*1 A.3d 69 Ford ROBINSON Emmanuel
v. Mаryland. STATE Term, Sept. No. Maryland. Appeals of Court 27, 2014. Jan. *2 Torres, (Paul Michael T. Assistant Public B. Defender De- Wolfe, Defender, Baltimore, Public MD), brief, on for Petition- er.
Cathleen Brockmeyer, C. Atty. Asst. Gen. (Douglas F. Gansler, Attorney Baltimore, Maryland, MD), General of on brief, for Respondent.
Argued BARBERA, HARRELL, C.J., before BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.
BATTAGLIA, J.
the present
whether,
we are asked to consider
light
State,
(2011)
Atkins v.
During this you’ve testimony heard witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific tests. You may consider these facts in deciding whether the State has met its of proof. burden You should consider all of the evidence or lack of evidence in deciding whether the defen- However, I that there is no you instruct guilty.
dant any specific utilize investi- legal that the State requirement Your its case. test gative technique or scientific jurors is to determine whether as responsibility guilt upon the defendant’s proven has based а reasonable doubt. beyond added) when a defense constituted reversible error
(emphasis statement: opening counsel remarked door, any any piece from any fingerprints be There will not on weath- they’re saying, whatever tape, or paper doors, There no of his. fingerprints on the erstripping, on anything, DNA on not defendant’s] won’t be [the screwdriver, any piece not on any weatherstripping, not on not, just there’s Quite frankly, tape, anything. a reasonable doubt absolutely no evidence there’s *3 these crimes. Mr. Robinson committed that noted, instruction, judge also the contested giving record, was our actually have off the which been may “what instructions, my it’s under- preparing when we were colloquy good defense may arguing, be as standing that the defense do, link of the any wasn’t scientific attorneys that there to the crime.”1 defendant State, certiorari, v. 430 Md. Robinson granted
We (2013), which we following questions, to A.3d 506 considеr have renumbered:2 in providing abuse its discretion
1. Did the trial court tech- investigative a “scientific or jury, objection, over in stated merely instruction where defense counsel niques” evidence demon- physical that the lack opening statement doubt, a proof beyond the absence of reasonable strated jury colloquy regarding proposed Although to a 1. referred counsel, any regarding transcription the inter- instructions with defense action, made, is not included in the record. There if there was one was suggested regarding the inclusion of who no indication in record the contested instruction. question, we need not address disposition of the first 2. Because of our the second. law, where defense counsel never mischaracterized the trial gave where the court the instruction preemptively “may arguing, good because defense counsel be as defense do, that attorneys there wasn’t sciеntific link defendant to the crime”?
2. who a plea guilty Where co-defendant entered testified as defense witness at Petitioner’s trial two weeks later, State, did the trial court err permitting the guise co-defendant, of cross-examination of the effectively read into the record a proffered statement of facts at the co- guilty plea hearing defendant’s but never the co- adopted by defendant? hold
We shall that the trial court jury erred or “scientific investigative techniques”3 instruction this case.4 investigative jury
3. The or techniques” “scientific instruction also duty” jury referred to as "anti-CSI effect” or "no instruction. Stabb 454, 456-57, (2011). v. 31 A.3d "The ‘CSI generally exposure effect’ refers to various assert theories that investigative may ju- courtroom or criminal media fictional influence objective rors' evaluation of an actual trial.” Id. at at 930. duty” The legal term “no refers to the "no there is requirement any specific investigative teсhnique State utilize 456-57, scientific test its case.” Id. at A.3d 923. urges The acquitted error harmless because the degree Robinson burglary attempted degree of second second burglary and conspiracy degree convicted Robinson of to commit first therefore, burglary. argues, presence The State “the or absence of way forensic evidence in no jury’s could have influenced the verdict.” *4 Essentially, State conspiracy the asserts that the conviction did not implicate proof presence of the of forensic evidence and so the “anti- CSI” surplusage. was mere harmless, We have had occasion to review an whether error was invoked, jury when a opined: instruction was and have case, error, appellant, When an in a criminal establishes unless a court, record, reviewing upon independent own its review of the is belief, doubt, beyond able to declare a a reasonable that the error verdict, way in no influenced error the such cannot be deemed reviewing "harmless” reversal mandated. Such court must be there possibility thus satisfied that is no reasonable that the complained erroneously evidence of—whether admitted or exclud- may guilty have contributed to the of rendition verdict. ed— 564 Robinson, Petitioner, case, Emmanuel Ford present
