CSI Effect: Expectations
by Gary Giewat, Ph.D.

At 9:01 p.m. a horrendous crime is committed, leaving blood splatter, ballistic evidence and perhaps traces of DNA from the offender. By 9:55 p.m. the detectives, with the assistance of forensic scientists, have solved the crime using an arsenal of high-tech gadgets and science that even Sherlock Holmes would have envied. Solving crimes in this manner occurs with great frequency on television—CSI, CSI Miami, NCIS, and similar other programming that dominates primetime and syndicated television. These programs are entertaining, engaging, and appeal to tens of millions of people according to the Nielsen ratings. The fact that the crimes are solved in a short time span is an exaggeration we can take with a grain of salt, but the fact that some of the science on such programs might not exist, or is grossly exaggerated, may create unrealistic expectations on the part of real-life jurors.

Unrealistic expectations of jurors
The popularity of these crime dramas has led to a phenomenon in the courtroom known as the “CSI Effect,” which is believed by some to raise jurors’ expectations about the presentation of forensic science in the courtroom. Among some prosecutors the CSI Effect is thought to place an unnecessary burden on their case as jurors expect “high tech” evidence, regardless of whether it is conclusive, relevant or necessary. Considerable anecdotal evidence, most notably a June 2005 survey conducted by the Maricopa County District Attorney’s Office, indicates jurors now expect such evidence in court, thus creating a burden on the prosecution. For instance, a high profile example was the murder trial of actor Robert Blake where jurors suggested reasons for his acquittal were the lack of gunshot residue and blood splatter, à la CSI. On the other hand, forensic evidence may have an adverse impact on the defendant when such evidence is viewed as a “slam dunk” and jurors place too much weight on forensic evidence, or view such evidence as infallible.

Research supporting the CSI Effect
While the CSI Effect has been observed for the past several years, only recently has this phenomenon garnered empirical attention. The bottom-line question asked in research conducted in 2006 (Shelton, Donald E., Kim, Young S. & Barak, Gregg. “A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the ‘CSI Effect’ Exist?” Vanderbilt Journal of Entertainment & Technology Law, Vol. 9:2:330 addressed whether the CSI Effect exists and to what extent the anecdotal claims were true, that the CSI Effect has on impact on jurors’ expectations in the courtroom. That research was not without flaws, but does provide compelling data that suggests jurors have expectations for the prosecution to offer forensic evidence in every criminal case—most notably crimes involving murder and rape. But, the researchers do not suggest television programming specifically to be associated with this phenomenon and instead suggest a broader “tech effect” in popular culture. Whether it is a tech effect or popular culture, it seems there is enough research and anecdotal evidence of the CSI Effect influencing jurors’ expectations to warrant attention in the courtroom. Programming from the likes of CSI and similar other programs have the effect of creating a schema, a cognitive construct, or conceptual structure that guides peoples’ thought processes. In short, jurors have a mental representation of what goes on in criminal investigations and the courtroom and may now expect to see DNA analyses, ballistics reports, gas chromatography, etc. by virtue of what the popular media, or popular culture, shows to be standard operating procedure for criminal investigation.

What can be done?
The $64,000 question here, on the premise that the CSI Effect exists is, “What can be done to mitigate the potential problems brought by the CSI Effect?” In order to have a better sense for which potential jurors might have unreasonable expectations, the key is careful examination of jurors’ viewing habits during voir dire. This may be accomplished in open court, where about 33 percent to 50 percent of prospective jurors will likely identify themselves as viewers of these crime dramas. Once these jurors identify themselves, it is important to probe their beliefs as to how accurate and true they believe such programs to be. This also allows attorneys a platform to make clear to jurors the import of keeping separate the facts of the given case from the fantasy of crime TV. Jurors must understand that CSI and the like are entertainment and not reality. During opening statements it is also useful to provide such an advance basis for jurors to resist the tendency for high-tech expectations, to inoculate jurors from the CSI Effect. Further research examining the CSI Effect is necessary to have a better sense for potential reforms and means to mitigate its impact. In the meantime, however, it is best to recognize that the popular media may have some influence on the way jurors will attend to the facts of a case not only through coverage of high profile crimes and events, but also via fictional crime dramas and popular views of current technology.

Gary Giewat, Ph.D., is a social psychologist and litigation consultant with Delta Litigation Consulting (www.deltalitigation.com). He is a member of the American Society of Trial Consultants and former chairperson of its research committee.

Using Theater in the Courtroom
by Mace Yampolsky 

What would you do if someone was shooting at you? Nowhere to run, nowhere to hide, and no one to help? What would you do? How did that make you feel? Did you feel like you were there? Did you feel scared? Could you mentally put yourself in a place where someone was shooting at you? What would you do? Did you think you could die? If you had a gun, would you shoot back? Of course you would! That’s the visceral response I wanted. The survival instinct is fight or flight. Flight was not an option, (nowhere to run), so you would fight. If you had a gun, you would shoot.
In these days of information overload, immediate gratification, e-mail, texting, and instant messaging, you need to get the jury’s attention, ASAP. People have the attention span of gnats. They must be entertained no matter what. It’s not enough to persuade, inform, and educate, lawyers must be edutainers (a combination of an educator and an entertainer).
If the attorney cannot get their attention, the attorney will not be able to communicate. Where do “real” people—jurors—get their ideas about lawsuits? TV! LA Law, The Practice, Boston Legal, CSI, etc. In one hour, several cases are commenced, litigated, and resolved. The final arguments are succinct, insightful, and always entertaining. In two minutes! A trial is a performance, and the attorney is the producer, the director and the star. Approach a trial as if it were a musical.

