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T YLER 3/2/2006 5:42:16 PM 1050 Tom R. Tyler Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction abstract. The c CSI effect d is a term that legal authorities and the mass media have coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior.

Some have claimed that jurors who see the high-quality forensic evidence presented on CSI raise their standards in real trials, in which actual evidence is typically more flawed and uncertain. As a result, these CSI -affected jurors are alleged to acquit defendants more frequently. This Review argues that, while some existing evidence on juror decisionmaking is consistent with the CSI effect, it is equally plausible that watching CSI has the opposite impact on jurors and increases their tendency to convict.

The perceived rise in acquittals can also plausibly be explained without any reference either to watching CSI or to viewing crime dramas more generally. For these reasons, and because no direct research supports the existence or delineates the nature of the CSI effect, calls for changes to the legal system are premature. More generally, the issues raised by current attention to the ... more. less.

CSI effect illustrate the problems that arise when proposed changes in the legal system are supported by plausible, but empirically untested, cfactual d assertions. author. Tom R. Tyler is a University Professor at New York University. He teaches in the Psychology Department and the Law School. Professor Tyler is an Associate Editor of the Annual Review of Law and Social Science . This Review benefited greatly from comments made by Jeff Rachlinski and Neil Vidmar. T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1051 review contents introduction 1052 i. the plausibility of the csi effect 1056 A. Are People Influenced by the Mass Media? 1056 B. Can People Put Aside Their Preconceptions? 1060 ii. other possible csi effects 1063 A. Promoting the Need for Closure 1064 B. Overbelief in the Probative Value of Evidence 1068 C. Creating a One-Sided View of the Law 1073 iii. does the csi effect exist? 1076 A. Sympathy for the Defendant 1077 B. Differing Thresholds for Conviction 1078 C. Declining Trust and Confidence in Legal Authorities 1079 conclusion 1083 T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1052 introduction The television drama CSI: Crime Scene Investigation is by all conventional measures a successful production. It receives high ratings and has spun off a lucrative franchise of related dramas 4 CSI: Miami and CSI: New York . 1 As their titles indicate, these shows are based on the process of gathering and analyzing forensic evidence. Most episodes, however, focus on forensic techniques that are more reminiscent of science fiction than true investigative practice. To understand the CSI series, consider a typical plot, which relates the intertwined stories of three criminal investigations. As the episode Iced begins, investigators encounter (1) a college-aged couple found dead amid evidence of a romantic evening; (2) a middle-aged man found dead in a parking lot; and (3) a man found dead in the middle of a crop circle. Through careful examination and testing of evidence 4or at least as much as can be shown in an hour 4the CSI team establishes that (1) the couple was poisoned by a jealous female student (a science major) using carbon dioxide gas given off by hidden dry ice; (2) the middle-aged man died of natural causes (but his body was briefly stolen as part of a prank); and (3) the man from the crop circle was frightened to death after being misled into thinking that he was being pushed out of a helicopter one thousand feet in the air. 2 Recently, the series has become the focus of increased media attention, with magazines and newspapers speculating that the series has produced a c CSI effect d among the general public. 3 According to media reports, the millions of people who watch the series develop unrealistic expectations about the type of evidence typically available during trials, which, in turn, increases the likelihood that they will have a creasonable doubt d about a defendant 9s guilt. Typical of mass media articles on this topic is The CSI Effect , a cover story in U.S. News and World Report from April 2005. 4 The cover foreshadows the 1. Bill Keveney, Crime Pays for 8CSI 9 Franchise , USA T ODAY , Sept. 16, 2004, at 1D. 2. CSI: Crime Scene Investigation: Iced (CBS television broadcast May 12, 2005) (transcript available at http://www.twiztv.com/scripts/csi/season5/csi-523.txt). 3. See, e.g. , Stefan Lovgren, CSI Effect Is Mixed Blessing for Real Crime Labs , N AT 9 L G EOGRAPHIC N EWS , Sept. 23, 2004, http://news.nationalgeographic.com/news/2004/09/0923_040923_ csi.html; Paul Rincon, CSI Shows Give 8Unrealistic View , 9 BBC N EWS , Feb. 21, 2005, http://news.bbc.co.uk/1/hi/sci/tech/4284335.stm; Kit R. Roane, The CSI Effect , U.S. N EWS & W ORLD R EP ., Apr. 25, 2005, at 48; Jamie Stockwell, Defense Lawyers Hinge Cases on 8CSI 9 Savvy , W ASH . P OST , May 22, 2005, at A1. 4. Roane, supra note 3. T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1053 article 9s thesis by promising to explain c[h]ow TV is driving jury verdicts all across America. d According to the article, anecdotal evidence 4based on comments by legal authorities 4suggests that juries are becoming less willing to accept typical criminal trial evidence due to an instinct, derived from watching television dramas, that such evidence should be more conclusive. In reality, the kind of csmoking gun d evidence found on CSI is rarely available. Typically, the state attempts to bear its burden by piecing together many types of evidence, each having some probative value but also carrying a degree of uncertainty and, potentially, error. According to the popular press, this makes jurors less likely to convict. For example, after the recent, well-publicized acquittal of Robert Blake, jurors complained about the lack of fingerprints, DNA, and gunshot residue 4 evidence not often available in criminal trials but frequently used on television. 5 Similarly, an article in USA Today linked the acquittal of Robert Durst, who was accused of murdering and dismembering a neighbor, to the CSI effect: cTo legal analysts, his case seemed an example of how shows such as CSI are affecting action in courthouses across the USA by, among other things, raising jurors 9 expectations of what prosecutors should produce at trial. d 6 While the CSI effect has been widely noted in the popular press, there is little objective evidence demonstrating that the effect exists. As is often the case with legal issues, the pace of public discussion has outstripped the ability of scholars to research the issue. 7 Lacking any empirical data, discussions of the CSI effect have instead been based upon the personal impressions of lawyers and legal scholars. The argument that CSI has influenced jurors fits with many people 9s intuitions 4including those of judges and prosecutors 4about how jurors operate. In one study, interviews with over one hundred prosecutors suggested that the CSI effect may c 8have made juries more demanding of the 5. See Zofia Smardz, The Jury 9s Out: How 12 Reasonable People Got Hung Up on Reasonable Doubt , W ASH . P OST , June 26, 2005, at B1. 