In the six indictment5 with various crimes charged was in a count performing analysis, we not to find facts or In a harmless error are believe, Instead, weigh weight "what evidence to what evidence. it, given that evidence are for the to be and what facts flow from " error jury ... determine.” 'Once it has been determined that committed, required unless the error did not influ- was reversal is verdict; only play did not ence the the error is harmless if it reviewing jury’s The must exclude that role in the verdict. court ” " say ‘To that an did possibility a reasonable doubt.' error is, rather, unimpor- to find that error not contribute to verdict everything tant in else the considered the issue relation " by question, the record.’ The "harmless error rule in as revealed carefully Harmless ... has been and should be circumscribed.” error is the standard of review most favorable to review of automatic reversal. defendant short 368, 383, 900, State, (2009), quoting 965 v. A.2d 908-09 Tucker State, 308, 332-33, (2008), Bellamy 1121 v. Md. 638, 659, Dorsey A.2d quoting in v. Md. turn Tucker, (1976) (ellipses original). we that a cross- determined given in error could not be deemed racial identification instruction testimony because the instruction addressed critical to harmless case, discounting potentially of adverse which was "tainted at bias in the erroneous instruction.” Id. effect cross-racial A.2d at 909. generated by In the instant the instruction had been attorney, erred in the instruction. That defense so trial compounded by was the fact that the error was not harmless only applied, provided physical evidence to which it other testimony, so to the than critical case. charges: indictment contained six The DEGREE BURGLARY COUNTONE: ATTEMPTEDSECOND Maryland, body for the The Grand Jurors of the affirmations, County, present Montgomery upon their oaths ROBINSON, on ROLAND D. SPENCE and FORD EMMA[N]UEL 28, 2011, Maryland, February Montgomery County, did or about attempt to break and enter the storehouse Avalon Grosvenor Street, Apartments, located at 10306 Strathmore Hall North Station Bethesda, theft, Maryland, in violation of the with intent commit peace, dignity against government, and of the Common Law State. BUR- COUNT TWO: CONSPIRACYTO COMMITSECOND DEGREE GLARY Maryland, body for the The Grand Jurors of the State of affirmations, County, present Montgomery upon their oaths ROBINSON, on ROLAND D. SPENCE and FORD EMMA[N]UEL 28, 2011, Maryland, February Montgomery County, did or about degree burglary, conspire violation of the to commit second *5 related to events that in occurred Montgomery County, Mary-
land, February on 2011. He was eventually convicted of conspiracy to commit first degree burglary.6 against peace, government, Common Law dignity and of the State. COUNTTHREE: SECOND DEGREE BURGLARY The Grand Maryland, Jurors of the body State of for the of affirmations, Montgomery County, upon present their oaths and that ROBINSON, ROLAND D. SPENCE and EMMA[N]UEL FORD on 28, 2011, February Montgomery County, about Maryland, did Inigo's break and Crossing Apartments, enter storehouse of Lane, Bethesda, located at 5405 Maryland, Tuckerman North with theft, (a) intent to commit in violation of Section 6-203 of the Crimi- against peace, government, nal Law Article dignity and of State. COUNT FOUR: CONSPIRACY TO COMMIT SECOND DEGREE BURGLARY The Grand Jurors Maryland, of the State of body for the affirmations, Montgomery County, upon present their oaths and that ROBINSON, ROLAND D. SPENCE and EMMA[N]UEL FORD on 28, 2011, February or about Montgomery County, Maryland, did conspire degree to commit burglary, second in violation of the against peace, government, Common Law dignity and of the State. COUNTFIVE: ATTEMPTEDFIRST DEGREE BURGLARY The Grand Jurors of the Maryland, body State of for the affirmations, Montgomery County, upon their present oaths and that ROBINSON, ROLAND D. SPENCE and EMMA[N]UEL FORD on 28, February or about Montgomery County, Maryland, did attempt Eshan, attempt dwelling break and enter the house of Robert Lane, located at Apartment 5405 Tuckerman North
Bethesda, Maryland, with the intent to commit theft in violation of against peace, government, Common Law dignity of the State. COUNT SIX: CONSPIRACYTO COMMITFIRST DEGREE BURGLA- RY The Grand Jurors of the Maryland, body State of for the affirmations, Montgomery County, upon present their oaths and ROBINSON, ROLAND D. SPENCE and EMMA[N]UEL FORD 28, 2011, February or about Montgomery County, Maryland, did conspire degree burglary, to commit first in violation of the Common against peace, government, Law dignity of the State. presented 6. After the its took under advisement Two, Four, acquittal Robinson’s motion for of Counts and Five. The thereafter, judge, granted acquittal respect Robinson's motion for Four, concluding to Count that “in view of the fact that there are two separate charges conspiracy degree to commit a burglary second request the defendant did particulars a bill of which the State theory the case “tried The State’s Robinson *6 building young another man apartment break into one went thе name of Roland across Route 355 Spence [7] and [and] [broke] into unsuccessful. He second [building] then in that apartment ... and he to break into an then tried statement, attorney his building.” During opening Robinson’s his wrongdoing by asserted that there was no evidence of client: to speculation. going a case You’re not
[T]his is about Emmanu- any say they hear witness come and saw door, to pry any attempt el to attempt open Robinson any- enter or into anywhere, break and break enter .... thing
