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Archive for the ‘Forensic evidence’ Category
Redux: Bye-bye CSI?
Back in August of this year we wrote a blog post titled ‘Bye-bye CSI?’ after the reports on dirty forensic labs were published. Now some new research challenges our assumptions that there really is a “CSI Effect”. (The “CSI Effect” refers to a belief that popular television shows focusing on forensic evidence—such as the CSI frasnchise—result in jurors requiring a definitive level of scientific evidence from prosecutors)
The “CSI Effect” has been talked about for years and and widely presumed to be true. A standard voir dire query has been to learn about television shows jurors watch. We even blog about it. But a soon to be published study (summarized here) conducted on a narrow sample of Michigan jurors brings the CSI Effect into question.
The same Michigan researchers wrote a paper in 2006 (upon which their new study is an expansion). In truth, this appears to be research that doesn’t make that much of a difference. What these authors said in 2006 is there is a ‘tech effect’ independent of television viewing habits.
According to the researchers, a rabid CSI viewer has an equal expectation of prosecutors and defense attorneys. Asking about television shows still has merit for other reasons, but if this research is to be accepted, the impact of forensic television shows is not the reason. Overall, the standard of scientific sufficiency for either side of a case has definitely been raised (especially in cases where the evidence is largely circumstantial). In 2006, the authors concluded the following:
- “Juror expectations of and demands for scientific evidence are the result of broader changes in popular culture related to advancements in both technology and information distribution.”
- “Those broad and pervasive changes in technology lead jurors to expect that the prosecutor will obtain and present the scientific evidence that technology has made possible.”
- “These increased expectations and demands of jurors therefore could be more accurately referred to as the ‘tech effect.’”
The authors go on to say the justice system needs to adapt to jurors increased awareness of forensic evidence gathering procedures and be prepared to invest more money into forensic evidence collection and analysis. In the meantime, litigators need to become better explainers of just why that data isn’t available in their specific cases.
While we’ll watch for the publication of the updated article, we think it boils down to an increase in juror sophistication, wariness, and sense of justice. Jurors are questioning authority more these days. They want proof. They take their obligations very seriously and don’t want to make mistakes. Your role as a litigator is to reassure them that your position is meritorious. What can you do to give them the certainty they seek?
Hon. Donald E. Shelton, Young S. Kim, and Gregg Barak (2006). A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the “CSI Effect” Exist? Vanderbilt Journal of Entertainment and Technology Law, 9(331).
On brains, brain damage, pedophilia and other things we don’t like
Gideon has a thoughtful post on the question of free will in pedophiles based on an earlier post at the Neuroskeptic blog. In essence, he questions how we should view/think of/treat pedophiles in our criminal justice system if there are times when sexual urges directed at children are caused by brain damage rather than a pre-existing sexual preference for children. Can pedophilia be explained by a biological imperitive? It’s a thoughtful and difficult question to pose, as Gideon notes at the end of his post by saying he is not supporting pedophilia—he is merely posing the question.
The question is timely. We are seeing increasing use of “my brain made me do it” defenses for crimes with NoLie MRI and Cephos offering commercial testing using fMRIs to determine deception for several years now. (NoLie MRI was involved in a widely reported case this last year where their brain scans were submitted as evidence in a juvenile sex abuse case but then withdrawn after protests from the scientific community.)
Robert Weisberg (co-director of the Stanford Criminal Justice Center) says fMRI’s are increasingly being used as mitigating evidence in the sentencing phase to show that brain damage contributed to the behavior and makes the defendant less culpable. For example, a Chicago court recently allowed fMRI evidence to be presented by the defense to ‘prove’ the convicted defendant was psychopathic in the sentencing phase. The defendant was sentenced to death anyway. Perhaps the most shocking use of the fMRI occurred recently in India where a young woman involved in a romantic triangle was convicted of killing her ex-fiancee based on an fMRI scan that “purportedly showed she had a memory or “experiential knowledge” of committing the crime”.
The admissibility of these brain scans to ‘prove’ deception (or psychopathy, or even memories of committing murder) rests on individual judges, and skeptics abound including leading researchers in the neuroscience arena who simply say we do not yet know enough about what these results mean to make life and death decisions based on fMRI ‘evidence’. Even putting aside questions of whether the fMRI technology works (and the Stanford article provides a lot of good information on the question) how can you get past the natural (and understandable) negative reaction of jurors to behavior we find unconscionable? It seems most likely that jurors who are predisposed (by bias or other evidence) to agree with whatever the “scientific evidence” says will see it as confirmatory, and those who disagree with it will see it as junk science.
The reason that Daubert motions were endorsed in the first place was to avoid cluttering trials with junk science. Is this a step backward?
Bye bye CSI?
On February 18, 2009 the National Academy of Sciences released a long-awaited report on the fallibility of forensic science techniques. A month later, on March 28, 2009, European police reported that the 16 year search for an elusive female serial killer was likely based on misinterpreting dirty lab materials. And now, we hear a new report that DNA evidence, supposedly the gold standard of forensic evidence, can be fabricated. And it isn’t even that hard. “Any biology undergraduate could perform this” says the lead author of the paper.
What does this mean? Well, for one thing it seems that it should be very simple to draw DNA evidence into question in front of jurors. Or does it? We increasingly see mock jurors reporting they love legal shows on television. The shows they most love on television (CSI, Law & Order, et cetera) all focus on the power of science to solve crimes. They believe. All you need is a speck of evidence and it can be centrifuged, soaked in dye, blown up on a computer and you can then track it back to the manufacturer and then match credit card receipts to the purchaser. You then confront them and they confess with a curled lip and often a smirk. The fantasy that the unknown can be discerned in a test-tube is almost irresistible. It requires an abandonment of faith that is painful. On the other hand, for many the faith in government has never felt more fragile.
We may know that DNA evidence can be faked and we may read the National Academy of Science’s report and know that forensic methods need to be carefully examined. But whether jurors will believe that or see it as a cagy defense move is an open question. It’s a question well worth exploring in pre-trial research. How will it turn out? That may depend on the skill of advocacy. That’s why we’re talking about it!
The Jury Room: A new blawg
WELCOME TO THE JURY ROOM!
This is a blawg dedicated to understanding the American jury and trends in litigation strategy. You will find posts here exploring how research findings and current events inform:
• Juror decision-making
• Uncovering juror bias
• How values, attitudes and life experiences affect our choices and decisions
•What makes particular witnesses and evidence powerful or pointless … and much more.
Sometimes we’ll talk about current events. Sometimes we’ll talk about research. But it will always be research and experience applied to litigation advocacy. You know law. We know juries.
This blawg is our forum to share current lessons as we learn them. We invite your comments, questions and thoughts.
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