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DECONSTRUCTING THE CSI EFFECT: FORENSIC SCIENCE AND THE MEDIA
By Emily Fisher
Department of Science, Technology & Society The University of Pennsylvania
Thesis Advisor: Dr. John Tresch, Department of Science, Technology & Society
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Acknowledgements
Writing this paper is by far, one of the most arduous tasks that I have
undertaken during my years of higher education. The discipline, responsibility and
motivation required to complete such a project are learned skills that I have had the
opportunity to sharpen over the past year. However, this final product could not
have come to fruition without the help of several important individuals.
I would like to begin by thanking the Department of Science, Technology and
Society at the University of Pennsylvania. The honors program for this major
provided me with the opportunity and the resources necessary to construct my
thesis.
Within the department, I want to thank my advisor, Dr. John Tresch. Dr.
Tresch, you have been with me since the start. From the infantile stages of
determining my topic to the final draft of the paper, you have critiqued my
argument, guided my research, and taught me how to construct a scholarly
publication of this magnitude. Thank you for everything.
Lastly, I would like to thank my family. Mom, Dad, Jamie, thank you so much
for your love, support and opinions throughout this process. Your insights and
intellect and objectivity were critical in helping me craft this paper. I cannot tell you
enough how much I value and appreciate your input. As an aside, I would also like to
thank you for letting me hog the TV over school vacations. I told you I was doing
research! I love you.
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I. INTRODUCTION
The entertainment value of television is a cultural norm in our society.
According to a 2012 study published by Nielsen Statistics and the New York Times,
the average American over the age of two spends more than thirty-‐seven hours a
week watching television.1 These findings quantitatively represent our society’s
shift from printed media to “visual literacy.”2 Of the hundreds of different shows
available to channel surfers, police procedurals and other crime-‐related television
shows are by far a fan favorite. Logically this makes sense; television franchises such
as NCIS and its spin off NCIS: Los Angeles, Law and Order (as well as its subsequent
spin offs), Bones, Dexter, and all of the CSIs are successful multi-‐season investments
that have accrued a loyal fan base over the years. Their immense popularity has
prompted networks to re-‐air these shows in syndication, or extend their rights to
the show so as to allow for live streaming on computers, iPads and other
technologies. As a result, legal institutions such as the Supreme Court and the
American Bar Association have begun to examine the relationship between
television’s portrayal and the public’s understanding of the law.3 Their findings have
yielded empirical evidence to suggest that most people learn about law and
forensics from television.4 Yet, in an article published by The Wall Street Journal, it
was estimated that approximately “40% of the forensic science in the television
1 David Hinckley, “Americans Spend 34 Hours a Week Watching TV, According to Nielsen Numbers,” New York Daily News, Sept. 12, 2012, http://www.nydailynews.com/entertainment/tv-movies/americans-spend-34-hours-week-watching-tv-nielsen-numbers-article-1.1162285 (accessed 27 Feb. 2013). 2 Kimberlianne Podlas, "The CSE Effect: Exposing the Media Myth," Fordham Intellectual Property, Media & Entertainment Law Journal, 16, no. 2 (2005): 429-465, http://iplj.net/blog/wp-content/uploads/2009/09/Article-THE-CSI-EFFECT-EXPOSING-THE-MEDIA-MYTH.pdf, 443. 3 Ibid.,430. 4 Ibid.,444.
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show CSI [alone] does not exist, and most of the rest is performed in ways that crime
lab personnel can only dream about.”5 In other words, those critical experiments
performed by Abby Sciuto on NCIS, or by the scientists at the Jeffersonian in Bones
are most likely fictionalized, and the as seen on TV slogan is rapidly moving in the
opposite direction from reality.6 Observers of this phenomenon have dubbed it the
CSI Effect, and have devoted numerous resources and time in an attempt to
ascertain the reach of influence these television shows have over jury verdicts. I
however, propose that by investigating this theory, researchers are amassing
misleading information that does not depict an accurate representation as to how
the media influences jury verdicts. In order to prove so, I will systematically attack
the claims proposed by the CSI Effect. By invalidating the current research
paradigm, scholars researching this topic will be motivated to reexamine their line
of inquiry as they attempt to determine the relationship between the media and
society’s implementation of law and order.
II. THE REALITY FORENSIC SCIENCE COMPARED TO ITS PORTRAYAL BY THE
MEDIA
Scientifically ascertaining the identity of a perpetrator of a crime is the
number one goal of a criminal investigation. This end game allows for society to
render the punishment it feels is necessary in order to achieve the semblance of
justice and restore order. Over the past century we have experienced an
Information Revolution that is responsible for the development of technologies with
5 Simon Cole and Rachel Dioso, “Law and the Lab: Do TV Shows Really Affect How Juries Vote? Let’s Look at the Evidence,” Wall Street Journal, May 13, 2005, http://truthinjustice.org/law-lab.htm. 6 N.J. Schweitzer and Michael J. Saks, “The CSI Effect: Popular Fiction About Forensic Science Affects the Public’s Expectations About Real Forensic Science,” 47 Jurimetrics J. 357–364 (2007), 359.
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unprecedented capabilities. Polymerase Chain Reaction (PCR) machines—a device
capable of making an exponential number of copies of DNA in a matter of hours—
and computer algorithms and online databases are just some of the examples of new
technologies that are changing the ways in which criminal investigations are
conducted.7 As a result, modern day crime labs have the potential to extract valuable
information from seemingly innocuous and oftentimes microscopic objects. A drop
of blood can provide an investigator with information about a suspect such as his
gender, medical history, and a number of other personal details. This process of a
criminal investigation is broken down into two phases: identification and
comparison.8 These headings provide the barometer by which forensic scientists
measure their success during a criminal investigation—without successful
identifications and accurate comparisons, any pursuit of justice by law enforcement
officials is severely limited. The three major mediums by which forensic scientists
assist law enforcement officials in ascertaining the identity of a suspect are through
fingerprint, DNA, and ballistic analysis. Unsurprisingly, these three forensic fields
are frequently used in television shows to further an episode’s plot—and mark an
important occurrence of where television and the media do not accurately convey
the realities of these sciences. By analyzing the science behind these forensic
procedures and comparing their realities to their representations on TV, the
premise on which the CSI Effect was constructed becomes visible and
understandable.
7 S.C. Mittal, "Computer Related Crimes,” In Society, Crime, and Prosecution, V. N. Sehgal, (Delhi: Kamla-Raj Enterprises, 2005), 1-32. Print. 8 V. N. Sehgal, and Nath Surinder, "Role of Physical Evidence in Forensic Explorations,” In Society, Crime, and Prosecution, V. N. Sehgal, (Delhi: Kamla-Raj Enterprises, 2005), 87-101. Print.
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A. Fingerprint Analysis
Fingerprint analysis is a forensic technique that is frequently used by
television crime shows. The detectives and crime scene investigators of NCIS, Law
and Order, CSI and Bones have taken fingerprint samples in countless episodes in an
attempt to ascertain the identity not only of the victim, but also of suspects. Whether
Dr. Temperance Brennan rehydrates a mummified hand to scan and match against
the FBI fingerprint database (see Figure 1), or Special Agent Timothy McGee uses his
handheld fingerprint scanner to get an immediate identification at a crime scene
(Figure 2),9 the good guys always get a match that invigorates the momentum of the
case. In realty, the science of fingerprints is nowhere near as consistently
informative as it is on TV.
1. The Science Behind Fingerprints
During embryo development, undifferentiated cells develop into the three
tissue layers that comprise the human body: the ectoderm, mesoderm and
endoderm. The endoderm will go on to create lung, pancreatic and gastrointestinal
cells, while the mesoderm will form muscle, cardiac and red blood cells. Ectoderm
germ layer cells develop into the body’s outermost cell layers including the
epidermis and dermis. Between the dermis and epidermis lies a layer of cells known
as the dermal papillae. These cells, which are configured into a series of ridges,
function to supply blood and nutrients to the skin, and remain unchanged
throughout an individual’s life.10 Fingerprints are the results of an impression made
by these ridges. “When a medium from the skin—such as body oils, blood, or
9 NCIS, “Patriot Down,” CBS, May 18, 2010, written by Gary Glasberg, Television. 10 Richard Saferstein, “Fingerprints,” in Criminalistics, (Upper Saddle River, NJ: Prentice Hall, 2011), 393.
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sweat—touches a surface,”11 the print pattern is transferred and can then be
observed and documented. There are currently two different types of fingerprint
collection: the ten-‐print identification system, which consists of inking (or with
today’s technology, scanning) all ten fingers and placing them on a surface from
which a comparison can be made, or by collecting latent prints which are usually not
visible to the naked eye.12 Although the latter type of fingerprint retrieval is usually
more frequent during criminal investigations, it is less than ideal because the prints
obtained are often distorted and may contain foreign particles, which interfere with
comparison techniques.
Fingerprints as a mechanism for identification is based on the theory that
each person’s fingerprints are unique. The average fingerprint has approximately
150 individual ridge characteristics—bifurcations, ridge endings, enclosures and
other ridge details (Figure 3)13—of which a number must match between two
samples in order for a common identity to be established. However, the
admissibility of this science as proof of identification, although long accepted, is now
being called into question. Currently, no comprehensive study has been conducted
to prove (or disprove) that no two fingerprints are the same,14 nor has there been a
study to determine how frequently different ridge characteristics appear at a given
11 Jane Campbell Moriarty and Michael J. Saks, “Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping,” Judges’ Journal 44, No.4, (2005): 19. 12 Simon A. Cole, "History of Fingerprint Pattern Recognition," In Automatic Fingerprint Recognition Systems, Nalini K. Ratha and Ruud Bolle, (New York: Springer, 2004), 1-25. Print. 13 Stephanie Rankin, "Forensic Science Glossary." Forensic Science Central, http://forensicsciencecentral.co.uk/glossary.html. 14 Jonathan Jones, "Forensic Tools: What's Reliable and What's Not-So-Scientific," Frontline, April 17, 2012, http://www.pbs.org/wgbh/pages/frontline/criminal-justice/real-csi/forensic-tools-whats-reliable-and-whats-not-so-scientific/ (accessed April 14, 2013).