[*] [*] [*] find, you’ll The this is so inconsistent evidence holes, and so without or guessing filling unreliable that do, cannot and His will tell speculating you Honor —which you you likely many will more than more have later — to on questions really than answers as what happened February very 28th. You will have reasonable doubts them, many takes only expect of it one. What we is Mr. evidence this case to show that Robinson is is to guilty any charges, of of the that there no evidencе any show that he or broke into door. pried open here, apply chose answer or didn’t leads me conclude that not to said to conspiracies. the State shouldn't have the benefits of two I do believe charge judge thereby duplicitous it it’s two different times.” The granted judgment acquittal Count defense counsel’s motion Five, that, charge determining simply "it doesn’t offense because attempt attempt” there’s crime called an and could not be no it amended because was a "non-offense.” The denied the motion Six, Ultimately, conspiracy as to Count Two. Count to commit first degree burglary, became Count Four. (Wisconsin Avenue) Maryland Route is main commercial Bethesda, through Maryland. corridor that runs from North to South Montgomery Department Transportation, County See available (last http://www.montgomerycountymd.gOv/dot-tmc/cam.html#routes 25, 2013). visited Nov. There is no evidence that he ever attempted pry open or into no any break door. There will be evidence show him or any that he ever had a screwdriver on kind of tool door, any fingerprints like that. There will not be from any piece paper tape, they’re saying, or whatever doors, any weatherstripping, fingerprints on the no of his. anything, There won’t be his DNA on not on screwdri- ver, any weatherstripping, any piece tape, not on not on not, Quite anything. frankly, just not on there’s there’s no absolutely a reasonable doubt that Mr. Robinson these crimes. committed thing
Another we expect the evidence will show that there will be no witness who will be able to come in and *7 you they tell saw Mr. Robinson into attempt get these, doors; into doing these that he was the one anything. they’ll The best be to say they able believe that was Mr. present. Robinson who was And His Honor will you instruct later about mere at the of a presence scene crime, somebody situation where may committing be a added). officers, (emphasis Testimony of police two called to the by put Spence stand the at the scene of the crime area, Robinson leaving Spence, after which they both by police. were detained Defense counsel cross- examined the surveillance team officers8 by called the State casting whether for tool mark impressions had been accom- plished fingerprint or testing requested, and DNA as well as questioned a Montgomery County Police Department forensic specialist9 as to casting whether for tool mark impressions questioned Robinson's counsel two officers from the surveillance investigating team: an responded officer who to the crime scene and an Spence. investigating officer who arrested Robinson and The officer questioned was apartment whether the door of the had been tested for fingerprints casting or DNA and whether was done on the door for tool impressions. questioned mark The officer who arrested Robinson was Spence compared as to whether the screwdriver recovered from pry marks at the door. specialist “My job 9. The forensic testified as to her role as: is to respond Montgomery County. to all crime scenes I document the negative. in the responded which she performed, had been jury before was offered State testimony No rebuttal entertained, there was although, apparently, instructions were counsel among judge that had occurred discussion instructions. regarding proposed argument, before At of all of the evidence but the close jury: instructed trial, testimony of witnesses and you’ve this heard During did not utilize of counsel that the State may argument hear scientific tests. You investigative technique or specific whether the State has deciding consider these facts may consider all of the burden of You should proof. met its whether the defen- deciding or lack of evidence However, you I instruct that there is no guilty. dant is utilize investi- any specific that the State legal requirement its case. Your test to gative technique scientific as is to determine whether responsibility guilt the defendant’s proven upon has based doubt. beyond reasonable added). to the objected specific Defense counsel
(emphasis of all the following in a bench conference instructions: investiga- non-pattern police as to the instruction as
And I I object being given. tive to that instruction techniques, in the case has warranted don’t believe that the evidence *8 than a given an instruction be and other standard such to of evidence to regard with the absence argument given client, other any I don’t believe there’s my convict in that instruction this case. justification replied: The court well, in which upon opening
All based statement right, or DNA any fingеrprint it that there wasn’t suggested off the may actually and then what have been I photographs. Sometimes we use videos or sketches. scenes with transport identify, package, process, and evidence from the have to scenes.” record, preparing our when we were colloquy which was instructions, may that the defense my understanding it’s be do, any that there wasn’t good attorneys as defense arguing, I think it’s link of the defendant to the crime. So scientific I’ll here and note by proffered arguments generated your objection and overrule it. counsel, fact, in argued: defense closing, in testing that the that’s been done