6. Richard Willing, 8 CSI Effect 9 Has Juries Wanting More Evidence , USA T ODAY , Aug. 5, 2004, at 1A. 7. The rapid development of widely held views about the changing nature of litigation is not new. After the O.J. Simpson verdict in Los Angeles and the mistrial of the Menendez brothers, the media discussed the idea of juries becoming increasingly cacquittal prone. d Yet when social scientists looked at acquittal rates in federal trials and across five states, they did not find statistical evidence to support this widely assumed cfact. d See Neil Vidmar et al., Should We Rush To Reform the Criminal Jury?: Consider Conviction Rate Data , 80 J UDICATURE 286, 287-89 (1997). This example illustrates potential problems that can arise when legal changes are based upon opinions, even if widely held, that are later found to be unsupported by data. T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1054 prosecutors and the police, 9 d 8 an argument also supported by the accounts of jury deliberations gathered by some investigators. 9 Further, many prosecutors are seeking training in the presentation of evidence because they believe that juries demand more compelling discussions of scientific techniques. According to one report, c[a]s more juries watch forensic-based crime programs like 8CSI 9 on TV, lawyers also find the need to better explain to juries the realities and limitations of forensic evidence. d 10 In sum, c[j]urors schooled in crime investigations through watching TV dramas expect prosecutors to show them sophisticated forensic evidence . . . making it tough for the government to prove cases. d 11 This account is not universally accepted, and some have argued passionately that the CSI effect is imaginary. As one commentary has suggested: To argue that cC.S.I. d and similar shows are actually raising the number of acquittals is a staggering claim, and the remarkable thing is that, speaking forensically, there is not a shred of evidence to back it up. There is a robust field of research on jury decision-making but no study finding any cC.S.I. effect. d 12 In other words, there is no direct research evidence that watching CSI has changed juror standards of reasonable doubt. 13 And even c[p]rosecutors are split as to whether there is a CSI Effect. d 14 8. Karin H. Cather, The CSI Effect: Fake TV and Its Impact on Jurors in Criminal Cases , P ROSECUTOR , Mar./Apr. 2004, at 9, 10 (quoting a prosecutor); see also News Release, Andrew P. Thomas, Maricopa County Attorney, Maricopa County Attorney Confirms c CSI Effect d Among Local Juries: Asks Network Executives To Use Disclaimer During Broadcasts (June 30, 2005), http://www.maricopacountyattorney.org/Press/PDF/CSI.pdf. The latter study is typical of cresearch d in this area in that it establishes the existence of the CSI effect by asking prosecutors whether or not they have observed such an effect influencing jurors. Because the prosecutors cannot step into the minds of jurors and are not conducting experimental studies that vary exposure to CSI , their opinions are, basically, opinions. 9. See Smardz, supra note 5. 10. Tom McCann, Criminal Lawyers Learn Latest in Forensic Sciences: NU Course Is Oldest CLE in the Nation , C HI . L AW ., Sept. 2005, at 20. 11. Martha Graybow, Prosecutors See 8 CSI Effect 9 in White-Collar Cases , R EUTERS , Sept. 24, 2005, available at http://www.redorbit.com/modules/news/tools.php?tool=print&id=250029. 12. Simon Cole & Rachel Dioso, Commentary, Law and the Lab , W ALL S T . J., May 13, 2005, at W13. 13. Psychologists have discussed the complexity of defining the cbeyond a reasonable doubt d standard. See Irwin A. Horowitz, Reasonable Doubt Instructions: Commonsense Justice and T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1055 The lack of research on the CSI effect does not mean that its basic premise 4that media depictions of law shape jurors 9 judgments in real cases 4is new. 15 For example, reacting to earlier television series such as The People 9s Court , researchers argued in 1989 that the media distorted juror reactions to real trials, with Judge Joseph A. Wapner 9s quick legal fixes purportedly leaving real jurors frustrated by the realities of lengthy trials and their nuanced decisions. 16 These early studies, however, focused on the influence of media presentations of trial procedures rather than the investigatory process. This Review assesses the CSI effect from a psychological perspective by reviewing a series of studies of juror behavior. The aim is not to settle the debate by presenting empirical evidence showing that the CSI effect does or does not occur. Rather the goal is to show that the media 9s quick conclusion that there is a CSI effect may be wrong. In so doing, this Review hypothesizes other effects that CSI may have on jurors and evaluates alternate explanations for the perceived increase in jury acquittals that has been attributed to the CSI effect. Part I argues that the existence of an effect linking CSI to juror judgments is initially plausible and consistent with the findings of empirical research in legal psychology. Part II disputes the conventional wisdom that exposure to CSI raises jurors 9 standards for conviction. This Part suggests that it is equally plausible that the CSI effect will be found to lower standards by creating a mystification of scientific evidence, leading jurors to ignore or minimize the limits in the data they see. Part III then identifies other plausible explanations for increases in jury acquittals 4if such increases have in fact occurred. Standard of Proof , 3 P SYCHOL . P UB . P OL 9 Y & L. 285 (1997); Elisabeth Stoffelmayr & Shari Seidman Diamond, The Conflict Between Precision and Flexibility in Explaining cBeyond a Reasonable Doubt , d 6 P SYCHOL . P UB . P OL 9 Y & L. 769 (2000). This issue will not be addressed here. 14. Cather, supra note 8, at 9. One interview led to this conclusion: c 8Regarding the question of the impact on juries resulting from forensic TV shows, we are seeing no impact, 9 says Elaine Leschot, a supervising prosecutor in Monmouth, New Jersey, who oversees 18 trial lawyers assigned to seven courts. 8Juries are returning verdicts based on evidence in court with the same consistency seen before these shows began. 9 d Id . at 9-10. 15. See generally C RIMINAL V ISIONS : M EDIA R EPRESENTATIONS OF C RIME AND J USTICE (Paul Mason ed., 2003) (discussing how images of crime from the media shape social constructions of reality). 16. See Wende Vyborney Dumble, And Justice for All: The Messages Behind cReal d Courtroom Dramas , in T ELEVISION S TUDIES : T EXTUAL A NALYSIS 103, 112 (Gary Burns & Robert J. Thompson eds., 1989). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1056 i. the plausibility of the csi effect Although there is not yet direct evidence on the CSI effect, research exists on several related questions. By looking at these existing literatures, we can begin to determine whether the CSI effect is at least plausible. Section A suggests that juror judgments are influenced both by general exposure to similar cases in the media and by pretrial publicity about the particular case at issue. Section B suggests that people have difficulty putting aside these influences even when asked to do so. This is especially important given that studies of jury deliberations indicate that jurors often discuss legally irrelevant information. Taken together, these findings indicate that future empirical research may find that some kind of CSI effect exists. A. Are People Influenced by the Mass Media? If people 9s reactions to crime and criminals are generally shaped by the mass media, then it seems reasonable to assume that public reactions to criminal cases are shaped by shows like CSI . The psychological literature in this area considers whether media exposure is generally important, as well as whether pretrial publicity about a specific case or type of case shapes juror judgments. Although this Review focuses on juror judgments specifically, most media studies consider the influence of the mass media on broader issues, such as fear of crime 17 and perception of the seriousness of the crime problem. 