It doesn't take much to get University of Maryland School of Law professor Taunya Banks talking about law and film. In fact, you could probably just say the words "law" and "film" and sit back and enjoy hours of discourse on the subject. But it's hardly surprising that she has a lot to say. Banks has been a lawyer for nearly 40 years, taught law for 30 years, led a class on law in film at Maryland for the last five years, and been a film and TV fan since her family was the first on her block to get a box. Now Banks has put together a conference called "The CSI Effect on Criminal Prosecutions: Truth or Fiction" that looks at how crime and justice TV has affected actual crime and justice. City Paper recently sat down with Banks to discuss the conference and her dual passions of law and pop culture, and off she went winding from topic to topic with hardly a nudge from her interviewer.
City Paper: How did you get interested in the intersection of law and popular culture?
Taunya Banks: Well, I'm a movie junkie and I'm a child of television--I'm in that first generation that grew up with television. [I] decided I wanted to do a seminar about law and film because there's so many good films that talk about the law. I started out with the usual ones--To Kill a Mockingbird, 12 Angry Men--but then I said there are films that don't center around a lawyer or a trial but that have a lot of things to say about law.
My favorite, and one my students hate so I don't use it as much anymore, is John Sayles' Lone Star. It's about the literal, geographical, artificial border between Mexico and the U.S., and it's about border crossing in terms of race--there are several instances of miscegenation. It's about familial border crossings because there's actually incest between half-siblings. It's a wonderful film. We can talk about the rationale for anti-miscegenation statutes, we raise questions about the drawing of borders and the arbitrariness of border drawings, and how local people, indigenous people, disregard those borders because they've been crossing these invisible borders for years. And then finally I end up raising questions about incest and incest statutes and how incest is defined in Maryland. . . .
I've realized how important it is for students to be able to read film . . . literally sort of deconstruct film. Increasingly, lawyers are being required to engage in a form of visual persuasion. I mean, lawyers have always been visual actors, but visual persuasion in the post-O.J. Simpson days includes all kinds of graphs, PowerPoint presentations. Richard Sherwin, who teaches at New York Law School, who was the keynote speaker at my film symposium last year, was talking about the increasing use of videos and video montages for closing arguments. And Mary Libby Payne talked about how much the judges when she was on the [Mississippi Court of Appeals] relied on video confessions. They felt that the video was a truer picture of what actually happened between the police and the defendant than what the police or the defendant said. Now, some of us who knew a little bit more were horrified, because we understood how just the lighting or the way the parties are shot--whether they're shot down, straight forward, up--can influence our perception of that person or what they're saying. And so unless you understand how films are manipulated by directors to invoke certain feelings then you're totally unprepared.
CP: How did this conference come about?
TB: It grew out of a paper that a student did in my law and film class last spring. She said, "‘I want to do this paper on the CSI effect.'" And I said, "What are you talking about?"--I'm a big CSI fan, I watch all the spin-offs. And she said, "‘There's something going on here. Prosecutors are changing the way they prosecute cases because of CSI and the demand the jurors have for forensic evidence.'" And I said, "Well, go and prove this." So she interviewed [Baltimore City State's Attorney] Pat Jessamy. She interviewed some lawyers around town and looked at a couple of studies that had been done, empirical studies, primarily by prosecutors, and came back with this paper. And I said, "This is fabulous; I think we need to do something and talk about the CSI effect here in Maryland."
So we have two panels. The first one really is, is there such a thing? Pat Jessamy actually has . . . [talked] about the fact that the prosecution is losing cases because the jurors were demanding more forensic evidence, or demanding forensic evidence sometimes in cases where forensic evidence was never required before, and this was attributed to CSI. And this has been occurring, or at least these claims are being made by prosecutors, across the country. The prosecutors' office in Arizona, in Florida, did surveys of prosecutors who claimed that they were losing cases because of the CSI effect, and so that's caused prosecutors not only in those places, but also in Baltimore, to change how they prosecute cases--to either use forensic evidence where they think it may be helpful, or to explain to the jury why the evidence is not being used. And some prosecutors have bemoaned the fact that this is now making it harder for them to win cases. But the defense counsels argue that all it's doing is resulting in better-educated jurors who are requiring the prosecution to really carry forth its burden, which is to prove guilt beyond a reasonable doubt.
I think the average American doesn't realize that jurors tend in criminal cases to believe the prosecution more than the defense. On TV . . . the prosecutors are seldom the good guys. Law and Order maybe, but if you think of all of the other shows--The Practice for example, or what's the one with the guy from Star Trek? Boston Legal, [and] Perry Mason, the classic--the prosecutor was always the bad person. But the bottom line is the prosecutors in real life usually do have an edge. If there's a question of doubt, people are more willing to believe the prosecutor than the defense attorney. I think part of that is because this whole notion of the defendant being innocent until proven guilty has really eroded. I mean, most Americans think that if you're arrested, that you must be guilty or else they wouldn't have arrested you. Well, those of us in the business know that's not necessarily the case.
