Under Analysis: Bad news or good news?

By Michelle St. Germain

The Levison Group

U.S. news has been grim over the last few months. First, a tragedy occurred in West Virginia where a mine explosion killed 29 workers. Then, in other unsettling news, a respected Justice told us he was stepping down from the High Court. Just when we had come to grips with that, an oil rig exploded in the Gulf of Mexico, causing an oil spill which continues to advance. Then, after thinking it couldn’t get worse, NBC announced it was pulling “Law & Order.”

My commentary comes with one humongous caveat that continues to shock family and friends and people in general: I’ve never watched a single episode. I know — it’s shocking. It’s been on the air for twenty years and it ostensibly covers the legal profession. I’ll admit it, I’ve watched parts. I’ll admit that I can probably tell you the notes from the theme song even though I can’t play a single instrument. Why is that? Usually, the theme song is my cue to change the channel.

Before I decided to be a lawyer, I didn’t watch the show because I was too captivated by other things, I suppose. After I decided to be a lawyer, I couldn’t watch the show because they were doing it all wrong. If I can tell that the writers are obviously not trying all that hard (e.g., Ally McBeal and Boston Legal), and are more interested in creating comedy, then I forgive the procedural and substantive errors.

Obviously, it did not take many “That would never, ever happen” situations for me to see on “Law & Order” for me to turn against the show indefinitely. It is a real problem that television and movies inaccurately portray the practice of law. Jurors watch these shows and take them to heart — the well-known “CSI effect” is every prosecutor’s nightmare (and sometimes defense counsel’s).

The “CSI effect” is named after the show CSI (Crime Scene Investigation). It is a theory that shows like CSI glamorize forensic science, overstate the accuracy of forensic science techniques, and exaggerate the possibilities of forensic science to link victim to perpetrator. The “CSI effect” theory says that because people watch these shows, they come to expect a real fireworks show at trial. Without it, the prosecutor has no case; with it, the defendant is clearly guilty.

Recently, a news story that demonstrates the “CSI effect,” took the spotlight. A woman accused a man of forcibly raping her. He was convicted, and had served nearly four years in jail before her conscience woke up and she came forward and admitted that she had lied. She had originally proceeded with the false story for harebrained reasons — she had ditched her friends and in order to quell their anger and gain their sympathy, she fabricated the rape story.

She mistakenly believed no harm could possibly come of the case. There was no DNA evidence to corroborate her story, so she didn’t believe the man would be convicted. I told this story to a couple of non-lawyer friends — who thought the same thing she did. None of them believed that “testimony” was evidence.

What I don’t understand is what people think happened before DNA was discovered? How did anyone ever get convicted before the 1980s? Despite the logical problem that presents, the mistaken assumption that DNA is required for a conviction continues.

Unfortunately (or fortunately?), the jury was not under the same false impression as the accuser, and the jury convicted and sentenced the man. Eventually, justice arrived. He is now a free man and she is serving a sentence for perjury.

I know it’s the “CSI effect” and not the “Law and Order effect” — although CSI was an indirect spinoff of Law and Order — but a lot of legal dramas suffer from the same problem — glamorizing the law and smoothing over gaping holes in logic. Am I the only one that wants everyone to know what a grueling, complicated, stressful, difficult job practicing the law can be?

If we made these shows more realistic, a few lawyers could get jobs as scriptwriters, and maybe even actors. I might have a few in mind. Then, the shows could be as realistic as possible, down to the last detail. Except, I remember now that there are lawyers writing for “Law & Order.” Oh well, without glamorizing the law, accurate legal television shows would probably just be boring. The shows would probably get kicked off the air as quickly as you can say, “You’re fired.”

I suppose that is why they have CourtTV, the channel devoted to unadulterated real documentation of courtroom drama. The panacea to the “CSI effect” is not exactly attractive to most of us. “Law & Order” spin-offs are still on the air for a reason — they seem to entertain people.

The news has definitely had a somber tone lately. I am glad that, at least for some of us, NBC has brought a little good news.

Under Analysis is a nationally syndicated column. Michelle St. Germain practices law in St. Louis, Missouri. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com. © 2010 Under Analysis L.L.C.

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