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Court of Appeals revisits ‘CSI effect’

With a popular TV crime series touting the conclusiveness of DNA evidence, Maryland’s top court last week considered whether a judge violated a defendant’s right to a fair trial by telling the jury that prosecutors did not need scientific evidence to prove he had sexually assaulted a 7-year-old girl.

Mark Colvin, an assistant state public defender, told the Court of Appeals that the jury instruction undercut the defense that police had rushed to the conclusion that Kenneth G. Stabb assaulted the girl in Salisbury without even testing for DNA evidence.

The judge “essentially told the jury to ignore the defense’s argument,” Colvin said in his appeal of Stabb’s conviction and eight-year prison sentence for sex offense and assault.

But Brenda Gruss, an assistant Maryland attorney general, said Wicomico County Circuit Court Judge Kathleen L. Beckstead’s instruction was appropriate to counterbalance the defense’s “hammering away” at the state’s failure to collect DNA evidence. The judge properly told the jury that the prosecution had “no legal requirement” to “utilize any specific investigative technique or scientific test to prove its case,” Gruss told the high court.

Case by case basis

The Court of Appeals consideration of Stabb’s case followed its Aug. 18 decision in Atkins v. Maryland that invalidated a similar Montgomery County Circuit Court jury instruction that the state was not legally bound to use scientific evidence to prove a defendant’s guilt. The instruction, though a correct statement of the law, inferred that the prosecution need not put on quality evidence to prove its case, Judge Clayton Greene Jr. wrote for the court’s majority.

The court, in overturning Amardo Atkins’ second-degree assault conviction, said its decision was limited to the facts of the case and that an “investigative techniques instruction” might not always be improper.

The Atkins decision and Stabb’s pending appeal involve what has been widely referred to as the “CSI effect” in criminal trials.

The “effect” holds that jurors, having watched TV crime dramas — such as CBS’s “CSI: Crime Scene Investigation” — arrive at court expecting the prosecution to present DNA evidence conclusively linking the defendant to the crime. If the prosecution fails to present such evidence, the disappointed jury would likely vote for acquittal.

Judges, to counteract this presumed effect, have often taken to instructing jurors that prosecutors are not legally bound to present scientific evidence to prove the defendant’s guilt beyond a reasonable doubt.

Colvin, in pressing Stabb’s appeal, said Beckstead went too far in trying to combat the CSI effect.

Stabb’s trial attorney “had every right” to argue that the prosecution’s failure to conduct DNA tests after the alleged assault weakened the state’s case, since there was no corroboration for the girl’s testimony that Stabb had touched her inappropriately, Colvin said.

The judge’s instruction told the jury “that the missing [DNA] evidence is something they can ignore,” Colvin added.

Colvin, under questioning from several Court of Appeals judges, said a judge can give a CSI effect instruction in two instances: to correct a defense lawyer’s misstatement that a jury must acquit if DNA evidence is not provided, or to answer a jury’s question of whether DNA evidence is required for a conviction.

But Judge Joseph F. Murphy Jr. said Beckstead’s instruction was similar to other instructions judges have given juries “since the Ark and the Dove landed.”

“This kind of instruction predates ‘CSI’ by decades, by centuries,” Murphy added.

Judge Glenn T. Harrell Jr. questioned whether the CSI effect truly exists or is merely an academic concept.

And Judge Lynne A. Battaglia called it “very difficult” for judges to determine when, if ever, they should make reference to DNA or other scientific evidence in a jury instruction.

Human tendency

Harrell, joined by Murphy and Battaglia, concurred with Judge Clayton Greene Jr.’s opinion in Atkins. Harrell, in the concurring opinion, stated that an “anti CSI effect” instruction might be appropriate in a “broader array of situations” than Greene’s opinion indicated.

Gruss, citing the concurrence, said Stabb’s appeal was one of those situations because of the defense’s reliance on the state’s failure to conduct DNA tests.

“It’s a natural human tendency to believe more [evidence] is better than less,” Gruss said of the CSI effect and the need for the judge’s balancing instruction in Stabb’s case. “It is appropriate [for judges] to give the jury guidance.”

Stabb was accused of touching the girl’s genitalia while the two sat outside her Salisbury home on Aug. 17, 2008.

At trial, the girl testified that Stabb, a friend of her mother’s, said he would kill her if he told anyone.

The investigating officer, Jonas Barry, interviewed the girl and the mother before arresting Stabb, according to court papers.

The prosecution said in court papers that DNA tests were not ordered because no penetration occurred and there was no reason to believe any genetic evidence would be discovered.

The Wicomico jury, having received Beckstead’s instruction, found Stabb guilty of third-degree sex offense and second-degree assault in April 2009. Beckstead sentenced Stabb to eight years in prison, with all but four years suspended, and three years’ probation.

The Court of Special Appeals upheld the conviction and sentence in December, prompting Stabb’s appeal to the high court.

The Court of Appeals did not indicate when it will decide the case, Stabb v. Maryland, No. 2 September Term 2011.