18 For this reason, the following discussion focuses on one small subset of studies 4 those on pretrial publicity 4within the larger literature on the effects of the mass media on the legal system. Studies on the influence of pretrial publicity have focused on juror judgments about particular defendants. In such studies, the simulated pretrial publicity involves either giving jurors 19 information about the particular case 17. Linda Heath & Kevin Gilbert, Mass Media and Fear of Crime , 39 A M . B EHAV . S CIENTIST 379 (1996) (demonstrating that mass media reports about crime rate are linked to fear of crime). 18. S HANTO I YENGAR & D ONALD R. K INDER , N EWS T HAT M ATTERS 16-33 (1987) (showing that news stories that report on a social problem increased participants 9 judgments about the seriousness of that problem). 19. While those involved in the studies were acting as jurors to make legal decisions, it is important to remember that those involved knew that they were not involved in actual trials and were not making real decisions. Further, in some studies the participants were college students, who do not have the demographic characteristics of typical jurors. For these reasons, it is important to view the findings with caution. See Nancy Mehrkins Steblay et al., T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1057 before them or exposing jurors to biasing information about a particular type of crime, in the form of mass media reporting on that type of crime, before they hear a specific case. In each of these scenarios, the basic proposition being tested is whether prior biases will shape jurors 9 decisions. One review of the literature in this area considered forty-four tests of whether pretrial publicity shapes verdicts. 20 It found that participants exposed to negative pretrial publicity were significantly more likely to find a defendant guilty than were those exposed to either positive pretrial publicity or no pretrial publicity. This effect was stronger when studies were conducted on a representative sample of potential jurors, rather than students, and when the pretrial information involved was about the particular case or defendant, rather than about the type of crime involved in a later trial. 21 Overall, the literature supports the argument that pretrial publicity shapes verdicts. 22 A second generation of research in this area has focused on understanding more precisely how pretrial publicity shapes verdicts. 23 These studies directly address the key concern underlying the discussion of the CSI effect in the popular press 4that media exposure shapes the threshold of reasonable doubt and, through that mechanism, changes verdicts. An experimental study by Margaret Bull Kovera directly addresses this issue. 24 She found that media exposure to general information about rape altered the standards that study participants used to determine guilt in a particular rape case presented to them later. In one experiment, Kovera showed undergraduates a videotaped news story on rape. The tape was edited to present various perspectives on rape that were pro-defense for some subjects, and pro-prosecution for others. Following their videotape viewing, the subjects The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review , 23 L AW & H UM . B EHAV . 219, 228 (1999). 20. Id. passim. 21. The occurrence of pretrial publicity effects in real trials is also supported by Christina A. Studebaker et al., Studying Pretrial Publicity Effects: New Methods for Improving Ecological Validity and Testing External Validity , 26 L AW & H UM . B EHAV . 19 (2002). 22. This conclusion is consistent with that of an earlier review. See Christina A. Studebaker & Steven D. Penrod, Pretrial Publicity: The Media, the Law, and Common Sense , 3 P SYCHOL . P UB . P OL 9 Y & L. 428 (1997). Recent research also extends this finding to civil cases. See Jennifer K. Robbennolt & Christina A. Studebaker, News Media Reporting on Civil Litigation and Its Influence on Civil Justice Decision Making , 27 L AW & H UM . B EHAV . 5 (2003). 23. Solomon M. Fulero, Empirical and Legal Perspectives on the Impact of Pretrial Publicity: Effects and Remedies , 26 L AW & H UM . B EHAV . 1 (2002). 24. Margaret Bull Kovera, The Effects of General Pretrial Publicity on Juror Decisions: An Examination of Moderators and Mediating Mechanisms , 26 L AW & H UM . B EHAV . 43 (2002). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1058 were asked to list what evidence they would need to convict a defendant of rape. The results indicated that prior exposure to the media presentation altered the type of evidence that participants indicated they would find plausible as an indicator of a defendant 9s guilt. Specifically, those who saw a pro-defense video were less concerned about having evidence concerning complainant credibility but required more inculpatory evidence to convict. 25 Watching CSI may have a similar effect. The investigators on CSI are the heroes of the show and, as a rule, are deeply skeptical of civilians. Perhaps as a result of the need to manufacture drama on a weekly basis, the show 9s plot twists often involve apparent victims who turn out to be the actual killers, alongside red herrings 4those who confess despite their innocence, usually to save another. The upshot of all this is that the investigators of CSI appear to place next to no faith in the credibility of the ordinary people with whom they talk. Rather than carefully weigh credibility, the investigators often seem to ignore the problem of determining whether or not someone is lying by instead going after creal d evidence, like microfibers. An example of the difficulty of assessing credibility in the high-strung world of CSI appears in the episode Harvest , in which the CSI crew encounters the twisted Perez family. The family 9s twenty-year-old son, Daniel, is dying from leukemia. His youngest sister, Alicia, disappears; the middle sister, April, tells the investigators that little Alicia was abducted. But after Alicia 9s body is found, scientific analysis shows that April must have been lying: Alicia was dead before April claimed to have seen her kidnapped. Suspicion then falls on the Perez parents, who 4hospital records reveal 4genetically engineered their youngest daughter in order to harvest her body for organs, bone marrow, and stem cells that would keep Daniel 9s leukemia at bay. Captain Brass, the gruff leader of the group, grills Carlos Perez, the father, in the CSI investigation room: BRASS: I don 9t get you, man. I mean, even if you could explain it, I would never understand how you could stuff your daughter in the trunk of your car and dump her body in the woods! CARLOS PEREZ: I had to protect my family. BRASS: Wasn 9t Alicia part of your family? You 9re her father, you dumb bastard! You 9re supposed to protect her. What kind of man are you? 25. Id. at 51-55. T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1059 CARLOS PEREZ: Guilty. But although Carlos Perez did dump Alicia 9s body 4we know this because fibers and footprints tie him to the crime scene 4the real killer is Daniel, who ground poison into Alicia 9s milk to put her out of her misery. 26 In a second study conducted by Kovera, participants were again exposed to news stories with differing perspectives about rape. Participants then watched a videotaped simulation of an acquaintance rape trial and completed a questionnaire. As in study one, the goal was to examine whether pretrial publicity altered the standards used by jurors to judge a defendant 9s guilt. The study found that prior publicity affected the salience of judgments about the defendant 9s credibility. 