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location on a finger.15 As expected, none of these realities are discussed or
mentioned on television.
2. Crime Scene Fingerprint Detection
Although it is not within the scope of this paper to discuss the myriad of
techniques available to crime scene investigators for latent fingerprint retrieval, it is
important to have a general sense of the process in order to garner a comprehensive
knowledge of forensic fingerprint identification.
Visible fingerprints are rarely found at a well-‐executed crime scene.
Consequently, forensic technicians and detectives rely heavily on scientific and
technological advances in order to visualize latent prints inadvertently left by their
owner. When determining what method of retrieval to use, crime scene
investigators must classify the surface that they are examining as either hard and
non-‐absorbent (such as glass and tile) or soft and porous (paper, cardboard, cloth
etc.)16. After this determination, the technician has a number of different solvents
and detection methods at his disposal. Powders can be sprinkled onto the surface in
question, and using either a special brush or a magnet, the chemical compounds will
adhere to the bodily secretions that comprise the latent fingerprint, turning it into a
visible image. Additionally, some crime scene analysts will opt to use liquid or
gaseous sprays in order to reveal latent prints. Super Glue, iodine crystals,
ninhydrin, D.F.O. crystals, and physical developers are all examples of products
available to latent print retrieval specialists, and these, like the powders, come in a
variety of chemical compounds and react with bodily fluids on fingerprints to form
15 Saferstein, “Fingerprints.” 16 Ibid.
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different colored deposits.17,18 High quality photographs are then taken from a
number of angles and sent to the forensics laboratory where a specialist will work
to try and identify the individual to whom the print(s) belong.
3. Automated Fingerprint Identification
The FBI first began to use computers to match fingerprints in October of
1980, and by July of 1999, the FBI had launched their Integrated Automated
Fingerprint Identification System (IAFIS). IAFIS is the United States’ national
fingerprint database that can be accessed by law enforcement agencies across the
country. 19 Prior to this application of technology, fingerprint identification and
cataloging was done manually and often took weeks or even months to process.
Now, as of 2010, IAFIS contains the profiles—including photo identification,
physical characteristics, criminal records and of course, fingerprints—for more than
70 million criminals as well as over 34 million civilians and military personnel.20 In
addition to IAFIS, there are also independent fingerprint databases that exist for
more localized levels of law enforcement including regional, county, city and state.
Automated Fingerprint Identification Systems work by scanning and digitally
encoding fingerprints. The technician begins by entering preliminary classificatory
data including whether the print is a loop, arch or whorl in addition to of the
information regarding its retrieval. Next, the computer algorithm will begin to code
for recognizable properties of the print. Among the traits of interest are ridge ends 17 Ibid. 18 Chris Lennard, "The Detection and Enhancement of Latent Fingerprints," Proc. of 13th INTERPOL Forensic Science Symposium, (Lyon, France, Oct. 19 2001), http://latent-prints.com/images/SpecialPresentation.pdf. 19 U.S. Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (accessed Mar. 23, 2013). 20 Ibid.
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and bifurcations, as well as the orientation and directionality of these ridge
characteristics. When investigators search for a match for a print, the computer
algorithm compares these marked characteristics and produces a list of possible
matches based on the frequency of similarities.21 However, as previously mentioned,
latent fingerprints lifted from a crime scene are usually laden with background
noise and other extraneous information that can interfere with AFIS’ processing of
the print. Before the computer can begin coding the fingerprint, the technician must
use a digital enhancing program on the fingerprint to remove any environmental
elements interfering with the computer program’s ability to recognize minute
details. As the chief of the FBI Laboratory's Latent Print Support Unit notes, failure
to carefully edit the image by removing “everything that isn’t really a fingerprint,
such as dirt and digital noise…will reduce the accuracy of this process by about
thirty percent.”22 Finally, after several hours of searching, “the system provides a list
of the most likely matches.”23 Yet even though AFIS did all of the manual labor,
ultimately it is the examiner who must compare the prints and use his or her
expertise to determine whether or not a match has been made.24 On television, these
realities are grossly misrepresented (see figure 4).
4. Television Exaggerations
In addition to the aforementioned inconsistencies, there are several other
aspects of fingerprinting that are erroneously portrayed by the media. On the
21 Saferstein, “Fingerprints.” 22 Lamont Wood, "The Reality of Fingerprinting Not Like TV Crime Labs," Live Science, Feb. 24, 2008, http://www.livescience.com/4843-reality-fingerprinting-tv-crime-labs.html, (accessed Feb 18, 2013). 23 Ibid. 24 Moriarty and Saks, “Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping,”19.
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episode of Law and Order SVU entitled “Night” (Figure 5), Detectives Benson and
Stabler are tasked with identifying a rapist and murderer who leaves stacks of
hundred dollar bills on his victims’ corpses which he leaves abandoned on street
corners in New York City. As would only happen on TV, after one of his killings, the
perpetrator used a stack of “newly minted” bills from which the crime lab technician
was able to extract fingerprints from three individuals. Approximately 36 seconds
from the time the dollar bills were sprayed with Ninhydrin, the latent prints were
visible, photographed, scanned into the computer, run through IAFIS and two
positive identifications were made.
Despite the accuracy of using Ninhydrin as a compound to detect latent
prints, the remaining forensic elements in this scene are dramatized and
unrealistically depicted. Viewers are left with the perception that the evidence did
not require any manipulation or purification before it was entered into the
computer and analyzed. Additionally, two out of the three individuals whose
fingerprints were on the money were unequivocally identified, and the presence of
their prints was neatly consistent with the detectives’ theory of the crime. In reality,
even though IAFIS provides a list of “most likely matches,” there must always be a
specialist who makes a determination of common origin from the computer-‐
generated list.25 Moreover, only about 26 percent of the cases in which fingerprints
are found yield identification. “Even if the prints are in the system, they cannot
25 Wood, "The Reality of Fingerprinting Not Like TV Crime Labs."
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always be matched to the evidence print”26 because they are too blurred, smeared
or fragmented for a sufficient number of similarity points.
Although the scenes from this episode alone are not responsible for shaping
society’s perception of latent fingerprint analysis, religious viewers of Law and
Order SVU have learned to be able to count on Ryan O'Halloran and the other
forensic technicians to come up with miracles and discover the evidence needed to
close Benson and Stablers’ case. When you consider the number of other forensic TV
dramas, all episodes of which inevitably have the same neat and tidy endings, it is
possible to understand how the CSI Effect is a substantial, yet perhaps subconscious,
threat to our legal system.
B. DNA Evidence
Blood, saliva, semen, hair fibers, mucus, and sweat are just some of the many
samples of evidence that perpetrators often unintentionally leave behind at crime
scenes. What all of these specimens have in common is the presence of the DNA, a
microscopic biological entity that has the potential to irrevocably tie an individual to
an act of deviance. To introduce their paper entitled Encoded Evidence: DNA in
Forensic Analysis, Mark Jobling and Peter Gill quote Sherlock Holmes who said, “[i]t
has long been an axiom of mine that the little things are infinitely the most
important.”27 Little did Sir Arthur Conan Doyle know that less than a century later,
26 Ibid. 27 Mark A. Jobling and Peter Gill, “Encoded Evidence: DNA in Forensic Analysis,” Nature Reviews, 5 (Oct. 2004) 739-751 http://fire.biol.wwu.edu/trent/trent/NRGforensics.pdf, 739.
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“evidence invisible to the naked eye”28 would become critical to solving some of
society’s most puzzling criminal investigations.29
1. The Science Behind DNA
What is DNA: Deoxyribonucleic Acid, or DNA, is a double-‐stranded
macromolecule found within the cells of all living organisms, encoding an
individual’s unique genetic information. Unwound, DNA takes the form of a ladder:
two parallel lines joined together by rungs; however, it is usually found in its coiled
state as a double helix. DNA is a polymer that is constructed from repeating units
known as nucleotide monomers. Each nucleotide consists of a five-‐carbon sugar, a
phosphate group and one of four possible nitrogenous bases: cytosine (C), guanine
(G), adenine (A), and thymine (T). The sugar and phosphate molecules bond
together to create the double-‐stranded backbone of DNA, while the nitrogenous
bases attach to the sugar molecules and project inward (figure 6). These bases
constitute the rungs of the DNA ladder—connecting the two backbones by pairing
together in a predictable pattern: A always pairs with T and G always pairs with
C.30,31,32 In one human cell, there are approximately three billion33 nitrogenous bases
on a single strand of DNA. Interestingly, scientists have discovered that only two
percent of these three billion As, Ts, Cs and Gs are actually responsible “for
28 U.S. Department of Justice, NIJ Special Report: Using DNA to Solve Cold Cases, by Sarah V. Hart, et al., NCJ 194197, (Washington DC: July 2002), 1-23. 29 Jobling and Gill, “Encoded Evidence: DNA in Forensic Analysis,” 739. 30 Max M. Houck, Forensic Science, Modern Methods of Solving Crimes (Westport, CT: Praeger Publishers, 2007), Chapter 6, “DNA.” 31 Richard Saferstein, “DNA: The Indispensable Forensic Science Tool,” In Criminalistics, (Upper Saddle River, NJ: Prentice Hall, 2011), 264-295. 32 Neil A. Campbell and Jane B. Reece, Biology, 8th ed, (San Francisco: Pearson Benjamin Cummings, 2009). 33P. P. Vaidyanathan, “Genomics and Proteomics: A Signal Processor’s Tour,” IEEE Circuits and Systems Magazine, fourth quarter, (2004): 6-29, http://authors.library.caltech.edu/9665/1/VAIieeecsm04.pdf.
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translating DNA into the proteins, processes and functions of a living cell.”34,35 So,
what is the function of the remaining ninety-‐eight percent? Although it has yet to be
understood in a biological context, recent discoveries have shown these genome
sequences to be highly informative in forensic identification.
