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05-06-08, 10:10 PM #1
TV dramas raise bar for trial evidence
TV dramas raise bar for trial evidence
"CSI effect" has influenced jurors
By Ed Johnson • STAFF WRITER • April 27, 2008
Despite eyewitness testimony and a defendant's alibi that crumbled under cross-examination, a recent Shore area burglary case ended in a mistrial when a lack of forensic evidence caused a jury to deadlock.
The case presented a rare look inside the jury room and drove home a point that police and prosecutors have long suspected: Jurors expect forensic evidence.
It's a phenomenon that the National District Attorneys Association said is being repeated across the country as the fictional exploits of television's forensic examiners are fueling demands among jurors for more and better evidence. It even has a name: "the CSI effect."
Television shows like "CSI" — short for Crime Scene Investigation — have jurors more likely to expect high-tech evidence from police and prosecutors, said Lawrence Kobilinski, a professor at John Jay College in New York and a nationally recognized expert in the field of forensics. Those expectations have had both a positive and a negative impact on criminal investigations, he said.
"Obviously, advances in forensic science have been a real benefit to the courts and the police," Kobilinski said. "It lessens the chance of a wrongful conviction, and no one can argue that that's a bad thing. Where it can become troublesome is when jurors have unrealistic expectations of what can and cannot be done."
An example might be fiber evidence, he said. Some fibers have unusual characteristics that help prove a case, but many are like the common white cotton fiber off a T-shirt, that prove little, if anything, Kobilinski added.
Yet that absence of fiber evidence was one of the things that hung the jury in that burglary case, said John DiVuolo, one of the jurors on the case. The Asbury Park Press is not identifying the defendant in the case or the jurisdiction it originated in because the case may be retried.
The facts of the case were straightforward. The victim reported her house was broken into, and she was involved in a physical struggle with the burglar. She said she had a clear view of her assailant in good light. She later identified the defendant in a photo array at police headquarters and positively identified him at the trial.
The defense chipped away at her testimony by arguing there was only her identification to tie the defendant to the crime and hammering at an inconsistency. She said the attacker had buck teeth. The accused had a gap in his teeth.
Eyewitness IDs doubted
DiVuolo said some of the jurors found the victim was credible and the defendant was shown to be untrustworthy. Still, that lack of forensic evidence helped create a reasonable doubt in the minds of some, he said. They needed additional convincing, he said.
It's not uncommon today, Kobilinski said. Eyewitness identifications are not always reliable, and in this case it was a cross-racial identification, which statistically has a greater chance of an error, he added.
"The issue of eyewitness identification is a whole other area of concern by itself," Kobilinski said. "You have a traumatized victim who gets a look at an assailant at a very emotional time. People do make identifications they believe are correct that later are proven to be wrong. A solid bit of forensic evidence can erase doubt and ensure a fair verdict."
That was the assessment of some of the jurors in the burglary case.
"We talked about it. I watch "CSI' and "Law & Order' every week, and there is this mountain of evidence. They have teeth prints, ballistics, plaster casts, fingerprints," DiVuolo said. "But here we have a case where this guy enters a house. He isn't wearing gloves. He touched doorknobs, and he's rolling on top of this woman's comforter. How is it they got no evidence? No hairs. No fibers. No fingerprints. It seemed like somebody bungled."
Maybe. But not necessarily, Kobilinski said.
Despite fictional stories, where fingerprints litter the crime scene and a unique hair or fiber carries the day, reality is often different, he said.
Fingerprints might or might not be found, depending on the surfaces touched. A rougher surface might not hold prints, which are actually oil deposits from the skin. Also, drier skin could make them less likely to be left at the scene in the first place, Kobilinski said.
Then, too, the limited resources of police agencies might make the "CSI" type search unrealistic for some crimes, he said.
"Ideally, every crime should have a full response, but the reality is the burglary where no one is hurt is not going to get the same team approach that a homicide will," he said. "Let's face it, in some cities certain crimes won't even get a police response. A resident will be told to make out a complaint and submit it to their insurance company."
In the burglarly case, police did not process the scene for fingerprints until the following day. The residents were allowed to stay in their house, but told not to touch anything, DiVuolo said.
That was a mistake that could have compromised any forensic evidence found there, Kobilinski said. A fingerprint that matched a suspect probably still would be admissible because the victim testified the suspect had no reason to be there at all. But a hair or fiber would have its admissibility attacked, he said.
"If the scene is not secured and protected by the police, a defense attorney is going to argue, with strong justification, that the evidence is tainted and therefore untrustworthy," Kobilinski said. "So you have to contend with an increased demand for forensic evidence and the need to prove it was gathered properly."