27 Kovera found that the news stories showed to the participants 4whether they were pro-victim or pro-defendant 4increased the predictive power of the defendant 9s credibility on the outcome of the case. 28 As in Kovera 9s first study, prior media exposure shaped the manner in which participants thought about a particular subsequent case. 29 In this study, a more complex pattern of results emerged, showing interaction effects with subjects 9 prior attitudes about rape. 30 Nevertheless, the nature of the prior media exposure changed the way that participants reasoned as they reached their verdict in the case. 31 26. CSI: Crime Scene Investigation: Harvest (CBS television broadcast Oct. 14, 2004) (transcript available at http://twiztv.com/scripts/csi/season5/csi-503.txt). 27. Kovera, supra note 24, at 55-67. 28. Id. at 67. 29. These studies are not direct analogues of real world situations. For example, they typically expose people to media stories shortly before their trial decisions, while in reality there may be considerable time delays. 30. Kovera, supra note 24, at 65-66. 31. In examining the literature on pretrial publicity, the goal has been to determine whether or not media exposure shapes subsequent verdicts. The literature suggests that it does. Fulero summarized: cPretrial publicity has damaging effects on potential jurors; jurors exposed to pretrial publicity render guilty verdicts more often than those not so exposed. This has been found both with simulated jurors, and in real cases. d Solomon M. Fulero, Afterword: The Past, Present, and Future of Applied Pretrial Publicity Research , 26 L AW & H UM . B EHAV . 127, 127 (2002) (citations omitted). Although this effect is widely found, the argument that it occurs because jurors change their standards of guilt is supported by a much smaller body of research. T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1060 These studies suffer from the limitations of the experimental approach and may not reflect the complexity or richness of real trials. 32 Significantly, however, psychologists have recently had the opportunity to observe actual jury deliberations in both criminal and civil cases in various jurisdictions. This has allowed them to examine directly whether jurors discuss forbidden topics 4such as the sort of outside information reflected in the media 4when making their decisions. Their findings suggest that jurors do bring information from outside the trial into their deliberations. 33 As an example, although rules of evidence preclude the introduction of evidence about insurance, one study found that eighty-five percent of juries discussed the issue of insurance and its impact on the outcome. 34 Although such information is not the primary factor shaping juror decisions, it does have a discernable influence. B. Can People Put Aside Their Preconceptions? Preconceptions are only a problem if jurors are unable to set them aside. 35 A second literature examines this capacity. If jurors can clear their minds, then the biasing influences of watching CSI could be counteracted merely by a judge urging jurors to set aside any information they had learned from watching crime shows on television. Psychologists have studied jurors 9 ability to disregard information by evaluating their reactions to inadmissible evidence. When a judge tells a jury, for example, that it should cdisregard the witness 9s last statement, d she is relying upon an ability to compartmentalize information to keep it from influencing judgments. The degree to which jurors are able to do this speaks to the consciousness of decisionmaking. If decisions are influenced by factors that people are not aware of, or if jurors cannot control the influence of different factors on their judgments, then decisionmaking is outside of conscious control. If that is the case, then jurors cannot put aside information simply because they are asked to do so by a judge. 32. Neil Vidmar, for example, has identified four types of prejudice that are important in actual civil and criminal trials. See Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and Civil Litigation , 26 L AW & H UM . B EHAV . 73, 75-82 (2002). 33. See Shari Seidman Diamond & Neil Vidmar, Jury Room Ruminations on Forbidden Topics , 87 V A . L. R EV . 1857, 1866-1904 (2001). 34. Id. at 1876. 35. See Vidmar, supra note 32, at 81, 91-92. T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1061 Studies by psychologists have repeatedly shown that admonitions to disregard inadmissible evidence are ineffective. 36 In one such study, participants were exposed to pretrial publicity that was either damaging to the defendant or irrelevant. The damaging publicity was found to increase the perceived strength of the prosecution case and the likelihood of a guilty verdict. The effect was the same when participants were admonished to ignore the pretrial publicity. 37 A later study obtained similar results. 38 While admonitions to ignore the evidence have not been found to be effective, one study did conclude that if suspicion is cast on the motivation of the source of the information, inadmissible information has less impact. 39 Some studies have found that calling attention to inadmissible evidence actually increases the influence that evidence has on jurors. This effect might occur because jurors resent having their impartiality called into question, or it may be that making a particular type of information the focus of attention heightens its role in decisionmaking. Like the CSI effect itself, this argument suggests that when an issue 4such as the probative value of evidence 4is made salient, the importance of that issue in decisionmaking is increased. It is not clear whether these effects reflect jurors affirmatively disobeying instructions or merely being unable to set aside personal biases. This distinction is important because if jurors are capable of ignoring inadmissible evidence but simply choose not to, then more effective jury instructions could correct these biases. But if the use of outside influences is reflexive and unconscious, then juror training would require new advances in psychological control. In the latter case, the simplest solution would be to attempt to shield potential jurors from exposure to inadmissible information in the first place. Research in this area also shows that the verdicts of jurors who claim to be unbiased during voir dire are still influenced by prior bias. 40 In fact, asking jurors about particular views prior to trial is sometimes found to increase the 36. See Joel D. Lieberman & Jamie Arndt, Understanding the Limits of Limiting Instructions , 6 P SYCHOL . P UB . P OL 9 Y & L. 677, 684-85 (2000). 37. Stanley Sue et al., Biasing Effects of Pretrial Publicity on Judicial Decisions , 2 J. C RIM . J UST . 163 (1974). 38. Geoffrey P. Kramer et al., Pretrial Publicity, Judicial Remedies, and Jury Bias , 14 L AW & H UM . B EHAV . 409 (1990). 39. Steven Fein et al., Can the Jury Disregard that Information? , 23 P ERSONALITY & S OC . P SYCHOL . B ULL . 1215 (1997). 40. See Stanley Sue et al., Authoritarianism, Pretrial Publicity, and Awareness of Bias in Simulated Jurors , 37 P SYCHOL . R EP . 1299 (1975). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1062 influence of related pretrial publicity. 41 Although none of these studies has specifically addressed CSI , this literature calls into question a supposed prosecutorial strategy for overcoming the CSI effect: quizzing jurors about whether they watch CSI and whether it might bias their decisionmaking. Along with the jury, the other relevant decisionmaker in legal settings is the judge. It is equally important, therefore, to ask if judges can put aside inadmissible information. This issue has been addressed recently in a series of scenario studies using judges as the participants. 