And we would submit quite frankly, done in this case and this case and what was in carelessness the investi- just examples some of the were with the gation just investigators how loose the to in they jumped facts in this case and the conclusions that has not suggest you proven this case would that the State beyond its case a reasonable doubt here. has no evidence in this case that presented
There been door, in a that he ever pried open Mr. Robinson or broke door, in attempted pry any or break into that he ever had him, any fingerprints screwdriver or tool on that his are on door, screwdriver, tape, weatherstripping anything, just that his DNA was on of those items. There’s absolutely no evidence this case a reasonable doubt that Emmanuel Robinson committed these crimes. only After the found guilty conspiracy Robinson commit first degree burglary, judge imposed sentence incarceration, ten years’ years suspended, all but four by years’ probation. followed two timely appeal Special
Robinson noted a the Court Appeals,10 unreported which affirmed the conviction an opinion, determining: presented following questions to the
10. Robinson three Court Special Appeals for review: by offering, objectiоn, "investiga- 1. Did the trial court err over techniques” jury tive or scientific instruction? admitting proffered err in facts the State at 2. Did the trial court plea hearing implicated [appellant] defense recent [a witness]’s burglaries allowing question [the witness] the State to about those facts? *9 was entitled to—and point [defense counsel] out what did— were procedures investigators, beyond available he went an that and attributed incorrect burden to the which ... required by correction the court while the instruc- [and] conjunction tion was not with an given explanation of the doubt, State’s burden to a reasonable guilt correctly stated that proof beyond a reasonable not require specific investigative technique doubt does scientific evidence. then,
We, granted certiorari. fully this we take the to more opportunity elucidate the Atkins and Stabb standards that an “anti-CSI instruction, administration, effect” only limited to curativе legal shall be entertained without and empirical proof a “CSI effect” exists and is only triggered when a material misstatement the law occurs. We determine that the trial court erred the instant case instruc contested tion.
It important place the case sub in the judice context of development theory of the of the effect”11 “CSI and its treatment by Special us and the Court of since 2002. Appeals 2002,12 The term effect” arose in in response “CSI to the by giving missing 3. Did the trial court abuse its discretion witness instruction, objection? over defense (alterations original). 11. The "CSI effect” refers to a theorized link between television crime expectation by jurors scene dramas for forensic or scientific DNA, Judge such as in most criminal cases. Donald E. Shelton, Expectations Juror Evidence in Criminal Cases: for Scientific Perceptions Reality Myth, Cooley About the “CSI 27 T.M. Effect” (2010) ("As proliferated, prosecutors L.Rev. these shows com- plained that all of the television fiction about forensic-science evidence jurors expect government juries made too much of the and that were wrongfully acquitting prosecution present defendants when the did not CSI; they picked up the kind of evidence that saw on the news media factual, complaints, accepted quickly on these them as labeled it ”). the 'CSI Effect.’ Crimes, Time, 21, 2002; Jeffrey Kluger, How Science Solves Oct. Franzen, Easy, Robin “CSI” TV’s Crime Drama Makes It Look Too The 10, 2002, Oregonian, Dec. available at 2002 WLNR 13048250. *10 of forensic crime television shows and popularity increased juror complaints heightening expecta that these shows were evidence, DNA, tions that forensic like would be admitted Wise, Jenny Treat Providing criminal trials. See CSI Effect, ment: Justice Practitioners and the CSI 21 Criminal 383, (2010); Crim. 383-84 A. Current Issues Just. Simon Cole Dioso-Villa, & Investigating Rachel the ‘CSI Effect’ Effect: Law, Media 61 Litigation and Crisis in Criminal Stan. (2009). 1335, A survey13 prosecu L.Rev. 1338-39 2005 of 102 Arizona, in Maricopa County, tors that an overwhelming found majority jurors felt that “expected presented to be Thomas, scientific evidence.” Andrew P. The CSI Effect: Fiction, (2006), Fact or 115 L.J. http:// Yale Pocket Part 71 In a www.yalelawjournal.org/images/pdfs/32.pdf. survey,14 1,027 questioned were prospective regarding their tele watching habits, vision pre-trial expectations of types evi dence to provided, be and likelihood that types different determination; evidence would affect their reasonable doubt “[wjhile the author study signifi concluded that did find cant expectations and demands for scientific there was no little or indication of a link between those inclinations and particular watching television shows.” Donald Judge E. al., Shelton et A Juror Study Expectations and Demands Office, 13. Maricopa County Attorney's Maricopa County: CSI: The CSI Justice, Impact Study