Discovery of DNA Fingerprinting: In 1984 at the University of Leicester,
Alec Jeffreys became responsible for the discovery of genetic fingerprinting36—a
breakthrough that forever would redefine forensic crime solving capabilities.37 This
revolution is based on his finding of hyper-‐variable minisatellites, or “portions of the
DNA molecule [which] contain sequences of letters that are repeated numerous
times… that seem to act as fillers between the coding regions of DNA.”38 Despite the
fact that they do not appear to have a physiological purpose, Jeffreys hypothesized
that the “level of individual specificity” 39 these regions denote could provide means
by which questions of identity could be resolved. Three years later, DNA evidence
was used for the first time to help obtain a conviction. The defendant, Colin
Pitchfork, was found guilty of a double rape-‐homicide after investigators were able
to match DNA from two different crime scenes to a sample obtained from
34 Max M. Houck, Forensic Science, Modern Methods of Solving Crimes, 104. 35 Greg Elgar and Tanya Vavouri, “Tuning in to the signals: noncoding sequence conservation in vertebrate genomes,” Trends in Genetics 24, No. 7, (July 1, 2008), 344-352, http://www.sciencedirect.com/science/article/pii/S0168952508001510. 36 According to the Oxford English Dictionary, genetic fingerprinting is defined as “the use of genetic characteristics derived from, and typically unique to, an individual… for identification.” http://www.oed.com/view/Entry/77550?redirectedFrom=genetic+fingerprinting#eid3065142. 37 “The History of Genetic Fingerprinting,” University of Leicester, http://www2.le.ac.uk/departments/genetics/jeffreys/history-gf. 38 Saferstein, “DNA: The Indispensable Forensic Science Tool,” 270. 39 Giles Newton, “Discovering DNA Fingerprinting,” Wellcome Trust: The Human Genome, (2004), http://genome.wellcome.ac.uk/doc_wtd020877.html.
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Pitchfork.40 Although the technique used by Jefferys since has been made obsolete,
the forensic science that stemmed from his discovery has provided law enforcement
officials with an entirely new perspective from which they can approach evidence in
a criminal investigation.
Restriction Fragment Length Polymorphisms (RFLPs): Certain regions of
DNA contain specific sequences (anywhere from 15 to 35 base pairs long) that are
recognized by endogenous molecules called restriction enzymes, which are
responsible for cutting DNA strands at these distinct nucleotide base arrangements
during certain biological processes. However, the number of times that a specific
sequence occurs in the genome varies from individual to individual. Restriction
Fragment Length Polymorphisms (RFLPs) are the “different fragment lengths of
base pairs that result from cutting a DNA molecule with restriction enzymes.”41
Individuals who have more repeating sequences will have more cuts in their DNA,
so forensic geneticists are able to include or exclude people as suspects following an
analysis of this test. The more restriction enzyme recognition sequences used, the
smaller the probability two people will have the same results. RFLPs are the original
technique with which DNA fingerprinting was performed; however, there were a
number of downsides to this technology—namely, the testing required large
quantities of DNA, (as previously discussed, generally only fragments of DNA are
found at crime scenes), they take a long time to perform, and they are relatively
40 Stephanie Rankin, “Case Study: Colin Pitchfork,” Forensic Science Central, http://forensicsciencecentral.co.uk/colinpitchfork.shtml. 41 Saferstein, “DNA: The Indispensable Forensic Science Tool.”
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expensive.42,43 The discovery of Short Tandem Repeats, coupled with the improved
automation of performing Polymerase Chain Reactions paved the way for the
current formula employed by forensic scientists for DNA fingerprinting.
Polymerase Chain Reactions (PCR) & Short Tandem Repeats (STRs):
Polymerase Chain Reaction (PCR) is a method of DNA replication that allows
scientists to make an exponential number of copies of small DNA fragments. The
process is relatively straightforward: first the DNA is exposed to a temperature of
94oC—the temperature required to denature, or unwind and separate, the two
strands of a DNA molecule—for approximately thirty seconds. Immediately
following this, the temperature is reduced to anywhere from 45-‐65oC, so the
primers can attach to the separated strands of DNA and begin the replication
process. Lastly, the temperature is increased to 72oC so that the nitrogenous bases
can attach themselves facilitating DNA replication.44 For a visual depiction of the
PCR process, see Figure 7. Thanks to the invention of the DNA Thermal Cycler, a
machine that “automates the rapid and precise temperature changes required to
copy a DNA strand,” 45 performing PCR has become faster, easier, cheaper, and more
consistent.
Short Tandem Repeats (STRs) are the intermediary that connects the process
of DNA fingerprinting with the replicating capabilities of PCR. They are extremely
short regions of DNA (less than 450 base pairs long) that contain a base pair
42 Jobling and Gill, “Encoded Evidence: DNA in Forensic Analysis.” 43 U.S. Department of Justice, NIJ Special Report: Using DNA to Solve Cold Cases, 5. 44 New England Bio Labs, “PCR Protocol for Taq DNA Polymerase with Standard Taq Buffer,” https://www.neb.com/protocols/1/01/01/taq-dna-polymerase-with-standard-taq-buffer-m0273. 45 Saferstein, “DNA: The Indispensable Forensic Science Tool,” 270.
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sequence (three to seven letters in size), which is repeated a certain number of
times.46 Because STRs are relatively small in size, they are easily duplicated using
PCR, meaning the sample fragments usually found at crime scenes now have the
potential to be exceptionally informative. Currently, forensic scientists in the United
States use 13 specific STR loci plus the ameliogenin gene—which is able to tell
forensic scientists the individual’s sex—when constructing a suspect profile for the
national DNA database (Table 1).47 This homogenization of DNA characteristics
provides forensic laboratories the ability to compare their DNA profiles with those
that have been developed during other criminal investigations. Once a person’s STR
profile is constructed, and a match has been made, forensic geneticists then
calculate the probability of another individual within the population having that
particular combination of repeats. The incidence of two STR repeats is multiplied
together to generate a likelihood of common origin. A DNA profile consisting of four
common STRs yields a match probability of approximately one person out of
10,000; adding four more loci reduces the match probability to one in 50 million.48
Of course, these statistics assume there are no lurking variables that will increase
the match probability, such as DNA degradation, or if the two samples come from
relatives. Nonetheless, this process of DNA proliferation has proven to be an
extremely effective and efficient tool to assist the process of DNA identification.
46 Ibid., 271. 47 U.S. Federal Bureau of Investigation, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet. 48 Jobling and Gill, “Encoded Evidence: DNA in Forensic Analysis,” 742-743.
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Mitochondrial DNA (mtDNA): Up until now, I have been discussing genetic
profiling using nuclear DNA, or DNA that is found within the nucleus of a cell. In the
human body, however, there is another type of DNA that exists within a cellular
organelle known as a mitochondrion (plural: mitochondria). The mitochondria are
the sites of cellular respiration, the process by which our cells metabolize the
nutrients we ingest into usable energy. DNA inside the mitochondria possesses
several different characteristics from nuclear DNA: it is circular in shape, smaller in
size, has more copies, and is only inherited from a mother.49 It is this final property
of mtDNA that is the double edge sword for forensic identification. All relatives on
the maternal side have the same mtDNA, which makes it essentially impossible for
law enforcement officials to differentiate a suspect from one of his or her relatives—
especially siblings. On the other hand, mitochondrial DNA has a significantly greater
probability of surviving at a crime scene than nuclear DNA, which in many
situations, makes it the only type of DNA available for analysis. One of the most
famous instances in which mtDNA was used to ascertain the identity of unidentified
individuals was following the recovery of remains that were believed to be the
members of Russia’s Romanov Family. DNA samples were obtained from known
relatives of Queen Alexandra, and provided confirmation that bodies discovered did
in fact belong to the murdered Russian royal family.50
49 Houck, Forensic Science, Modern Methods of Solving Crimes, 109. 50 Evgeny I. Rogaev, et al, "Genomic identification in the historical case of the Nicholas II royal family," Proceedings of the National Academy of Sciences 10, No.13 (2009): 5258-5263.
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2. Automated Databases
The Combined DNA Index System, or CODIS, is the overarching name that
encompasses the United State’s entire DNA database. This software provides a
comprehensive collection of DNA profiles originating from the local (LDIS), state
(SDIS) and national (NDIS) levels of criminal investigation. By linking all of these
jurisdictions together, law enforcement officials have at their disposal a plethora of
information that can hopefully help them achieve justice for victims and their
families. Within CODIS are three distinct databases: the convicted offender index,
the missing persons index and the forensic index.
The convicted offender index contains the DNA profiles of individuals who
have been arrested for or convicted of a variety of crimes. Currently, all 50 states
require DNA samples from individuals convicted of felonies, but every state has a
different threshold for misdemeanor offenses that qualify for the acquisition of a
suspect’s DNA.51 However, as the National Institute of Justice predicted back in
2002, “as states continue to recognize the crime-‐solving potential of DNA databases,
they continue to expand the scope of their convicted offender legislation.”52 In June
of 2013, the Supreme Court ruled that it is legal for police officers to obtain a DNA
sample from an individual who had been arrested but not convicted of a crime.53
This decision will almost certainly guarantee an influx in the number of entries
within the convicted offender index of CODIS—however, given this development, it
might be prudent for them to rename this portion of the database.
51 Merritt Melancon, “DNA base will grow, but some want more data,” Athens Banner-Herald Online, May 29, 2011, http://onlineathens.com/stories/052911/new_836502644.shtml. 52 U.S. Department of Justice, NIJ Special Report: Using DNA to Solve Cold Cases, 10-11. 53 Maryland v. King, 133 S. Ct. 1236 (2012).
19
The missing persons index is further broken down into the unidentified
index and the reference index. The unidentified index contains DNA profiles from
crime scenes in which a victim’s identity has not been established, and the reference
index contains both mitochondrial and nuclear DNA profiles from family members
of a missing person.
Within the forensic index lie all DNA profiles that have been generated from
biological evidence discovered at crime scenes. Possibilities of evidence that can
contain informative DNA can found in Table 2.