42 The studies found that judges had difficulty disregarding a variety of types of inadmissible evidence. While cjudges displayed a surprising ability to [ignore inadmissible evidence] in some situations, d including failures to provide defendants with appropriate counsel or to follow appropriate legal procedures, they were influenced by evidence such as the sexual history of a person in a rape trial. 43 The fact that judges can ignore irrelevant information when they desire suggests that when judges do not ignore inadmissible information, the reason is that they choose not to. Or it may be that the information is so salient in certain situations that judges find themselves unable to ignore it. From the perspective of the CSI effect, these research findings on inadmissible evidence reinforce those already outlined in the discussion of pretrial publicity. They suggest that the influence of viewing mass media depictions of the criminal and civil justice systems on later decisionmaking during trials may persist even when the legal system makes efforts to limit that influence, either by questioning potential jurors prior to the trial or by admonishing jurors not to take account of these influences when making decisions. The most salient feature of CSI is that it is a fictional depiction of crime. The mass media literature has argued that people generally have difficulty distinguishing between various aspects of the mass media, often confusing entertainment, news, and commercials. 44 More specifically, people fail to discount fictional dramatizations of crime when making legal judgments. 45 41. See Steblay et al., supra note 19, at 224 tbl.2. 42. Andrew J. Wistrich et al., Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding , 153 U. P A . L. R EV . 1251 (2005). 43. Id. at 1251-52. 44. T HE P SYCHOLOGY OF E NTERTAINMENT M EDIA : B LURRING THE L INES B ETWEEN E NTERTAINMENT AND P ERSUASION (L.J. Shrum ed., 2003). 45. See A ARON D OYLE , A RRESTING I MAGES : C RIME AND P OLICING IN F RONT OF THE T ELEVISION C AMERA (2003). T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1063 This is not unique to mass media presentations, because people generally have a problem correctly recalling the source of a particular piece of information. 46 Still, the implication is clear: Fictional depictions of crime and the criminal justice process can and do spill over to shape public views about the nature of crime and criminals. ii. other possible csi effects The evidence presented thus far is consistent with the claim that watching programs such as CSI affects juror decisionmaking, potentially by altering standards of reasonable doubt. But the existing research does not provide a framework for understanding this effect, or for understanding how the CSI effect interacts with the other potential influences of mass media. This Part suggests that it is equally plausible to hypothesize the opposite of the CSI effect 4that is, that CSI potentially lowers the standards used by jurors, making conviction more likely, rather than less. The argument is that jurors want to resolve the tensions associated with an uncorrected injustice, and that tension is best resolved by a conviction. Thus, jurors are motivated to search for and find arguments that will legitimate their desires to convict. We know that jurors overweigh the probative value of science, putting greater weight on such evidence than its statistical value warrants. CSI 9s presentation of science encourages this mystification and may, therefore, lead juries to accord inflated probative value to the evidence they see in trials. Jurors would then rely on that evidence to justify convictions. In cases not involving scientific evidence, it may be more difficult for jurors to justify their motivation to convict. Justification requires both the desire to justify and the availability of some plausible and legitimate reason for making the desired decision. The credibility of scientific evidence is one such legitimating tool, but it is not the only possible way to justify a decision. As an example, jurors may enhance the perceived credibility of eyewitness testimony as a way of justifying a conviction. 46. Psychologists have identified source confusion as an issue whenever people are making judgments about complex events, with people having difficulty correctly remembering where information was originally experienced. For a discussion of this issue, see Karen J. Mitchell & Marcia K. Johnson, Source Monitoring: Attributing Mental Experiences , in T HE O XFORD H ANDBOOK OF M EMORY 179 (Endel Tulving & Fergus I.M. Craik eds., 2000). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1064 A. Promoting the Need for Closure In modern societies, the responsibility for restoring the moral balance following rule-breaking rests with the state, because the state claims a monopoly on the use of coercion. But the legal system must confront two interrelated objectives: truth and justice. Truth is a prerequisite for justice; without knowing the facts of the case it is impossible to determine whether justice has been done. The search for truth involves both identifying the guilty party and determining what actually happened so that the appropriate level of punishment can occur. When it is uncertain or unknown who has caused harm, people seek the closure that comes from seeing the guilty party identified and punished, but they lack the ability to take actions that satisfy this desire. This frustration is most palpable when perpetrators are never identified, but even lingering doubts about whether justice has been served trigger this sentiment. In reality, truth is seldom certain. As recent high-profile criminal trials make clear, the evidence available at trial can rarely put to rest all doubt as to the guilt or innocence of a defendant. Smoking guns are typically elusive at trials, which are more often characterized by collections of contradictory assertions and fallible evidence. We can never know for certain whether O.J. Simpson, Robert Blake, and Scott Peterson killed their wives, whether Michael Jackson molested children, or whether Martha Stewart and Kenneth Lay deliberately deceived others. This uncertainty about the truth makes it more difficult to achieve justice in a psychologically satisfactory manner. 47 Both decisionmakers and the general public are left with a sense of unease and lack of completeness, as crimes are unsolved and uncertainty remains. 48 In terms of resolving uncertainty, then, guilty and not-guilty verdicts are not equivalent. A guilty verdict identifies someone responsible for a crime and provides a sense of psychological completeness and closure. A not-guilty verdict prevents an injustice to a potentially innocent person but does nothing to resolve the psychological desire to see justice done, either for the victim or the population at large. Finally, irrespective of the verdict they render, jurors often remain uncertain about their decision, leaving any verdict shrouded in a mist of doubt. 47. Neil Vidmar & Dale T. Miller, Socialpsychological Processes Underlying Attitudes Toward Legal Punishment , 14 L AW & S OC 9 Y R EV . 565, 581 (1980). 48. See Robert Hogan & Nicholas P. Emler, Retributive Justice , in T HE J USTICE M OTIVE IN S OCIAL B EHAVIOR 125, 135-36 (Melvin J. Lerner & Sally C. Lerner eds., 1981). T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1065 The popularity of CSI lies in its ability to simplify the messy uncertainties of real-world crime. CSI 9s plots are consistent with the strong psychological need to achieve closure following the commission of a crime. Indeed, CSI occasionally dramatizes the crimes that captivate Americans. In an episode of CSI: Miami , the plot closely traced the real-life story of Natalee Holloway, an American teenager who disappeared on a trip to Aruba. 