Jurors warned to avoid lure of 'CSI effect'

Legal community concerned phenomenon is influencing juries in Canada, police say

March 10, 2021
Toronto Star
By Betsy Powell and Peter Small

A Toronto jury took only four hours last week to acquit Ivan Mendez-Romero of killing his gay lover, Janko Naglic, and some on the losing side blame the "CSI effect."

In Brampton, a prosecutor last fall often warned jurors not to have exaggerated expectations of forensic evidence based on what they have seen on TV.

"Please watch CSI all you like, just realize that CSI is entertainment and this is reality," Peel Crown Steve Sherriff told a jury at the murder trial of three men in the shooting death of Youhan Oraha, 22, of Woodbridge.

"In the real world there are no forensic clues when a gun is fired and then taken away from the murder scene to be cleaned of fingerprints or destroyed.
The shooter's DNA does not float through the air with the bullet. A shooter's DNA is not left behind when he takes a gun away from the murder scene.

"No guns were found at this murder scene," Sherriff said, "and there was no video of this parking lot. Guns can be bought and sold, even rented. The police were left with no forensic clues, in other words, no scientific clues as to the identity of the killers."

Last month, the jury in the Oraha trial convicted Jahmar Welsh, 24, his stepbrother Evol Robinson, 22, and their friend Reuben Pinnock, 24, of first-degree murder.

The so-called phenomenon, CSI effect, named after the top-rated crime scene investigation series CSI: Crime Scene Investigation, is alarming U.S. law enforcers. And there's growing concern that it's affecting juries north of the border.

In the United States, a juror cited the lack of gunshot residue as a main reason for acquitting actor Robert Blake of murdering his wife.

Toronto homicide investigators admit privately that they are frustrated because juries come into trials expecting a forensic "smoking gun," such as DNA evidence or video footage proving guilt.

"How could it be any other way?" says one police source. "Most jurors never see the real side of police work, yet they are exposed to thousands of hours of the fake side. Do you think that has an impact? Of course it does."

Toronto Crown Attorney Paul Culver says there's no way of knowing the extent to which the effect exists in Canada because jurors aren't allowed to discuss their deliberations. But crime shows have even affected his own expectations, he says. He remembers wanting a sharper image from a digital video of an offence being committed and asked a technician to enlarge a person's face.

" It was as blurry in the close-up as it was in the distance shot," he said.
"I expected more based on what I'd seen on TV and the movies and it's not always the case."

In a Canadian research paper exploring the CSI effect, Saint Mary's University psychology professors found the phenomenon exists here.

Already, legal professionals are changing the way they conduct trials. But that may be unwise given that the "exact nature and consequences of this effect" are as yet unknown, the Halifax-based researchers wrote in their
2007 paper published in the Canadian Journal of Police and Security Services.

But, they conclude, there is a consensus that it's undesirable if "jurors expect to see more scientific evidence than they have in the past.

"When the scientific evidence presented at trial fails to meet jurors'
expectations, they are then more likely to acquit the defendant."

Ontario's Attorney General ministry doesn't keep track of the number of jury trials held each year, or their outcome.

Jonathan Freedman, a University of Toronto psychology professor with expertise in juries, is skeptical about the CSI effect.

"If you haven't sat through the trial and heard all of the evidence, it's really hard to appreciate what the jury was faced with."

He suggests any CSI effect would be bad because in many of today's criminal proceedings there often isn't forensic evidence, and even if there is, it's often "not so trustworthy."

James Stribopoulos, a York University law professor, has heard complaints from Crown attorneys about the CSI effect. But he retains his faith in the jury system.

"If there are 12 people in that room and someone is sitting there saying, `but they don't have any DNA,' and yet there is still in every respect an overwhelming and compelling case, the power of reason employed by the other
11 will convince the person watching too much TV to get a grip on reality."

Defence lawyer David Midanik also represented a client charged with first-degree murder where the Crown's opening statement included a warning not to expect CSI-type evidence. He says the effect, if it exists, is a double-edged sword.

"The reason the Crown opened that way was to explain the fact they had no case, but the jury didn't buy it. There was no forensic evidence linking him to the crime scene, but they convicted him anyway."