Overcoming a juror's enhanced expectations is now part of the regular planning for prosecutors as they prepare cases for trial, said Peter E. Warshaw, the first assistant prosecutor for Monmouth County.
"Sometimes it means calling additional witnesses to explain why certain evidence wasn't found so it doesn't become an unanswered question for the jury," Warshaw said. "Clearly some jurors now have great expectations that highly probative forensic evidence will be discovered at almost every crime."
Those expectations are not realistic, Kobilinski said. The smooth, oily surface of a gun is more likely to produce an unreadable smudge than an identifiable fingerprint, he said. So, too, skin cells suitable for DNA comparison are not as common as fictional detective shows would have the viewer believe, Warshaw said.
For the police, greater expectations have led to greater demands on police laboratories and better training for crime scene officers, said Red Bank Detective Capt. Stephen McCarthy.
And that's just what's needed, said Mitchell J. Ansell, a private practice attorney in Ocean Township.
"It's an amazing development," Ansell said. "At one time it was all about witness credibility. Who do you believe? Now with forensics playing a bigger role, it's less of a subjective call for the jury and more a review of objective evidence."
Ansell said as a defense practitioner, he tried to punch holes in how DNA evidence was collected in order to negate its impact against his client in a recent sexual assault case.
"If the forensics aren't done properly, it becomes fodder for cross examination," Ansell said. "You also try and get jurors to ask why things weren't done. They have more of an understanding of it and they expect it. That's a good thing."
But police and prosecutors are still a bit wary of the trend.
"There's a CSI hangover, so to speak," said Michael Mohel, a captain with the Ocean County Prosecutor's Office. "People think more and better results can be obtained because of what they see on TV. It puts a burden on prosecutors to produce testimony that explains what's real and what's just TV."
Still, forensic improvements are an overall plus for police and prosecutors, McCarthy said.
AFIS, the automated fingerprint identification system, allows police to run a latent fingerprint through a computerized database to get an identification. In the past, those comparisons had to be done by hand and required detectives to give the examiner the name of a suspect to compare the prints to.
A similar system allows bullets and shell casings to be compared with evidence retrieved in other cases, McCarthy said.
The federal government has announced plans to take a DNA sample from all people arrested for federal crimes. The profiles are to be placed in an existing DNA database for comparison with unsolved cases, the U.S. Justice Department said.
Of course, the greater awareness about forensics cuts both ways, Kobilinski said. Just as much as jurors want it, criminals are trying their hardest to keep it from coming into the courtroom, Kobilinski said. Tactics like wearing gloves to avoid leaving fingerprints have been around for years, but now rapists often wear condoms or force a victim to wash to avoid leaving a DNA sample, he said.
"An improvement in the quality of scientific evidence can only help the system," said Eric Urbano, a private practice attorney from Red Bank. "The goal is a just result, and the insistence on more and better scientific evidence advances the cause of the police, prosecutors and the defendant. Ultimately, it advances the cause of society and of justice."
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05-07-08, 12:17 AM #2
We were investigating a murder last year involving a husband (missing) and wife (dead). The PA told us to find something inside the house they shared that would have his DNA on it, to have tested and produce later at trial for show-and-tell. He lived there! The challenge would have been to find something that DIDN'T have his DNA on it.
I thought it was pointless. The PA described the "CSI effect". Juries want the cool stuff they see of TV.
05-07-08, 12:42 PM #3
Yeah, and the new Dallas County DA watches CSI too.
He is busy releasing prisoners right and left on 20-year-old cases because he says any wrong DNA found (or in some cases, the lack of DNA) is proof of their innocence.
While it is certainly true that innocent people are found guilty (and sometimes even confess), it is NOT true that the "wrong DNA" or "lack of DNA" proves their innocence - There is no way to logically prove innocence using DNA!!!
Even if the DNA is from another person, haven't these people ever heard of accomplices, secret boyfriends, and a whole host of people who may have been at the scene hours, days, even years before? DNA cannot give a time line or reason it's there or not there - For that, you have to look at all the other evidence too.
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05-07-08, 01:26 PM #4The Reason People Hate Cops & Causer of WarVerified LEO
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We've been seeing this sort of issue for years... People who expect that you'll spread a little fingerprint dust around (magically leaving no mess...), get a print, and come back an hour later with their stuff and the suspect in cuffs.
I've even been known to do a show and tell about why we often don't get usable prints for people...
Get used to it. It's only going to get worse as we do a better job in reality, so TV pushes the limits even further.Voting against incumbents until we get a Congress that does its job.
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05-07-08, 05:18 PM #5
I hate those shows and refuse to watch them.Do not war for peace. If you must war, war for justice. For without justice there is no peace. -me
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05-07-08, 05:20 PM #6
Me either.Only two defining forces have ever offered to die for you, Jesus Christ and the American G.I.
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