49 Although the Holloway case has been characterized by public frustration over the inability to find out what happened, the CSI: Miami forensic team was able to crack the case with conclusive evidence by the end of the hour. When the body of the victim was found, a sperm sample led investigators to her attacker. 50 Identifying the assailant and seeing him punished is psychologically reassuring, and a drama that raises tension with crime and relieves that tension with inevitable apprehension and punishment fills important psychological needs for its viewers. Media studies show empirically that the enjoyment of audiences watching a fictional portrayal of a crime is linked to the degree to which they see appropriate moral sanctions being delivered to wrongdoers. 51 This presentation creates and then dispels the tension associated with the threat to the social order and community values that is created by wrongdoing. 52 By seeing the wrongdoer identified and punished, the community is reassured that those who commit wrongs and are deserving of punishment get their just deserts. 53 The best evidence that people have a psychological need to see a completed cycle of punishment following the commission of a crime is provided by recent research on how people feel after viewing crime. One study, for example, stimulated anger among experimental participants by showing video clips of a crime. 54 The video clip was of an act of senseless wrongdoing 4a man beating up a helpless teenager. Those who watched the video clip were then given one of three possible outcomes. They were told either that (1) the man was 49. See, e.g. , Amy Gunderson, Disappearance Still Weighs on Aruba 9s Tourism , N.Y. T IMES , Oct. 23, 2005, § 5, at 14. 50. CSI: Miami: Prey (CBS television broadcast Oct. 3, 2005). 51. See Arthur A. Raney, Punishing Media Criminals and Moral Judgment: The Impact on Enjoyment , 7 M EDIA P SYCHOL . 145 (2005). 52. See D OLF Z ILLMANN & P ETER V ORDERER , M EDIA E NTERTAINMENT : T HE P SYCHOLOGY OF I TS A PPEAL (2000) (discussing the psychological appeal of various types of entertainment). 53. Hogan & Emler, supra note 48; see also T OM R. T YLER ET AL ., S OCIAL J USTICE IN A D IVERSE S OCIETY 103-32 (1997) (discussing the psychological need to see rule-breakers punished). 54. Julie H. Goldberg et al., Rage and Reason: The Psychology of the Intuitive Prosecutor , 29 E UR . J. S OC . P SYCHOL . 781, 784 (1999). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1066 punished; (2) the man escaped punishment; or (3) no information on the man 9s fate was known. The study showed that people who did not have the psychological sense of completion associated with being told the man was punished would still feel anger and would carry that anger forward to a seemingly unrelated task. In this study, the seemingly unrelated task was reading about cases depicting acts of negligence or recklessness and being asked to assess responsibility, blame, and punishment. The analysis indicated that when participants felt anger over the previously viewed injustice, and when they lacked the psychological completeness of knowing that the original harmdoer was punished, they were more punitive after reading the subsequent vignettes and punished the subsequent wrongdoers more harshly. This carryover effect did not occur when participants were told that the initial perpetrator was punished or when his fate was ambiguous. 55 No effect was observed among the participants whose anger was not aroused by the original incident. As we would anticipate, however, that group was quite small. This is consistent with the argument that people are upset when wrongdoing is unaccompanied by punishment of the wrongdoer, and they therefore seek the psychological satisfaction of seeing the offender punished. Psychologists argue that there is a fundamental human motivation to see justice done, referred to as cthe belief in a just world. d 56 Put simply, people need to believe that the world is a just place in which individuals get what they deserve, and so they respond to wrongs by doing everything they can to procure an appropriate remedy. If this hypothesis is correct, it is particularly significant for our understanding of the CSI effect. Just as CSI is popular, at least in part, because it satisfies our longing to see justice prevail in social relations, these instincts may motivate jurors to try to resolve the cases before them by identifying the perpetrator and bringing him to justice. Achieving the finality of conviction is surely the most psychologically satisfying resolution because an acquittal leaves the crime unsolved. 57 While there is a cognitive 55. Because those who receive no information about the fate of the perpetrator also lack completion, it is unclear why they do not show this effect. It seems likely that being directly confronted with an unpunished wrongdoer is the most upsetting condition, as injustice is then highly salient. 56. M ELVIN J. L ERNER , T HE B ELIEF IN A J UST W ORLD (1980). 57. CSI further satisfies the desire of viewers for psychological reassurance by using flashbacks that show them the actual commission of the crime, presented in an altered visual frame. T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1067 motivation to acquit the innocent, the emotional need to achieve justice for the victim is incomplete until someone is identified and punished for the crime. 58 As portrayed by the media, the CSI effect causes jurors to maintain high standards for assessing reasonable doubt. From a psychological perspective, this reasoning is suspect because it runs contrary to the motivation that leads people to watch CSI 4the desire to see enactments of certain truth and justice. Fiction, like CSI , is reassuring because it takes viewers to a place where wrongs are righted and those who break rules are punished. But if viewers respond to this stimulus by raising the bar and acquitting the wrongdoers, then reality fails to match fiction. There is no closure, no feeling that justice has been restored. The desire for retribution following wrongdoing is the oldest form of justice and is central to all societies. In his examination of justice, Neil Vidmar commented: cRetribution and revenge, two highly related concepts, are arguably the oldest, most basic, and most pervasive justice reactions associated with human social life. d 59 Why is the desire to punish so strong? When someone breaks social rules, he undermines the established social and moral order. His actions both cause injury and lower the status of victims, and social mechanisms are needed to reestablish that order. One such mechanism is punishment of the wrongdoer, which both lowers his status and restores that of the victim. Without such punishment, the victim, her family, and others in the community do not feel that the social world has been put right, thereby perpetuating social consequences of the crime. 60 Because of the strong psychological need to punish wrongdoing, the typical problem that societies face is the lowering of standards of truth in the interest of achieving justice. People are often found to suspend the normal factfinding process associated with punishing wrongdoers 4the process of clearly identifying the perpetrator of the harm. Vigilante mobs and kangaroo courts rush to satisfy the desire to punish, ignoring the legal procedures for establishing the actual guilt or innocence of the defendant. When the desire to punish is sufficiently strong, standards of truth are compromised and may even be completely ignored. The strength of this desire is reflected both in the Unlike real investigators, jurors, and judges, viewers actually see the crime occur. They have no uncertainty about what happened or about who is actually guilty. 58. See Carolyn L. Hafer & Laurent Bègue, Experimental Research on Just-World Theory: Problems, Developments, and Future Challenges , 131 P SYCHOL . B ULL . 