Courts feeling CSI effect

Prosecutors say jurors want more forensic evidence than ever before because of hit television dramas

January 4, 2021
Toronto Sun
By Ian Robertson

On CSI, Crossing Jordan and other police-forensics drama TV shows, murders are usually solved in an hour.

In real life, most take days, weeks, even years. Sometimes they're not solved at all.

Police in the United States have been losing cases to something called the "CSI Factor," "CSI Effect" or "CSI Syndrome," with jurors refusing to believe that some tests and gear they saw on TV are fiction or part-fiction.

Canadian courts have begun to feel the effect.

In a Toronto courtroom this summer, Forensic Identification Services (FIS) Det.-Const. Wade Knaap testified for 2 1/2 hours in his first CSI-related case -- to convince a jury he'd found no evidence at a crime scene.

Jurors want more

Jurors now want more forensic evidence described, a major switch from the days when long and involved explanations of the whorls and ridges on fingerprints and analysis of blood spatters left some dozing off.

"Prosecutors in the States are worried about the CSI Effect," Staff-Insp. Ed Stewart, head of FIS and homicide unit chief in the mid-1990s, said in an interview.

"I haven't heard of any specific case yet in Canada, but we're alerting our people," he said. "A lot of juries have been contaminated by these TV programs."

Stewart said "their expectations make it not possible for them to understand" that some procedures and machinery shown in TV drama crime labs either don't exist or take much longer to pop up the matching answer.

In one of the highest-profile murder cases with a CSI twist this year, actor Robert Blake, 72, star of the 1975-78 TV crime drama Baretta, was acquitted in the 2001 shooting death of his wife, Bonny Lee Bakley, 44.

After the March 6 verdict in Los Angeles, jurors told reporters they decided to find him not guilty because prosecutors did not deliver TV forensic-style evidence.

"I just expected so much more," juror Cecilia Maldonado, 45, told the L.A. Times, adding she had "a higher expectation" of evidence from watching television.

No gunshot residue

Jury foreman Thomas Nicholson said experts found no gunshot residue on Blake, so "they couldn't put the gun in his hands" after his wife was shot in her husband's car.

Also, he said "there was no blood" from Bakley on Blake.

Before the jury was selected, all prospective members were asked if they had watched TV forensic shows.

Attorney Gerald Schwartzbach said he emphasized to jurors that investigators had done "sloppy scientific work. In the past, if you talked about that kind of evidence, their eyes would kind of glaze over. But that's not as true now, because of shows like CSI."

The National District Attorneys Association said U.S. prosecutors worry that jurors now ask to see more forensic evidence and are dismissing circumstantial evidence that, in the past, was counted on to form a conclusive case when physical evidence wasn't solid.

Last year, the Canadian Press reported the RCMP's overworked forensic labs are contracting out some DNA testing to the private sector, in part because "the 'CSI Factor' has raised our clients' expectations as well, both in terms of what information can be obtained and how quickly results can be reported," according to internal notes the news service released under the Access to Information Act.

"TV has to keep things interesting and sometimes they make it as far-fetched as they can," Stewart said.

Actors portraying detectives, medical examiners and lab technicians even revisit crime scenes. Sometimes they keep going back until the magic clue suddenly appears or an answer emerges.

"In reality, you get one kick at the can and you better not mess it up," Stewart said.

In a homicide, "there's no rush for judgment on these cases," he said.

"My mind is two years ahead, thinking of the trial in the future, and to the appeal if a guy appeals his conviction," Det. Al Benton, seven-year Toronto FIS investigator and training officer, said in an interview.

On scene for days

That's why real forensic cops sometimes "contain a scene" of murder for days, poring over every inch while using a variety of chemicals to unveil evidence, transferring fibres, shards of paint, broken glass, loose stones and other often minute clues into protective bags and glass tubes.

They also take videos and hundreds of photos so they can be shown even years later to a jury, to help the jurors understand where and how someone died.

Files thick with evidence required before justices of the peace will issue arrest or search warrants, plus transcripts of police interviews with witnesses and suspects, often fill several cardboard cartons and accordion folders.

"I had a judge ask me during one recent murder trial about where a certain building was, because he wanted to get it straight in his mind," Benton said.

No photo was needed, but ones of the building were among mounds of available pictures, videos and maps.

"About 48% of the evidence stored at the property unit now comes from forensics," Benton said. "We also don't throw anything out from a murder case."

In addition to unsolved cases, many of the brown cardboard boxes that fill endless shelves and rooms contain clues that can be revisited years later. Cold-case investigators have solved several old homicides in recent years after expert technicians applied modern scientific techniques, such as DNA, to sealed evidence.

"We've also matched guns from murder scenes, including one here to a break-in on P.E.I.," Benton said.

What ends up in a carton next to a Crown's court table is often only a small portion of what is available, but he said decisions on what will be needed are usually negotiated during pre-trial meetings between investigators, prosecutors and defence lawyers.

By documenting all they see and find, by taking exhaustive photos and videos, "we're storytellers" for jurors during an eventual trial, Knaap said.

"We metaphorically place them at the scene," he said. "We're trying to present an objective picture of what happened, from the evidence and the conclusions we can draw."

New techniques

Some techniques and devices seen on TV are fiction, "but they may be an experimental process," Knaap said.

He should know about new techniques.

Police around the world now use a process Knaap perfected to lift fingerprints from rough surfaces combining fine-grain black magnetic fingerprint powder with Dental Stone, a gypsum powder dentists mix with water to make moulds of teeth. Investigators were already using it to make three-dimensional footwear and tire track impressions in snow and mud.

The 2 1/2 hours Knaap spent telling a jury on June 6 about what he didn't uncover, was due to TV.

"This is a magical expectation, although everything on CSI works, every time," he said.

When Knaap explained there were no detectable fingerprints or other evidence left from a home invasion, "it was the first one" for him involving the CSI Factor.

"The jury and the court (have) an expectation that you would pull a rabbit out of a hat," Knaap said.

But despite the emptiness of his evidence, the jury was riveted by his inside explanation of forensic procedures. "I had all the jurors looking at their own hands."