COUNTERING THE SO-CALLED “CSI EFFECT”
By Susan Jackson Balliet, Appeals Branch
This article suggests strategies for countering
irrelevant, inconclusive, cumulative, and otherwise
doubtful forensics evidence flooding our courts
supposedly to “counter CSI.”1
When viewers of CSI2 and other television shows that
overstate and glorify the power of forensic science serve as
jurors, they may be more critical and less persuaded by
forensic evidence than is commonly presumed.3 In fact there
may be no link at all between CSI and a demand by jurors for
more “scientific” evidence.4 But these days when
prosecutors tell trial courts they need to counter the “CSI
effect,” they are often allowed to present every preliminary,
questionable scrap of forensic evidence they can find –
relevant and probative or not—on the theory that without it,
CSI-tainted jurors won’t convict. By citing the CSI effect,
the Commonwealth is asking the court to take judicial notice
that such an effect exists, and to relax evidentiary standards
because of it. Defenders should demand Daubert5 hearings
to force the Commonwealth to prove the CSI effect exists.
Courts should not be allowed to grant a relevance, or Daubert
override, based on speculation about some popular
television show.
A Daubert, or KRE §§ 401, 403 override is the all-too-frequent
result when the Commonwealth cries “CSI.” For instance,
one Kentucky prosecutor recently spent a good twenty
minutes “countering the CSI effect” with detailed testimony
regarding the mapping, measuring, and detailed
photographing of dozens of red spots outside a crime scene,
all of which –it turned out—were paint. Proving the spots
were paint foreclosed any argument that the spots were the
victim’s blood. But since they were paint, it was irrelevant
under § 401 how big each spot was, how many spots there
were, and what the distance was between each spot. Under
§ 403 this additional forensics evidence wasted the time of
everyone in the courtroom. Except, of course, the prosecution
benefited by puffing and glorifying the thoroughness of its
investigation.
In the same case, the court allowed lengthy testimony and
photos of strings elaborately converging at the head of a
bed to prove “scientifically” that the victim’s head had been
crushed right where all the blood was. Plotting trajectories
of blood might conceivably have been helpful if the exact
point of attack had been in question. But it was not in
question, and the string trajectories had –at most—
cumulative value. Testimony and photos of a myriad strings
cross-webbing the room were impressive.6 And because
they were impressive, they were prejudicial, bolstering the
credibility of the police investigation, making the police look
oh-so-scientific.
Another Kentucky court recently allowed evidence of
unconfirmed sniffer dog “alerts” to prove arson despite the
fact that subsequent lab tests (which would have identified
ignitable liquids –had they been present— at the miniscule
level of 15 – 20 parts per million) were all negative. At the
Daubert hearing, the court stated that due to the “CSI effect,”
the Commonwealth would be “prejudiced” if the dog’s
opinion did not come in, and allowed the unconfirmed dog
evidence because the jury “expected the use of scientific
tools.”
This stuff fails to meet KRE §§ 401, 403, and 702.
Evidence like the tedious measuring and mapping of paint is
objectionable under §401, relevance, or under §403 on the
grounds that extensive evidence regarding mapping and
measuring paint will confuse and mislead the jury into
thinking the paint has significance, and will needlessly delay
the proceedings. The objection to evidence like the string
evidence is under §702, that no matter how scientific the
Commonwealth’s “string theory” might be, the jury needs
no assistance in figuring out where this attack occurred.
Under §403 the string evidence also constitutes “needless
presentation of cumulative evidence.” Unconfirmed dog
evidence is objectionable under §702, Daubert, and Kumho
Tire,7 because by definition it is too unreliable to pass muster.
An objection may not prevail,8 and in Kentucky it will
probably not prevail if the sole complaint is that the evidence
is cumulative.9 But the “CSI effect” has not been proved to
exist, and should not be accepted as the ticket to an automatic
relevance or Daubert override.
Preliminary tests are inadmissible under Daubert and
Kumho Tire.
