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According to recent news articles, attorneys may need to be prepared to console an unlikely category of witnesses: disheartened scientific experts. No, I’m not talking about those experts unfortunate enough to catch Tom Cruise pontificating on NBC’s Today show. Rather, preconceived notions that scientific experts ought to provide conclusions in cut and dry absolutes has apparently resulted in an increasing level of disappointment and disillusionment both in and outside the courtroom. The cause of such unrealistic expectations? Why, television, of course. Aptly dubbed the “CSI Effect,” scientific experts, with tails between legs, have been criticizing the likes of Gil Grissom and Mac Taylor, forensic investigators on CSI and CSI: NY respectively, for setting the average American’s belief in the miracles of science at unattainable levels. In case those pesky billable hours have been cutting into your TV-watching time, suffice to say that characters on these shows make their jobs – going to crime scenes, collecting evidence, analyzing it, confronting criminals, and testifying in court – look easy. Worse, they make it look realistic. Rarely do their expert conclusions include even the slightest hint of uncertainty. Someone is always guilty, and it’s up to the scientific expert to tell the jury who that someone is. As a result, when real life experts testify to results that are unclear, uncertain, or simply open to interpretation, they are increasingly feeling sub-par to their televised counterparts. While my sympathy for these experts is slim – try following in the footsteps of Ben Stone or Jack McCoy of Law & Order – there may be a greater malaise to this recent trend than a few bruised expert egos. In a society that increasingly wants everything with as little effort, as little hassle, and as quickly as possible, I fear the average juror may be looking to science for an easy way out. The potential implications of this, particularly in the criminal context where reasonable doubt forms the cornerstone of our criminal justice system, are profound. Understanding the legalese of reasonable doubt, let alone determining whether reasonable doubt exists as applied to the facts of a particular case, requires time, effort and, usually, extensive jury deliberations. In the hustle and bustle of our busy society, it is thus questionable whether today’s jurors take the time to fully understand reasonable doubt. The CSI Effect suggests, however, that televised crimes dramas may have provided juror apathy with new fodder. On the one hand, jurors may be over-inflating the relevance and reliability of scientific evidence to avoid finding reasonable doubt. Conversely, where scientific evidence is open to interpretation, jurors may be too quick to equate this with the presence of reasonable doubt. When the framers of the Constitution agreed that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury,” the layman’s concept of crime and punishment was arguably very different from today’s. Historic examples of crime and punishment invoke images of mass public participation – willing participation. Citizens, likely bored for want of anything better to do, flocked to public hearings and relished in the entertainment value of public punishments. They welcomed the opportunity to be witnesses to the pursuit of justice, the conviction of the accused, and the punishment of the guilty. They did not spend the days leading up to public hearings thinking up plausible circumstances to excuse their absence. Nor did they view their attendance at such events as an unwanted intrusion into their otherwise busy lives. If they did, they were truly ahead of their time. Today, serving on a jury is a civic duty that is often viewed with apathy and contempt, if not downright hostility. What attorney has not been approached at a dinner party – sought out, even, like a doctor with the power to write a prescription – and asked how the seeker should go about “getting out of jury duty?” In a system where a simple lack of desire to serve is insufficient reason to be excused, it would be naive to assume that all jurors are willing participants. Thus, the extent to which a juror’s unwillingness to serve subverts their ability to serve has always been debatable. Although the CSI Effect may only be a recent manifestation of this age-old problem, the legal community should not sit idly by. If television has caused apathetic jurors to mistakenly believe that science can reduce their role as juror, then the legal community should work harder to reiterate and reemphasize the importance of juror participation and deliberation. Each generation faces unique challenges in ensuring the justice system continues to function as efficiently as possible; however, discouraging juror apathy may be in need of increased attention by this generation. It is imperative that jurors devote the time and independent analysis necessary to ensure the defendant’s constitutional rights are protected. Where juror apathy is discovered, efforts must be made to root it out. The framers of the Constitution were counting on it. So, undoubtedly, are the accused. Amy J. McMaster is an associate in the environmental department at Venable LLP in Washington. Her practice focuses on both criminal defense and civil regulatory compliance.

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