by and its Maricopa on A Effect Real-Life County Attorney's Office at http://www.ce9.uscourts.gov/ic2008/ (2005) references/csi/CSI_Effect_report.pdf (noting thirty-eight per- prosecutors surveyed cent of they "believed had at least one trial which acquittal hung resulted in either jury because forensic evidence available”). was not Shelton, survey by Judge The was Judge conducted Donald E. Chief Twenty-Second Michigan for faculty Circuit Court of and member Kim, Michigan University, Young Eastern S. Assistant Professor of Barak, Criminology Michigan University, Gregg at Eastern and Profes- Criminology sor of Michigan University. & Criminal Justice at Eastern 1,027 questionnaire The jurors "prior any jurors was administered to being dispatched type courtrooms for [and selection of case group presiding the] advised that the information on surveys purposes was for only academic research it bearing they would have no on jury duty whether were selected for Shelton, supra, case.” at 343. Exist?, Evidence: Does the “CSI Concerning Effect” Scientific (2006). year That same 9 Vаnd. Ent. & Tech. L. J. that, journal Fordham concluded based on report, law survey jury graduate undergraduate stu eligible of 306 dents, their television responded questions regarding who scenario, and a criminal so-called viewing habits mock law not “CSI effect” did affect verdicts.15 Kimberlianne Podlas, Myth, the Media Effect": Exposing “The CSI (2006). A & Ent. Prop. Fordham Intell. Media L.J. survey University forty-eight at Arizona State conducted students, university “CSI- jury eligible suggested viewing type” might jurors’ expectations have affected programs verdicts, likely forensic but did affect based *11 in a responses presented to forensic evidence students’ & transcript of a criminal trial.16 N.J. Schweitzer simulated Saks, Popular The Fiction About Michael J. CSI Effect: Public’s About Real Expectations Forensic Science Affects Science, (2007). thus, Results, 47 Jurimetrics 357 Forensic to the of a “CSI and remained inconclusive as existence effect” that while seem to have increased largely suggested of it had expectations regarding admission forensic that of expectations not been shown these were the result viewing watching type pro CSI type programs CSI to juror’s a likelihood or convict. grams acquit affected 2007, to Special upon In the Court of was called Appeals an “anti-CSI effect” instruction was address whether participants as survey 15. The identified "CSI viewers” or "non-CSI scenario, asking provided participants with scene and a crime viewers” “guilty” guilty” eight possible from them elect or "not and chose their verdict determination. Four of the factors that contributed to factors, eight marked” to see was a factors were deemed "CSI if there viewing factors. and reliance on "CSI marked” correlation between CSI dlas, supra, Po at 455-60. survey Department 16. The was conducted Ph.D. candidate Schweitzer, University, Mi- Psychology, N.J. at Arizona State and of Saks, Psychology Faculty and at chael a Professor of Law Fellow J. Law, Science, Study Technology, Day Sandra Center for Law, University, College publication O’Connor Arizona Day College journal, O’Connor Law Jurimetrics: The Sandra Science, Law, Technology. Journal
573
Evans v.
549,
620,
cert.
Md.App.
error
174
denied,
648,
(2007).17
A.2d
Evans was
charged
possession
and distribution of heroin as a result
an
Id.
“buy-bust.”
at
undercover
Evans,
563,
(alterations
Md.App.
at
original).
in Special the Court instruction was an abuse giving court that determined discretion, argu- vehement” of the “robust and of because without guilt proven could not be ments of counsel Id. 570-71, at evidence. investigative scientific or 632-33. Evans issued, argument we heard oral years
Four after 2011, v. April A.3d Atkins months, which, given the instruction was after within four trial than month after the instant case. Less one present Atkins, concluded, setting forth our opinion we issued our effect” evaluating an “anti-CSI standard aby Atkins had been convicted instruction. theory assault. The State’s degree of three counts second in a had that Atkins attacked three others of the case been altercation, reached into his during which Atkins physical witness, the victim suffered according to a after which pocket, argued at trial injury a from a stab wound. The State serious from a by police 12-inch knife recovered search commission of the weapon home was the used Atkins’s pocket used a smaller folding Atkins had claimed he crime. attack, knife, larger rather than the during in self-defense knife introduced the State. trial, counsel cross-examined the officers
During Atkins’s 12- had done on the regarding testing whether forensic been 19. The instructed: trial, may During you testimony this have heard of witnesses specific argument counsel the State did not utilize hear may investigative technique or test. these scientific You consider proof. met You deciding whether State has its burden facts in deciding all of the evidence or lack of evidence in should consider However, guilty. you I that there is no whether a defendant instruct any specific investigative tech- legal requirement that the State utilize responsibility nique test to its case. Your as or scientific proven, based on the is to determine whether State has guilt a reasonable doubt. the defendants’ *13 added). (emphasis
Id.