Law enforcement officials and forensic technicians search the CODIS
database in hopes of connecting two crimes together. To do so, the computer must
search amongst 10,477,600 offender profiles, 1,578,800 arrestee profiles and
504,700 forensic profiles.54 If the software detects a hit, then the geneticists will
perform the necessary tests to confirm that a match has been made. Once detectives
have obtained confirmation from the scientist, “that information is used as probable
cause to obtain a new DNA sample from that suspect so the match can be confirmed
by the crime laboratory before an arrest is made.”55 As of September 2013, CODIS
has provided identification information for more than 213,500 investigations and
has yielded over 222,600 hits.56 Although these numbers currently are quite small
compared to the IAFIS database’s statistics, with every entry that is entered into
CODIS, the more successful the technology has the potential to become, especially
54 U.S. Federal Bureau of Investigation, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-statistics. 55 US Department of Justice, NIJ Special Report: Using DNA to Solve Cold Cases, 10. 56 U.S. Federal Bureau of Investigation, CODIS—NDIS Statistics,
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given the recidivistic nature of many crimes in which DNA is present.57 According to
the National Institute of Justice, “a likelihood exists that the individual who
committed the crime being investigated…already has his or her DNA profile in a
DNA database that can be searched by CODIS. These possibilities have inspired law
enforcement agencies throughout the country to reevaluate cases previously
thought unsolvable.”58
3. Television Exaggerations
Unlike the other two forensic sciences mentioned in this paper, television’s
implementation of DNA in its forensic investigation remains largely faithful to its
real life capabilities and applications. The actual science of DNA identification is
accurately conveyed, and there are even episodes of shows in which the characters
stumble upon a novel use of DNA. For example, in the season 11 episode of Law and
Order SVU entitled “Perverted,” protagonist and kick-‐ass detective Olivia Benson
becomes a murder suspect, despite her insistence that she is innocent. However,
upon the discovery of her DNA on the murder weapon, Sergeant Ed Tucker of the
Internal Affairs Bureau for the New York Police Department arrests her for first-‐
degree murder. Overturning every rock, Olivia’s colleagues look for any possible
explanation that could exonerate her. Finally, the Medical Examiner proudly
announces that she has discovered an anomaly. According to Dr. Warner, “in normal
DNA, about 80% of the markers are methylated; in Liv’s sample on the knife, none of
57U.S. Department of Justice: Bureau of Justice Statistics, Recidivism, http://www.bjs.gov/index.cfm?ty=tp&tid=17. 58 U.S. Department of Justice, NIJ Special Report: Using DNA to Solve Cold Cases, 2,9.
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them are.”59 Her discovery prompted further investigation and a call to Israel, where
she discovered scientists who are able to fabricate DNA evidence. This procedure
allows anybody to take a sample of someone’s DNA, spin out the white blood cells—
which are the only components in blood that contain DNA—and be left with blood
that does not have any DNA in it. The scientist is then able to take another person’s
DNA, conduct PCR amplification on it, and insert that DNA into the blank canvas. In
other words, the right buyer can have someone framed for murder with the
presence of irrefutable DNA evidence. As Detective Elliot Stabler said earlier in the
episode, “all juries want to hear about is DNA.”60 Normally the forensic scientists on
these types of television shows are able to give jurors exactly what it is they want;
this episode, on the other hand, is a rare example of an instance in which even the
experts were fooled by forensic science and struggled to find the happy ending for
which everyone (characters and viewers alike) was hoping.
Although I have conceded that the science of DNA is for the most part
accurately deployed in these television shows, there are still some examples of
impropriety pertaining to its portrayal. Most notably, is the frequency with which
the detectives use DNA to assist their investigations. In season eight of Law and
Order: SVU, DNA was used in 13 out of a total of 22 episodes. For viewers who have
seen all or even most of the more than 300 episodes of this series, one of the
takeaways is that DNA is readily available and frequently leads to the identification
and subsequent arrest of the criminal. For example, in the season eight episode
59 Law and Order: Special Victims Unit, “Perverted,” NBC, Nov. 18, 2009, written by Dawn DeNoon, Television. 60 Ibid.
22
entitled “Haystack,” the Crime Scene Investigation Unit is able to find a strand of
hair on the fire escape of a building in which a baby boy was kidnapped.
Fortuitously, viable DNA was able to be extracted from the hair fiber. A chance
conversation between an old friend of the missing baby’s mother and the SVU
detectives leads their investigation to focus on a man named Patty. When detective
Stabler asks the friend if he has any idea where to find “Patty,” the friend jokes
“probably in jail.” From there, the Y chromosome from the DNA found on the hair
allows the detectives to search for any male relatives of the suspect in CODIS due to
the fact that every male inherits an exact copy of his father’s Y chromosome. As
expected, all of the stars align and the detectives end up apprehending the owner of
the DNA sample, who turns out to be the individual guilty of kidnapping the child.61
This episode recap serves as just one example of TV’s use of DNA that
miraculously leads to a resolution of the investigation. All of the stars aligned for the
detectives as they traced down a feeble lead resulting from a single hair fiber on the
balcony. It’s lucky that it was not a windy day in NYC, and a huge coincidence that
the hair fiber fell from the suspect’s head with its root in tact (which is where the
DNA is). However, for individuals who do not analyze every act of fate or
coincidence that occurs in these television shows, it is extremely plausible for them
to develop expectations that DNA can be found and will lead to the person
responsible. The results that are generated and consistently generate informative
leads augment the exaggerated platform of forensic science on which the CSI Effect
is built.
61 Law and Order: Special Victims Unit, “Haystack,” NBC, Feb 20, 2007, written by Amanda Green, Television.
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C. Ballistics
Ballistics is the branch of forensic science that examines firearms and
ammunition in an attempt to ascertain or confirm the identity of a gun believed to
have been used to commit a crime. Just as assertions have been made that no two
fingerprints are the same, it has been contended, and accepted, that the internal
components of every gun are different. As a result, prosecutors have been able to
build criminal cases using the testimony and scientific findings of ballistics experts.
1. Firearm Characteristics
Class Characteristics: Firearm class characteristics refer to common
properties shared by all guns that belong to the same “family” and are created using
the same production process. Gun companies are able to choose from a wide variety
of manufacturing techniques in order to best meet production demands and
individualize their weapons’ projectile characteristics (such as direction and rate of
twist). The inside of a gun barrel—called the bore—is made by a drill that hollows
out a rod of steel (Figure 8). Once the company has chosen a bore design, the class
characteristics will remain consistent for the duration of production. For example,
“.32-‐caliber Smith & Wesson revolvers have five lands and grooves twisting to the
right, [while] Colt .32-‐caliber revolvers exhibit six lands and grooves twisting to the
left.”62 Class characteristics allow forensic firearms experts to differentiate one .32-‐
62 Richard Saferstein, “Firearms, tool marks, and other impressions,” In Criminalistics, (Upper Saddle River, NJ: Prentice Hall, 2011), 420.
24
caliber brand from another, but they alone cannot provide clues to differentiate the
identity of one .32-‐caliber Colt revolver from another.
Subclass Characteristics: Subclass characteristics are bore markings that
are found on a group of successively manufactured weapons belonging to the same
gun class. These properties of gun barrels are the result of “imperfections of a
rifling tool that imparts similar tool marks on a number of barrels before being
modified either through use or refinishing.”63 Although blemishes are frequently
misclassified as individual characteristics (see below), differentiating between the
two is relatively straightforward. Subclass characteristics are visible along the entire
length of the bore whereas individual characteristics are irregularly and
inconsistently located. This accounts for the presence of the same subclass
characteristics on guns rifled in succession.64 Subclass characteristics provide an
additional level of identifying marks that ballistics experts can use for inclusionary
or exclusionary purposes.
Individual Characteristics: Individual characteristics are the most unique
subset of markings found on the inside of a gun barrel. These striations are the
result of imperfections in the tools used to make the bore’s lands and grooves, and
can also arise when the steel of the barrel chips off either during manufacturing or
from use.65 According to Al Biasotti, the presence of individual characteristics is
essentially guaranteed due to the “random nature and rapidity with which the
63 Ronald G. Nichols, "Defending the Scientific Foundations of the Firearms and Tool Mark Identification Discipline: Responding to Recent Challenges," Journal of Forensic Sciences 52.3 (2007): 586-94, Print, 587. 64 Ibid. 65 Saferstein, “Firearms, tool marks, and other impressions,” 420-421.
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toolmarks produced by ‘cut’ type rifling methods change.”66 As a result, no two guns,
even those manufactured successively have indistinguishable striation patterns.
2. Scientific Theory Behind Ballistics
The combination of class, subclass and individual characteristics are
responsible for the unique, identifiable properties of every gun manufactured.
Before a gun is fired, a cartridge, which is comprised of a case, primer, propellant
such as gunpowder, and a bullet, is moved into a firing chamber either manually or
by the gun’s magazine. When the trigger is pulled, the firing pin causes the primer to
mix with the gunpowder, inducing a combustion reaction propelling the bullet from
its chamber down the barrel and out of the muzzle. As the bullet spins through the
barrel, it makes contact with the bore whose striations create an impression on the
projectile. Because every gun has its own, unique bore markings, no two bullets can
have the same striations unless they were fired from the same gun (Figure 9).
As expected, many people have challenged the legitimacy of the scientific
premise on which ballistics is built. Among the criticisms are 1) the tool markings
and striations between two firearms are not sufficiently different, and 2) changes in
the firearm over time, such as the accumulation of dirt and rust from continued use,
affect the identification process by disguising the unique bore markings.67 However,
independently conducted experiments have been able to refute these concerns by
66 Nichols, "Defending the Scientific Foundations of the Firearms and Tool Mark Identification Discipline: Responding to Recent Challenges," 587, citing Al Biasotti: “Rifling methods—a review and assessment of the individual characteristics produced. AFTE J 1981; 13(3). 67 Ibid., 586.
