For the fifth time in just 10 years, the Maryland Court of Appeals has overturned a conviction because of a trial judge’s improper use of an “anti-CSI effect” jury instruction. Named for the popular television series, the instruction is “intended to dispel a possible juror expectation, drawn from television shows, that the prosecution ordinarily meets its burden of proof by presenting fingerprint, DNA, or other forensic evidence linking a defendant to a crime.” Taylor v. State (No. 2, Sept. Term 2020) (Apr. 23, 2020). The Court acknowledged that it might sometimes be appropriate to remind a jury that crime dramas do not always mirror the real world, but repeated its concern that the anti-CSI effect instruction can be misinterpreted to excuse the State from proving its case beyond a reasonable doubt. After reviewing its earlier opinions, the Court concluded that the instruction can be given only after a defense attorney suggests strongly to the jury that the State is required to present forensic evidence to sustain its burden of proof, and then only if the instruction refers specifically to the prosecution’s immutable burden to prove its case beyond a reasonable doubt. Id. at 11.
The first Maryland appellate opinion to discuss the anti-CSI effect (or “anti-missing evidence”) instruction was Evans v. State, 174 Md. App. 549, cert. denied, 400 Md. 648 (2007). Although the instruction was not squarely at issue in Evans, the Court of Special Appeals nonetheless “opined that an anti-CSI effect instruction that also reiterated the requirement that the prosecution prove its case beyond a reasonable doubt could be permissible in some circumstances.” Taylor, Slip Op. at 3. The instruction that received the intermediate court’s blessing in Evans, and the Court of Appeals’ tacit approval in opinions that followed, read:
During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven, based on the evidence, the defendants’ guilt beyond a reasonable doubt.
Id., quoting 174 Md. App. at 562 (emphasis added by Court of Appeals).
Because the crucial sentence (“there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case”) is bracketed by a statement that instructs the jury to consider “all of the evidence or lack of evidence,” and a final sentence “reiterating that the State must prove guilt beyond a reasonable doubt,” the Court of Appeals indicated that it was comfortable with the instruction itself, but only if circumstances warrant giving it in the first place. Id.
And therein lies the rub.
The facts of Taylor were relatively straightforward. Devon Taylor was picked out of a photo array by the victim of a knifepoint home invasion. While there was evidence to corroborate the fact of the home invasion (e.g., a broken door lock, dents in the door, and a knife), law enforcement developed no fingerprint, DNA, or other scientific evidence during its investigation. The trial judge instructed the jury that “[t]here is no legal requirement that the State offer scientific evidence as a part of its case, such as DNA, fingerprinting, blood typing, fiber analysis, hair follicle analysis, or anything of that nature.” Id.
In his closing argument, defense counsel acknowledged that the State was not required to present DNA or other scientific evidence and stressed that the only evidence tying Taylor to the crime was the victim’s identification. In rebuttal, the prosecutor also acknowledged the lack of DNA or fingerprint evidence, suggesting that it was unlikely that any could have been found at the scene. Id. Taylor was convicted based solely on the eyewitness identification.
The conviction was affirmed by the Court of Special Appeals on a direct appeal filed eight years later. The intermediate appellate court found that the trial judge erred by giving the anti-CSI effect instruction, but that the error was harmless. Id. at 18. The Court of Appeals agreed with the first determination, but not the second.
At the time of Taylor’s trial, Evans was the only reported Maryland case to have discussed the CSI effect instruction. During closing argument in Evans, counsel for co-defendants accused of selling drugs argued to the jury that the State failed to present any “cross-checks of reliability” to corroborate a police officer’s observations of the drug dealing —“no video of [the] event, no surveillance tapes. . . . no scientific tests . . . no fingerprints. . . . [t]here is nothing,” all of which prompted the judge to give the jury instruction quoted above. 174 Md. App. at 570. The Court of Special Appeals found no fault with giving the instruction in light of these “‘robust and vehement closing arguments’ about the State’s failure to employ audio or video surveillance equipment and the lack of any other investigative or scientific evidence and . . . the trial court’s legally ‘correct’ explanation that there is no requirement that the State present particular types of evidence, ‘as long as the evidence adduced supports a finding of guilt beyond a reasonable doubt.’” Taylor, Slip Op. 3–4 (citations omitted).
The instruction given in Taylor, by contrast, neither followed “robust and vehement” assertions of forensic deficiencies nor reminded the jury of the State’s burden of proof. Taylor’s attorney merely argued that the lack of evidence to corroborate the identification of his client gave rise to reasonable doubt. There was no suggestion that scientific evidence was required to convict. “In short, this was not a case in which the defense ‘overreached’ by putting ‘undue emphasis’ on the lack of forensic evidence.” Id. at 26 (citation omitted).It was, therefore, an abuse of discretion to give the instruction. Id. at 30.
Before reaching this conclusion, the Court reviewed each of its four prior opinions that had addressed the anti-CSI effect instruction and distilled the following principles:
This Court’s prior cases have held that an anti-CSI effect instruction crosses that line when the trial court gives it preemptively before there is any “defense overreaching” that suggests to the jury that the prosecution is required to present forensic evidence to bear its burden of proof. Thus, the Court has viewed such an instruction as most appropriately given as a curative instruction. In addition, because of the perceived danger that the instruction could minimize the prosecution’s burden of proof, any such instruction must also refer to the prosecution’s continuing burden to prove its case beyond a reasonable doubt.
Id. at 11 (footnote omitted).
While this provides some guidance to practitioners, it should be noted that the no Maryland appellate court has never actually found the instruction to have been properly given. Moreover, the Court opened Taylor with the observation that “[t]he Evans decision flashed what might be characterized as a yellow caution light concerning such an instruction. While this Court never quite turned that light red in its subsequent decisions, it has come close to doing so.” Id. at 3. In fact, “the Court’s decisions reflect a skepticism about the existence of a ‘CSI effect’ and that question raises a concern whether the instruction is necessary—i.e., whether it is a solution in search of a problem.” Id. at 10.
It should also be noted that many of the opinions that address the anti-CSI effect instruction lack unanimity. Although the dissenting and concurring opinions do not directly join issue with the majority on the instruction, this fact and the sheer number of opinions on this subject over a relatively brief period of time might indicate some general discomfort with the instruction. The two judges who dissented in Taylor, for example, would not have reached the CSI effect issue on the ground it was not properly preserved for appeal. The preservation issue and the Court’s disagreement with the Court of Special Appeals on the application of the harmless error doctrine also received a great deal of attention in the majority opinion and are worthy of study in their own right.
In any case, the Court has signaled that prosecutors should be wary about asking for the anti-CSI effect instruction, trial judges should be circumspect when deciding whether to give it, and defense counsel should consider tailoring their arguments in such a way as to obviate the need for a curative instruction to begin with. Otherwise, a trip to Rowe Boulevard will surely follow.