We
certiorari
determine: “Whether an instruc-
tion that
State need
use certain
investigative
techniques
scientific
violated the Sixth and Fourteenth
Maryland
Amendments and the
Declaration
Rights
undermining
legitimate
strategy
bolstering
defense’s
Atkins,
case?”
State’s
Md. at
Atkins, 441-42, added). Md. (emphasis A.3d at 982-83 *14 regarding officer only briefly police cross-examined the and testing. lack of issued, Stabb “provide opinion three months our
Within
with
guidance to
and Bar when confronted
Bench
additiоnal
(or
similar)
State)
of
type
from
for this
a
(usually
the
requests
”
avert
‘CSI effect.’
seeking
purported
instruction
the
jury
charged
had
at
At the of the same end Evans, Atkins, and in instant based upon given in anticipation closing argu- and of cross-examination Stabb’s ment, of after was convicted. After Court which Stabb affirmed, granted we certiorari to consider: Appeals Special err in that there is no instructing “Did the trial court investiga- that the State utilize legal requirement specific Id. at test to its technique or scientific case?” tive at 927. 31 A.3d Atkins, Stabb giving we that the
Based
concluded
“anti-CSI
was error and that
exis-
effect” instruction
empirically
legally
had not
tence of
“CSI effect”
been
rather,
noted,
performed
that “CSI” studies
established. We
jurors reported
inconsistent
potential
on mock
Further,
inconclusive.21
we determined
results
were
consistency among
primary
researchers’ conclusions was the
21. The
Stabb,
468-69,
423 Md. at
opinion
research was needed. See
that more
at.,
Orthia,
citing Lindy
People
at
A.
et
How Do
Think
They
Undergraduates
in Fiction?
investí-
About the Science
Encounter
error,
giving of the instruction
Stabb was
because Stabb
“argued
had
and without
lack
properly
emphasis
undue
physical
corroborating
permissibly
the crime” and
physical
alluded
the absence of corroborating
evidence but
did not
imply
“missing
favor the
evidence” would
defense,
471-72,
932;
thus,
id.
31 A.3d at
giving the
instruction had
improperly relieved the State
its burden and
jury.
invaded the
of the
province
We concluded that due to
legal
the lack of
empirical evidence
effect”
“CSI
existed,
and because the
“fraught
*15
potential
error,”
the
for
if
reversible
such an instruction
and is
requested,
its use should
appropriate,
be confined to
curative situations.
Id. at
933.
A.3d at
Essentially, Atkins and Stabb
light
counsel that in
of
“the currently inconclusive state of
scholarly
the
legal and/or
research,
whole,
scientific communities’
a
taken as
regarding
phenomenon
exists,”
whether such a
as the
effect’
‘CSI
the
instruction
given
should not be
preemptively and should be
“confined to situations where it
to
responds
of
correction
a
pre-existing
by
defense, i.e.,
overreaching
the
in
curative
Stabb,
struction.”
472-73,
In suggested we the appropriateness of the “anti-CSI effect” only “where it can be by demonstrated appropriate scholarly research that a ‘CSI effect’ has been found to by exist legal relevant scientific communi- and/or scope ties and its and effect can upon be relied to tailor an Educ., B., gate responses J. Of Simpsons, to science in The Int’l Sci. Part Abstract, http://www.tandfonline.com/doi/abs/10.1080/ available at 21548455.2011.610134; Mancini, E. Dante The CSI reconsidered: effect (Mar. by is it Psychol. Am. J. cognition?, moderated N. need for 2011); Ferris, Examining Amber L. Impact the “CSI The Effect": of (Aug. Viewership Perceptions Crime Drama on Forensics and Science of 2011) dissertation, (unpublished Ph.D. University.) Kent State jury through questions voir dire response appropriate and/or at 933. In the last two 423 Md. at instructions.” Stabb, empirical legal our years opinion since we issued An wanting.22 of a “CSI effect” is still proof of the existence in Insights the American Bar Association published by article Society Law & Fall of 2011 an Associate University at of North Studies Car- Professor Media myth effect” as “more olina at described “CSI Greensboro “[sjcholars law and other fields reality” from than because any empirical support antipro- to have been unable find Podías, The ‘CSI on verdicts.” Kimberlianne secution effect’ on Television: How Does Television Our Verdict Inform Legal System?, on L. & Understanding of Insights (2011).23 University 16, 19 article Soc’y Law & Law Journal Sports School Entertainment Virginia Kinsey, a Professor and Public Interest Fellow by Caroline Law, how University Michigan College suggesting might adjust prosecutors attorneys practices their opinions reports shortly published Two before our issued Atkins Stabb, opinion, either additional sur- not referenced in described published Cooley M. Law Review in veys: 2010, concluded, report one in the Thomas 2,246 questionnaire given jurors prior based on a selection, gave eye-witness testimony, weight most cases, *16 exception rape likely acquit were no more Shelton, Judge evidence. E. Juror defendants without scientific Donald Perceptions and. Expectations Evidence Criminal Cases: Scientific (2010). Reality