I’m not surprised by the Massachusetts SJC’s opinion today permitting the prosecutor in Commonwealth v. Perez, No. SJC-10208 (Sept. 23, 2011) to question prospective jurors about the so-called "CSI-effect". The reality is, jurors’ expectations that the government can and will prove an accused’s guilt to a scientific certainty, the apparent by-product of watching too many not necessarily-based in reality forensic crime shows (what county offices have the budgets those guys have and since when to chemists and criminalists run around with guns, engage in shoot-outs, and effectuate arrests?), have become problematic for the prosecution. Whether this means that jurors are now holding prosecutors to a higher standard of proof than the requisite "beyond a reasonable doubt" is another question, and I suppose it is fair for prosecutors to want to inquire about that since the purpose of juror questioning is to secure as fair and impartial a jury as is possible. Moreover, in so objecting, it’s obvious the defendant’s appellate attorney was hoping to allow any related biases to remain undetected. Nonetheless, the nuances to his objection should not be overlooked (e.g., is the court interjecting the idea of a bias that wouldn’t otherwise have been thought of as bias by prospective jurors and thus deselecting otherwise objective thinkers in so doing and/or is the judge subtly, or not, improperly defining reasonable doubt as something it may not be?).
As a seasoned trial attorney, while I don’t like the SJC’s approval of the actual question asked: whether [jurors] would "expect prosecutors to produce scientific evidence to prove their case beyond a reasonable doubt" because it all but tells them in advance to disregard any doubts based on the quality of the underlying investigation that could indeed be reasonable, I suppose one could argue that the question would be better if phrased along the lines of whether or not a prospective juror "believes scientific evidence is required to prove a defendant’s guilt beyond a reasonable doubt." Still, even if corrected, the prosecution is treading on sacred ground here. Jurors are repeatedly questioned about, and instructed by the Court, as to their willingness to abide by the standard of reasonable doubt – "a term often used, probably pretty well understood, but not easily defined."[1] By allowing just such questions to be asked, isn’t the Court now opening the door to reinterpretation of a standard that has been in place since the beginning of American jurisprudence, and aren’t they now suggesting that not having scientific proof in a case where the government should have, or easily could have it, is not a reasonable doubt when it could be? That’s the danger with Perez. And that’s why I disagree with the SJC’s ruling. The appropriate way to deal with the CSI-effect is to continue to simply ask whether there is any reason a prospective juror is unable to return a verdict of guilty if the government has met its burden of proof; and continue to define that burden when required and requested, with language that has been vetted and approved since 1850. Science may have come a very long way since then, but our fundamental principles of justice have stayed essentially the same. Now is not the time to experiment with them.
If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828