But anyway, the defense lawyers argue that what is really happening is that things are evening out, and so my first panel is going to be a setup between the prosecutor's office and a defense lawyer, with an empiricist to come in and talk about the empirical studies that have been done. All the studies that I've seen that have been done are problematic from a methodological perspective because of who they're surveying. Of course, prosecutors to a certain extent are going to be self-serving. They're going to say it was the CSI effect. In fact, the popular thing I hear now down at the State's Attorney's office is to say, "‘Well, I was CSI-ed.'" It's become a verb now.
CP: How accurately do you think these shows depict criminal prosecution?
TB: Some are better than others, but most prosecutors are pretty boring, most trials are pretty boring, so they spice things up. The rules of evidence are totally out of the window. They do things and say things that would never go on in a real court.
What I find amazing is that lawyer shows and these CSI shows are incredibly popular and have become the substitute for learning about how the legal system works, because most Americans don't serve on juries, and the only time that most Americans come into contact with the legal system is on those few occasions when they may be called for jury duty. So how should they know what's going on? They watch Judge Judy. They watch The Practice or Boston Legal or the Law and Order stuff. And unless lawyers are mindful of how these shows influence not only jurors' expectations, but clients' expectations, because clients expect lawyers to do certain things, sometimes even act unethically because there's a lot of unethical behavior that occurs in these shows . . . I used to come in [to class] when The Practice was on regularly on Monday and say, "All right, I just have to say a couple of things about malpractice," just because I don't want first-year law students to think that they could get away with some of that stuff.
CP: Do you think that some people might be more eager to serve on a jury because of these shows?
TB: If they could pick the trial, yeah. But those people you don't want, you don't want the overeager ones on the jury.
CP: You talked a little bit about this already, but how do you think these shows have affected the expectations of juries?
TB: In two ways. One, I think, certainly in the criminal area, they expect more forensic evidence. And I don't think that that's bad, actually. I think that everybody should be on their toes. But I think there's a downside. I think for example these Judge Judy shows have distorted how judges act. And I think that jurors expect judges to be much more active and much more involved, and they're looking more at judges for clues. They have totally lost sight of the notion that judges are supposed to be impartial.
CP: What do you think are the biggest misconceptions juries have about evidence?
TB: There are a couple of things. It used to be that juries were big believers in the reliability of eyewitness testimony. I think juries now, because of these CSI programs, are more willing to question eyewitness testimony, which studies have shown is very unreliable. But what they've done instead is to look at science for certainty without understanding, and this I think is one of the flaws of the CSI programs, that science is not about certainty. It's about probabilities, and statistically significant probabilities at that. So there's never any real certainty, and so what really happens, and what you seldom if ever see on these shows, is someone attacking the forensic evidence. It's always sort of assumed that this forensic evidence is going to be enough. They're seldom in trial, and if they are in trial, usually if the forensic evidence fails, it fails because there has been an interruption in the chain of custody, not that the machine may malfunction or that the machine basically isn't capable of testing for what they claim it tests for. And a good defense lawyer who either understands forensic science or has a good expert can counter this.
Also, not all forensic evidence is acceptable or admissible. And also jurors tend to forget human error. I mean, the people on CSI seem to be infallible. Their machines always operate perfectly--there's never any sort of question that the machine is malfunctioning. And they seem to be able to use these machines to do everything. And so in that sense the expectations are unrealistic, but I do think that what people are doing currently in Maryland, at least according to what I understand, is help to educate the juries about that. They explain these things to the jury.
And so the long and the short of it is, I'm not as worried actually about CSI as I am about Judge Judy, because you can control the CSI effect by providing jurors with the information which they need in the first place. And it has made jurors more receptive to it.
CP: How do you think these shows affect people who get into working in criminal justice?
TB: I don't know. Actually that's a really interesting question, because there's certainly is some evidence that, at one point, some of the lawyer shows--notably L.A. Law--did influence a lot of people to go to law school. So I think it is possible that some of these shows may influence people to go into law enforcement. There's no question that there has been a dramatic increase in applications to forensic-science programs across the country since CSI. That has been reported.
CP: Do you think that the perception created by these shows that crimes can be solved with the tiniest microscopic speck of evidence deters criminals, or at least makes them more careful?
TB: I think so. There's some anecdotal evidence to this effect. But most criminals are just stupid. If you talk to criminal lawyers or to police officers, they will tell you that.
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