26
proving that although barrel markings can change slightly over time, these
variations are not dramatic enough to obfuscate any identification tests.68,69
3. Automated Databases
Class characteristics are catalogued by the FBI’s General Rifling
Characteristics File database. This allows firearm technicians to compare their
samples’ lands and grooves against known manufacturing characteristics. Searches
in this database usually yield preliminary information about a weapon to help
narrow the focus of the detectives’ investigation.
The National Integrated Ballistic Information Network (NIBIN) is a
nationwide database jointly operated by the FBI and ATFE (Alcohol, Tobacco,
Firearms and Explosives branch of the US Department of Justice). Since its launch in
1999, over 1,612,000 pieces of evidence have been entered and more than 35,000
hits70 have been made by law enforcement officials.71 This database relies on the
individual characteristics of firearms and bullets when trying to determine whether
or not two samples share a common origin. When a bullet is retrieved from a crime
scene, forensic firearms experts are able to digitally scan and encode its
characteristics by using a laser that isolates the striations. The computer program
68 Ibid. 69 Saferstein, “Firearms, tool marks, and other impressions.” 70 According to ATF, a hit is defined as “a linkage of two different crime scene investigations where previously there had been no known connection between the investigations.” It is important to note that a hit is a linkage between CASES, not individual pieces of evidence. http://www.nibin.gov/about/program-overview/guidance-for-hit-reporting.html 71 U.S. Department of Justice: Bureau of Alcohol, Tobacco, Firearms and Explosives, NIBIN - National Integrated Ballistic Information Network: Program Overview, http://www.nibin.gov/about/program-overview.
27
then “rotates, maps and records the significant areas on the bullet’s surface.”72
These characteristics are then compared against the database’s other entries. As is
the case with IAFIS, if the computer generates a list of potential matches, it is only
after the firearms technician has personally compared the two samples that a match
can be declared.
4. Television Exaggerations
Guns are a popular choice of murder weapon on television. They are
dramatic, mildly gory, and relatively simple to use (in an episode of Law and Order
SVU, a seven year old boy “accidentally” kills his classmate with one).73 However,
just as with fingerprints, the portrayals are not entirely accurate and subsequently
contribute to the public’s false understanding about the actual capabilities of
forensic ballistic analysis.
The NCIS episode “One Shot, One Kill,” tells the story of how Special Agent
Gibbs’ team identifies and stops a rooftop sniper who killed a marine Gunnery
Sergeant working in a Washington D.C. recruitment office. Upon their arrival at the
crime scene, the agents are able to find the projectile that killed their victim
relatively easily; however at the time, they are unaware that the murder was
committed by a sniper. This information is discovered by forensic scientist
extraordinaire Abby Sciuto, who uses physics, computer programming, backwards
logic, and sheer speculation to determine this detail. In reality, this demonstration of
72 U.S. Department of Justice: Bureau of Alcohol, Tobacco, Firearms and Explosives, Automated Firearms Ballistics Technology, http://www.nibin.gov/about/program-overview/automated-firearms-ballistics-technology.html. 73 Law and Order SVU, “Baby Killer,” NBC, Nov. 17, 2000, written by Dawn DeNoon and Lisa Marie Petersen, Television.
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perfect science would never really occur. The number of variables and mitigating
circumstances that would have to coincide without a single mistake is far too
idealistic and virtually improbable of happening in reality. Additionally, the writers
of the episode impart a second case of misinformation about forensic ballistics when
the team must investigate the murder of the sniper’s second victim. The agents are
shown on their hands and knees searching the office for the bullet. Finally, Special
Agent Caitlin Todd finds a bullet hole in the wall behind the desk where the victim
was sitting. Using a pair of tweezers, she carefully excises the bullet that had been
lodged several centimeters in the wall (see figure 10). This evidence recovery is
procedurally incorrect. In a real life scenario, not only would it be a trained crime
scene investigator retrieving the bullet instead of a law enforcement official working
the case, but also tweezers would not be used! Tweezers, or any similar type of
instrument, could leave markings on the bullet that would mar the bore impressions
from the gun, thus complicating the comparison tests needed to confirm that the
two murders were committed using the same weapon.74 As expected, on NCIS, the
repercussions of this mistake are neither addressed nor affect the resolution of this
case. In a real investigation, however, such a seemingly minor mishandling of
evidence can and will be exaggerated by the defense, resulting in the evidence
possibly being thrown out as well as the case being potentially dismissed. Moreover,
the human aspect of real life crime scene evidence recoveries makes these types of
mistakes much more frequent and plausible than the carefully scripted actions of
television characters.
74 Saferstein, “Firearms, tool marks, and other impressions.”
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D. Relevance
These three examples of forensic identification techniques highlight some of
the most common discrepancies between real life forensics and the science seen on
television. They provide concrete examples as to how jurors who watch these
television shows are misled, thereby creating the foundation off of which the CSI
Effect is constructed.
III. THE CSI EFFECT
According to the San Diego Tribune, “during one week in September 2005,
there were 63 homicides on forensic television shows during prime time viewing
hours on six broadcast networks.”75 This number is more than double the amount of
crime dramas on TV in 2004,76 and the number has continued to rise into the
primetime television schedule of 2013. Currently CBS’s primetime television show
NCIS is ranked as the number one most watched primetime drama according to the
Nielsen ratings with over 14 million viewers every Tuesday night.77 Shows such as
Bones, SVU and CSI are also successes for their networks’ ratings, with each bringing
in around five to eight million viewers on average weekly.78 Given the undeniable
popularity of this genre, there is concern among some pundits and some in the
judicial system that potential jurors in criminal cases may have biases and
75 Evan W. Durnal, "Crime Scene Investigation (as Seen on TV)," Forensic Science International, 199 (University of Central Missouri, Criminal Justice Department, 2010), Print, 1-5. 76 M. L. P. Robbers, "Blinded by Science: The Social Construction of Reality in Forensic Television Shows and Its Effect on Criminal Jury Trials," Criminal Justice Policy Review 19.1 (2008): 84-102, 84 citing (Bauder, 2005). 77 Nielsen Ratings, “Tops of 2013: TV and Social Media,” http://www.nielsen.com/us/en/newswire/2013/tops-of-2013-tv-and-social-media.html, (accessed Dec. 20, 2013) 78 Amanda Kondolojy “TV By the Numbers: TV Ratings,” Zap2it, http://tvbythenumbers.zap2it.com/, (accessed November 22, 2013).
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preconceptions as a result of the portrayal of forensic evidence in the media. This
phenomenon is generally referred to as the CSI Effect. Proponents of the CSI Effect
hypothesize that the depiction of forensics that is beyond the scope of real science
increases the burden of a) the prosecution by elevating a jury’s expectations
regarding the conclusiveness of forensic evidence presented at trial, or b) the
defense by causing the jurors to place too much faith in the accuracy and reliability
of forensic science. In the following subsections—A and B—I will lay out the
arguments made by scholars that support each side of the CSI Effect. Section V will
explain the fallacies that cripple these arguments.
A. Hypothesis 1: Increase on the Prosecution’s Burden
With each hour-‐long episode of shows such as Bones, Law and Order SVU, or
N.C.I.S., viewers are exposed to criminal behavior where justice is achieved. Diligent
police work leading to the discovery of conclusive evidence flawlessly tested and
analyzed by the amiable forensic scientists are all that these dramas need to give
their story lines a resolution and their characters a sense of accomplishment. This
reliability of closure has prompted Tom Tyler and other CSI Effect researchers to
speculate that, “the millions of people who watch these series develop unrealistic
expectations about the type of evidence typically available during trials, which, in
turn, increases the likelihood that they will have a ‘reasonable doubt’ about a
defendant’s guilt.”79 This theory of the CSI Effect predicts that viewers are loyal to
the fictional representations of the as seen on TV criminal proceedings and as a
79 Tom R. Tyler, "Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction," The Yale Law Journal, 115 (2006): 1050-085, JSTOR, Web, Feb. 12 2013, 1052
31
result, the burden of the prosecution to prove a defendant’s guilt is significantly
increased.
One reason why advocates of the CSI Effect think the prosecution is having a
harder time convicting defendants is because viewers are engrossed and captivated
by the naïve and unrealistic notion that forensic evidence is readily available for any
given investigation.80 In truth, evidence is often contaminated, inconclusive, deemed
unnecessary for the criminal proceedings, or just non-‐existent. This reality
undermines a juror’s expectations and can even lead him to believe that the absence
of forensics is due to anything from sloppy police work,81 to evidence of the
defendant’s innocence. On TV police shows there are rarely episodes in which
charges are dismissed due to lack of evidence, and in these idyllic situations, if there
is evidence, the show’s crime fighting heroes will find it. In a surprising interview,
Joseph Peterson of the Department of Criminal Justice at the University of Illinois-‐
Chicago reveals, “DNA [is] rarely culled from crime scenes and analyzed…[and]
blood [i]s usually found only five percent of the time at murder scenes.”82 These are
just some of the ways in which the lack of forensic evidence underwhelms jurors
who are accustomed to the certainty presented on TV. As a result, when real life
criminal proceedings inevitably do not follow the forensic formulas seen on
television, prosecutors find themselves having to use negative witnesses—a person
called to testify to explain to those present at the trial why forensic tests were not
80 Podlas, "The CSE Effect: Exposing the Media Myth," 434. 81 Robbers, "Blinded by Science: The Social Construction of Reality in Forensic Television Shows and Its Effect on Criminal Jury Trials," 91. 82 Kit R. Roane, “The CSI Effect,” U.S. News and World Report, Apr. 17, 2005, online edition, http://www.law.yale.edu/documents/pdf/Alumni_Affairs/Stith_Roane_The_CSI_Effect-_US_News_and_World_Report.pdf, (accessed Feb. 26 2013).
32
conducted83—more frequently in an attempt to explain away the stigmas
surrounding the lack of forensic evidence. Additionally, it is becoming increasingly
necessary for judges to give “specific instructions in every criminal case that jurors
should not expect the type of forensic evidence they see on television shows and
often have to go through the evidence with the jury to make certain they are not
holding trial evidence to television standards.”84 Proponents of this side of the CSI
Effect believe that every time a negative witness is used, or a judge must provide
cautionary instructions, their notion of increased prosecutorial burden is reinforced.
