Jerry Bruckheimer is the Michael Moore of criminal law. Defense lawyers love his CSI shows because they have caused juries to demand DNA analysis in nearly every two-bit 7-Eleven holdup. Prosecutors, meanwhile, feel hampered by the fact that 10 eyewitnesses are not enough to satisfy CSI-watching jurors who crave the supposedly conclusive proof of hair follicles on a knife.
CSI, because of its popularity and fecundity, is the most dramatic new influence on a justice system that has always been affected by books, movies and TV. "When Perry Mason first aired, lawyers were not allowed to approach witnesses to question them," says Christopher Stone, director of the Vera Institute of Justice, a nonprofit that promotes innovation in the justice system. "But you couldn't fit Mason and the witness in the same frame, so the directors had Mason walk over and lean on the witness rail. Then juries expected lawyers to do that, and if they didn't, jurors thought something was wrong." Moreover, Stone says, Dragnet helped save the Miranda ruling, which was unpopular with law enforcement and some politicians, by showing viewers that reading suspects their rights didn't hamper the cops' ability to interrogate them. And former Los Angeles County public defender Stan Goldman, now a Loyola law professor and legal editor for Fox News, says Quincy had lawyers concerned that juries would demand fingerprints for every case.
The CSI effect has been similarly potent. Last November prosecutors in Galveston, Texas, despite a plethora of nonforensic evidence, couldn't convince a jury that Robert Durst had murdered Morris Black, even though Durst admitted inadvertently killing him, because Black's head couldn't be found. The head, the defense argued, contained key evidence that Durst had acted in self-defense. "The CSI effect is real, and it's profound," says jury consultant Robert Hirschhorn, who also says he purposely selected jurors familiar with CSI and forensics-type shows for the Durst trial.
But all those sprays and lasers and high-tech microscopes, it turns out, are expensive. "DNA analysis is used every six seconds on CSI," says Robert J. Castelli, a professor at John Jay College of Criminal Justice who was a police officer for 21 years. "To analyze properly a sample of DNA can cost as much as $10,000. You're not going to be using DNA analysis in every burglary." So prosecutors are now spending a lot of time trying to explain to juries that DNA evidence isn't always essential. Joshua Marquis, a pro-death-penalty district attorney in Oregon, is worried that cops will have to start doing all sorts of unnecessary forensics work just to placate CSI-educated juries. "A good analogy to this situation is defensive medicine," says Marquis. "You have doctors who will order a series of very expensive and probably unnecessary tests to cover their asses. Are we going to have police officers doing that same thing?"