Overture
Set the stage. Interact with court personnel in front of the jury. Show them you are OK and not some sneaky, snarky, wiseguy defense counsel who can not be trusted. Get props ready, prepare demonstrative evidence or anything else that you will need to show the jury. You need to start out strong and end strong, just like a song. If there is bad stuff, (which there is or you would not be going to trial), get it out somewhere in the middle. You need to communicate your theory of the case: They got the wrong man: the SODDI defense (some other dude did it) or even better, the TODDI defense (this other dude did it.)
Primacy and recency are crucial to your presentation. People remember the first thing you say and the last thing you say. So once again, start strong and end strong. Repetition, repetition, repetition! Tell ’em what you are going to tell ’em, tell ’em, tell ’em what you told ’em, and tell ’em, again.
In another self defense trial I said “What would you do if this (a huge Mach 10 machine pistol) were pointed at you?” I said it several times and finally, I pointed it at the jury when I said it. When they ducked, I knew I would win. And I did. Emotion wins cases, not logic. If you can not get through to the jury on an emotional level, you lose.
You must tell your client’s story, humanize him, and make the jury identify with him. Touch your client when you talk about his life. If you are afraid of him, the jury will sense it. If I believe my client is getting railroaded, I will tell the story about due process in the 1600s in Salem Massachusetts where suspected witches were burned at the stake. People remember the burning witches.

Opening act
In jury selection, you should use self disclosure so the jurors can identify with you. It gets the jurors talking. It is important to weed out the skunk in the jury box. Let them know it is OK if they can not be fair. Use the example of how George Bush senior would not be a fair juror in a case where broccoli is on trial. Corny? Maybe, but it makes the point in a non-threatening way. In opening statement, preview what will come out in the trial: bad evidence, killing, drugs, etc. No lawyer words. Talk as if you are sitting in a bar. Say “later, he got out of the car,” instead of “subsequently, he exited the vehicle.” Dialogue is important, as it paints the picture we want the jury to see. Use quotes. If you do not know who said it, “say someone once said” or “someone much wiser than me once said” . . . and then use your quote.

Trilogies
People remember things in three’s. We have all heard the following: blood, sweat, and tears; faith, hope, and charity; the good, the bad, and the ugly; I came, I saw, I conquered. Use them with your facts in a conspiracy case. “What agreement? It was never conceived, never agreed, and never achieved.” Or how about “This is a case about drop-outs, dead beats, and dopers.”

Props
Use props, because, juries love show and tell A dog chain can show how it was impossible to tie someone up. I threw a pen to a client. The jury remembered him catching it in his right hand when the the snitch said he held the gun in his left hand.

Humor
It works if you use it wisely and you are actually funny. Do not tell jokes. But, if you can use humor to prove a point, it really works.
If your jury is laughing with you, they are less likely to convict. Use the facts of your case to highlight your scene. For example, I tried a sexual assault case, where I was sure the “so-called” victim was lying. I asked very specific questions regarding things my client supposedly had done, “Did he do this to you? That to you?,” etc. He answered the questions with words such as “probably,” “possibly,” maybe,” “more likely than not,” and “evidently.” I wrote these words on the blackboard and called them weasel words. In final argument, I asked the jury this question: If your spouse went on a business trip for three days and you asked “Honey were you faithful to me?” and he or she answered “probably, possibly, maybe, more likely than not, evidently,” Would that convince you beyond a reasonable doubt? They laughed and they acquitted.

Suspense
Hit the high points, use surprise, whisper on occasion, pause, use silence as a weapon. When you have an important point to make, stop talking. Everyone will then pay attention. Let the jury fill in the blanks.

Style
Shakespeare said “To thine own self be true!” Everyone’s style is different. Do not try to imitate or the jury will see through you. Gerry Spence wears a buckskin jacket. If you are a fast talking city boy like me, this will not work for you. In fact, you’ll look like My Cousin Vinny. Johnny Cochran used rhyming “If it doesn’t fit, you must acquit!” Use what works for your personality.

Wrap up
Start and end strong. Empower the jury. Discuss their oath as jurors. Tell them “The crown never loses.” In England, where the traditions of American jurisprudence were formed, the oldest, most majestic court is Old Bailey. In front of the court is a huge rock emblazoned with the saying “The crown never loses.” What this means is as long as a defendant is tried fairly, whether he is guilty or not guilty, the crown never loses. This reinforces the fact that it is OK for the jury to acquit.

Final words
In the immortal words of Sir Winston Churchill, “We shall fight from the landing grounds, we shall fight in the fields, and in the streets, we shall fight in the hills, and we shall never surrender.” Never surrender, never give up, and never stop fighting the good fight. Sometime, somewhere, some place where you never expect it, you will hear the two sweetest words a criminal defense lawyer can hear: “not guilty!”

Mace Yampolsky has been practicing criminal law since 1981. He won a case in front of the United States Supreme Court, Riggins vs Nevada, in which a death sentence was reversed. He has several murder acquittals and frequently lectures other lawyers on trial practice.