Inconclusive, preliminary test results —including but not
limited to presumptive blood tests (including luminol and
preliminary breath tests), presumptive drug tests,
unconfirmed sniffer dog alerts, and –nowadays—
microscopic hair analysis—constitute a major category of
dubious, irrelevant forensic evidence prosecutors attempt
to introduce to “counter CSI.” This evidence should not
come in. The Kentucky Supreme Court has recognized that
preliminary, presumptive toxicology test results are properly
excludable because they are by definition unreliable, lack
probative value, and are highly prejudicial:
… the toxicology report did not confirm the presence
of cocaine …and therefore, the evidence of cocaine
was without probative value. …the expert could not
testify that it would have had any effect on [the victim’s]
ability to feel pain. As a result, the trial court found
that the oxycodone evidence was of little probative
value and that its admission would be highly
prejudicial….10
Kentucky courts also routinely exclude results of another
preliminary test, called the Preliminary Breath Test, or PBT.
After the enactment of KRS
189A.104 in 2000, though
mentioning a PBT at trial is
allowed, any testimony
regarding specific results of
a PBT or any breathalyzer
not specified in KRS
189A.104 as proven reliable
is inadmissible.11
Other courts have similarly
concluded that presumptive
tests are too unreliable to be relevant.12 Connecticut has
held that expert testimony based on a presumptive blood
test lacks the scientific reliability required to be admissible,
indeed, lacks all probative value, is irrelevant, and –when
admitted— results in prejudice.13 In addition, the Army Court
of Criminal Appeals has ruled that even though presumptive
luminol blood tests have been tested, peer reviewed, and
generally accepted as an investigative tool, they are
nevertheless per se too unreliable to be admissible under
Daubert. The Army Court reasoned that a luminol test is
reliable only to show “a presumptive positive presence for
blood and not to confirm the presence of blood.”14
Indeed, the problem with all preliminary, presumptive test
results is that they are reliable only for preliminary use, to
eliminate forensic samples with low probability of yielding
probative results, and select more likely samples for further,
definitive testing. Presumptive and preliminary test results
are admissible in pre-trial proceedings, like suppression
hearings, where the rules of evidence –and Daubert— do
not apply.15 But they are not reliable enough to meet Daubert
and should not be admitted at trial, not even to “counter
CSI.”
Microscopic hair analysis and sniffer dog alerts do not come
labeled as “preliminary” tests. They are nonetheless
preliminary in nature, because they are mere preludes to the
real, definitive tests that follow, like DNA testing for hair,
and lab testing to confirm whether a dog is correct. Any test
that is preliminary in nature –i.e., which by definition cannot
reliably pin-point-identify the substance or person it is
designed to identify— should be challenged and excluded
at trial.
Despite Johnson v Commonwealth,16 which held
microscopic hair analysis presumptively reliable and
admissible at trial under Daubert, in the eight years following
Johnson, microscopic hair analysis has proved unreliable.17
Microscopic hair analysis should be excluded from trials,
because –as the forensics community recognizes—
microscopic hair analysis is not reliable, and is purely
preliminary. Hairs collected at a crime scene are preliminarily
examined under a microscope to determine which hairs to
send for the real testing, the DNA testing, which is the only
testing that can reliably pin-point-identify whose hair it is.
Johnson should be challenged and overruled.
Dog alerts also fall into the
category of preliminary test
results, because sniffer
dogs are used to identify
items for the real testing,
not for pin-point-proving
that a suspected substance
is actually present. When
a sniffer dog “alerts,” or
“hits,” the subject item is
collected and then lab
tested. If the lab test proves positive for the substance,
only then should the test results be admitted at trial.
Unconfirmed sniffer dog results are like presumptive blood
tests. While admissible at preliminary, suppression
hearings—as acknowledged by Baldwin— they should be
inadmissible at trial.
