In a comment to “smoke and mirrors,” MBennett pointed back to a post he wrote in 2007 about stock arguments that prosecutors always use and never deviate from, including “smoke and mirrors,” “the spaghetti defense,” “explain it to your spouse/neighbor,” “send a message,” and “plea for law enforcement.”
In a criminal trial, when the defense puts on a case or enters any evidence, the prosecutor gets the last closing argument – this is important, because then the last thing that the jury will hear before going back to the jury room to deliberate is the prosecutor. No matter how bad I want to, I can’t get back up and respond to what they have said.
So, when the defense attorney puts in evidence, we have to anticipate the prosecutor’s arguments in our closing. The stock arguments that we hear over and over from prosecutors in Horry County are “smoke and mirrors” and “the CSI effect.”
In our most recent trial in Georgetown, I knew that the CSI effect was going to come up – there was a footwear impression that was photographed on a door, and an essential part of the state’s case was an allegation that my client had kicked in a door. The problem is that everyone was telling me that another person intimately involved in the case had kicked in the door – they had either seen him do it that morning or they would testify that he had admitted it to them.
The police had taken photographs of a clear footwear impression, with rulers held up next to it and everything, but that was it. My client was arrested immediately after this was supposed to have happened, but they did not take his shoes, they did not send the photographs or any shoes to SLED for analysis, and there was no report tying his shoes to the footprint.
When there is forensic evidence – CSI (crime scene investigation) evidence such as DNA, footprints, fingerprints – in a case, the prosecutor goes on and on about the wonders of modern technology, and how amazing it is that forensic science can tell us how a crime happened and who committed it.
But when there is no forensic evidence, the prosecutor will tell the jury about “the CSI effect.” You see this stuff on the television, where they have this amazing technology and they collect all this forensic evidence, and then you expect us to have all of this forensic evidence to prove our case – but it’s not like that in the real world. Out here in the real world, we have to rely on good, old fashioned witness testimony. (apparently prosecutors only prove their case on television, that’s not necessary in the real world out here)
Except, what about when they have forensic evidence that it appears they have done nothing with? Either 1) the police dropped the ball and didn’t follow through with their investigation; or 2) someone looked and saw that the shoes did not match, and they did not want to muddy the waters.
The “CSI effect,” if there is such a thing, is that television shows that depict police and prosecutors actually proving their cases might, from time to time, cause the public to demand that police and prosecutors actually prove their cases as well, out here in the real world.