Defense attorneys are able to further undermine the credibility of forensic
evidence by simply insinuating the possibility of error on the part of the crime scene
evidence collector, forensic lab or scientist, as was the case during the trial of O.J.
Simpson. Following the prosecution’s presentation of DNA evidence that linked
Simpson to the crime scene, a large segment of the public was ardently convinced of
his guilt. However, the defense presented its case by suggesting that the forensic
technician who tested the evidence contaminated the sample. This contamination,
they argued, led to the identification of Simpson. As a result, reasonable doubt was
introduced and the defendant was acquitted.85 On TV, viewers get frustrated when
the defendant’s lawyers argue that the police or forensic scientists mishandled
evidence or messed up their analysis of the sample. Not only are these sinister
creatures attacking the credibility and reliability of the show’s beloved characters, 83 Robbers, "Blinded by Science: The Social Construction of Reality in Forensic Television Shows and Its Effect on Criminal Jury Trials," 93. 84 Durnal, "Crime Scene Investigation (as Seen on TV)," 3. 85 The glove that the prosecution also admitted into evidence also contributed to his acquittal. During the trial, it was shown that the glove didn’t fit Simpson because the leather stiffened and shrank. This inconsistency was the inspiration behind the famous saying by Johnnie Cochran one of his lawyers, “if it doesn’t fit you must acquit”
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but the audience is equipped with a third person omniscient perspective that allows
them to have seen the defendant committing the crime earlier in the episode. In real
life, these luxuries re not afforded to jurors, and as a result, even the slightest
suggestion of impropriety can be enough to disintegrate the trust jurors placed in
scientific evidence. This is especially true if the evidence lacked the statistical
certainty that normally existed on TV.
Another area in which television shows are allegedly contributing to the
prosecution’s increased burden is through their failure to depict some of the
shortcomings faced by modern science. In real life, there are a number of different
ways in which the results of a single forensic test can be interpreted. This stems
from the more pronounced, active human component involved in actual forensics.
While it is true there is an actress playing the forensic scientist on TV, she is merely
the intermediary who communicates the scientific findings that steer the detectives
in the right direction. The machines do most of the work, which further conveys the
notion that all of the test results are both accurate and objective. In reality, the
ability to extract any valuable information lies in the capabilities of the scientist. She
must tell her equipment what tests to run on a piece of evidence, and she must
interpret the results and sometimes extrapolate conclusions. As Evan Durnal notes,
“although it is true that physical evidence itself cannot lie… it is up to human
interpretation to determine what that piece of evidence is saying.” Dr. Kimberlianne
Podlas agrees, remarking that, “forensic conclusions are only as good as the
technicians who retrieve the evidence, test it, and draw conclusions from it.”86 Just
86 Podlas, "The CSE Effect: Exposing the Media Myth,"438, (citing Cooley).
34
as jurors may be biased by their CSI expectations, forensic technicians, too, may be
vulnerable and, therefore, unduly influenced in their testing. Studies have shown
that it is essentially impossible for individuals to compartmentalize the information
they hear outside of the investigation or criminal proceedings.87 As a result, when a
fingerprint specialist is comparing the whorls and loops of sample A to those of
sample B it is possible—regardless of whether or not it was her intention—that she
sees something which is not there as a result of the bias implanted by the media’s
investigation coverage.88 If the media suggests that the suspect in question is most
likely guilty of the crime, then the analyst might recall this information, even
subconsciously, and deem his fingerprints close enough to the sample taken from the
crime scene. It can also be argued that the fingerprint expert thinks that he has to be
able to find a match because Abby on NCIS would certainly be able to.
Advocates for the CSI Effect note the media’s fabrication or exaggeration of
forensic experiments as a contributor of jurors’ inflated expectations of the
prosecution. While many of the procedures seen on TV seem plausible, the reality is
that these tests are based on theories that are not recognized by the scientific
community. For example, in the case of bullet lead comparisons, the analysis and
conclusions drawn from testing are based on the premise that “batches of lead used
to make bullets contain unique combinations of seven trace elements… if two bullets
contain the same ratios of these elements, an expert may infer that they originated
87 Tyler, "Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction." 88 Jonathan Jones, “Forensic Tools: What’s Reliable and What’s Not-so-Scientific,” Frontline: Criminal Justice, Apr. 17, 2012, http://www.pbs.org/wgbh/pages/frontline/criminal-justice/real-csi/forensic-tools-whats-reliable-and-whats-not-so-scientific/.
35
from the same source.”89 However, during an investigation initiated by the National
Academy of Sciences, it was revealed that it is in fact possible for two bullets from
the same batch to have a different chemical composition, and conversely for two
bullets from different groups to be identical.90 Additionally, on the television show
Bones, the “Angelator”91 is able to create a three dimensional hologram rendering of
any scenario the Jeffersonian/FBI team can imagine to explain how a murder
occurred. As of now, although this technology exists, it is not used in criminal
investigations.92 The final unrealistic tools in the TV forensic laboratory’s arsenal
worth mentioning are the “omniscient databases that can search any kind of product
ranging from tires, cars, and tools to makeup, coffee and soil samples.”93 Although
there are several databases that do exist in real life such as CODIS, IBIN, and AFIS,
the information contained within these computer programs is limited to whatever is
entered by police officers and forensic scientists. Moreover, all of the data must
possess certain properties so that there are points of comparison between the
sample and all other entries within the database. If the evidence lacks these
homogenizing characteristics, it is excluded from the database. This means that only
a fraction of the information uncovered during criminal investigations is actually
viable. In other words, these seemingly encyclopedic databases seen on TV are
hardly all encompassing in reality. This by no means should diminish their
contributions to criminal investigations—as previously mentioned, the databases 89 Moriarty and Saks, “Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping,” 22. 90 Ibid. 91 “Angelator,” Bones Wiki, http://bones.wikia.com/wiki/Angelator (accessed Mar. 29, 2013). 92 Hart Hanson, “Bones: More of Your Burning Questions Answered,” Interview by David A. Keeps, TV Guide (2006), http://www.tvguide.com/news/Bones-Burning-Questions-35748.aspx (accessed Mar. 29, 2013). 93 Durnal, "Crime Scene Investigation (as Seen on TV)," 4.
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that do exist have helped solve hundreds of thousands of criminal investigations.
However, this hypothesis of the CSI Effect assumes that viewers of these television
shows and potential jurors believe that all of the other databases exist. It then
follows that since the databases exist, they should have been used to further solidify
the prosecution’s case, and if they are not used, it is attributed to evidence of the
defendant’s innocence.
A final argument made by proponents of this side of the CSI Effect hypothesis
relates to the statistical certainty of the evidence used during an investigation. In
order for a forensic scientist to unequivocally affirm that a piece of evidence belongs
to a particular defendant, he must prove that “a) two sets of features are
indistinguishably alike and b) those similarities are shared by no other person or
object.”94 However, with the exception of DNA evidence, no forensic test “possesses
a database that permits the calculation of a probability of a coincidental match.”95
Because very few standards exist that govern the statistical certainty required for
forensic evidence to be presented in court, many jurors are unimpressed with the
prosecution’s presentation of forensic evidence. Crime labs in the United States do
not have to be accredited before they are allowed to process evidence.96 There is
also no minimum number of commonalities that two samples must share before a
forensic expert can claim to have made a positive identification. Although the
scientific community usually prefers anywhere from eight to sixteen points of
similarity before they are persuaded that two samples came from the same origin, it
94 Moriarty and Saks, “Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping,” 18. 95 Ibid. 96 Ibid.
37
is possible for a fingerprint analyst to testify under oath that an identification has
been made using only six or even five points of comparison.97 Therefore, when
jurors who are constantly spoiled by 99.8% match probabilities on TV encounter
anything less than near-‐certainty, they misinterpret the evidence as grounds for
reasonable doubt.
According to proponents of this side of the CSI Effect theory, when an
individual serves as a juror for a criminal trial, these realities of forensic science
become evident, especially if the person frequently watches the aforementioned
legal and forensic television shows. As a result, members of the jury are left
unsatisfied and unconvinced regarding the guilt of a defendant. Because the United
States legal system requires a defendant to be found guilty beyond a reasonable
doubt in order to be convicted, these uncertainties lead jurors to hypothesize that
there is insufficient evidence to indisputably connect the defendant to the crime,
thus obligating them to acquit the defendant. As Dr. Kimberlianne Podlas writes, this
manifestation of the CSI Effect is inducing a trend in which a jury unintentionally
“increases the constitutional burden from beyond a reasonable doubt to beyond any
and all doubt.”98
B. Hypothesis 2: Increase on the Defense’s Burden
This theory of the CSI Effect stipulates that defense attorneys are having an
increasingly difficult time getting their clients acquitted because of the impact
television shows like Bones, NCIS and SVU make on jurors. It is important to note
97 Saferstein, Criminalistics. 98 Podlas, "The CSE Effect: Exposing the Media Myth," 436 (citing Michael Mello).
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that this position is not as well researched as its counterpart; however, compelling
arguments have been made in favor of this phenomenon that cannot be overlooked.
The most persuasive argument made by this definition of the CSI Effect is
that in reality, scientific evidence presented in trials is relatively unreliable and
subsequently fails to meet jurors’ expectations. As previously mentioned, very few
standards exist that govern the processes involved in forensic identification. Crime
labs are not necessarily accredited, there is no minimum number of similarities that
must be found before a positive identification can be claimed, and human error is
unfortunately frequent during the collection and testing of forensic evidence.99 The
absence of oversights has the potential to yield incorrect conclusions, which are
then presented to juries. One of the most common arguments presented in support
of this CSI Effect definition is the frequency of DNA exonerations. On television,
evidence is generally equated with guilt, and the results yielded from testing in the
lab are not tainted with human error or unscientific guesswork. The probability that
a match has been made is virtually 100% and the characters conduct their
investigations under the assumption that “DNA doesn’t lie.” In reality, the mere
existence of The Innocence Project serves as a reminder that perfection is not
always achieved. Unfortunately, DNA does sometimes lie (in that it can be
inconclusive or otherwise tainted), and jurors who are accustomed to the certainty
on television are hesitant and arguably unwilling to abandon their idealized beliefs
in DNA.
