You may have heard of the “CSI Effect.” It is a more recent phenomenon that is so named because it is caused in good part by television shows such as CSI and Law & Order. Jurors often coming into the courtroom with inaccurate expectations about how trials work, the way cases are presented, and what attorneys are expected to present to prove a case. These shows depict trial as exciting, succinct, and full of drama. They also tend to have defining moments whereby all doubt is erased by one central piece of evidence. As a result, jurors have a tendency to overestimate the availability of technical, scientific evidence and hold it against you if you do not have it. They have come to expect presentation of DNA evidence, computer records, and other types of exacting and conclusive evidence at trial. In reality, we all know this kind of technical evidence is rarely available. When a case is so clear-cut, there is no need for a jury trial.
This effect has been seen for some time now in criminal cases due to the advent of fingerprint evidence and DNA evidence. Now, however, the CSI Effect is showing up in civil cases as well where such technical proof is even harder to come by:
For example, in a case concerning violations of an equal pay statute, jurors in a focus group got stuck on why the government doesn’t have copies of who sent what emails to whom and what was said in them. The jurors assumed that there are always copies somewhere of computer files that can be presented to conclusively tell the true story. One of the jurors even reasoned that because the FBI can take computer hard drives that have been blown up and reconstruct them to find terrorists, there must be a way they could find email files in this case. The fact that the evidence wasn’t presented meant to this juror that the government didn’t want the jurors to see it. This shows the great overestimation of jurors of the availability of such hard evidence.
There are ways to deal with the CSI Effect in trial.
It is worthwhile to address jurors’ expectations about proof in the case at the outset either in jury selection or in opening statements (or both). Since jurors expect some kind of conclusive or technical evidence in even the least technical cases, do not pass up the opportunity to speak with jurors about their expectations in any case, regardless of how much science is involved. Jurors’ grandiose ideas about proof in a case can be tackled head on by telling jurors that television shows often depict trials in a certain way and that they should know what to expect in a real trial. It can be explained that an absence of proof does not mean that the evidence does not exist and that jurors should not be waiting for that one piece of conclusive information that will make the case clear; if the case were that clear, it would have been settled outside the courtroom. The jurors are there because there are conflicting stories and conflicting evidence and it’s their job to sort through the confusion and ambiguity. By telling jurors that they won’t be hearing the type of evidence that television shows such as CSI would lead them to expect, some of those expectations can be dispelled and they will not wait around for the exciting “aha” moment.