Flashing lights, neon colors, DNA evidence presented within seconds in technicolor, and of course….snappy theme music. Almost everyone has watched an episode of CSI, Law and Order, Forensic Files or another crime show where every case presented has copious forensic evidence to accompany any prosecution or defense strategy. The truth is this expectation has created an unrealistic belief in jurors that guilt or innocence can only be determined with absolute forensic evidence: known as the “CSI Effect” in legal circles. This phenomena is one of the emerging concerns of litigators and can be managed with a creative trial consultant. The key is Controlling Spectator Impressions. There are many ways to direct juror attention and combat this “tech effect” but we will discuss the top three here.
1. FIGHT FIRE WITH FIRE. Use technology to your advantage, present your evidence with the attention to aesthetics a television producer would, knowing that people learn primarily through images. Humans are genetically predisposed to process information primarily through visual stimulus. Donald Shelton and his colleagues Kim and Barak (2006) published “A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the CSI Effect Exist?” In this study they reveal that the CSI Effect is a by- product of the “tech effect;” a result of the progression and evolution of modern technology. Keeping it simple: people demand high-tech evidence: so give it to them. Use animation to explain a sequence of events. Do not just tell a jury about a time line: give them an interactive animated timeline. Do not just tell jurors there is a documented email, read the email, or simply project a photocopy of the email: use a litigation program to highlight and animate the portions of the email that are relevant. Selecting a trial consultant with a good grasp of graphic design and understanding of psychological processing will help you use technology to your advantage.
2. VOIR DIRE SCREENING. There are advantages and disadvantages to retaining or rejecting jurors who spend a lot of time watching these type of crime shows, have jobs in the technology field, have strong opinions on technology, or level of education. The American Bar Association suggests it may be a good idea for litigators to consult a good trial consultant to assist them in reviewing the case for potential CSI Effect issues that may not be anticipated by the trial lawyer (Dysart, 2012). Showbiz Tonight (September 21, 2011 HLN Broadcast) discussed this issue in the high profile case of Micheal Jackson’s death and illustrated the importance of investigating juror television watching habits in juror selection.
3. EDUCATION AND ATTENTION TO JURY INSTRUCTIONS. It is important to directly explain to jurors what they should use as evidence to make a verdict, including whether they should rely on physical evidence or not. Attorneys, even experienced one’s, often expect jurors to see the obvious and do not always overtly explain to jurors what to focus on in a case. Opening and Closing arguments are an excellent place for a trial consultant to assist an attorney in focusing on what will make most sense to a jury and where the “obvious” should be highlighted. Jury instruction is another, if the judge allows the attorney to write the instructions, it is important to avoid jargon, simplify the legal principles involved, and remind them to minimize any unreasonable expectations that may arise from the influence of the technological culture we live in.
It is important for trial attorneys to adapt to the changing circumstances of public expectation within a courtroom and to begin to change their strategies to include a way of managing the CSI Effect in jurors. Clearly, a good defense attorney can use this to their advantage by highlighting the lack of forensic evidence; however, it can also work to their disadvantage when jurors place unrealistic weight on evidence presented by the prosecution. Civil and criminal cases are subject to to issues related to these expectations and attorneys should be prepared to manage impressions through the conscious and deliberate use of technology in their presentation, careful screening of jurors to understand the specific inclinations of the panel before them, and overtly educating jurors on what to pay attention to and simply explain the rules for making a verdict. Using these three methods of controlling spectator impressions turns a potential obstacle into an advantage.
Dysart, K. (May 28, 2012). Managing the CSI Effect in jurors. American Bar Association. Retrieved from: http://apps.americanbar.org/litigation/com.
Shelton, D., Young, S. K., & Barak, G. (2006).A study of juror expectations and demands concerning scientific evidence: Does the ‘CSI Effect’ exist?” 9 Vand. J. Ent. & Tech. L. 331, 334.