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The CSI effect, in Maryland and Massachusetts

The chief judge of the Supreme Judicial Court of Massachusetts would just like everyone–lawyers, judges, everyone–to shut up about CSI.

Judge Margaret H. Marshall made her remarks during oral arguments in a case where a convicted murderer is asking for a new trial. The appellant says the judge in his case should not have said to the jury, “And I remind you that this is real life and not ‘CSI.’ I say that without being facetious. It’s been observed across the country that people who’ve watched that particular program and similar programs tend to think that life is all that sort of science fiction and it’s not.’’

As the Boston Globe reports, Marshall took a dim view of the trial judge’s comments:

Marshall, however, noted from the bench that a 2006 Yale Law Journal study concluded the “CSI effect’’ was legal fiction and that jurors were not influenced to be against prosecutors. As such, she said, talk about “CSI’’ should be banned in courtrooms across the state.

“I am just saying however we resolve the issue in this case, it’s not the first time that it has come up,’’ Marshall said. “We should just keep television out of criminal trials.’’

Marshall added: “Why don’t we just suggest [to judges and lawyers] to forget about ‘CSI.’ Just don’t bring it into a criminal trial. It’s not influencing anybody.’’

I found this especially interesting in light of my colleague Steve Lash’s story this past summer on a Court of Special Appeals opinion in a similar case. In that case, the court held that it wasn’t a problem for a Baltimore City judge to tell a jury that the trial was not like CSI and that they didn’t need scientific evidence to convict. From Steve’s article:

Attorneys for the two convicted murderers had argued that Baltimore City Circuit Judge Charles G. Bernstein’s contrast between real life and the fictional police drama gave jurors the improper impression that prosecutors need not present strong evidence to prove the defendants were guilty.

But the intermediate court said Bernstein’s statement about the popular CBS television series was within a judge’s broad discretion to ask questions to determine if prospective jurors could consider the evidence fairly and impartially.

***

During voir dire — a preliminary screening process for potential jurors — Bernstein told prospective jurors that “CSI” does not reflect reality.

“I’m going to assume that many of you, from having done a few of these, watch too much TV, including the so-called realistic crime shows like “CSI” and “Law and Order,’” Bernstein said, referring also to a popular courtroom drama on NBC television.

“I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, quote, scientific evidence, close quote, to convict guilty persons,” he added. “While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore, if you are currently of the opinion or belief that you cannot convict a defendant without, quote, scientific evidence, close quote, regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.”

Of course, the Massachusetts court hasn’t decided its own CSI case yet, but the approach signaled by Marshall is certainly different than the one taken by our Court of Special Appeals.

The CSA won’t be the last word on the matter in Maryland, though: the Court of Appeals’ Web site indicates that it granted cert last month.