Back to the Future Day and the Effect of Pop Culture on Legal Proceedings

Happy Back to the Future Day. After traveling back in time from 1985 to 1955 in Back to the Future, Marty McFly traveled from 1985 to October 21, 2015 in Back to the Future Part II. There have been any number of articles about what BTTF2 got right and wrong about the future and at least one case on the same subject. That case deals with one of my favorite intersections: the intersection between law and pop culture.

In Atkins v. State, 26 A.3d 979 (Md. 2011), Armardo Annier Atkins was convicted of three counts of Second Degree Assault. Before closing arguments, the judge instructed the jury as follows pursuant to a prosecution request and over defense counsel’s objection:

During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not  **983utilize 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 the 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 upon the evidence the defendant’s guilt beyond a reasonable doubt.

After Atkins was convicted, he appealed claiming that the

instruction that the State need not use certain investigative and scientific techniques violated the Sixth and Fourteenth Amendments and the Maryland Declaration of Rights by undermining the defense’s legitimate strategy and bolstering the State’s case?

A majority of the justices of the Court of Appeals of Maryland found that this instruction violated Atkins’s constitutional rights, finding that “[t]he instruction did not adequately protect Atkins’s right to a fair trial because the instruction invaded the province of the jury and constituted commentary on the weight of the evidence, which comment was improper.”

Meanwhile, Justice Harrell began his concurring opinion by talking about Back to the Future Part II and the history of modern “forensic” dramas. According to Justice Harrell,

Fiction long has been noted to influence popular expectations of reality and, although some fiction of relatively recent vintage came to fruition[FN2]—robots, wireless communication, and space travel—much of the current world of television fiction is aimed at altering our perception of the reality of our world today, rather than imagining a possible future world. In this regard, “courtroom” or “legal” dramas have been “hooking” viewers since the days of Perry Mason and Matlock. Television viewers have become accustomed also to getting a “real” look into courtrooms with shows like The People’s Court and Judge Judy.

Modern “forensic” dramas began in 1990, with Law & Order, which purported to document police investigations and courtroom proceedings in modern New York City. Running for twenty seasons, the show inspired several spin-offs, such as Law & Order: SVU and Law & Order: Criminal Intent. The success of “forensic” dramas—whether purporting to be reality or purely fiction—skyrocketed in 2000 with the debut of CSI: Crime Scene Investigation, referred to as “the most popular television show in the world” at one time….The show spawned several further spinoffs, all of which garner millions of viewers per week—in a 2006 Nielsen rating, thirty-million people watched CSI in one night; seventy-million people watched one of the three CSI shows; and forty-million people watched two other forensic dramas, Without a Trace and Cold Case….

The popularity of forensic dramas garnered increased media attention in recent years, with speculation that the shows produced a “CSI effect” that may skew jury verdicts, most frequently in criminal law matters. The theory behind the so-called “CSI effect” is that the millions of viewers of forensic dramas develop unrealistic expectations about the availability and results of specific scientific forensic techniques, such as DNA sequencing, fingerprint analysis, and ballistics analysis, increasing the likelihood of a finding of “reasonable doubt” where such forensic evidence is not produced, and, thus, an increased likelihood for an acquittal or hung jury….The “CSI effect,” however, can refer more generally to any influence that such programs have on any group involved in a courtroom proceeding….Although debate continues regarding whether a “CSI effect” actually exists,3 among researchers  that believe it does, the actual effect on jurors in the courtroom is a subject of great debate.

FN2 See Back to the Future Part II (Universal Pictures 1989) (predicting correctly the use of modern fingerprint access, the ability to project multiple television channels simultaneously on the same screen, the presence of a baseball team in Miami, motion-controlled video games, etc.). In the predecessor film, Back to the Future (Universal Pictures 1985), Marty McFly asks rhetorically: “Who knows if they’ve got cotton underwear in the future. I’m allergic to all synthetics.” Fortunately, the films were not prophetic entirely.

Justice Harrell’s purpose in doing this pop culture analysis was arriving at the following conclusion:

Several studies have posited that jurors may come to court with pre-conceived notions that forensic or scientific evidence, such as that depicted in CSI, is of greater weight than other forms of evidence. It is appropriate generally for a defendant to comment on a lack of forensic evidence or a failure of the police to use certain scientific techniques. When the defense, however, attempts to take advantage impermissibly of the so-called “CSI effect” by implying that the State was required to utilize specific techniques or that any missing forensic evidence would weigh in favor of the defense, the prosecution may be entitled to “anti-CSI effect” or “no duty” curative instructions. Although the defense tactics in the present case did not rise to a level that warranted a curative instruction, if it had, I would hold the instruction given by the trial judge in the present case was not per se improper.

Justice Harrell’s concurring opinion is one of the most interesting judicial opinions I’ve read, and it suggests that he is well attuned to the effect that pop culture can have on judicial proceedings. That’s interesting because the Adnan Syed case will likely reach the Court of Appeals of Maryland, and many of the issues addressed by Justice Harrell are present in spades in that case based on Serial and its aftermath. But Justice Harrell won’t be among the justices who hears the case. He retired this summer.

-CM