99 Ibid.
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Moreover, the notion of expert testimony as unreliable is augmented by
instances in which “forensic technicians, crime scene investigators, and crime-‐
reconstruction experts have lied under oath, faked their credentials, fabricated
evidence… [and even] forged test results.”100 For various reasons, many real life
forensic scientists seem to have great difficulty sticking to the facts. In fact,
numerous cases of impropriety have been cited by colleagues of these data
manipulators,101 which unfortunately further damages the already fragile
reputation of forensics. This side of the CSI Effect hypothesizes that because the
evidence seen on television is always accurate and trustworthy, jurors will assume
that the evidence with which they are presented is equally as reliable and thus
indicative of a defendant’s guilt.
Advocates of this proposed theory of the CSI Effect complain that many of the
tests conducted on evidence are not grounded in the scientific method and therefore
cannot produce reliable results. It has already been mentioned that skeptics have
challenged the veracity of fingerprint and ballistic identification; however, the
integrity of several other forensic tests are also being questioned, including “ dog
sniff evidence, hair analysis, bite-‐mark analysis, earprints… and handwriting
identification.”102 Subsequently, this is causing them to question how exactly the
courts are defining expert testimony. They argue that too many controversial
conclusions are disguising themselves as reliable and obfuscating the jury’s
demarcation line between fact and fiction.
100 Ibid., 441. 101 Kit R. Roane, “The CSI Effect.” 102 Podlas, "The CSE Effect: Exposing the Media Myth," 439-440.
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V. REFUTATION OF THE CSI EFFECT
A. Counter Arguments
1. Refutation of Hypothesis 1: An Increase in the Burden on the Prosecution
US Attorney’s Statistical Report & Current Sociological Trends: Every
year, the United States Department of Justice releases a report detailing a number of
different statistical breakdowns that pertain to the criminal, civil and appellate
cases handled by US Attorneys during the previous fiscal year. In the preface that
accompanied the publication for the 2010 report, director H. Marshall Jarret
explains,
“The United States Attorneys, under the direction of the Attorney General, are responsible for
investigating and prosecuting those who violate our nation’s laws, for asserting and defending
the interests of the United States, its departments, and agencies through the conduct of civil
litigation, and for representing the United States in its appellate courts. “
The data contained therein refutes the CSI Effect proponents’ claim that the
prosecution is having a harder time convicting defendants. According to the
reports, since the start of the new millennium, the conviction rate for criminal cases
prosecuted has been over 90%. Additionally, the number of criminal defendants has
increased by more than 100 percent over the past 40 years. The pertinent
information can be found in Tables 3,4 and 5 as well as in Figure 11. These real
world variables suggest that the prediction made by the first theory of the CSI Effect
are not transpiring.
It is important to note, however, that these statistics do not break down the
number of convictions in which forensic evidence was available (although I highly
recommend that the 2014 Fiscal Year report includes this data). Furthermore, as
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Director Jarrett cautions in his introduction, “these charts and tables… cannot and
do not reflect the quality and complexity of the criminal prosecutions… conducted
by the offices, and the statistics fail to present a realistic picture of the time, effort
and skill required to prosecute and litigate the cases.”103 Nevertheless, based on this
data, it is reasonable to conclude that bias against the prosecution as set forth in the
first theory of the CSI Effect does not accurately reflect our current sociological
trend of mass incarceration. In other words, the prosecution seems to be doing just
fine in getting convictions.
Mass Incarceration: Over the past 40 years, the United States’ rate of
imprisonment has increased drastically, causing overcrowding in federal and state
prisons. California, which has the most offensive case of prison overcrowding, must
build at least one new prison a year, every year in order to remain at double
capacity. According to Eric Schlosser, a scholar who has thoroughly researched the
incarceration patterns of the United States, “the state holds more inmates in its jails
and prisons than do France, Great Britain, Germany, Japan, Singapore, and the
Netherlands combined.”104 However, the conditions in California merely provide an
exaggerated example of our country’s inclination to imprison deviant individuals.
Prior to the 1970’s, before the start of an era laden with crime, the nation’s
incarceration rate was approximately 110 prison inmates for every 100,000105
people. In 2007, the US imprisonment rates peaked at 506 inmates per 100,000
103 U.S. Department of Justice, US Attorneys’ Annual Statistical Report Fiscal Year 2010, by H. Marshall Jarrett, (Washington DC: Office of the United States Attorneys, 2010). 104 Eric Schlosser, “The Prison Industrial Complex,” The Atlantic Monthly, (December 1998), 52-77, 52. 105 Steven Raphael, and Michael A. Stoll, “Why Are So Many Americans in Prison?,” University of California, Berkeley Law, 2008, http://www.law.berkeley.edu/files/Steven(2).pdf.
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residents, with the frequency of male incarceration over 14 times that of female
(932 per 100,000 male U.S. residents compared to 65 per 100,000 female
residents).106
These trends reflect a seemingly pervasive cultural mindset in which
essentially all deviance is punishable by imprisonment. As Franklin E. Zimring
comments, “no matter what the question has been in American criminal justice over
the last generation, prison has been the answer.”107 Crimes for which it would
reasonable to perform community service, serve probation, or receive medical
treatment are instead punished with jail sentences. In alignment with this mindset,
both federal and state governments have invested billions of dollars into the
construction of new prisons to accommodate the felon population and relieve
prison overcrowding.
The willingness of the US Judicial branch to incarcerate so many individuals
is a cultural mindset that deserves further investigation. It has given rise to racially
motivated patterns of imprisonment, an ineffective system that was initially
established to deter criminal behavior, and a multi-‐billion dollar capitalist market
that thrives on the misfortune of “the poor, homeless, mentally ill, drug dealers, drug
addicts, alcoholics and other nonviolent deviants.”108 However, all of this is not
within the scope of this paper. What is pertinent is that the confluence of all of these
variables reinforces the argument that clearly prosecutors are not having difficulties
convicting.
106 U.S. Department of Justice: Bureau of Justice Statistics, Prison Population Declined in 26 States During 2011, December 2012, http://www.bjs.gov/content/pub/press/p11pr.cfm. 107 Schlosser, “The Prison Industrial Complex,” 52. 108 Schlosser, “The Prison Industrial Complex,” 54.
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2. Refutation of Hypothesis 2: An Increase in the Burden on the Defense
A primary problem with the arguments made by proponents of this
definition is that they entirely are based upon incidents in which the forensic expert
testimony with which jurors were presented was false. This has in turn inflated the
belief that jurors are blinded by the infallibility of science as seen on television and
may lead them to accept the veracity of an expert witness, regardless of the truth of
the testimony. I however, argue that these occurrences do not provide any evidence
whatsoever to confirm the existence of the CSI Effect’s second hypothesis. Instead, I
argue that this platform is more of a commentary and cautionary warning for the
courts to be more selective in their admission of expert testimony. Presently, expert
witnesses and their testimony must undergo a series of vetting procedures that
were established both through court precedence and congressional legislature.
Subsequently, because of the framework established by these documents, I counter
that jurors have the right to enter a courtroom with the expectation that all of the
forensics with which they are being presented have been properly verified and
corroborated by both legal teams as well as the presiding judge.
Court Precedence: Court precedents such as Frye v. United States109, Daubert
v. Merrell Dow Pharmaceuticals110 and numerous others were established to
preserve the integrity of the phrase expert forensic testimony.
Argued and decided in 1923, Frye v. United States was the first legal decision
that established a list of qualities and criteria that must be met by an expert’s
testimony if it is to be admissible in court. This case was responsible for developing
109 Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923). 110 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993).
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a preliminary set of regulatory parameters that would allow the courts to more
easily distinguish between information being presented as expert scientific
testimony or simply the ipse dixit of the witness. In the past, if someone was
considered to be an expert in his field and his testimony was deemed relevant to the
criminal proceedings, then the evidence was admissible. However, lawyers and their
defendants were increasingly skeptical of the validity possessed by the information
presented as scientific fact by the witness. They argued that court’s current
admissibility standards “never asked whether a body of asserted knowledge existed,
and could be validated, separate from the qualified expert who possessed it.”111
Ultimately, Frye v. United States affirmed that expert testimony is admissible in a
court of law if “the thing from which the deduction is made…[has] gained general
acceptance in the particular field in which it belongs.”112 Moreover, the court
proposed that “the opinions of experts or skilled witnesses are admissible in
evidence in those cases in which the matter of inquiry is such that inexperienced
persons are unlikely to prove capable of forming a correct judgment upon it, for the
reason that the subject matter requires a previous habit or experience or study in it,
in order to acquire knowledge of it.”113 In short, for all cases in which expert
testimony is deemed necessary, its admissibility is determined based on its ability to
meet the following criteria: a) the testimony being presented is the result of an
experiment whose protocols are well accepted within the relevant scientific
community, and b) the testimony must be specialized enough so that the average
111 David L. Faigman et al., “Admissibility of Scientific Evidence,” in Modern Scientific Evidence: The Law and Science of Expert Testimony, West Group, 2006, 2-124, 7. 112 Frye v. United States., 293 F. 1013, 1014, 34 A.L.R. 145 (App. D.C. 1923). 113 Ibid.
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individual does not possess the knowledge and expertise required to understand
and arrive at these conclusions on his or her own.
Although Frye v. United States established several necessary demarcation
criteria to screen expert testimony, there were several shortcomings that the
decision failed to address. One of the major problems was that the admissibility
standard, which was the primary procedural criteria, yielded extremely variable
results. It was discovered that the degree of acceptance and confirmation of a
particular test was dependant on the scope of the community being asked. In other
words, the courts could ultimately manipulate the responses they receive by either
narrowing or expanding the group of scientists that are defined as the ‘pertinent
field.’”114 This stems from the fact that different scientific communities have
different thresholds with respect to what constitutes an accepted experiment
protocol. As a result, the courts worked to create a more thorough and
comprehensive list of rules that would govern the admissibility of forensic evidence.
