19 Jury Expert 10 (2007)
The CSI Effect in Civil Cases as Well as Criminal Ones

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       The CSI Effect...
       in Civil Cases as Well
       as Criminal Ones

By Rich Matthews, J.D.

Over the last several years, criminal trial
observers have noted the phenomenon of
jurors having unrealistically high expectations
that they be provided technical, exact and
conclusive evidence. Jurors expect that this
evidence, often expensive and time-consuming
to process, will be offered without regard to the
relative importance of the case or seriousness of
the charges, nor how expensive it might be to
produce the evidence. This overestimation of
both the availability of
technical, scientifically
processed evidence            Juries wond
and the advisability     stuffis, and quid
of district attorneys'
offices prioritizing it  assume that an a
for a given case has              proof of
been termed the CSI
Effect, after the highly
rated CSI series on television. (Dick Wolf,
creator of the 371 variants of Law & Order,
believes that the CSI Effect actually predates
CSI and is more properly attributable to his
television series.)

Attorneys and trial consultants who work
in criminal cases have noticed this for a
long time. Prosecutors are now offering
scientific evidence that they wouldn't have
awhile back-either because it was deemed
unimportant or because the management of
a crime lab's resources and priorities would
have prevented its production. Whatever
the reason, they must do it now, lest a jury
wonder where the CSI stuff is, and quickly and
incorrectly assume that an absence ofproof is
a proof of absence. This is the inherent danger
of the CSI effect: a layperson's assumption
that, if the evidence existed anywhere in the
universe, the prosecutor would introduce
it. Accordingly, when the attorney does not


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produce the evidence, the jury assumes that
it doesn't exist and that the claimed event in
fact never happened.

While the phenomenon of the CSI Effect in
criminal cases is widely agreed upon by criminal
lawyers, trial judges and trial consultants, it
also occurs in civil cases. Counsel should
be aware of it when working on a case that
involves anything technical or technological
in the story at all. An example: In a federal
suit, a plaintiff alleges sexual discrimination
and violations of the Equal Pay Act. Part of
the dispute is over who saw which e-mails
and when, and either party's ability to offer
any hard evidence is relatively meager. This
is a standard, run-of-the-mill civil lawsuit.
However, while the fight is over how much
the plaintiff has been paid during certain
years, whether others have been paid more for
                     improper reasons, and
                     whether her pay has
where the CSI        been affected by her
and incorrectly      complaints, counsel
nce ofproofis a      did not notice the
                     technical nature of this
sence.               lawsuit.

Why is a pay dispute a technical lawsuit?
Focus groups in this case showed how
civilians react to the major issues, how they
respond to graphics, and how they decide
what happened, who's liable, and what the
damages should be. One mock juror said,
What do they mean they can't tell who got which
e-mails and who didn't? The FBI can find hard
drives from computers that have been blown
up or burned, and they can put them under
microscopes to see if the individual bit is a
one or a zero, and can visually reconstruct the
contents of the hard drive. That's how they've
caught a bunch of terrorists. So why aren't we
seeing that evidence? Because they don't want
us to see it. Or they aren't sure of their case.
Jurors overestimated both the availability of
crime lab resources and attorney prioritization
of scientific evidence.

Another case involved a plaintiff's claim of
sexual harassment in the workplace. The

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