Myth, Cooley “CSI 27 T.M. L.Rev. About the Effect” published by professors report, California State Another 2010 from 1,201 survey Angeles, telephone University, on a California Los based registered regarding viewing voters their television habits and evidence, reliability they place types of weight of would on different presuming might predisposi- even CSI viewers have a determined that acquit large convict on scientific due tion to or based verdict, juror’s age, can affect a such as number of variables that witness, race, possible attorney it gender, dislike of an or was not or watching of cases. Debo- determine whether CSI affected outcome Sommers, Crime-Show-Viewing R. and Ira B. Habits rah Baskin Revisited, Evidence: The Public Attitudes Toward Forensic “CSI Effect" (2010). Sys. 31 Just. J. 97 Alou, Godsey & She Blinded Me With See also Mark A. Marie CSI-Effect,” 17 Tex. Wrongful Convictions and the “Reverse Science: (2011) "prosecutorial Wesleyan (noting that claims of L.Rev. verified”). empirically not been the CSI Effect have heightened expectations by jurors, accommodate noted that validity of the “CSI effect” had not been established. Caroline L. Kinsey, CSI: From the Television to the Court- room, (2012). Sports Va. & Ent. L.J. In a 2013 monograph culture, on forensic popular science American Lindsay Steenberg, Professor of Film Studies at Oxford Brookes University, stаted that there remains no definitive proof viewing type CSI directly television shows affects a juror’s convict, acquit likelihood to panic and “the about one specific television show stems from a small number of sources and experts, rather than wide-ranging research or investiga- tion.” Lindsay Steenberg, Forensic Science in Contemporary Gender, American Popular Crime, Culture: and Science 104 2013). (Routledge Taylor & Group Francis The academic and scientific community has yet to conclude that a “CSI effect” and, thus, exists supports our skeptical view that the “CSI effect” exists.24
In the face of our avowed skepticism regarding the appro- priate use of an instruction, “anti-CSI effect” argues that the instruction in present case was an appropriate exercise of the trial judge’s discretion, because of Robinson’s statement, counsel’s remarks in opening as well as the off the reсord instruction colloquy, and his cross-examination of wit- nesses. We iterate that the “anti-CSI effect” instruction should not be given preemptively, as suggested in the instant case when he possible addressed closing argument by defense counsel.
While it is true that Robinson’s opened by counsel saying, in “[tjhere part, will not be fingerprints from any door ... [tjhere won’t be his DNA on anything, not on any screwdriver, not on any weatherstripping, not on piece tape, not on anything. Quite frankly, just not, there’s absolutely there’s no a reasonable doubt that Mr. Robinson com- *17 approach 24. Our to the "CSI effect” is consistent with the Massachu- Supreme 330, setts Court in Gray, Commonwealth v. 465 Mass. 990 (2013) Perez, 683, N.E.2d 528 and Commonwealth v. 460 Mass. (2011). N.E.2d 1 crimes,” to the lack of evidence a mere reference mitted these instruction. We an “anti-CSI effect” giving not trigger does made reflected, reference has been example, when have that, fingerprint to the lack of counsel defense well-known, readily failed to utilize has “when State to link the defendant available, proof method superior to be able to ought defendant activity, the with the criminal State, v. Sample evidence.” absence of such comment on the (1988) State, Eley v. 202, 207, citing 550 A.2d 314 Md. (1980); Patterson v. 548, 553, see 419 A.2d 288 Md. (1999) (“The law 677, 683, State, is well- of evidence concerning nonproduction Maryland State.”). may against be made An inference established: in a criminal is a common defense lack of evidence Certainly, case. just as in the instant reasonable doubt generate case and cross-examina- statement opening counsel’s Robinson’s might have been procedures out what merely pointed tion the law or the did not misstate to the but available offi- cross-examined the counsel burden. Robinson’s State’s compare ordered to testing had been cers whether regarding the door to the pry marks on recovered the screwdrivers had bеen or DNA tests fingerprint and whether apartment had obli- ordered, insinuate that the State did not but per- or that had tests been testing such perform gation his have favored formed, testing of such would the results client. erred in result, hold that the trial
As a we effectively which relieved effect” instruction “anti-CSI reason- beyond a guilty Robinson of its burden able doubt. APPEALS THE OF SPECIAL OF COURT
JUDGMENT THAT COURT REVERSED; REMANDED TO CASE THE REVERSE JUDGMENT DIRECTIONS TO WITH THE THE TO REMAND CASE AND OF CONVICTION A FOR COUNTY FOR MONTGOMERY CIRCUIT COURT AND THE IN THIS COURT TRIAL. COSTS NEW
581 COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY.
MCDONALD, WATTS, JJ., dissent. WATTS, J., McDONALD, dissenting, J., which joins. Respectfully, I dissent.