As yet, there is no Kentucky case addressing the
admissibility of unconfirmed dog alerts at trial,18 and no case
post-Johnson re-assessing Kentucky’s position regarding
microscopic hair analysis.19 For now, defenders are left to
argue against these, and similar, unaddressed preliminary
tests, under the general principles in KRE §§ 401, 403, 702,
Daubert, Kumho Tire, and the 5th, 6th, and 14th Amendments
to the United States Constitution, as well as §§2, 3, 10 and 11
of the Kentucky Constitution.
Daubert review can be short and sweet.
Discovery should reveal what the Commonwealth might raise
that is subject to Daubert, allowing time for full-blown pretrial
hearings.20 But the Commonwealth rarely gives notice that it
intends to raise the CSI effect. If CSI or any other Daubert
issue arises suddenly mid-trial, defenders should approach
the bench and ask for a full Daubert hearing, or at least an
abbreviated hearing. In an emergency, a Daubert objection
can be preserved in a bench conference, with no experts.
This is true because a KRE §702 Daubert assessment does
not require a formal hearing:
The assessment does not require a trial court to hold a
hearing on the admissibility of the expert’s testimony.
Presumptive and preliminary test results are
admissible in pre-trial proceedings, like
suppression hearings, where the rules of
evidence –and Daubert— do not apply.15 But they
are not reliable enough to meet Daubert and
should not be admitted at trial, not even to
“counter CSI.”
[Although] a trial court should only rule on the
admissibility of expert testimony without first holding
a hearing “when the record [before it] is complete
enough to measure the proffered testimony against
the proper standards of reliability and relevance.”21
Once an objection is raised,22 the trial court has an obligation
as gatekeeper to research the issue legally and factually in
order to have some basis for allowing the evidence.23
If the court is unwilling to stop and conduct a full Daubert
hearing, under Christie and Simpson the court should at
least take a short break to identify and consult all the
appropriate scientific treatises, case law, and other legitimate
sources that counsel will rush out, collect, and provide.
Trial courts can consider almost anything.
In determining Daubert admissibility, under KRE § 104(a)
the trial court “is not bound by the rules of evidence except
those with respect to privileges.” This means that in a
Daubert review, full-blown or otherwise, a trial court can
consider textbooks, learned treatises, scientific articles, law
review articles, or internet materials without worrying
whether they are hearsay, best evidence, sworn, certified, or
whatever.24 Get certified copies or sworn affidavits if
possible. And for internet materials, be sure to identify the
source of the information and provide an accurate uniform
resource locator (URL) website address.25 But keep in mind
that under KRE § 104(a) (which governs Daubert hearings)
these “extras” are not required. In making a Daubert
determination, a trial court can consider just about
anything.26 Make sure to place all matters the court considers
or relies on in the record.
Don’t Blow it.
If you succeed in keeping evidence out under §§ 401, 403,
and Daubert, be careful not to open the door and let it in
through careless cross-examination. Don’t ask the police
officer, “Why did you send this off to the lab to be tested,”
because the answer will be, “The dog hit on it.” Don’t ask
the lab tech, “Why did you wait four days before testing
this item for DNA,” because the answer will be “We had to
wait for confirmation on the microscopic hair analysis.” Don’t
fish for information and end up eliciting the response you
just succeeded in suppressing, or preserving for appeal.
And watch what you give your experts. The prosecutor will
almost surely ask the expert, “What did you review in
preparation for your testimony today?” You don’t want
your expert to answer, “All the preliminary tests given to me
by counsel.”
We should be leading this fight.
In criminal cases, the overwhelming bulk of expert evidence
is offered by the government against our clients. Yet, while
the civil bar has been vigorous in mounting Daubert
challenges, by comparison criminal defense lawyers have
been standing by and failing to raise any objection to
evidence that would be fought tooth and nail in a civil case.27
The true “CSI effect” is an ever-increasing avalanche of
irrelevant, junk science raining on our clients’ heads. The
stakes are higher for our clients. Daubert is our battle. We
need to step up and lead the Daubert fight.