128, 130 (2005). 59. Neil Vidmar, Retribution and Revenge , in H ANDBOOK OF J USTICE R ESEARCH IN L AW 31 (Joseph Sanders & V. Lee Hamilton eds., 2001). 60. There is a large legal literature on the desire to punish. See id. at 54-56. T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1068 lengths to which people are willing to go to find those they view as responsible for wrongdoing and in the severity of the punishments they often mete out to them. The actions of vigilante mobs point to a fundamental truth about human nature: The desire to punish, and to restore the status of victims and the legitimacy of rules, is frustrated by the uncertainty that often exists about who is responsible for harm. Furthermore, when that frustration is strong, the search for truth suffers. Those emotionally enraged by a crime seek a way to resolve their feelings, and they may do so by lowering their standards of proof out of a need to have a person to hold responsible and punish for a crime. 61 In other words, if people are motivated by watching CSI to hold higher standards of reasonable doubt, this outcome would fly in the face of the typically strong desire to see wrongdoers punished. B. Overbelief in the Probative Value of Evidence Might CSI motivate jurors to exaggerate the probative value of the scientific evidence presented to them? There is widespread evidence indicating that people already overestimate the probative value of scientific evidence. Given the general lack of connection between actual and perceived probative value, it is not difficult to imagine that perceived probative value shifts in response to jurors 9 psychological desires and needs. The effect may be unconscious. Psychologists writing about scientific evidence in trials make the point that the existence of error itself is not necessarily a problem, because factfinders 4 whether the jury or the judge 4can adjust for it when they make decisions. For example, a witness testifies that he recognizes the offender as the person who robbed him at gunpoint. Through skillful cross-examination, the lawyer for the defense may establish that it was dark in the alley and that the witness was drunk, nearsighted, and not wearing his glasses. 62 All of these factors speak to the accuracy of the witness, and it is assumed that the factfinder discounts the 61. For a discussion of retributive justice, see T YLER ET AL ., supra note 53, at 103-32. 62. For examples of problems with eyewitness identification, see B ARRY S CHECK ET AL ., A CTUAL I NNOCENCE : W HEN J USTICE G OES W RONG AND H OW T O M AKE I T R IGHT 53-100 (New Am. Library, rev. ed. 2003) (2000). T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1069 testimony to the extent of its doubted validity. 63 Hence, in theory, the legal system takes account of unreliability. The problem with this method of managing uncertainty in legal settings arises when judges or juries are unable to properly assess the validity of evidence. This failing is widely recognized in studies of eyewitness identification, in which psychologists have established that jurors overestimate the accuracy of eyewitness identification. For example, in one study, John Brigham and Robert Bothwell described crime settings to potential jurors and asked them how likely it was that others could accurately identify a criminal they viewed in a lineup. 64 Over two scenarios, the Brigham and Bothwell subjects predicted that the correct suspects would be identified 63.5% of the time. However, in the original studies in which subjects performed this identification task, the true accuracy rate was a meager 25.4%. 65 This illustrates the general tendency to view evidence as more probative than it actually is; it reveals the occurrence of overbelief. 66 Overbelief facilitates the ability to act on the desire to convict by providing plausible evidence of guilt and thus legitimates a guilty verdict. The conditions under which this general overbelief effect is strong and weak, outlined by Gary Wells and Elizabeth Olson, are also consistent with the argument presented here. Overbelief is most likely to be found when eyewitnesses are more likely to be inaccurate. Similarly, the motivation to distort evidence and create confidence in one 9s verdict would be strongest when jurors are faced with weak evidence such as an eyewitness with low credibility. If the jurors want to convict and have strong evidence, they face no psychological conflict. However, if they want to convict but the evidence is weak, they are motivated to distort the evidence by seeing it as more probative than it actually is. And, it is in fact when evidence is weak that the overbelief effect is found. 63. But see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (limiting the presentation of expert witness testimony to juries when the reliability of the expert 9s testimony cannot be confirmed). 64. John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors To Estimate the Accuracy of Eyewitness Identifications , 7 L AW & H UM . B EHAV . 19 (1983). 65. Id. at 25 fig.1. 66. See also Gary L. Wells, How Adequate Is Human Intuition for Judging Eyewitness Testimony? , in E YEWITNESS T ESTIMONY 256 (Gary L. Wells & Elizabeth F. Loftus eds., 1984). For a discussion of refinements on and limitations of research into eyewitness testimony, see Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony , 54 A NN . R EV . P SYCHOL . 277 (2003). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1070 The fact that people do overestimate the probative value of scientific evidence does not, in and of itself, show that they are motivated to distort the probative value of evidence. However, the finding that people overestimate the accuracy of evidence is consistent with the psychological argument that people 9s reaction to harm and the need to resolve harm are motivated, in part, by their desire to see justice done. In order to fulfill their need for certainty and closure, people need to be comfortable that they have identified the guilty party and that he has been appropriately punished. If people were simply poor at assessing the true state of the world, we would expect many mistaken estimates 4some overestimates and some underestimates. Instead we see a consistent tendency to overestimate accuracy. This is true not only with eyewitness identification. Jurors also overestimate other types of scientific evidence, ranging from the accuracy of lie detector evidence and the crepressed d memories of childhood abuse recalled by adults. This consistent pattern of overestimation suggests that people are not just bad at evaluating evidence but rather are motivated to see evidence as probative. This may reflect either conscious or unconscious mental processes. It follows that when people are more highly motivated to resolve a crime and provide justice for the victim, they will also be more highly motivated to overestimate the probative value of the evidence. The desire to legitimate a desired verdict will vary depending upon the situation. When the motivation to legitimate a verdict is present, however, one way to effectively justify the verdict is to view the evidence as strong. The motivation to believe more strongly in the probative value of the evidence can be combined with the lowering of the threshold for conviction. Studies of the willingness to convict in death penalty cases, which will be discussed later in this Review, provide direct evidence of such a lowering. 