Crime & Federalism

I am not so sure the so-called CSI Effect is a boon to the defense bar. Quite the contrary. I think a public inclined to seeing improbable crimes solved in an hour's time is being trained to draw inferences in favor of the state.

Here's how it works on television.

Something awful happens. A murder, a rape or some other untoward act rivets the attention of the viewer. Inject a sympathetic character into the script, and suddenly, the chase is on: We must find who did it.

So evidence is assembled. Tiny clues at first, and then larger ones. A false suspect or two is dangled before the viewer, just to keep the suspense level high. A good episode involves deferring until the last possible moment the solving of the crime.

The crime must be solved through some novel interpretation of circumstantial evidence.

We are taught in law school, and juries are instructed, that circumstantial evidence is inferential. In other words, on the basis of observed facts, jurors may, but are not required to, infer the existence of some other fact. The inference must be reasonable and logical, courts say.

I fear the CSI Effect prompts juries to draw inferences in favor of the state merely for the sake of a "good episode" of jury service. Sure, trial takes more than an hour. But a jury accustomed to quick solutions may well decide to bend the evidence in the state's favor when presented with difficult facts. Toss a dollop of "science" into the case, and "voila!" Conviction. There's a reason other than brilliance why Henry Lee has grown fat and sassy.

This is contrary the requirements of proof beyond a reasonable doubt. Some jurisdictions use the "moment's hestitation" language when charging on doubt. Thus, if the evidence as a whole gives a moment's hesitation, then a juror is required to acquit.

Why is it that all the forensic shows point in one direction -- conviction? Why are all the heros and good guys members of the prosecution team?

Anyone who has ever stood in the well of a courtroom to defend a man or women accused of a crime knows how tenuous is the presumption of innocence. Arrest someone, plop him in court next to a lawyer, read the charges against him aloud, and some jurors are half-way to conviction. An accused man is at trial for a reason, right?

Why not a new crime show? One oriented to the defense? Follow the same formula as the old ones. Begin with a horrific scene: a man sits on death row awaiting a needle to the vein. Enter the hero, his lawyer, who, armed with an expert, uses scientific evidence to prove the man's innocence.

It doesn't resonate quite the same way, does it? We love victims in this the land of a Oprah and Company. But not victims of miscarriages of justice.

The CSI Effect? I call it the prosecution's new best friend.