id. at 64.
15 Id. at 55-56.
16 CSI, CSI: Miami, CSI: New York, Without a Trace, NCIS, Criminal Minds, and Bones are some of the very popular forensic based television programs. Jeff Chesen, The "CSI Effect"—There's No Such Thing as Questions, Just Hidden Answers, July 2008 It's Evident, http://www.ncstl.org/evident/July,%202008.
17 See Id. (explaining that the techniques in these very popular programs may be somewhat exaggerated).
18 Many scholars argue that the 'CSI Effect' does not exist. Id. Some scholars argue that there is actually a 'reverse CSI Effect' that favors the prosecution rather than the defense. Id. However, these discussions are beyond the scope of this discourse.
19 Id.
20 See Donald E. Shelton, J. The 'CSI Effect': Does It Really Exist, 259 Natl. Inst. of Just. (Mar. 17, 2008), http://www.ojp.usdoj.gov/nij/journals/259/csi-effect.htm ("CSI viewers had higher expectations for scientific evidence than non-CSI viewers . . .").
21 See Id. (thirty-six percent of jurors believe fingerprints can be found in every case and one juror was upset because the investigators "didn't even dust the lawn for prints").
22 Fingerprints must have an error rate that is greater than zero percent. Herbert B. Dixon Jr., J., Forensic Science Under the Spotlight, 48 Judges J. 36, 38 (2009).
23 See Giannelli, supra n. 11, at 65 (noting that there have been wrongful convictions due to faulty forensic analyses). A zero percent error rate is not scientifically plausible. Id. at 58.
24 Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L.J. Pocket Part 70, 70 (2006), http://www.thepocketpart.org/2006/02/Thomas.html.
25 See Jeff Chesen, The "CSI Effect"—There's No Such Thing as Questions, Just Hidden Answers, July 2008 It's Evident, http://www.ncstl.org/evident/July,%202008 (explaining that some county policies require prosecutors to fully address the techniques of forensic science through "voir dire, opening and closing arguments, and presentation of other evidence and testimony").
26 Moise, supra n. 1, at 15
27 See Giannelli, supra n. 11, at 65.
28 Herbert B. Dixon Jr., J., Forensic Science Under the Spotlight, 48 Judges J. 36, 36 (2009).
29 See Id. (stating that criminal defense has been waiting for support of this magnitude).
30 Traditionally, judges have been reluctant to question scientific techniques. Giannelli, supra n. 11, at 55. If judges begin scrutinizing these techniques, it will change future holdings, which would leave these traditional holdings inconsistent.
31 See generally Dixon Jr., J., supra n. 28, at 36 (different judges have different opinions regarding the NAS Report's effect on the foundation of forensic evidence).
32 See Id.(the NAS report will effect the admissibility of evidence).
33 Most prosecutors believe that jurors are disappointed because more scientific evidence was not presented. Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L.J. Pocket Part 70, 70 (2006), http://www.thepocketpart.org/2006/02/Thomas.html.
34 There is no heightened legal standard that requires the prosecution to produce superfluous forensic evidence; however, theoretically, the 'CSI Effect' creates a need produce forensic evidence very copiously if the prosecution expects to return a verdict of 'guilty.'
35 This statement assumes that the CSI Effect becomes more powerful when jurors are more likely to disfavor the prosecution because less forensic evidence is admitted at trial. The jurors' predilection for forensic evidence, under this scenario, remains unaltered. It is because less forensic evidence is presented that jurors would favor the defense, not because they would demand more forensic evidence.
36 See Dixon Jr., J., supra n. 28, at 36 (the NAS Report should not affect the admissibility of evidence).
37 Giannelli, supra n. 11, at 54-55.
38 "The investigation techniques portrayed on CSI are not always available or even reasonable." Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L.J. Pocket Part 70, 70 (2006), http://www.thepocketpart.org/2006/02/Thomas.html.
39 Id. at 71; contra Robert Kolker, "I Did It": Why Do People Confess to Crimes They Didn't Commit, N.Y. News & Features (Oct. 3, 2010) http://nymag.com/news/crimelaw/68715/ index1.html ("[i]n the criminal justice system, nothing is more powerful than a confession").
40 See generally J.M. Salerno & M.R. McCauley, Mock Jurors’ Judgments about Opposing Scientific Experts: Do Cross-Examination, Deliberation and Need for Cognition Matter? 2009 Am. J. Forensic Psychology 37 (determining that jurors are more likely to believe the expert witness who is more knowledgeable about his subject matter than the expert who is less knowledgeable).
41 See Giannelli, supra n. 11, at 65 (explaining that the NAS recommendations will strengthen forensic science in the long-run).