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Jurors can be asked about ‘CSI’

SJC upholds murder conviction in 2001 Lawrence case

By Mark Arsenault
Globe Staff / September 24, 2011

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The state’s highest court ruled yesterday that it is permissible for judges to question potential jurors about the so-called “CSI effect’’ - whether they would require irrefutable scientific evidence in order to return a guilty verdict - without biasing a trial’s outcome.

The Supreme Judicial Court rebuffed the argument that such questions prejudice the jury by suggesting they overlook a lack of scientific evidence or unfairly weed out jurors who would require more empirical proof of guilt.

As part of its ruling, the court also rejected the very notion that television has poisoned the jury pool by fostering an expectation that guilty people can always be unmasked by forensic scientists armed with the latest whiz-bang technology.

Prosecutors around the country have complained for several years that juries are growing less impressed by compelling circumstantial evidence and are acquitting more defendants when scientific evidence is not part of the case.

That perception, real or not, has been named after the CBS-TV procedural drama “CSI: Crime Scene Investigation,’’ one of several popular series known for pushing the edge of scientific theory and crime-fighting techniques.

“Although anecdotal reports and media coverage have fueled concerns within the legal community about the so-called ‘CSI effect,’ there is little empirical evidence supporting its existence,’’ the court ruled, in an opinion written by Justice Fernande R.V. Duffly.

The ruling upholds the first-degree murder conviction of Ramon Perez, who shot a man in Lawrence after an apparent robbery in late 2001.

During jury selection at Perez’s trial, the judge, at the urging of prosecutors, asked potential jurors whether they believed the state is never able to prove a case “unless it presents scientific evidence to corroborate witness testimony,’’ according to the ruling. Thirty-eight potential jurors agreed with the statement or answered ambiguously. Thirty-one were excused for cause.

Perez argued on appeal that the question prejudiced the jury.

The high court disagreed: “The questions were tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence,’’ the ruling states. “The questions did not commit the jury to a verdict in advance and, as posed, did not have the effect of identifying and selecting jurors who were predisposed to convicting the defendant based on evidence the Commonwealth would present.’’

The ruling is a victory for prosecutors, who want to be able to investigate the possible biases of potential jurors.

“The CSI effect absolutely exists,’’ said Worcester District Attorney Joseph D. Early Jr., in an interview last evening. “Jurors want to know: ‘Where are the fingerprints? Where is the DNA evidence?’ The expectations are higher because of these TV shows.’’

But in many cases, scientific evidence is not available, he said. And many of the scientific techniques glamorized on television are fictional.

Needham defense lawyer Tim Burke agreed that “at least the perceived forensic abilities’’ of crime scene investigators is so great that “many people do have that inherent bias, but I do not think that in and of itself should be a justification of a dismissal for cause’’ from a jury, he said. The high court ruling could “shift the pendulum to potentially skew the jury pool’’ toward the prosecution, Burke said.

Two of the most exhaustive academic studies on the CSI effect were done in 2006 and 2008 through Eastern Michigan University.

The studies confirmed that jurors have greater expectations for scientific evidence, but not because of CSI-style programs, said one of the researchers, Judge Donald Shelton, who has been a trial judge in Ann Arbor for two decades.

After interviews with more than 2,000 jurors, “what we found was that today’s jurors do have increased expectations that the prosecutor will present scientific evidence,’’ Shelton said in an interview. “We did find that in some cases if jurors do not get scientific evidence, they are more likely to find the defendant not guilty.

“But the third part is that there was no relationship between those jurors, their expectations and demands, and what television shows they watched,’’ he said.

The researchers attributed the evolution in jury behavior to cultural changes due to advancing technology, of which TV is just a small part, he said.

“We found that there was a statistical relationship between expectations for scientific evidence and the sophistication of electronic devices that people use,’’ he said.

The more tech savvy the juror, the more likely he or she would demand scientific proof, Shelton said. “If that’s true, then prosecutors and judges who blame television are being far too simplistic about jurors and their demands.’’

He said prosecutors need to adjust by delivering scientific evidence jurors look for or explaining why it was not relevant.

Kathy Reichs, a forensic anthropologist and author who created the fictional scientist on which the crime drama “Bones’’ is based, agreed that jury expectations are high, “perhaps unrealistically high.’’ Fictional crime stories raise “expectations because we solve every case in 52 minutes on the TV show or in 380 pages in the book,’’ said Reichs, a producer on “Bones,’’ who just released her 14th novel in the series: “Flash and Bones.’’

“Hopefully the viewing audience knows that what they’re watching is a good story,’’ she said. “I think they do understand there’s a difference between Hollywood and reality.’’

Martin Finucane of the Globe staff contributed to this report. Mark Arsenault can be reached at marsenault@globe.com.


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