The landmark case that is the quintessential guideline for the admissibility of
expert testimony is the 1993 case Daubert v. Merrell Dow Pharmaceuticals Inc.. This
case is the most commonly associated with establishing four standards for
determining whether or not expert testimony is admissible: 1) testability or
falsifiability; 2) error rate; 3) peer review or publication; and 4) general acceptance.
Testability refers to whether the information being presented by an expert
witness to the court was obtained by experimental protocol whose accuracy and
veracity are verifiable or refutable. According to David Faigman and his colleagues,
114 Faigman et al., “Admissibility of Scientific Evidence,”12.
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prior to the articulation of this Daubert standard, “courts generally appear[ed] to
treat testability as a pre-‐requisite rather than just another factor.”115
The next criterion, error rate, simply indicates the accuracy of the results
produced from the experiment. An important question is what types of mistakes are
more prevalent for this method of testing: false positives or false negatives. Our
legal system is designed to give the benefit of doubt to the defendant. This is why he
or she is deemed innocent until proven guilty beyond a reasonable doubt as
opposed to guilty until proven innocent. False positives are more consistent with
the guilty until proven innocent mindset. This is why areas of research in which
false positives are more prevalent must usually undergo more scrutiny than those in
which false negatives are more frequent.116
Peer Review or publication, which is the third criterion of the Daubert
Standards, is an improvement upon the acceptability principle emphasized by Frye.
If a scientific theory is published or has undergone a peer review, it is more likely to
have survived scrutiny, criticism and revision to ameliorate its predictive power. As
noted in the Daubert opinion, “the fact of publication (or lack thereof) in a peer-‐
reviewed journal thus will be a relevant, though not dispositive, consideration in
assessing the scientific validity of a particular technique or methodology on which
an opinion is premised.”117 In other words, a literal interpretation of this standard is
not necessary for the inclusion or rejection of expert testimony; it is simply a
115 Faigman et al., “Admissibility of Scientific Evidence,” 49-50. 116 Ibid., 60. 117 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P. Q.2d 1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993).
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reiteration of the importance that the tests conducted be grounded in the scientific
method and able to draw logical, appropriate conclusions.
Lastly, general acceptance is the category governing expert testimony
admissibility that was preserved from the Frye v. United States ruling 70 years
earlier.
Perhaps one of the most important (and problematic) standards that Daubert
implemented in the determination of admissibility is the transference of
responsibility from the scientific community to district court judges. Under Frye,
judges were able to delegate their role of testimony gatekeeping to experts in the
scientific field who were responsible for determining the credibility of expert
testimony and the general acceptance of the procedures used by the witness.
However, Daubert appointed judges as the individuals responsible for making the
final decision of evidence admissibility. This posed a problem because “judges and
lawyers, long insulated from the scientific revolution, are now obligated to become
familiar with the methods and culture of science.”118 Critics’ faith in the ability of
judges to knowledgeably weigh the merits of proffered testimony was further
diminished upon realizing that the Ninth Circuit Court of Appeals stressed in its
opinion that these four considerations are in no way the only means of determining
admissibility; “no single list of factors…can capture the sundry considerations that
go into determining the validity of research results.”119 Nonetheless, it was
determined that the judges have the knowledge, intelligence and common sense to
evaluate all of the facts and determine what is or is not relevant and appropriate
118 Faigman et al., “Admissibility of Scientific Evidence,” 21. 119 Ibid., 44.
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evidence to present to a jury.
Frye and Daubert are by no means the only precedents that delineate the
qualifications necessary for presenting expert testimony. Nor is the admissibility of
expert testimony the only issue dispositively controlling this vast and complex topic.
However, they are sufficient to prove the point that numerous safeguards are in
place, which when implemented properly, should prevent unqualified or charlatan
witnesses from presenting falsified information to a jury. The evidence that is
allegedly confirming this second hypothesis of the CSI Effect is not the result of
television’s influence on jurors. Rather, it is unqualified individuals calling
themselves forensic scientists who are able to manipulate the system. While it is
true that the media does have a profound influence on its viewers, the arguments
proposed by advocates of this second hypothesis of the CSI Effect are not the result
of the TV, but rather an ineffective enforcement of the court’s opinions and
decisions that were installed through the precedents just discussed.
B. Paradoxical Construct of The CSI Effect
1. Falsifiability
Karl Robert Popper is one of the most well known philosophers of science
who spent the majority of his career trying to develop the demarcation line between
science and pseudoscience. It is a well-‐accepted fact that one of the hallmarks of
scientific research is the empiricism with which it is performed. The experimental
design of science is precise and constructed in a way that duplication of the test is
expected to confirm the results previously obtained. However, Popper added an
additional qualification in order to differentiate between science and pseudoscience:
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science must have the potential to be refuted. As he wrote in his 1957 paper entitled
Conjectures and Refutations, “the criterion of the scientific status of a theory is its
falsifiability, or refutability, or testability.” This characteristic, he proposed, is that
science is not always confirmed; a theory does not have infinite explanatory power,
and cannot “explain practically everything that happened within the fields to which
[it] refers.”120 Despite the fact that numerous philosophers have challenged the
veracity of Popper’s definition, it still remains a popular and frequently used
demarcation line in society today—especially in court opinions. Based on this, I
propose that the CSI Effect is not a scientific theory and therefore should not be the
tenet guiding the research of people interested in ascertaining how the media
influences society.
As previously stated, the CSI Effect postulates that our society is seeing either
a) an increase in acquittals because the prosecution is failing to abolish the forensic
preconceptions that jurors possess after watching TV crime shows, or b) an increase
in convictions because the defense is unable to refute the scientific evidence the
prosecution presents beyond a reasonable doubt. This construct of the theory is
unfalsifiable; there is no way to refute it. A defendant’s fate is usually decided in one
of two ways: a guilty verdict or an acquittal. Although there is a third option, which
would be the incidence of a mistrial, which is the result of misconduct or the jury’s
inability to reach a verdict, this alternative is overlooked with respect to how
television shows encourage this outcome. As a result, for the purpose of this paper,
it is a negligible result. When evaluating the legal landscape of our country,
120 Karl Robert Popper, “Conjectures and Refutations,” in Philosophy of Science: The Central Issues, ed. Martin Curd et al. (New York: W.W. Norton, 2013), Print, 5.
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researchers will either see an increase in the number of convictions or an increase
in the number of acquittals. Likewise, the construct of the CSI Effect allows it to
predict that the increased popularity of crime dramas will either result in more
acquittals or more convictions. Subsequently, any reasonable scientific experiment
done to determine whether or not the CSI Effect exists will always lead to the
conclusion that it does exist.
VI. CONSTRUCTING A NEW “CSI EFFECT”
Watching television shows undeniably impacts viewers’ perceptions of
reality. We are the products of what we consume and to what we expose ourselves.
However, this process of knowledge absorption is nothing new. Throughout the
history of man, individuals have gone to great lengths to disseminate and learn
about the world in which they live. Today, this process of education has evolved as a
result of the technological revolution our society has undergone. Now we are able to
learn using a number of medias. Students are continually exposed to knowledge
through their highly structured educational curriculum; pop culture including
books, movies, television shows and podcasts, which incorporate science both
overtly and covertly in their content, as well as accessibility to the internet and sites
such as Wikipedia, provide them with the answers to virtually everything. Whoever
desires knowledge is able to obtain it, and subsequently the public is able to see real
outcomes from the scientific community. The premise behind the CSI Effect is that
many of these technologies are disseminating knowledge that is no longer accurate,
but rather constructed for the purpose of entertainment.
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It is an intriguing thought that CSI and these crime scene television shows
have this ability to influence jury members. The dichotomy between the fictitious
and realistic applications of the three forensic sciences mentioned in this paper,
shows the basis upon which the premise of the CSI Effect exists. I propose that this
theory’s flaw is not with the sociological phenomenon it is trying to explain, but
rather the way in which it is attempting to explain it. As a result, I propose that legal
scholars and other individuals pursuing jurors’ exaggerated forensic science
expectations should abandon the paradoxical CSI Effect and instead develop a new
theory that better ascertains how the media is influencing juries. By constructing a
more appropriate research paradigm, scholars and interested parties will be able to
more accurately observe how television exaggerations of forensic science are
manifesting in courtrooms through jurors pre-‐established expectations.
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Additional Sources:
1. Michael J. Saks and Jonathan J. Koehler, “The Coming Paradigm Shift in Forensic
Identification Science,” Science 309, no. 5736 (Aug. 2005): 892-‐895, doi: 10.1126/science.1111565.
2. Nalini K. Ratha, and Ruud Bolle. Automatic Fingerprint Recognition Systems. New York: Springer, 2004. Print.
3. Terri Sundquist, "The Reality of Crime Scene Investigation. Part 1: Common Myths," Promega Connections. May 24, 2010, Web, (accessed Apr. 14, 2013). http://promega.wordpress.com/2010/05/24/the-‐reality-‐of-‐crime-‐scene-‐investigation-‐part-‐i-‐common-‐myths/.
4. U.S. Department of Justice, US Attorneys’ Annual Statistical Report Fiscal Year 1960, ed. Robert F. Bain et al., (Washington DC: Office of the United States Attorneys, 1960).
5. U.S. Department of Justice, US Attorneys’ Annual Statistical Report Fiscal Year 1985, ed. Office of Management Information Systems and Support Staff of the Executive Office for U.S Attorneys (Washington DC: Office of the United States Attorneys, 1985).
6. U.S. Department of Justice, US Attorneys’ Annual Statistical Report Fiscal Year 2008, ed. Kenneth E. Melson, (Washington DC: Office of the United States Attorneys, 2008).
7. Vincent J.M. Di Maio, Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques. 2nd ed. Boca Raton: CRC, 1999. Print.