Posted on November 8, 2008 by Walter Reaves

Why CSI isn't like real life

People love CSI - if you have any doubt, look how many different CSI shows there are - Las Vegas, Miami and New York. I  admit, I'm one of those people. Everyone who watches CSI knows how quickly they solve crimes, analyzing every piece of available evidence. Most shows include DNA evidence, where they quickly determine who has handled a piece of evidence.

It is possible to get DNA from an item even if there isn't blood. It's called "touch DNA", and tests epithelial cells that are discarded from our skin. As you can imagine, examining and testing every piece of evidence takes a lot of time, and money. While you can do it on TV, real life is different.

Criminal defendants and jurors also watch CSI. I can't tell you how many times I have had clients ask if an item was tested to see if there DNA was on it. Most of the time the answer is no, because DNA tests are generally only done in sexual assaults. Evidence in violent crimes may also be tested - generally it's blood that is left at the scene, or on an item of evidence. However, rarely will there be more than a few items tested.

The advent of touch DNA has caused concern not only over the lack of resources to test all the evidence, but also the lack of storage of space. The Integrity unit created by Texas Court of Criminal Appeals has expressed concern that storage capacity could be overwhelmed, both because of the amount of evidence, but also the longer wait times caused by the additional testing, which means evidence will have to be stored for longer periods of time.

On TV, every item of evidence is analyzed and tested. Crimes are often solved based on the minute or innocuous piece of evidence.. Don't expect the same in real life.

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Posted on August 13, 2008 by Walter Reaves

They don't have any evidence!!

One of the statements defense lawyers hear often is "how can they convict me if they don't have any evidence" Usually its followed by all they have is someone who says I committed the crime.

I have never yet understood where this idea comes from. Some defendants continue to believe that unless there is a video of the crime, there is no evidence; I even had a client one time who did not believe a video of a drug transaction was evidence, because you couldn't clearly see who was on the tape.

The answer to the question of course is that witness testimony is evidence. Whether it be the victim of a robbery, or a sexual assault, their testimony and identification is evidence. In fact, it is what is referred to as direct evidence. You can argue about  whether the identification is accurate, or whether the allegation is false, but you can't argue its not evidence.

It is even harder to explain circumstantial evidence. At least for the last 10 years, there is no difference in Texas between direct and circumstantial evidence. The issue for the jury is whether they believe the defendant is guilty beyond a reasonable doubt. For example, you might have a burglary where property taken from a residence is pawned a few hours after the burglary. One logical conclusion is that only the burglar would have the property that quickly. Of course, there could be other explanations, and it would be up to the jury to decide whether they thought that was sufficient.

In these days of CSI, there is also a belief that you can't get a conviction without physical evidence. Especially in sexual assault cases, many defendants refuse to believe they can be convicted without  physical evidence. The lack of physical evidence can be significant, but not always. If the victim promptly reports the assault, and immediately goes to the hospital, you would expect there to be some evidence. If the assault isn't reported for several days, you wouldn't expect to find any physical evidence. Defendants aren't alone on this. Prosecutors have been complaining for several years  about the "CSI effect" - jurors who refuse to convict without physical evidence.

The bottom line is you have to use at least a little common sense. There's always evidence - the question is whether its enough to convince a jury beyond a reasonable doubt.

 

 

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