I would hold that the Circuit Court for Montgomery County (“the court”) circuit did not abuse its discretion in giving the jury anti-CSI effect instruction. During the opening state- ment of (“Robinson”), Petitioner, Emmanuel Ford Robinson Robinson’s counsel stated: any
There fingerprints will not be door, from any any piece paper or or tape, whatever they’re saying, doors, weatherstripping, on the no fingerprints of his. There won’t be his DNA on anything, not on any screwdri- ver, not on weatherstripping, not on any piece of tape, not on anything. Quite just not, frankly, there’s there’s absolutely beyond no evidencе a reasonable doubt that [ ] Robinson committed these crimes. added).
(Emphasis stating, so Robinson’s counsel essen- tially that, represented (ie., without scientific evidence finger- prints DNA), “absolutely there was no beyond a added). (Emphasis reasonable words, doubt[.]” In other (1) Robinson’s counsel: equated a lack of scientific evidence with a proof (2) lack of beyond doubt; a reasonable implied that the required State was to offer scientific evidence to satisfy the State’s burden of proof beyond a reasonable Thus, doubt. Robinson’s counsel misstated the State’s burden result, of proof. As a the circuit court accurately and properly jury instructed the legal “there is no requirement that the State utilize any specific investigative technique scientific 1 prove test its A case.” trial court does not abuse its Any challenged conclusion that the “effectively instruction in this case relieved the State of guilty its burdеn to Robinson doubt[,]” 580, Majority reasonable Op. at 84 A.3d at is contradicted itself, by the text of the instruction which concluded with the statement effect after a an anti-CSI instruction
discretion Atkins generally misstates the State’s burden. See defendant (“[Counsel (2011) State, 434, 451, v. the law or the State’s burden.... incorrectly ... did state ... a need generating There was insufficient basis cautionary jury clarifying curative or State’s techniques.”); in regards specific investigative burden (2011) (This 454, 473, Stabb v. Md. A.3d *19 “ought effect instruction to jury Court stated an anti-CSI responds where it to correction of a be confined situations defense, i.e., the a curative overreaching by in pre-existing struction.”). this entirely holdings
It is Court’s Atkins consistent here, that, circuit court did not and Stabb conclude jury discretion in instruc- giving abuse its anti-CSI effect Stabb, In this expressly tion. both Atkins and Court declined automatically a its discretion in to hold that trial court abuses Atkins, 421 jury an anti-CSI effect instruction. See (“[W]e 438, 26 not hold that an Md. at A.3d at do techniques or would be im- investigative scientific instruction circumstances!)]”); Stabb, 423 Md. under different at proper (“ 457, duty’ at 31 A.3d effect’ ‘no instruc- ‘[A]nti-CSI fact, in per are not In improper necessarily!)]”). tions se both Stabb, holding Atkins this Court confined its Atkins, 437-38, facts of 421 Md. at particular each case. See (“This at ... is particular 26 A.3d conclusion based on the Stabb, case[.]”); 463, at facts this (“[U]nder case, abused facts of this trial court its discretion!)]”). above, the standard that As discussed this Stabb, ultimately id. at 31 A.3d at Court enunciated jury an effect is 933—that anti-CSI instruction warranted a responds pre-existing it to correction of overreaching “where defense, i.e., here, a curative applies instruction” — implied required counsel where Robinson’s State “[y]our responsibility as determine whether guilt beyond proven upon based has defendant's doubt.” reasonable to offer satisfy scientific evidence to the State’s burden of proof beyond a reasonable doubt.
Both Atkins and
factually distinguishаble
Stabb are
from
Atkins,
440-41,
this case.
In
I am unpersuaded by any reliance on skepticism that the
effect
CSI
exists as a basis for determining that the circuit
court abused its discretion in this case. Theoretically, the CSI
*20
jurors
effect
“unreаlistic[ally]
causes
expect!
scientific
]”
evidence,
jurors
and thus misleads
to believe that the State is
required to offer scientific
satisfy
evidence to
the State’s
Stabb,
burden of proof beyond a reasonable doubt.
Judge McDONALD opinion. in this A.3d 83 STURDIVANT, et al.
Adeline
v. HEALTH DEPARTMENT OF MARYLAND AND MENTAL HYGIENE. Sept. Term,
No. 2012. Appeals Maryland. Court
Jan.