67 And, of course, Section I.A described how pretrial publicity can lead to the lowering of standards. Here, the key argument is that jurors can also legitimate their verdict by raising their assessment of the quality of the evidence. How does this connect to CSI ? The general message of CSI is that scientific methods and evidence are legitimate and reliable. In one episode, for example, investigators perform a remarkable creverse algorithm and enhancement d of an audiotaped ransom demand. Using a spectrograph to match the sound waves from the ransom recording to those from a different voice recording, they are able to conclusively identify the kidnapper. By isolating sound on the same tape, they are also able to determine that the victim herself was involved in 67. See infra text accompanying notes 78-79. T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1071 staging her own kidnapping. 68 If our forensic scientists can tell that much from a single tape, what can 9t they do? Thus, whereas media reports argue that CSI standards make real trial evidence look bad, it is also possible that the portrayal of science as the ultimate crime-fighting tool actually encourages the already existing overbelief in the value of the flawed scientific findings that jurors confront in actual trials. 69 People are already motivated to find ways to legitimate or justify their desire to convict. 70 Science provides one way to do so, causing people to see within scientific evidence the level of certainty that makes them comfortable with a guilty verdict. Here, it is the credibility of science that is crucial, because jurors seek a form of justification that is plausible and compelling to bolster their own desire for certainty. Surveys demonstrate that science can be particularly effective in legitimating legal outcomes. Consider the results of the 1998 General Social Survey, a national sample conducted by the National Opinion Research Center. In that survey, nineteen percent of Americans expressed at least ca great deal of confidence d in courts and the legal system; 71 ten percent expressed a great deal of confidence in the people running television; 72 and nine percent expressed a great deal of confidence in the people running the press. 73 In this case, neither 68. CSI: Crime Scene Investigation: Crate 9n Burial (CBS television broadcast Oct. 20, 2000) (transcript available at http://twiztv.com/scripts/csi/season1/csi-103.txt). 69. There has recently been a great deal of attention directed at the problems associated with the type of scientific evidence that has traditionally had the aura of infallibility, including fingerprints and DNA. For an example of a recent study that casts doubt on the reliability of fingerprint comparisons, see Simon A. Cole, More Than Zero: Accounting for Error in Latent Fingerprint Identification , 95 J. C RIM . L. & C RIMINOLOGY 985 (2005). For DNA evidence studies, see N AT 9 L I NST . OF J USTICE , U.S. D EP 9 T OF J USTICE , S CIENCE AND THE L AW : 2001 AND 2002 N ATIONAL C ONFERENCES 28 (2004); and Jonathan J. Koehler, On Conveying the Probative Value of DNA Evidence: Frequencies, Likelihood Ratios, and Error Rates , 67 U. C OLO . L. R EV . 859 (1996). 70 . Psychologists have established that people are more likely to engage in distortions when they have a compelling justification that they can invoke to justify such distortions. For a review of the literature on psychological rationalization, see T YLER ET AL ., supra note 53, at 135-52. 71 . See Nat 9l Opinion Res. Ctr., Codebook Variable: CONCOURT, http://webapp. icpsr.umich.edu/GSS/rnd1998/merged/cdbk/concourt.htm (last visited Dec. 7, 2005). In the 1988-1991 study, twenty-four percent expressed at least a great deal of confidence in the courts and the legal system. Id. 72 . See Nat 9l Opinion Res. Ctr., Codebook Variable: CONTV, http://webapp.icpsr.umich.edu/ GSS/rnd1998/merged/cdbk/contv.htm (last visited Dec. 7, 2005). 73. See Nat 9l Opinion Res. Ctr., Codebook Variable: CONPRESS, http://webapp. icpsr.umich.edu/GSS/rnd1998/merged/cdbk/conpress.htm (last visited Dec. 7, 2005). T YLER 3/2/2006 5:42:16 PM the yale law journal 115:1050 2006 1072 the legal system nor television is an institution in which the public places generally high confidence. However, the same study found that forty percent of Americans expressed a great deal of confidence in the scientific community. 74 The linkage of evidence to science, then, enhances verdict legitimacy. Although people could legitimate their conclusions in any number of ways, viewing scientific evidence as conclusive is an obvious approach. CSI fosters this aura by encouraging a myth of forensic and scientific infallibility. 75 The effort to validate legal decisions by reference to science and the rationality of scientific processes is not new. The use of quantification and scientific methodology to provide support for the decisions of all types of societal authorities reflects the desire to cast the aura of certainty onto arenas in which decisions are often made in highly subjective ways. 76 In a trial, for example, the ctrue d innocence of the defendant is typically unknown, so the legitimacy of the verdict can be established by evidence that compellingly reveals the truth, as when DNA tests are used to exonerate those wrongly accused or convicted of crimes. 77 This need to legitimate the outcome should be stronger when people are highly motivated to resolve a crime and hold a criminal responsible. An example of this process can be found in research on the death penalty. In capital cases, only those who might be willing to vote for the death penalty during the penalty phase of the trial are allowed to sit on a jury for the guilt- determination phase. 78 Studies comparing two groups 4those cdeath qualified d and those excluded by this standard 4indicate that those who are willing to vote for the death penalty have a lower threshold of evidence required to vote 74. See Nat 9l Opinion Res. Ctr., Codebook Variable: CONSCI, http://webapp. icpsr.umich.edu/GSS/rnd1998/merged/cdbk/consci.htm (last visited Dec. 7, 2005). 75. In addition, the investigators on CSI always cget their man, d which may foster an image of prosecutorial infallibility as well. 76. See A LFRED W. C ROSBY , T HE M EASURE OF R EALITY : Q UANTIFICATION AND W ESTERN S OCIETY , 1250-1600 (1997) (reviewing the history of efforts to quantify evidence in Western science and society); Robyn Stryker, Legitimacy Processes as Institutional Politics: Implications for Theology and Research in the Sociology of Organizations , in O RGANIZATIONAL P OLITICS 179 (Samuel B. Bacharach & Edward J. Lawler eds., 2000); Robin Stryker, Rules, Resources, and Legitimacy Processes , 99 A M . J. S OC . 847 (1994); Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation , 57 A NN . R EV . P SYCHOL . (forthcoming Oct. 2006). 77. See S CHECK ET AL ., supra note 62. But see supra note 69 (discussing the limitations of DNA and fingerprint evidence). 78. For a discussion of death qualification as a legal procedure, see Claudia L. Cowan et al., The Effects of Death Qualification on Jurors 9 Predisposition To Convict and on the Quality of Deliberations , 8 L AW & H UM . B EHAV . 53 (1984). T YLER 3/2/2006 5:42:16 PM viewing csi and the threshold of guilt 1073 for conviction at the guilt-determination phase. This is true even though both groups evaluate the probative value of particular evidence in the same way (i.e., they view the same evidence as establishing an equal likelihood that the person on trial actually committed the crime). 79 This suggests that prior attitudes or personality characteristics associated with support for the death penalty motivate jurors to want to resolve a crime and hold a criminal responsible. These jurors do so by having lower standards of what evidence is required to justify a verdict of guilty. C. Creating a One-Sided View of the Law CSI also potentially assists prosecutors by showing only the investigation and leaving the impression that the trial is a mere formality. Just as in its historica

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